MUFN Standard Terms and Conditions

MUFN Standard Terms and Conditions for Purchases

1. Entire Agreement, Order of Precedence.

• a. These Standard Terms and Conditions (“Terms”) apply to and are incorporated into any purchase order issued by the Metropolitan Unified Fiber Network Consortium, an unincorporated association under Chapter 184 of the Wisconsin Statutes, (“Buyer”) for Goods or Services, except where expressly stated otherwise in a written contract with respect to the Goods and/or Services signed by Seller and an authorized representative of Buyer in a form approved by Buyer’s Oversight Committee (“Separate Contract”).
• b. Capitalized words or phrases not defined in these Terms shall have the meanings ascribed to them in the “Conditions of Purchase” printed on the reverse side of the purchase order form.
• c. The Purchase Order (including these Terms and the other documents incorporated by reference into the Purchase Order) constitutes the entire agreement between Buyer and the vendor or contractor named on the face of the Purchase Order (i.e., Seller) with respect to the purchase of the Goods and/or Services referenced in the Purchase Order (collectively, this “Agreement”) and no other terms or conditions, oral or written, shall be effective or binding unless contained in a Separate Contract. If there is a Separate Contract in existence with respect to the Goods and/or Services covered by this Agreement, the terms and conditions of the Separate Contract shall prevail to the extent they are inconsistent with this Agreement. If there is a conflict between this Agreement and any terms in Seller’s bid or proposal that was accepted by Buyer (if any), the terms of this Agreement shall control unless Buyer and Seller expressly agree to another order of precedence in a Separate Contract.
• d. The Purchase Order expressly limits Seller’s acceptance to the terms of this Agreement. The terms of this Agreement prevail over any of Seller’s terms and conditions of sale, regardless whether or when Seller has submitted its sales confirmation or such terms. If a Seller document, such as a quote, order form, invoice, or linked terms and conditions, includes a statement that disclaims a purchase order, terms and conditions on a purchase order, or other customer terms and conditions, or a statement that the Seller document is the “entire agreement,” such statement is rejected and superseded by this Agreement unless Buyer has expressly agreed otherwise in a Separate Contract.

2. Shipping Terms. Delivery of Goods shall be made F.O.B. Destination, freight prepaid. Seller shall bear all handling, transportation, and insurance charges. Title to Goods and risk of loss shall pass to Buyer upon acceptance of goods by a representative of Buyer at the delivery address contained in the Purchase Order.

3. Delivery of Goods and Performance of Services.

• a. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by Buyer and Seller (“Delivery Date”). If no date for delivery is specified, Seller shall deliver the Goods within 15 days of Seller’s receipt of the Purchase Order. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses (including attorneys’ fees) directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.
• b. Seller shall deliver all Goods to the address specified in the Purchase Order (“Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all Goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in an undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense.
• c. Seller shall provide Services to Buyer as described and in accordance with the schedule set forth in the Purchase Order.
• d. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of Goods and Services, including all performance dates, timetables, project milestones, and other requirements in this Agreement.

4. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense.

5. Price. The price of the Goods and Services is the price stated in the Purchase Order. If no price is included in the Purchase Order, the price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, and fees and applicable taxes. No increase in the price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer.

6. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause. Any inspection or other action by Buyer under this Section 6 shall not reduce or otherwise affect Seller’s obligations under this Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

7. Return. Seller will be required to accept return of Goods ordered in error for up to 21 days from the date of receipt, with Buyer paying only return shipping costs.

8. Seller’s Obligations Regarding Services. Seller shall:

• a. Before the date on which Services are to start, obtain, and at all times during the term of this Agreement, maintain all necessary licenses, permits, authorizations, permissions, consents, and approvals and comply with all laws, rules, regulations, ordinances, orders, and grant terms applicable to the provision of the Services;
• b. Comply with all rules, regulations, and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas or systems for security reasons, and general health and safety practices and procedures;
• c. Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of two years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
• d. Obtain Buyer’s written consent, which may be given or withheld in Buyer’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer. Buyer’s approval shall not relieve Seller of its obligations under this Agreement, and Seller shall remain fully responsible for the performance of each such subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;
• e. Ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Seller are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services;
• f. Ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Buyer;
• g. Keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with Buyer’s written instructions or authorization;
• h. Ensure that any work performed on land owned by the City of Madison or in public right-of-way or utility or public service easements under the jurisdiction or control of the City of Madison is performed in compliance with the Facilities Use and License Agreement between Buyer and the City of Madison effective June 28, 2013, a copy of which is available at https://www.mufn.org/fula.pdf or by contacting MUFN at Contact MUFN; and
• i. Repair any work site damage, including damage to finished surfaces, resulting from the performance of this Agreement to Buyer’s satisfaction at Seller’s expense.

9. Change Orders. Buyer may at any time, by written instructions and/or drawings issued to Seller (each, a “Change Order”), order changes to the Services. Seller shall, within 3 days of receipt of a Change Order, submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in Seller’s compensation or the performance deadlines under this Agreement.

10. Invoicing. Buyer will pay properly submitted Seller invoices within 30 days of receipt, provided Goods and/or Services have been delivered, installed/completed (if required), and accepted.

• a. Seller shall send invoices directly to the “Bill To” address listed on the face of the Purchase Order.
• b. Seller shall reference the Purchase Order number on all invoices.
• c. Seller shall include discounts for early payment as a percent reduction of the invoice. Invoice discounts shall be determined where applicable from the date of acceptance of Goods and/or Services or the receipt of invoice, whichever is later. Discounts for early payment terms stated on the bid/proposal must be shown plainly on the invoice; discounts for early payment not shown on the invoice will be taken.
• d. Invoices submitted not in accordance with these instructions will be removed from the payment process and returned within 10 days for correction and resubmission.
• e. Payment shall be considered timely if the payment is mailed, delivered, or transferred within 30 days after receipt of a properly submitted completed invoice for Goods and/or Services that have been delivered, installed/completed (if required), and accepted as specified, unless Seller is notified in writing of a dispute before payment is due.

11. Warranty.

• a. Seller warrants to Buyer that for a period of 12 months from the date of acceptance, all Goods will be (i) free from defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer, (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests, or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. Seller warrants that it shall perform the Services using personnel of required skill, experience, and qualifications in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. Seller warrants that, unless otherwise specified in this Agreement, all Goods and all materials and equipment incorporated in the work under this Agreement shall be new, first class, and in accordance with this Agreement. Seller further warrants that all workmanship shall be first class and in accordance with this Agreement and shall be performed by persons qualified in their respective trades. Work not conforming to these warranties shall be considered defective. This warranty of materials and workmanship is separate and independent from and in addition to any other guarantees in this Agreement.
• b. The warranties in this Section 11 are cumulative and in addition to any other warranty provided by law or equity, and survive any delivery, inspection, acceptance, or payment for the Goods and/or Services by Buyer. Any work or material found to be in any way defective or unsatisfactory shall be corrected or replaced by Seller at its own expense at the order of Buyer notwithstanding that it may have been previously overlooked or passed by an inspector. No inspection shall relieve Seller of its obligations to furnish material and workmanship strictly in accordance with this Agreement.
• c. If Buyer gives Seller notice of noncompliance pursuant to this Section 11, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer and, if applicable, (ii) repair or re-perform the applicable Services.

12. Inspections. At any time during normal business hours and as often as Buyer may deem necessary, Seller shall permit the authorized representatives of Buyer to review and inspect all materials and workmanship at any time during the duration of this Agreement, provided, however, Buyer is under no duty to make such inspections, and any inspection so made shall not relieve Seller from any obligation to furnish materials and workmanship strictly in accordance with this Agreement.

13. Compliance with Laws. Seller represents and warrants that it (and its subcontractors, if any) shall provide the Goods and/or Services in compliance with the Purchase Order (including the documents incorporated by reference) and all applicable state, federal, and local laws, rules, regulations, ordinances, and orders, including the Occupational Safety and Health Act with respect to the design, manufacture, or use for their intended purpose of such Goods or Services. If such standards are not met, Seller shall bear all costs required to meet the standards. Seller shall obtain and maintain in effect all licenses, permissions, authorizations, consents, approvals, and permits that it needs to carry out its obligations or perform the Services under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.

14.Prevailing Wage. Where applicable under federal law, Seller warrants that prevailing wages will be paid to all trades and occupations.

15. Termination/Cancellation. In addition to any other remedies that may be provided under this Agreement, Buyer may terminate this Agreement with immediate effect upon written notice to Seller if Seller has not fully performed or complied with any of the provisions of this Agreement, in whole or on part (including but not limited to maintain the required insurance, permits, and licenses, if applicable). If Seller becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to the bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Buyer may terminate this Agreement upon written notice to Seller. Buyer may, in its sole discretion, and without any reason, cancel or terminate this Agreement, in whole or in part, without penalty, by providing 10 days’ written notice thereof to Seller. If Buyer terminates this Agreement for any reason, Seller’s sole and exclusive remedy shall be payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.

16. Insurance. Seller shall insure and will require its subcontractors (if any) to insure, as indicated, against the following risks to the extent stated below. Seller shall not commence work under this Agreement or allow any subcontractor to commence work, until the insurance required below has been obtained and corresponding certificate(s) of insurance have been provided to Buyer:

• a. Commercial General Liability. Commercial General Liability insurance including, but not limited to, bodily injury, property damage, personal injury, products and completed operations in an amount not less than $2,000,000 per occurrence/$2,000,000 aggregate on a per-project basis. This policy shall also provide contractual liability coverage in the same amount. This policy shall be primary and non-contributory and name the Metropolitan Unified Fiber Network Consortium and its members, officers, officials, agents, and employees as additional insureds. Seller shall require all subcontractors to procure and maintain insurance meeting the same criteria, applying on a primary and non-contributory basis, and listing the Metropolitan Unified Fiber Network Consortium and its members, officers, officials, agents, and employees as additional insureds.
• b. Worker’s Compensation. Statutory Workers’ Compensation insurance as required by the State of Wisconsin and Employers Liability limits of not less than $100,000 Each Accident, $100,000 Disease – Each Employee, and $500,000 Disease – Policy Limit. Seller shall require all subcontractors to procure and maintain insurance covering each subcontractor and meeting the above criteria.
• c. Automobile Liability. Business Automobile Liability Insurance covering owned, non-owned, and hired automobiles with limits of not less than $1,000,000 combined single limit per accident. Seller shall require all subcontractors to procure and maintain such insurance covering each subcontractor.
• d. Professional Liability. Professional liability insurance with coverage of not less than $1,000,000. If such policy is a “claims made” policy, all renewals thereof during the life of this Agreement shall include “prior acts coverage” covering at all times all claims made with respect to Seller’s work performed under this Agreement. This coverage must be kept in force for a period of six years after the services have been accepted.
• e. Other Insurance. Any insurance required under any applicable permit, license, authorization, consent, or approval.
• f. To the extent that the Agreement involves any work to be performed by Seller or its subcontractors on land owned by the City of Madison or in public right-of-way or utility or public service easements under the jurisdiction or control of the City of Madison, Seller and its subcontractors shall obtain and maintain in force for the duration of the work and until any facilities constructed are approved and accepted by the City of Madison and for as long as required under any applicable permit or similar procedures, all insurance required under Section 107.4, “Contractor’s Liability Insurance,” of the then-current version of the City of Madison Standard Specifications for Public Works Contracts, available at City of Madison Standard Specifications for Public Works Contracts, and shall comply with all of the requirements of that Section 107.4. Seller shall not commence work under this Agreement or allow any subcontractor to commence work until certificates of insurance evidencing the required coverage have been provided to and approved by the City of Madison Risk Manager. The Metropolitan Unified Fiber Network Consortium and its members, officers, officials, agents, and employees shall also be listed as additional insureds on such policies wherever the City of Madison is so listed.
• g. The insurance required by this Section 16 is to be placed with insurers who have an A.M. Best rating of no less than A- and a financial category rating of no less than VII.
• h. The insurance requirements under this Section 16 shall be the greater of (i) the minimum limits and coverage specified herein, or (ii) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured. The insurance requirements in this Section 16 shall not in any way act to reduce coverage that is broader or that includes higher limits.
• i. The Seller and/or insurer shall give Buyer 30 days’ advance written notice of cancellation, non-renewal, or material changes to any of the above-required policies during the term of this Agreement.

17. Indemnity.

• a. General. Seller shall defend, indemnify and hold harmless the Metropolitan Unified Fiber Network Consortium and its members, officers, officials, agents, employees, and consultants (each, an “Indemnified Party”) against any and all suits, claims, damages, losses, and expenses, direct, indirect, or consequential (including but not limited to fees and charges of engineers, architects, attorneys, and other professionals and court and arbitration costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) arising out of or occurring in connection with (i) the Goods and Services purchased from Seller or (ii) Seller’s or subcontractors’ negligence, willful misconduct, or breach of this Agreement.
• b. Services. To the fullest extent permitted by law, Seller shall indemnify, defend, and hold harmless the Indemnified Parties from and against all suits, claims, damages, losses, and expenses, direct, indirect, or consequential (including but not limited to fees and charges of engineers, architects, attorneys, and other professionals and court and arbitration costs) arising out of or resulting from the performance of work under this Agreement, provided that any such claim, damage, loss, or expense: (a) is attributable to bodily injury, sickness, disease, death, personal injury, or injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom and (b) is caused in whole or in part by any negligent act or omission of Seller, any subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish any of the work or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by an Indemnified Party or arises by or is imposed by law regardless of the negligence of any such party. In any and all claims against an Indemnified Party by any employee of Seller, any subcontractor, any person or organization directly or indirectly employed by any of them to perform or furnish any of the work or anyone for whose acts any of them may be liable, the indemnification obligation hereunder shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Seller or any such subcontractor or other person or organization under workers’ or workmen’s compensation acts, disability benefit acts, or other employee benefit acts.
• c. Environmental. Seller represents and warrants that Seller’s (and its subcontractors’) work under this Agreement will not generate any hazardous substances, and it will not store or dispose at the work site nor transport to or over the work site any hazardous substances in violation of any applicable federal, state, or local law, rule, or regulation. Seller further agrees to indemnify, defend, and hold the Indemnified Parties harmless from any release of such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys’ fees, costs, and penalties incurred as a result thereof, which was caused by Seller or any of its subcontractors, employee, or agents. “Hazardous substance” shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic radioactive substance, or other similar term, by ay federal, state, or local environmental law, rule, or regulation presently in effect or promulgated in the future, as such laws, rules, or regulations may be amended from time to time; and its shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death, or disease.
• d. City of Madison. To the extent that this Agreement involves any work to be performed on land owned by the City of Madison or in public right-of-way or utility or public service easements under the jurisdiction or control of the City of Madison, the Indemnified Parties in Sections 17.b and 17.c shall also include the City of Madison, its officials, officers, agents, employees, and consultants. The obligations of Seller do not extend to the liability of the City of Madison’s consultants or consultants’ agents or employees arising out of the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, and designs or qualifications.

18.Tax Exemption. Buyer is exempt from the payment of federal, state and local taxes. Buyer’s tax exempt number is 31954. See IRS determination letter here.

19. Authority. By furnishing the Goods and/or Services under the Purchase Order, Seller represents that it has the authority to enter into and bind itself to the terms of this Agreement.

20. Assignment; Subcontracting. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer, which may be given or withheld in Buyer’s sole discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any member, affiliate, or any entity acquiring all or substantially all of Buyer’s assets.

21. Relationship of Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Buyer and Seller, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.

22. Notices. Except where otherwise specified herein, all notices, consents, claims, demands, or waivers hereunder (each, a “Notice”) shall be in writing and addressed to Buyer at the following address: Metropolitan Unified Fiber Network – Consortium, Unincorporated Association, C/O City of Madison CIO, Information Technology Department, Suite 500, 210 Martin Luther King Jr. Blvd, Madison, WI, 53703 and to Seller at the “Vendor Address” listed on the face of the Purchase Order form or to such other address as Buyer or Seller may designate in writing from time to time. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with fees pre-paid), or certified or registered mail (return receipt requested, postage prepaid). Refusal to accept delivery of any Notice or the inability to deliver any Notice because of a changed address for which no change of address notice was given, shall be deemed receipt of the Notice.

23. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative of Buyer after approval by Buyer’s Oversight Committee. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

24. Governing Law; Venue. All matters arising out of or relating to this Agreement are to be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice of law or conflict of law provisions or rule that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. The venue for disputes arising under this Agreement will be in a court of competent jurisdiction located within Dane County, Wisconsin.

25. Limitations. Seller acknowledges that one or more members of Buyer are public entities. Nothing in this Agreement shall be construed to waive any obligation or requirement of Seller to obtain all necessary approvals, licenses, and permits (if any) from any of Buyer’s members in accordance with the member’s usual practices and procedures, nor limit or affect in any way the right or authority of any of Buyer’s members to approve or reasonably disapprove any applications or to impose reasonable limitations, restrictions, and requirements as a condition of any such approval, license, or permit.

26. Survival. Any provisions of this Agreement relating to indemnification and any terms and conditions that, by their sense or context, are intended to survive termination will so survive.

27. Severability. If any section, subsection, term, or provision of this Agreement or the application thereof to any party or circumstance is, to any extent, held invalid or unenforceable, the remainder of the section, subsection, term, or provision of this Agreement or the application of same to parties or circumstances other than those to which it was held invalid or unenforceable, will not be affected thereby and each remaining section, subsection, term, or provision of this Agreement will be valid or enforceable to the fullest extent permitted by law.

28. Headings. The headings of sections and subsections are for convenient reference only and will not be deemed to limit, construe, affect, modify, or alter the meanings of the sections or subsection.