The University of Texas Medical Branch at Galveston

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON

GENERAL TERMS AND CONDITIONS

The University of Texas Medical Branch at Galveston (UTMB), in compliance with applicable federal laws and regulations, does not discriminate on the basis of race, color, national origin, sex, age religion, disability, handicap or status as a veteran in any of its policies or procedures. This includes, but is not limited to, admissions, employment, financial aid and educational services.

1.COMPLETE AGREEMENT: UTMB’s Purchase Order, which incorporates these terms and conditions and any other attached terms, conditions and specifications of UTMB, is the sole and exclusive agreement between the parties. The Purchase Order supersedes all other writings, is expressly conditioned upon Seller’s agreement to the conditions hereof, and nothing herein shall be construed to be an acceptance of any terms of Seller.

2.MODIFICATION: No modification of the Purchase Order shall be effective without UTMB’s prior written consent. No course of prior dealings, no usage of the trade and no course of performance shall be used to modify, supplement or explain any terms used in the Purchase Order. UTMB will not be bound by any oral statement, verbal agreement, or other representation contrary to the written specifications, terms, and conditions of the Purchase Order.

3.CANCELLATION: UTMB shall have the right to cancel all or any part of the Purchase Order if Seller breaches any of the terms, conditions, or requirements hereof, or if the Seller closes its business operations, becomes insolvent or is adjudged bankrupt. Such right of cancellation is in addition to and not in lieu of any other remedies which UTMB may have at law or in equity.

4.TERMINATION: The Purchase Order may be terminated in whole or in part by UTMB in accordance with this provision. Termination hereunder shall be effected by the delivery to the Seller of a “Notice of Termination” specifying the extent to which the Purchase Order is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to, and not in lieu of, rights of UTMB set forth in Paragraph 3, above. In the event of such termination, UTMB’s sole obligation to Seller is to pay for only those products and/or services authorized by this Purchase Order and received and accepted by UTMB prior to the date of Termination.

5.Loss of Funding:Performance by UTMB under this Purchase Order may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by The University of Texas Board of Regents (the “Board”). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then UTMB will issue written notice to Seller and UTMB may terminate this Purchase Order without further duty or obligation hereunder. Seller acknowledges that appropriation, allotment, and allocation of funds are beyond the control of UTMB.

6.DELIVERY & SHIPPING: All packages and packing lists must reference UTMB’s Purchase Order Number. Failure to do so may result in the shipment being rejected and/or delay in payment. Time is of the essence in the Purchase Order and if delivery of conforming goods or performance of services is not completed by the time(s) promised, UTMB reserves the right, in addition to its other rights and remedies, to cancel the Purchase Order, to reject non-conforming goods or services in whole or in part on reasonable notice to Seller, and/or purchase substitute goods or services elsewhere and charge Seller with any loss incurred. If delay in promised delivery is foreseen, Seller shall give written notice to UTMB, and the delivery date may be extended by UTMB for valid reasons. Seller must keep UTMB advised at all times of status of Purchase Order. No substitutions or cancellations will be permitted without the prior written approval of UTMB Purchasing Department. Delivery shall be made only on weekdays from 8:00 a.m. to 5:00 p.m., unless prior approval for other delivery times has been obtained. Any provisions herein for delivery of goods or performance of services by installments shall not be construed as making the obligation of Seller severable. All freight, transportation and handling charges must be prepaid by Seller. Third party freight bills will not be accepted. C.O.D. shipments will not be accepted.

7.ACCEPTANCE OF PRODUCTS AND SERVICES: All products furnished and all services performed under the Purchase Order shall be to the satisfaction of UTMB and in accordance with the specifications, terms, and conditions of the Purchase Order. UTMB reserves the right to inspect the products furnished or the services performed, and to determine the quality, acceptability, and fitness of such products or services.

8. INVOICING, PAYMENT AND TAXES: Seller shall submit an itemized invoice showing UTMB Purchase Order number. All charges for expenses which are permitted by this Purchase Ordermust be fully detailed andsupported with itemized receipts.In order to receive prompt payment within thirty (30) days of receipt of an invoice, please submit an invoice that includes, at a minimum, the following information:

Seller’s mailing and e-mail (if applicable) address
Seller’s telephone number
Name and telephone number of a person designated to answer questions regarding the invoice

UTMB’s Purchase Order number
UTMB’s full name; “The University of Texas Medical Branch at Galveston”
A valid Texas identification number (TIN) issued by the Comptroller of Public Accounts
A description of goods and services, in sufficient detail to identify the order which relates to the invoice
Invoices must agree in all respects with the Purchase Order, (i.e., quantity, price, catalog number, etc.)

Each invoice must have a unique invoice number
Other relevant information supporting and explaining the payment requested, if necessary by UTMB or its representatives.

Failure to submit invoices in accordance with the requirements herein will result in your invoice being returned unpaid. UTMB reserves the right to change, modify, and/or add additional invoicing requirements, at any time, upon written notice to Seller. All cash discounts offered will be taken if earned. Cash discount will be calculated from date of receipt of properly submitted invoice at the Invoice Address specified per UTMB’s Purchase Order. UTMB’s payment terms are 2% 10, NET thirty (30) days. UTMB, as an Agency of the State of Texas, qualifies for exemption from State and Local Sales and Use Taxes. Seller may claim exemption from payment of applicable State taxes by complying with such procedures as may be prescribed by the State Comptroller of Public Accounts. The State of Texas is exempt from all Federal Excise Taxes.

To the extent that Chapter 2251 of the Texas Government Code, as it may be amended from time to time (“Chapter 2251”), is applicable to Seller’s invoice and is not preempted by other applicable law, the Seller may suspend performance under a contract for goods, services or construction, if UTMB as a State entity fails to pay undisputed amounts due under the contract within the time period specified in Chapter 2251.

Seller must give UTMB at least 10 days prior written notice to suspend (the “Suspension Notice”). Notwithstanding any other requirements for notices given by a Seller under this Purchase Order, if Seller intends to deliver written notice to UTMB pursuant to Section 2251.054, Texas Government Code, then Seller shall send that notice to UTMB to the address listed in Section 25. NOTICES.

For inquires regarding payment status, please call UTMB’s Accounts Payable Department at (409) 747- 7259.

9.TITLE & RISK OF LOSS: The title and risk of loss of the goods shall not pass to UTMB until UTMB actually receives and takes possession of the goods at the point or points of delivery.

10.ASSIGNMENT AND SUBCONTRACTS: No right or interest in the Purchase Order shall be assigned or obligation of Seller shall be delegated to any third party without the prior written consent of UTMB. Any such assignment or delegation by Seller shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.

11.INDEPENDENT CONTRACTOR: In performing any services hereunder, Seller is, and undertakes performance thereof as, an independent contractor, with sole responsibility for all persons employed in connection therewith, including without limitation, exclusive liability for the payment of all Federal, State, and local Unemployment and Disability Insurance and all Social Security and/or other taxes and contributions payable in respect of such persons, from and against which liability Seller agrees to indemnify, exonerate and hold harmless UTMB.

12.INSURANCE: If the Purchase Order requires the presence on UTMB’s premises of Seller’s employees, subcontractors or others under Seller’s control, Seller will maintain and cause its agents, suppliers and subcontractors (if any) to maintain the following insurance coverages for at least the specified limits listed below:

CoveragesLimits

Workers’ CompensationStatutory Limits

Employer’s Liability$1,000,000 per accident and employee

Commercial General Liability

(including contractual liability)$1,000,000 per occurrence

Personal & Advertising Injury$1,000,000 per occurrence

Product/Completed Ops$1,000,000 aggregate

Business Auto Liability$1,000,000 combined single limit

General Aggregate$2,000,000 per policy limit

Certificates evidencing such coverage must be furnished to UTMB prior to the start of work. All policies (except Workers’ Compensation) will name UTMB, and their officers and employees as Additional Insured. A Waiver of Subrogation in favor of UTMB and thirty (30) day notice of cancellation is required on all policies. Certificates of insurance verifying the foregoing requirements will be provided to UTMB prior to commencement of any services under this Purchase Order. Seller will endorse all policies to require insurance carriers to notify UTMB of cancellation, termination, material change, or non-renewal of any policy.

13. INDEMNIFICATION:

(a) To the fullest extent permitted by law, Seller shall and does hereby agree to indemnify, protect, defend with counsel approved by UTMB, and hold harmless UTMB and The University of Texas System, and their respective affiliated enterprises, regents, officers, directors, attorneys, employees, representatives and agents (collectively “Indemnitees”) from and against all damages, losses, liens, causes of action, suits, judgments, expenses (including reasonable attorneys’ fees), and other claims of any nature, kind, or description (collectively “Claims”) by any person or entity, arising out of, caused by, or resulting from Seller’s performance under this Purchase Order and which are caused in whole or in part by any negligent act, negligent omission or willful misconduct of Seller, anyone directly or indirectly employed by Seller or anyone for whose acts Seller may be liable. The provisions of this Section shall not be construed to eliminate or reduce any other indemnification or right which any Indemnitee has by law.

(b) In addition, Seller shall and does hereby agree to indemnify, protect, defend with counsel approved by UTMB, and hold harmless Indemnitees from and against all claims arising from infringement or alleged infringement of any patent, copyright, trademark or other proprietary interest arising by or out of the performance of services or the provision of goods by Seller pursuant to this Purchase Order, or the use by Seller, or by Indemnitees at the direction of Seller, of any article or material; provided, that, upon becoming aware of a suit or threat of suit for such infringement, UTMB shall promptly notify Seller and Seller shall be given full opportunity to negotiate a settlement. Seller does not warrant against infringement by reason of UTMB’s design of articles or the use thereof in combination with other materials or in the operation of any process. In the event of litigation, UTMB agrees to cooperate reasonably with Seller and all parties shall be entitled, in connection with any such litigation, to be represented by counsel at their own expense.

14.NON-DISCLOSURE: Unless required by law or consented to in writing by UTMB, no disclosure, description, or other communication of any sort shall be made by Seller to any third party regarding UTMB’s purchase of goods or services hereunder, or of the details and characteristics thereof. Anything furnished to Seller by UTMB pursuant to the Purchase Order, including without limitation, samples, drawings, patterns and materials shall remain the property of UTMB, shall be held at Seller’s risk, and shall be returned upon completion of the work. No disclosure or reproduction thereof in any form shall be made without UTMB’s prior written consent.

15. Force Majeure:Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character (“force majeure occurrence”). Provided, however, in the event of a force majeure occurrence, Seller agrees to use its best efforts to mitigate the impact of the occurrence so that UTMB may continue to provide healthcare services during the occurrence. In the event of such delay or failure to perform, the period specified for performance hereunder may be extended for a period equal to the time lost by reasons of the delay, or the total Purchase Order may be reduced by the performance (or portions thereof) omitted during such delay. The provisions of this paragraph shall be effective notwithstanding that such circumstances shall have been operative at the date of this Purchase Order.

16.GOVERNING LAW AND VENUE: Galveston County, Texas, shall be the proper place of venue for suit on or in respect of this Purchase Order. This Purchase Order and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof shall be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.

17. COMPLIANCE WITH LAW: Seller is aware of, is fully informed about, and in full compliance with its obligations under existing applicable law and regulations, including Title VI of the Civil Rights Act of 1964, as amended (42 USC 2000(D)), Executive Order 11246, as amended (41 CFR 60-1 and 60-2), Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR 60-250), Rehabilitation Act of 1973, as amended (41 CFR 60-741), Age Discrimination Act of 1975 (42 USC 6101 et seq.), Non-segregated Facilities (41 CFR 60-1), Omnibus Budget Reconciliation Provision, Section 952, Fair Labor Standards Act of 1938, Sections 6, 7, and 12, as amended, Immigration Reform and Control Act of 1986, and Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (PL 96-507), the Americans with Disabilities Act of 1990 (42 USC 12101 et seq.), the Civil Rights Act of 1991, University of Texas System Administration Policy UTS165, and all laws and regulations and executive orders as are applicable.

In addition to UTMB’s own compliance policies and procedures to prevent and detect violations of federal and state health care program requirements, the federal government and the State of Texas have also enacted criminal, civil, and administrative laws that prohibit the submission of false or fraudulent claims, and the making of false statements, to the federal and state governments. These laws contain various criminal, civil, and administrative penalties and provide governmental authorities with broad authority to investigate allegations of fraud, waste, and abuse and to enforce compliance with federal and state health care program requirements. The Deficit Reduction Act mandates that UTMB must provide notice of these laws to specific vendors.An overview of these laws and their implications may be found at

18.UTMB’S PREMISES RULES: If the Purchase Order requires the presence on UTMB’s premises of Seller’s employees, subcontractors or other under Seller’s control they must be escorted by a UTMB employee at all times. Seller shall comply with all applicable rules of such premises, including without limitation those relative to environmental quality, safety, security, fire prevention, no smoking, traffic and parking.

Care for UTMB patients is the first priority. When patients are being transported in UTMB elevators, Seller’semployees, agents, representatives, and subcontractors should exit the elevator and wait for the next available one to arrive.

Additionally, if Seller’s employees, agents, and/or subcontractors areperforming work on UTMB’s premises for a period longer than three (3) days or twenty (20) hours, Seller will be subject to UTMB’s Security Requirements, which will require Seller to perform a security clearance check and a urine drug test on each individual. Please contact UTMB’s Purchasing Compliance Officer at 409.747.8000if your work meets this criteria.

19.ASSIGNMENT OF OVERCHARGE CLAIMS: Seller hereby assigns to UTMB any and all claims for overcharges associated with the Purchase Order arising under the antitrust laws of the United States, 15 U.S.C.A., Sec. 1 et seq. (1973), or arising under the antitrust laws of the State of Texas, Texas Business and Commerce Code Annotated, Sec. 15.01, et seq. (1967).

20.SELLER’S AFFIRMATIONS: By acceptance of the Purchase Order and/or furnishing any of the products or services specified herein, Seller affirms the following (A false certification shall be deemed a material breach of contract and, at the University of Texas Medical Branch (UTMB's) option, may result in cancellation of this Purchase Order):

(a)Seller is a reputable company that is lawfully and regularly engaged in providing products and/or performing the services.

(b)Seller has the necessary experience, knowledge, abilities, skills, and resources to provide the products and/or perform the services.

(c)Seller is aware of, is fully informed about, and is in full compliance with all applicable federal, state and local laws, rules, regulations and ordinances.

(d)Seller will not delegate any of its duties or responsibilities under this Purchase Order to any subcontractor, except as expressly provided in the Purchase Order.

(e)Seller will maintain any insurance coverage as required by the Purchase Order during the term thereof.

(f)Seller will defend, indemnify, and hold harmless UTMB, The University of Texas System, the State of Texas, and all of their regents, officers, agents and employees, from and against all claims, actions, suits, demands, costs (including, but not limited to reasonable attorneys' fees), damages, and liabilities, arising out of, connected with, or resulting from any negligent acts or omissions or willful misconduct of Seller or any agent, employee, subcontractor, or supplier of Seller in the performance of this Purchase Order.