1. Acceptance and terms and conditions: Seller accepts the Order and any amendments by promptly acknowledging in writing receipt of the Order to COTA. Even without written acknowledgment, Seller’s full or partial performance under the Order will constitute acceptance of these Terms. By acceptance of the Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. These Terms apply to everything listed in the Order and constitute COTA’s offer to Seller, which COTA may revoke at any time prior to Seller’s acceptance. The Order is not an acceptance by COTA of any offer to sell, any quotation, or any proposal. Reference in the Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of the Order, or with delivery of any goods or services under the Order, or otherwise, will not be binding on COTA, whether or not they would materially alter the Order, and COTA hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of COTA and Seller.

 

2. Default: Time is of the essence of the Order. COTA may by written notice to Seller (a) terminate all or any part of the Order if Seller fails to perform, or so fails to make progress as to endanger performance of the Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as COTA may authorize in writing) after receipt of notice from COTA specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of the Order to the extent not terminated and will be liable to COTA for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, COTA, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of the Order, Seller will promptly notify COTA in writing. If Seller does not comply with COTA’s delivery schedule, COTA may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of COTA provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under the Order.

 

3. Price: The Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under the Order will not be billed at a higher price than last quoted or charged without COTA’s specific written authorization. COTA will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to COTA against any amount payable at any time by COTA in connection with the Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by COTA. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such goods and/or services during the term of the Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to COTA under the Order.

 

4. Invoices, payment, and taxes:
(a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.

 

(b) Invoices for contingent workers must contain all of the above where applicable and include a copy of a time tracking document for each contingent worker for the time period being billed.

 

(c) Payment shall be made on the terms of net 30 days from the date of invoice received. All claims for money due or to become due from COTA shall be subject to deduction by COTA for any setoff or counterclaim arising out of the current Order or any other of COTA’s Orders with Seller.

 

(d) Seller recognizes that COTA will be treated as a tax-exempt entity, and COTA will provide Seller with its exemption certificate upon request. All invoices of Seller to COTA shall exclude taxes that are excludable under COTA’s tax exempt status.

 

5. Packaging: All goods must be packaged in the manner specified by COTA and shipped in the manner and by the route and carrier designated by COTA. If COTA does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If COTA does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in the Order.

 

6. Inspection: All goods and services will be subject to inspection and test by COTA at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in the Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with the Order nor impose liabilities on COTA for them. COTA’s payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to COTA covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to COTA during the performance of the Order and for three (3) years after Seller’s completion of the Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Order, including any applicable drawings and specifications, then COTA, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to COTA, COTA may at its option inspect and sort the goods; Seller will pay any related costs.

 

7. Warranties: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to COTA, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by COTA, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by COTA, (d) the prices for the goods or services sold to COTA under the Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render COTA liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or COTA in retaining or obtaining business or in procuring the goods or services. COTA’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at COTA’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the COTA notifies Seller of the defect or defects, COTA may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by COTA, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by COTA. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of COTA, by acknowledgment or otherwise, in accepting or performing the Order, will be null, void, and ineffective without COTA’s written consent.

 

8. Indemnification: Seller shall indemnify and hold COTA and its affiliates harmless and, on COTA’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse COTA or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by COTA or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at COTA’s option, either procure for COTA the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.

 

9. Limitation of liability: COTA’s aggregate liability arising from or relating to the Order is limited to the amount paid by COTA for the goods and/or services. To the maximum extent allowable under applicable law, COTA shall not be liable under the Order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues even if COTA has been advised of the possibility of such damages.

 

10. COTA’s property: Tangible or intangible property of any nature furnished to Seller by COTA or specifically paid for in whole or in part by COTA, and any replacements or attachments, are the property of COTA and, unless otherwise agreed in writing by COTA, will be used by Seller solely to render services or provide goods to COTA. Seller will not substitute any property or take any action inconsistent with COTA’s ownership of such property. While in Seller’s custody or control such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to COTA, and will be subject to removal at COTA’s written request, in which event Seller will prepare such property for shipment and redelivery to COTA in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.

 

11. Changes: At all times COTA will have the right to make changes to the Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under the Order, an equitable adjustment will be made in the Order price or delivery schedule, or both, and the Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with COTA as to any claimed adjustment, will excuse Seller from proceeding with the Order as changed. Any claim by the Seller for adjustment under this Section 11 must be in a detailed writing and delivered to COTA within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to the Order. Information, such as technical information or guidance provided to Seller by representatives of COTA, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of COTA’s employees has constituted a change under the Order, Seller will immediately notify COTA’s Director of Supply Management, in writing at purchasing@cota.com, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.

 

12. Compliance with laws: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.

 

13. Confidential or proprietary information: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to COTA, and which in any way relates to the goods or services covered by the Order will not, unless otherwise specifically agreed to in writing by COTA, be deemed to be confidential or proprietary information, and will be acquired by COTA, free from any restrictions. Seller will not transmit to COTA any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by COTA in connection with the Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining COTA’s prior written consent. Except as required for the efficient performance of the Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of COTA. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of the Order, Seller will promptly return to COTA all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning the Order and the goods or services provided will be made public by Seller without the prior written agreement of COTA.

 

14. Prohibited Interest: No member, officer, trustee, or employee of COTA, or of a local public body during his/her tenure or one year thereafter shall have any interest direct or indirect, in the Order or the proceeds thereof.

 

15. Work on COTA’s premises: If Seller’s work under the Order requires Seller to be on the premises of COTA or at COTA’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of COTA.

 

16. Termination: COTA may terminate all or any part of the Order for convenience at any time by written notice to Seller. Upon such termination, COTA’s liability will be limited to reasonable termination charges mutually agreed by Seller and COTA, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. The Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.

 

17. Government contracts: If the Order bears a government contract number on the face of the Order, Seller shall comply with all pertinent provisions of said government contract and pertinent executive orders and directives to the extent that they apply to the subject matter of the Order and all such pertinent contract provisions, orders and directives are hereby incorporated by reference into the Order. A copy of the government contract’s pertinent terms and conditions will be given to Seller on request.

 

18. Miscellaneous:
(a) Non-assignment: Assignment of the Order or any interest in it or any payment due or to become due under it, without the written consent of the COTA, will be void. An assignment will be deemed to include not only a transfer of the Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.

 

(b) Transportation: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of the Order. Title and risk of loss shall not pass to COTA until delivery of the goods to the location designated on the face of the Order and acceptance by COTA. If COTA rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.

 

(c) Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet COTA’s delivery schedule. Goods shipped to COTA in advance of schedule may be returned to Seller at Seller’s expense.

 

(d) Seller’s inventory: COTA will have no obligation to request quotations or place Orders with Seller, both of which will be in COTA’s sole discretion. COTA acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by COTA from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller’s raw material, work in process, and inventory, and COTA will have no liability with respect thereto (whether upon termination of the Order or otherwise) other than in connection with termination as provided in Section 16.

 

(e) Force majeure: Performance of the Order shall be pursued with the diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control (e.g., acts of God, any natural catastrophe, fires, floods, earthquakes, tornadoes, war, hostilities, invasion, act of foreign or civil enemies, rebellion, terrorism, revolution, insurrection, riot, labor strike, freight embargoes, plague, epidemic, pandemic, quarantine, etc.). In the event of any delay resulting from such causes the time for performance and payment hereunder shall be executed for a period of time reasonably necessary to overcome the effect of such delays. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay and shall indicate whether it is anticipated that the completion dates would be affected thereby.

 

(f) Remedies: Each of the rights and remedies reserved to COTA in the Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by COTA in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by COTA shall be deemed to be a waiver of any such right or remedy.

 

(g) Publicity: Seller will not use COTA’s name or logo in publicity, advertising, or similar activity, except with COTA’s prior written consent. Seller will not disclose the existence of the Order or any of its respective terms to any third party without COTA’s prior written consent.

 

(h) Documentation: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to COTA with the goods or services, unless otherwise directed by COTA, and its cost is included in the price.

 

(i) Governing law: The rights and duties of the parties hereto shall be determined by the laws of the State of Ohio, and to that end the Order shall be considered as a contract made and to be performed in the City of Columbus and the State of Ohio. Any dispute must be resolved in a court a court of competent jurisdiction in Franklin County, Ohio, according to Ohio law.

 

(j) Disputes: Except as otherwise provided in the Order, any dispute concerning a question of fact arising under the Order which is not disposed of by agreement shall be decided by COTA, which shall reduce its decision to writing and furnish a copy of same to Seller. COTA’s decision shall be final and conclusive unless, within fifteen business days from the date of such copy, Seller furnishes to COTA a written notice of appeal.

In the event COTA’s decision is the subject of an appeal, such dispute shall be settled by binding arbitration. Pending any binding arbitrative or administrative decision, appeal, or judgment referred to in this article for the settlement of any dispute arising under the Order, Seller shall proceed diligently with the performance of the Order.

 

(k) Survival: Seller’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 18 (f), (i), (j), (k), (l), (o), and (q) will survive any termination of the Order.

 

(l) Waiver; modification: No claim or right arising out of a breach of the Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of COTA to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of COTA thereafter to enforce each and every such provision. The Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.

 

(m) Notices: All notices, consents, waivers, and other communications required or permitted to be given pursuant to the Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to COTA shall be sent to the Central Ohio Transit Authority (COTA) at 33 North High Street, Columbus, Ohio 43215-3076, to the attention of the Director of Supply Management, and to Seller at its address as set forth in the Order, or at such other address as either party may designate in writing to the other party.

 

(n) Severability: The parties agree that if any part, term, or provision of the Order or these terms is held by any court to be illegal, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Order or these terms did not contain the provisions held to be invalid.

If any provision of the Order or these terms is in conflict with any federal law, rule or regulation or with any law, rule, regulation or statutory provision of the State of Ohio, the conflicting provision shall be deemed inoperative and null and void insofar as they may be in conflict and shall be deemed modified to conform to lawful provisions, so as to give them as much effect as legally possible.

 

(o) Paragraph titles: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of the Order.

 

(p) Entire agreement: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, the Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.