Purchase Order Terms & Conditions
SECTION 1: LIMIT AND ACCEPTANCE
Acceptance of this Purchase Order/Agreement and its provisions and/or any act of performance is limited to the terms and conditions contained herein, and any supplements hereto, which are incorporated by reference.
SECTION 2: INDEMNITY
As a condition of this Purchase Order/Agreement and fulfilling any part of it, Contractor agrees to indemnify and hold harmless Duke, including its trustees, officers, directors, employees and agents, from any claim, damage, liability, injury, expense, including reasonable attorney’s fees or loss arising directly or indirectly out of the Contractor’s performance or nonperformance (including performance or nonperformance of any subcontractors) under this Purchase Order/Agreement. Contractor agrees to indemnify and hold harmless Duke against all liability to third parties (other than liability solely the fault of Duke) arising directly or indirectly from or in connection with any defect in the goods and/or actual or claimed violation of the third party's trade secrets, trademark, copyright or patent rights in connection with the sale and/or use of the goods provided or used by the contractor. This indemnity obligation will survive the expiration or termination of this Purchase Order/Agreement by either party.
SECTION 3: CHANGE
Duke reserves the right to change, modify and/or cancel this Purchase Order/Agreement upon issuance of a change notice. If Duke is not notified to the contrary in writing within 10 days after the issuance of the change order, the changed and/or modification and/or cancellation is considered accepted by the Contractor.
SECTION 4: WARRANTY OF GOODS AND MATERIALS
Contractor expressly warrants that all goods, provided or used by the Contractor, will: conform to the drawings, specifications, samples or other descriptions furnished by Duke or by the Contractor; meet requirements detailed in the scope of work; be of good materials and workmanship and free from defect. This express warranty shall not be waived by reason of acceptance of the goods or payment made by Duke. Contractor also warrants that all items sold or furnished under this Purchase Order/Agreement have been produced, sold, delivered, and furnished in compliance with all applicable laws and regulations. Contractor shall execute and deliver such documents as may be required to effect or to evidence compliance. All laws and regulations applicable to such matters are incorporated in this Purchase Order/Agreement by reference.
Contractor warrants that the goods furnished hereunder are merchantable and fit for the purpose for which they are purchased and are of the best quality, free from defects in design, material, workmanship, and title, and shall conform in all respects to the specifications and terms of this Purchase Order/Agreement and provide the best quality if no quality is specified. Contractor shall use its best efforts and know-how in its performance under this Purchase Order/Agreement.
CONTRACTOR WARRANTS THAT GOODS SUPPLIED UNDER THIS PURCHASE ORDER/AGREEMENT ARE MERCHANTABLE AND FIT FOR THE PURPOSE FOR WHICH THEY ARE PURCHASED AND FREE FROM DEFECTS IN DESIGN, MATERIAL, WORKMANSHIP, AND TITLE, AND SHALL CONFIRM IN ALL RESPECTS TO THE TERMS OF THIS PURCHASE ORDER/AGREEMENT, AND OF THE BEST OF QUALITY, IF NO QUALITY IS SPECIFIED. IF WITHIN ONE YEAR FROM THE DATE OF ACCEPTANCE BY DUKE, THESE ITEMS, OR ANY PART THEREOF, ARE OR BECOME DEFECTIVE, CONTRACTOR SHALL THEREUPON CORRECT SUCH NONCONFORMITY AT ITS SOLE EXPENSE. THE CORRECTIVE WORK SHALL BE PERFORMED IN THE MOST EXPEDITIOUS MANNER CONSISTENT WITH DUKE’S REQUIREMENTS AND IN A MANNER CONCURRED IN BY DUKE. THE SPECIFIED ONE-YEAR WARRANTY SHALL APPLY EVEN THOUGH THE STANDARD WARRANTY FOR A PARTICULAR PRODUCT OR SERVICE IS MORE LIMITED, UNLESS CONTRACTOR REQUESTS SUBSTITUTION OF THE STANDARD WARRANTY. SUCH REQUESTS MUST BE MADE IN WRITING WITHIN FIFTEEN DAYS OF RECEIPT OF THIS PURCHASE ORDER/AGREEMENT OR FIFTEEN DAYS PRIOR TO DELIVERY, WHICHEVER IS EARLIER, AND INCLUDE COMPLETE TERMS OF THE ALTERNATIVE WARRANTY.
SECTION 5: WARRANTY OF SERVICES
The Contractor warrants, acknowledges, and confirms that, prior to submitting a proposal for the Services, the Contractor has examined all of the specifications, directions and conditions relating to the Services, visited the site, investigated the scope of the project and difficulties which may be encountered in performing the Services, and assumes full and complete responsibility for, all risk in connection with, said Services.
All work shall be accomplished in a professional and workmanlike manner by qualified, careful, and efficient personnel using good, pertinent, scientific and technical procedures, practices and standards.
In the event any portion of the work fails to comply with the appropriate standard(s), and Contractor is so notified in writing within ninety (90) days after completion of this Purchase Order/Agreement or discovery of the non-conformance, Contractor will correct the work at its own expense or, at Duke’s option, will refund the amount of the compensation paid for such portion.
SECTION 6: ELECTRICAL EQUIPMENT COMPLIANCE
Equipment or materials supplied under this Purchase Order/Agreement shall comply with the applicable sections of the North Carolina State Building Code including, but not limited to, the suitability requirements of the National Electric Code. Suitability shall be evidenced by listing and labeling.
SECTION 7: STATE AND LOCAL TAXES
This Purchase Order/Agreement is entered into pursuant to North Carolina Direct Pay Permit Number 00209 issued to Duke University. Under this Direct Pay Permit the North Carolina Department of Revenue has granted Duke University permission to purchase tangible personal property without prepayment of the North Carolina sales or use tax. Accordingly, the Vendor shall not add any State of North Carolina or local sales tax.
SECTION 8: SAFE HARBOR
Contractor agrees that it will fully and accurately satisfy its responsibilities, as seller of products or services covered by this Purchase Order/Agreement, under the Safe Harbor Regulations relating to program “fraud and abuse” promulgated under the Social Security Act and Medicare and Medicaid Patient & Program Protection Acts.
SECTION 9: INFRINGEMENT
Contractor shall, at its own expense, indemnify, defend and hold harmless Duke against any claim, suit or proceeding brought against Duke which is based upon a claim, whether rightful or otherwise, that anything furnished under this Purchase Order/Agreement infringes on any U.S. patent, and Contractor shall pay all damages and expenses arising from such claim. If anything supplied under this Purchase Order/Agreement is held by a court to constitute infringement and its use is enjoined, Contractor shall, at its own expense, and only with Duke’s written approval, either procure for Duke the right to continue such use; or replace same with equal or better non-infringing goods; or modify it so it becomes non-infringing, provided such modification does not diminish the product’s functionality. If Contractor is unable to provide a non-infringing fully functional product, then Contractor will issue credit for product fees and associated expenses, which have been paid by Duke.
The preceding paragraph shall not apply to any goods, or any part thereof, manufactured to Duke’s own detailed design for unique items of special physical characteristics. As to such goods or part, the Contractor assumes no liability for patent infringement. Duke’s issuance of rating, duty or performance specifications does not constitute “detailed design”.
SECTION 10: REPRESENTATION
Contractor hereby warrants, to Duke, that:
A. Existence. It is a corporation duly organized, validly existing, and in good standing under the laws of the State of North Carolina and is duly qualified to do business in the State of North Carolina and has full power and authority to enter into and fulfill all the terms and conditions of this Purchase Order/Agreement.
B. Corporate Authority. The Officer(s) of Contractor have full power and authority to execute the Purchase Order/Agreement on behalf of Contractor and, in executing this Purchase Order/Agreement on behalf of Contractor, bind Contractor to all the terms and conditions.
C. Solvency. It is financially solvent, able to pay its debts as they mature, and possessed of sufficient working capital to perform all its duties and obligations and to satisfy all the terms and conditions of this Purchase Order/Agreement.
D. Experience. It is experienced in and competent to provide all the services required by this Purchase Order/Agreement and to fully satisfy all the terms and conditions of this Purchase Order/Agreement.
E. Personnel. It has the experience, capability and resources, including but not limited to sufficient personnel and supervisors, to efficiently and expeditiously perform the Services required and fully satisfy all the terms and conditions in this Purchase Order/Agreement in a professional and competent manner.
F. Third Party Litigation. There is no suit or action, or legal, administrative, arbitration, or other proceeding or governmental investigation affecting Contractor pending, or to the best knowledge and belief of Contractor, threatened against Contractor which materially or adversely affects the business of Contractor relating to this Purchase Order/Agreement. Contractor further warrants and represents that there is no outstanding judgment, decree, or order against Contractor, which affects Contractor’s ability to provide services under this Purchase Order/Agreement in any way.
G. Binding Obligation. This Purchase Order/Agreement is a valid and binding obligation of Contractor in accordance with its terms.
H. Truthfulness of Representation of Warranties. No representation or warranty by Contractor in this Purchase Order/Agreement or any document contains or will contain any untrue statement or material omissions, or will omit to state any material fact necessary to make the statements and warrants that all representations and warranties made by Contractor in this Purchase Order/Agreement and any document provided shall be true and correct as of the date of the execution with the same force and effect as if they had been made on the date.
I. Objectives and Expectations of Duke. Contractor has reviewed and understands Duke’s objectives and expectations expressed therein.
SECTION 11: STANDARD OF PERFORMANCE
A. Contractor agrees to perform the services under this Purchase Order/Agreement with the standard of care, skill and diligence normally provided by a professional organization in the performance of such services.
B. While on Duke’s premises, Contractor, its employees and subcontractors will adhere to Duke’s policies and regulations including but not limited to parking, traffic and security regulations and with all other ordinances, laws, and regulations that may be required by Federal, State, and Local Governments or Insurance and Health Agencies while performing work and supplying goods under this Purchase Order/Agreement.
C. Contractor shall give prompt written notice to Duke in the event of any significant change in the Contractor’s personnel, labor relations, financial condition, trade style, including but not limited to notice of anticipated or actual work stoppages.
D. All of Contractor’s activities will be at its own risk and Contractor is hereby given notice of its responsibility to make arrangements to guard against physical, financial, and other risks as appropriate.
E. Contractor agrees to furnish its own transportation to and from Duke at no additional cost. Contractor will supply all equipment, tools, materials, parts, supplies, and labor required to perform the assigned work unless otherwise arranged with Duke.
F. Contractor shall permit inspection of its operations on Duke premises, at any time by Duke to determine that standards of quality, safety and cleanliness are being met.
G. Contractor shall advise Duke’s Procurement Services in writing and in advance of all plans or activities that may reasonably pose a danger or nuisance to members of the Duke Community or general public or to the physical facilities of Duke. Procurement Services shall approve all schedules and methods proposed for such work before the start of work.
H. Contractor shall notify Duke promptly of any expected delay in the performance of services. Contractor will be liable for all delays unless the delay is caused by matter(s) beyond Contractor’s reasonable control.
I. Contractor warrants that it complies with the Copeland “Anti-Kick Back” Act (18 U.S.C. 874) as supplemented in Department of Labor Regulations (29CFR, Part 3).
J. Contractor warrants that it’s not delinquent on the repayment of any Federal debt as required under FAR 52.209-5 and FAR 52.209-60.
K. Contractor is responsible to remove from premises and to dispose of properly all portions of all materials, components, systems that contain or consist of hazardous substances, which Contractor has used, removed, or caused to be removed as part of this project.
L. If the activities covered under this Purchase Order/Agreement result in the generation, accumulation, or storage of hazardous or regulated chemical(s) or solid waste, the Contractor must provide a written Hazardous/Regulated Waste Management Plan. This written Plan must be submitted prior to work beginning under the Purchase Order/Agreement. The Plan must include the following:
- A defined list of generated waste.
- The process (es) that will result in the generation of waste.
- The process of accumulating the waste.
- The source and type of container to be used for the accumulation of the waste.
- Description of Container Labeling.
- Security during on-site storage.
- Description of the process/vendor for ultimate disposal of waste.
M. Contractor shall not connect or hook up to any utility (plumbing, electrical, HVAC, etc.), in any way or form on Duke property without express written approval of Duke’s Engineering & Operations Department (E&O) for Duke Medicine installations and/or Duke’s Facilities Management Department (FMD) for Duke Campus installations. Approval shall be obtained, in advance, for each request before the start of any work. Failure to follow may result in Purchase Order/Agreement breach.
SECTION 12: PROPERTY DAMAGE OR THEFT
Duke shall have no responsibility for the loss, theft, mysterious disappearance of, or damage to, equipment, tools, materials, supplies, and other personal property of Contractor or its employees, which may be brought onto Duke’s premises or stored at Duke except for damage caused by direct and sole negligence of Duke.
The Contractor shall be responsible for the loss, theft, mysterious disappearance of, or damage to, equipment, tools, materials, supplies and other property of Duke, which is used by the Contractor.
SECTION 13: WARRANTY OF TITLE
Contractor represents that it has absolute title to and full right to dispose of the goods described on the face of this Purchase Order/Agreement without violating or infringing upon the rights of third parties, and that there are no liens, claims, or encumbrances of any kind against such goods or any part of the goods, and that it will warrant and defend the same against the lawful claims and demands of all persons.
SECTION 14: TITLE OF TOOLING
Design, tools, jigs, dies, fixtures, templates, patterns, drawings, and other information and things (herein collectively called tools) paid for or furnished by Duke shall be Duke's property and Contractor shall not encumber or dispose of them in any way. Contractor shall maintain such tools in first class condition. Such tools shall be used exclusively for production under Duke's Purchase Order Agreement.
SECTION 15: INSURANCE & LIABLILITY
Contractors providing clinical and patient care equipment and supplies or services will procure and maintain the following insurance:
Worker's Compensation: Statutory limits
Employers Liability: $1,000,000 each accident
Commercial General Liability including Products/Completed Operations Liability: $1,000,000 each occurrence / $3,000,000 aggregate for bodily injury; $1,000,000 each occurrence for property damage OR a Combined Single Limit of $3,000,000 each occurrence
Professional Liability: $3,000,000 per incident, $10,000,000 aggregate
Automobile liability: $1,000,000 with bodily injury & property damage for owned & non-owned vehicles.
Contractors providing all other goods and materials or services will procure and maintain the following insurance:
Worker's Compensation: Statutory limits
Employers Liability: $1,000,000 each accident
Commercial General Liability including Products/Completed Operations Liability: $1,000,000 each occurrence / $2,000,000 aggregate including bodily injury and property damage; personal/advertising injury; contractual; premises/operations; independent contractors; products and completed operations. An Excess Liability policy is acceptable if necessary to bring the General Liability to the minimum limit requirement of $1,000,000 per occurrence, $2,000,000 aggregate.
Automobile liability: $1,000,000 with bodily injury & property damage for owned & non-owned vehicles. All waste management companies must have limits of at least $5,000,000 per occurrence and must include the MCS-90 pollution endorsement.
Professional Liability with a minimum limit of $1,000,000 per claim is required for all professional services including, but not limited to, architects, engineers, consultants, and testing services.
Contractors with High or Ultra High exposures will procure and maintain the insurance appropriate for the types of services they provide as outlined in Schedule A, “Insurance Requirements by Type of Service”.
Duke University and Duke Medicine must be named as Additional Insured with respect to General Liability coverage insofar as it pertains to the work done/service provided/product delivered to Duke. Contractor’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 Contractor. A certificate of insurance with the coverage as cited above and listing Duke University and Duke Medicine as the certificate holder, must be submitted to Duke Procurement Services before work begins by the Contractor for Duke.
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 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.
|Clinical and Patient Care Services||Independent Contractor or Vendor||Specialty Contractor - High Exposure||Specialty Contractor - Ultra High Exposure|
|Commercial General Liability Products/Completed Operations X,C,U||$1 million each occurrence/$3 million aggregate for Bodily Injury; $1 million each occurrence for property damage OR a combined single limit of $3 million each occurrence||$1 million each occurrence/$2 million aggregate||$5 million each occurrence/$10 million aggregate||$10 million each occurrence/$20 million aggregate|
|Automobile Liability||$1 million each occurrence||$1 million each occurrence||$5 million each occurrence||$10 million each occurrence|
|Workers' Compensation||Statutory Limits||Statutory Limits||Statutory Limits||Statutory Limits|
||$1 million each accident||$1 million each accident||$1 million each accident||$1 million each accident|
|Professional Liability||$3 million per medical incident, $10 million aggregate||$1 million per claim||$1 million per claim||$1 million per claim|
SECTION 16: PROTECTION OF WORK, PROPERTY AND PERSONS
During the progress of the work under this Purchase Order/Agreement, the Contractor shall take extreme precautions against the possibility of fire on Duke's property and maintain adequate protection of the work on adjacent and/or public property, and shall be responsible for any damage or injury due to Contractor's (and employees, agent, and/or assignees) act or neglect. Contractor assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death or personal injury resulting) to all persons, whether employees of the Contractor or otherwise, and to all property, caused by, resulting from or arising out of the Contractor's negligence.
SECTION 17: PAYMENT
For satisfactory goods and/or services described herein, Duke shall compensate the Contractor in the manner provided for in this Purchase Order/Agreement. Contractor shall submit invoices to Duke no later than thirty (30) days after delivering goods or rendering services, and for costs herein, unless alternative payment terms have been agreed to in writing and prepared in such form and detail as Duke may specify. Invoices received after this thirty (30) day period may be subject to delay in processing or payment, unless prior arrangements are made with the Duke Recipient. Contractor shall not incur costs for performance of services in excess of the dollar amount stated on the face of this Purchase Order/Agreement without prior written authorization of Duke’s Procurement Services. Payment shall be made within thirty (30) days after Duke’s receipt of Contractor’s invoice. Contractor’s invoices that do not have official Duke Purchase Order numbers will be returned to Contractor.
SECTION 18: OCCUPATIONAL SAFETY AND HEALTH ACT
Contractor will comply with the Occupational Safety and Health Act of 1970, including all federal and state standards and regulations in accordance with the act. Contractor is responsible for compliance with this act by its agents, employees, suppliers, assignees, and subcontractors. Contractor is also responsible for supplying all materials and services under this Purchase Order/Agreement in compliance with this act. Contractor agrees to indemnify Duke and save it harmless from all loss and damage (including attorney's fees) arising from the failure of Contractor to comply with this act.
SECTION 19: STATE LAWS
This Purchase Order/Agreement shall be governed by, subject to, and construed according to the laws of the State of North Carolina.
SECTION 20: FAIR LABOR STANDARDS ACT
All articles manufactured and delivered under this contract/purchase order will be manufactured in accordance with the Fair Labor Standards Act of 1938, as amended in 1961 (29 USC 201 219).
SECTION 21: NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL OPPORTUNITY (Executive Order 11246)
The contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, gender expression, national origin, disability or veteran status. In addition, this contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. To the extent not exempt, this contractor and subcontractor shall also abide by the requirements of 29 CFR Part 471, Appendix A.
SECTION 22: DEFAULT
Duke may, by written notice, terminate this Purchase Order/Agreement in whole or in part, for failure of Contractor to perform, including failure to deliver as and when specified. If so terminated, Contractor shall be liable for all damages, including, without limitation, 1) the excess cost of reprocuring similar goods or services, 2) shipping charges for any items Duke may at its option return to Contractor, including items already delivered but for which Contractor no longer has any use because of default, 3) amounts paid by Duke for any items it has received but returns to Contractor, and 4) any other damages permitted by applicable law. Duke shall have the right to pursue any remedies provided by applicable laws.
SECTION 23: DEBARMENT
Contractor warrants that it is not debarred or suspended, proposed for debarment or declared ineligible for award of contracts by any Federal Agency.
SECTION 24: RIGHT TO AUDIT
If this Purchase Order/Agreement has a value or cost of $10,000.00 or more over a twelve-month period, then until the expiration of four years after Purchase Order/Agreement completion, the Contractor shall make available, upon written request of a government and/or Duke official, this Purchase Order/Agreement and such documents necessary to certify the nature and extent of the costs incurred by Duke. The Contractor is also responsible for providing documents concerning any subcontracts with a value and cost of $10,000.00 or more. Contractor agrees to refund to Duke any overpayments disclosed by an audit.
SECTION 25: CERTIFICATION
a) Acceptance of this Purchase Order/Agreement constitutes certification that the vendor is not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by a Federal department or agency.
b) Acceptance of this Purchase Order/Agreement constitutes certification that the vendor is not delinquent on any Federal debt.
c) Vendor agrees to notify Duke immediately if there is any change of status in (a) or (b) above.
SECTION 26: CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT
If the Purchase Order Agreement is for over $100,000, the Contractor warrants that it will comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act of 1970 (42 U.S.C. 1857 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) as amended.
SECTION 27: ASSIGNMENT
Neither this Purchase Order/Agreement nor any part of it, nor any account receivable arising from the completion of this Purchase Order/Agreement, shall be assigned, transferred, or sublet by the Contractor without the prior written approval of Duke. All terms, conditions and provisions contained herein are applicable to any and all of the Contractor’s employees, agents and subcontractors who perform, directly or indirectly, any work or fulfill, directly or indirectly, any obligation pursuant to this Purchase Order/Agreement.
SECTION 28: PUBLICITY
Contractor shall not in any way or in any form publicize or advertise in any manner the fact it is providing products or services to Duke without the express written approval of the Senior Vice President, Public Affairs and Government Relations for Duke University publicity matters; or the Associate Vice President, Duke Medicine News and Communications for Duke Medicine publicity matters, obtained in advance, for each item of advertising or publicity. However, nothing herein shall preclude Contractor from listing Duke on its routine client list for matters of reference.
SECTION 29: USE OF DUKE NAME, LOGOS, AND TRADEMARKS
The Duke name and logos are the exclusive property of Duke and may only be used for approved purposes. Contractor agrees not use any Duke logos outside of the sole purpose indicated in this Purchase Order/Agreement without the expressed written consent of Duke. Contractor may not change or alter any Duke logo in any way. Contractor is to obtain any additional approvals for the use of Duke’s logos or name by contacting Procurement Services at 919-681-5900 or emailing firstname.lastname@example.org
Duke University and Duke Medicine trademarks, including the Duke name and logos, may not be used in conjunction with the name or trademark(s) of any other entity without the prior written permission of that entity and Duke. Duke trademarks may not be used in any manner that suggests or implies Duke’s endorsement of other organizations, companies, products, services, political parties or views, or religious organizations or beliefs. Duke’s trademarks may not be used in any way that discriminates or implies discrimination against any persons or groups based on age, ancestry, belief, color, creed, disability, national origin, race, religion, sex, sexual orientation or veteran status, or in any other way that would be a violation of Duke’s anti-discrimination policies or practices. No one other than Duke may claim copyright or trademark rights in or seek to register any design that uses Duke’s trademarks. Approval to use a Duke trademark for a one-time application (for example, a t-shirt) does not constitute approval to use the trademark again, or in connection with any other item, or to change the design in any way, without seeking additional approval. Full information regarding University Trademark Licensing may be found at www.trademarklicensing.duke.edu, or you may contact Duke’s Office of Trademark Licensing at trademarklicensingduke.edu or (919) 684-2065.
SECTION 30: CONFLICT OF INTEREST
Contractor agrees that the relationship between Duke and Contractor is neither an employer-employee relationship nor an agency relationship. Rather, Contractor is retained as and shall perform as an independent contractor to Duke. As an independent contractor, Contractor will be solely responsible for determining the means and methods for performing the described services set forth on the face of this Purchase Order/Agreement.
Contractor will not hire any employee of Duke to perform any service covered by this Purchase Order/Agreement. If the work is to be performed in connection with a federal grant or contract, Contractor will not hire any employee of the United States government to perform any services covered by this Purchase Order/Agreement.
Contractor affirms that to the best of his/her knowledge there exist no actual or potential conflict of interest between Contractor’s family, business or financial interest and services provided under this Purchase Order/Agreement. In the event of change in Contractor’s private interest or services under this Purchase Order/Agreement that has potential for conflict of interest, Contractor will promptly notify Duke.
SECTION 31: OWNERSHIP
Subject to Section 32 below, ownership and other proprietary rights for materials produced by or for Contractor pursuant to this Purchase Order/Agreement shall vest in Duke. “Material” means title to all inventions, discoveries, improvements, works of authorship, writings, formulas, processes, compositions of matter, data and related documentation, computer programs, code databases, mask works, trade secrets, designs, notes, drawings, marketing plans, product plans, business strategies, financial information, forecasts, copyrights, patent rights, pictorial reproductions, graphic representations, software developments, specifications, calculations, tables, reports and documents. Contractor agrees, upon Duke’s request at any time, to execute assignments and other documents and to cooperate with Duke to validate, preserve and enforce such ownership by Duke.
SECTION 32: CONFIDENTIALITY
Contractor may be engaged in the performance of Services for Duke as set forth herein and in connection therewith will be furnished or given access to knowledge, information, data, and confidential or privileged documents (“Documentation”) which are confidential and proprietary to Duke. Contractor further understands and agrees that Duke licenses the use of computer software and/or documentation and other such data (“Computer Products”) from various computer vendors who’s Computer Products are the valuable and confidential property of such vendors. With regard to such products, Duke has undertaken certain confidentiality and non-disclosure obligations, and Contractor understands and agrees that they may have access to such Computer Products. Contractor agrees that during, or at any time after the termination of the performance of Services pursuant to this Purchase Order/Agreement, Contractor shall use such Computer Products or Documentation only for the purposes of performing Services under this Purchase Order/Agreement and shall not use for itself or for any other person or business; or divulge or convey to any person or business any such Computer Products or Documentation.
This documentation expressly excludes information, which has been previously published or is otherwise in the public domain (other than by or through Contractor in breach of this Contract). Contractor further agrees not to reproduce, or use for any purpose other than the work specified hereunder such information delineated in the paragraph above without the prior written approval of Duke. Use of said information above shall be restricted to Contractor’s personnel who have an express need to know in order that the obligations of the Purchase Order/Agreement are fully met. Contractor further agrees to take all necessary steps, as Duke may direct to assure the obligations of this Section are fulfilled and that any subcontract hereunder contains the provisions set forth in this Section.
Contractor acknowledges that the unauthorized use or disclosure of Computer Products or Documentation may give rise to irreparable injury to Duke or its computer vendors and that accordingly any one of them may seek and obtain injunctive relief against Contractor or any individual furnished by Contractor hereunder to prevent the breach or threatened breach of any promise made in this Purchase Order/Agreement in addition to any other legal remedies which may be available to them. The obligations of Contractor stated in this paragraph shall remain in full force and in effect after termination of this Purchase Order/Agreement.
SECTION 33: EXPEDITING
The goods and/or services furnished under this Purchase Order/Agreement shall be subject to expediting by Duke or its representatives. Duke’s personnel shall be allowed reasonable access to Contractor’s plants, and those of its sub-suppliers, for expediting purposes. As required by Duke, Contractor shall supply schedules and progress reports for Duke’s use in expediting.
SECTION 34: INSPECTION
Duke shall have the right to inspect and test the goods at any reasonable time during manufacture and prior to shipment, so long as such inspection or test shall not interfere with Contractor’s production or shipping schedule. The making, or failure to make, any inspection, shall in no way impair Duke’s right to reject or revoke its acceptance of nonconforming goods, or to avail itself of any other remedies to which Duke may be entitled, notwithstanding Duke’s knowledge of the nonconformity, its substantiality, or the ease of its discovery.
SECTION 35: IDENTITY SECURITY
Contractor shall take reasonable measures to protect against unauthorized access to, or use of, personal information of patients, students, employees, or customers of Duke, including individual social security numbers, as required by law, and shall give notice to Duke without unreasonable delay and in no event later than fifteen (15) calendar days after discovery of the breach. Contractor shall have in place, and provide copies to Duke upon request, information security policies and procedures to protect against unauthorized access to or use of personal information.
SECTION 36: Duke Health COMPLIANCE PLANContractor acknowledges that it has been informed that Duke Health has implemented a compliance program for a number of purposes including, but not limited to, ensuring that the provision of, billing for, and care at Duke Health is in compliance with applicable Federal and State laws ("Compliance Plan") and all Duke Health operations are conducted in accordance with applicable laws and regulations. Contractor acknowledges that it has access to an electronic copy of the Duke Health Code of Conduct. Contractor further certifies that It, its officers, employees, and subcontractors: 1) have not been convicted of a criminal offense related to healthcare, 2) 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 3) 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. Contractor hereby agrees to immediately notify Duke Health of any such sanctions, debarment, suspension, or exclusion by or from any of the above lists.
Contractor will notify Duke promptly of any allegation of unethical behavior, wrongdoing, or violation of Duke Health Code of Conduct or federal or state anti-corruption or health laws or regulations.
Contractor is invited to attend educational sessions of Duke Health related to its Compliance Program. The failure of Contractor to conduct its activities in accordance with the Code of Conduct and Compliance Program shall constitute a material breach of this Purchase Order/Agreement and Duke Health shall have the absolute right to terminate this Purchase Order/Agreement immediately. Contractor agrees to verify that its employees and subcontractors meet all the requirements outlined above prior to their performing services under this Purchase Order/Agreement.
SECTION 37: ENVIRONMENTAL STEWARDSHIPDuke is committed to environmental stewardship, and Contractor shall take reasonable steps to minimize negative environmental impact.
- Contractor shall minimize the amount of packaging and other incidental waste discarded in the course of distributing products and rendering other services. Contractor shall reuse and/or recycle such materials whenever feasible.
- To the extent possible, Contractor shall opt for materials that do not pose environmental and health risks.
- When supplying products covered by Energy Star guidelines, Contractor shall supply products that meet these guidelines. Product categories, program details, model listings, and product criteria are available at www.energystar.gov. In all other product areas, Contractor shall supply energy efficient products.
- Primary Contractors must submit a plan documenting their environmental stewardship efforts.
- Following Purchase Order/Agreement award, the Contractor is required to maintain records that identify both first and second tier efforts and submit quarterly progress reports.
SECTION 38: SUPPLIER DIVERSITYDuke maintains a voluntary Supplier Diversity Program in order to provide an equitable competitive environment for historically underutilized business sectors. Diverse Suppliers are firms that are small, disadvantaged, woman, veteran, service-disabled veteran, HubZone or LGBT (lesbian, gay, bisexual, transgender) owned. Ownership refers to at least 51% financial control as well as operational management.
Diverse Suppliers are recognized with appropriate documentation of ownership status as certified by a recognized certifying organization or agency. Recognized certifying bodies include: U.S. Small Business Administration, N.C. Department of Historically Underutilized Business, Durham Department of Equal Opportunity / Equity Assurance, National Minority Supplier Development Council, North Carolina Minority Supplier Development Council, Women’s Business Enterprise National Council, National Gay and Lesbian Chamber of Commerce, as well as local, regional, city and state certifying agencies.
In addition to primary suppliers, Duke pursues maximum participation through second-tier efforts. Primary contractors must submit a plan for their involvement with diverse second-tier suppliers. Following Purchase Order/Agreement award, the Contractor is required to maintain both first and second-tier efforts and submit quarterly progress reports.
By taking an active role in working with Diverse Suppliers, Duke can optimize price, service, and delivery conditions while building the local community and economy. Supplier diversity will be one, but not the sole, consideration in all Purchase Order/Agreement awards.
SECTION 39: WAIVER
Failure of Duke to insist upon strict performance of any of the terms and conditions hereof, or failure to delay to exercise any rights or remedies provided herein or by law, or to properly notify Contractor in the event of breach in performance, or the acceptance of or payment for any goods and services hereunder, shall not release Contractor of any of the obligations under this Purchase Order/Agreement and shall not be deemed a waiver of any right of Duke to insist upon strict performance hereof, nor shall any purported oral modification by Duke operate as a waiver of any of the terms hereof.
SECTION 40: NON-SEVERABILITY
Any provision herein for delivery of goods or the rendering of services by installments shall not be construed as making the obligations of Contractor severable.
SECTION 41: SEVERABILITY
The invalidity, illegality or unenforceability of any provision of this Purchase Order/Agreement shall not affect the validity, legality, or enforceability of any other provision of this Purchase Order/Agreement, which shall remain in full force and effect.
SECTION 42: FDA RECALL
In the event that the products purchased hereunder become the subject of an FDA communication such as an untitled letter, warning letter or similar FDA notice from which an enforcement action could reasonably be anticipated; or any form of regulatory product withdrawal from commerce, whether voluntary or involuntary, such as Class I, II, or III Recall; by which, from any of the foregoing, Duke may reasonably conclude that the product no longer meets its intended purpose, regulatory requirements, or standard of care; Duke shall have the right to terminate this Purchase Order/Agreement without penalty upon 30 days written notice to Contractor of Duke’s intentions to terminate.
SECTION 43: VENDOR REPRESENTATIVE CREDENTIALS
Any vendor representative entering a Duke Medicine building, in the course of doing business on behalf of their company, will be credentialed through the Duke approved web based system, prior to their first visit to Duke Medicine. For details, see vendor policy @www.procurement.duke.edu. Failure to follow may result in Purchase Order/Agreement breach.
SECTION 44: MEDICAL DEVICE EXCISE TAX
Duke will not render any payment for any Medical Device Excise Tax. Duke does not recognize the general application or understanding of a “sales or use tax” as being applicable to the Medical Device Excise Tax. There is no legal obligation between the IRS and Duke related to any reporting or payment of the Medical Device Excise Tax. Duke reserves the right to short-pay invoices or with hold off-setting amounts for any erroneously rendered payment for the Medical Device Excise Tax.
SECTION 45: ENTIRE AGREEMENT
This Purchase Order/Agreement, including all documents incorporated by reference, shall constitute the entire Purchase Order/Agreement between the parties and supersedes all prior Purchase Orders/Agreements, relating to the subject matter. No other terms or conditions shall be binding upon Duke unless accepted by Duke’s Procurement Services in writing.