THIS PURCHASE ORDER IS GOVERNED BY THE TERMS OF THE CONTRACT IDENTIFIED ABOVE, UNLESS NO CONTRACT IS IDENTIFIED ABOVE, IN WHICH CASE THIS PURCHASE ORDER IS GOVERNED BY NTTA’S GENERAL TERMS AND CONDITIONS BELOW. NTTA EXPRESSLY REJECTS ANY OTHER TERMS AND CONDITIONS PROPOSED TO GOVERN THIS PURCHASE.
The party selling or providing goods and/or services may be identified in this Purchase Order as “Supplier,” “Vendor,” “Seller,” or similar term indicating that such party is selling or providing goods and/or services hereunder, and all such terms in this Purchase Order or the terms and conditions below refer to that same party unless otherwise indicated herein.
I. ACCEPTANCE OF PURCHASE ORDER. Seller’s signing of this Purchase Order below, or shipping, sending, or delivering the goods and/or performing the services described herein, shall constitute Seller’s acceptance of all the terms and conditions set out herein. Seller’s performance of this Purchase Order must be in strict accordance with its terms, including these terms and conditions, and NTTA expressly rejects any terms and conditions not included herein. No changes in, modifications of, or revisions to this Purchase Order shall be valid unless in writing and signed by NTTA.
II. DELIVERY. Time and rate of deliveries or of performance of the services covered by this Purchase Order, are of the essence of this Purchase Order. Seller’s failure to deliver at the time and rate specified shall be the basis for rejection and termination of this Purchase Order by NTTA.
III. PACKAGING AND SHIPPING. Goods shall be suitably packed for delivery to prevent damage in transit, to comply with carrier requirements, and to secure the lowest transportation and insurance rates. Each container must be marked with applicable Purchase Order number and be accompanied by shipping papers.
IV. CHANGES. NTTA shall have the right to make changes to this Purchase Order by written notice to Seller. Any request for adjustment in the contract price or delivery schedule must be asserted by Seller within 30 days from the date of receipt of the change. Failure to agree on any adjustment shall be resolved under the Disputes Clause below, and nothing contained in this clause shall relieve Seller from proceeding without delay in the performance of this Purchase Order as changed.
V. INSPECTION AND ACCEPTANCE. Inspection and acceptance will be at destination, unless otherwise provided. Until delivery and acceptance, and after any rejections, risk of loss will be on Seller unless the loss results from the gross negligence of NTTA.
VI. WARRANTY. Seller agrees that the goods and/or services furnished under this Purchase Order (i) are of merchantable quality and suitable for their intended use or purpose, (ii) comply with any and all product descriptions or specifications referenced in this Purchase Order or supplied by or through Seller, (iii) are further covered by the most favorable commercial warranties, express or implied, Seller gives to any customer for such goods and/or services, and (iv) that said services will be performed in a timely, skilled, workmanlike, and proficient manner. Seller further agrees that the rights and remedies provided herein are in addition to, and do not limit, any rights afforded to NTTA by any other provision of this Purchase Order or by law.
VII. PAYMENTS. Invoices shall contain the following information: date; Purchase Order number; item number; Purchase Order description of goods and/or services; sizes; quantities; unit prices; and extended totals. Unless otherwise specified, payment will be made on partial deliveries accepted by NTTA when the amount due on such deliveries so warrants. Invoices will be paid 30 days from receipt of the invoice, unless other payment terms have been agreed in a writing signed by both parties.
VIII. TERMINATION. (i)For Convenience. NTTA may, by written notice, terminate this Purchase Order, in whole or in part, when it is in the best interest of NTTA in its sole discretion. In the event of such termination, NTTA shall be liable only for payment in accordance with this Purchase Order for services performed and/or goods delivered and accepted by NTTA prior to the effective date of such termination. Unless otherwise specified in the termination notice, termination shall be effective immediately upon NTTA’s delivery of such notice to Seller. (ii) For Default. NTTA may, by written notice, terminate this Purchase Order, in whole or in part, for any failure of Seller to perform any of the provisions hereof within the time periods specified or otherwise in accordance with these terms. In such event, Seller shall be liable for damages suffered by NTTA as a consequence of Seller’s default, including the excess cost of re-purchasing similar goods and/or services. NTTA’s rights and remedies under this paragraph are not exclusive, and NTTA may pursue any and all other remedies available to it at law or in equity.
IX. INDEMNIFICATION. Seller will defend, indemnify, and hold harmless NTTA and its board members, administrators, officers, employees, and agents (collectively, “Indemnitees”) from and against all liabilities, damages, losses, claims, fines, and judgments (including all costs and expenses incidental thereto) which may be incurred by any Indemnitee by reason of any loss, damage, or injury related in any way to this Purchase Order or in connection with any goods and/or services covered by this Purchase Order, unless resulting solely from NTTA’s gross negligence or willful misconduct.
X. DISPUTES. Except as otherwise provided in this Purchase Order, any dispute concerning a question of fact or law arising under or related to this Purchase Order which is not disposed of by agreement shall be decided by the Senior Director of Procurement, who shall reduce such decision to writing and mail or otherwise furnish a copy thereof to Seller. The decision of the Senior Director of Procurement shall be final and conclusive unless, within five days from the date of receipt of such copy, Seller mails or otherwise furnishes a written appeal addressed to the Executive Director of NTTA. The decision of NTTA on such appeal shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, capricious, so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal of the Senior Director of Procurement’s decision, Seller shall proceed diligently with the performance of the Purchase Order in accordance with the Senior Director of Procurement’s decision (which, to the extent modified on appeal, shall be deemed a change under the “Changes” clause of this Purchase Order).
XI. TAXES. NTTA is exempt from Texas state and local sales and use taxes, and any such taxes included on any invoice or voucher received by NTTA shall be deducted from the amount of the invoice or voucher for purposes of payment.
XII. ASSIGNMENT. Seller shall not assign, in whole or in part, any of its rights or obligations under this Purchase Order or any monies due or to become due hereunder without the prior written consent of NTTA.
XIII. EQUAL OPPORTUNITY. During the performance of this Purchase Order, Seller agrees that it will afford equal opportunity to all employees and applicants for employment without regard to race, color, religion, sex, handicapping conditions, or national origin. Seller agrees to post in conspicuous places available to employees and applicants for employment notices setting forth Seller’s commitment to the requirements of this provision. Seller further agrees to use its best efforts to afford equal opportunity for employment to minority-owned, women-owned, or disadvantaged business enterprise subcontractors, vendors, and suppliers.
XIV. INTEREST OF PUBLIC OFFICIALS. Seller represents and warrants that no board members, administrators, officers, employees, or agents of NTTA, nor any member of any of their immediate families, has or will have a pecuniary interest in or direct or indirect benefit from this Purchase Order. Seller further represents and warrants that it has not offered or given gratuities (in the form of entertainment, gifts, or otherwise) to any board member, administrator, officer, employee, or agent with a view toward securing favorable treatment in the awarding, amending, or evaluating the performance of this Purchase Order. For Seller’s breach of any representation or warranty in this clause, NTTA shall have the right to terminate this Purchase Order without liability, in addition to recourse to any other remedy provided by law.
XV. GOVERNING LAW. This Purchase Order shall be governed by the laws of the State of Texas. Venue for any action shall lie in Collin County, Texas.
XVI. MISCELLANEOUS. If any provision of this Purchase Order is found to be unenforceable, this Purchase Order shall be amended to delete such provision, and all other provisions shall remain in full force and effect. NTTA’s failure or delay in enforcing a provision of this Purchase Order or a previous waiver shall not be construed as a waiver of any provision of this Purchase Order. This Purchase Order is the entire agreement of the parties and shall supersede any previous executed agreements or oral understanding between the parties which relate to the subject matter hereof.