Terms & Conditions for Purchasing

UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING, ALL PURCHASES ARE SUBJECT TO THE FOLLOWING TERMS & CONDITIONS. 

  1. PRICE:  All prices shall be as stated in the Purchase Order and are firm and not subject to escalation.  Seller represents that the prices quoted to or paid by the City will not exceed current prices charged to any other commercial or government customer by the Seller on the execution date for items that are the same or substantially similar to the goods, taking into consideration the quantity under consideration, and the Seller will forthwith refund any amounts paid by the City in excess of the price. City will not pay charges for taxes, transportation, boxing, packaging, crating or returnable containers unless separately stated in the Purchase Order.  All sales, use, excise or similar taxes to be paid by City must be itemized separately on all invoices.  The City is exempt from Federal Excise and Transportation taxes. Prices shall exclude these taxes. Where any other tax exemption is available, the tax must be identified as subtracted from the total price.  
  2. SHIPMENT AND INSPECTION: The terms and routing of shipment shall be as provided on the face of the Purchase Order, or as City otherwise directs. Goods shall be packaged, marked and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Shipping documents MUST cite the Purchase Order number. City may revise shipping instructions as to any goods not then shipped. City shall have the right to inspect any or all of the goods at Seller's place of business or upon receipt by City at City's election, which right shall be exercisable notwithstanding City's having paid for the goods prior to inspection. City, by reason of its failure to inspect the good, shall not be deemed to have accepted any defective goods or goods which do not conform to the specifications therefor, or to have waived any of City's rights or remedies arising by virtue of such defects or non-conformance. 
  3. ACCEPTANCE AND PAYMENT: Acceptance shall be made when the City determines the goods or services conform to the Purchase Order, or when City notifies Seller that it will accept the goods or services despite nonconformity. Unless otherwise stated in the Purchase Order, payment terms are Net 30 days; payment shall be scheduled upon complete delivery and acceptance of all goods or services and receipt of an original and one copy of an invoice acceptable to the City. Invoices MUST cite the Purchase Order number to prevent return of the invoice to the Seller. Each payment obligation of the City is conditioned upon the availability of state or local government funds which are apportioned or allocated for the payment of such an obligation. Invoices for goods or services provided in June or for any goods or services not previously invoiced shall be submitted to City no later than June 30th to facilitate City fiscal year end closing.  
  4. TITLE AND RISK OF LOSS: All shipments are F.O.B. – Destination, Seller pays all charges and assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other services associated with delivery of all products deemed necessary under the Purchase Order , unless specified otherwise in the Purchase Order. If an order is agreed upon as F.O.B. – Origin, freight is to be prepaid and added to the invoice. The City reserves the right to request a copy of the paid express or freight bill. Seller retains title to the goods and risk of loss, and title to and risk of loss on all goods shall pass to City only upon City’s acceptance of such goods.
  5. WARRANTIES:  In addition to any other express or implied warranties, Seller warrants that all goods delivered under the Purchase Order will be new; suitable for the use intended; of the grade and quality specified; free from all defects in design, material and workmanship; in conformance with all samples, drawings, descriptions and specifications furnished by the City; in compliance with all applicable federal, state, and local laws and regulations; and free of liens and encumbrances. These warranties shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which the City may have or obtain. At its expense and option, Seller shall replace or repair any goods not conforming to the foregoing warranties. If, after notice, Seller fails promptly to replace or repair any such goods, Seller shall promptly refund to City the full purchase price paid by the City for such goods. No acceptance or payment by City shall constitute a waiver of the forgoing, and nothing herein shall exclude or limit any warranties implied by law.
  6. REMEDIES: In the event of Seller's breach of this contract. City may take any or all of the following actions, without prejudice to any other rights or remedies available to City by law: (1) require Seller to repair or replace such goods, and upon Seller's failure or refusal to do so, City may repair or replace the same at Seller's expense; (2) reject any shipment or delivery containing defective or nonconforming goods and return for credit or replacement at City's option; said return to be made at Seller's cost and risk; (3) cancel any outstanding deliveries hereunder, and treat such breach by Seller as Seller's repudiation of this terms and conditions. In the event of City's breach hereunder, Seller's exclusive remedy shall be Seller's recovery of the goods or the purchase price payable for goods shipped prior to such breach.
  7. DELIVERY: Time is of the essence in the performance of the Purchase Order. If delivery of goods cannot be made at the specified time, Seller shall promptly notify the City of the earliest possible date for delivery. Notwithstanding such notice, if Seller, for any reason whatsoever, fails to deliver goods within the time specified, City may terminate the Purchase Order or any part thereof without liability except for goods previously delivered and accepted. City’s receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right or remedy City has under the Purchase Order or applicable law. 
  8. QUANTITIES: Seller shall deliver the exact quantities specified in the Purchase Order. City reserves the right to reject incomplete deliveries and to return at Seller’s risk and expense excess quantities delivered. 
  9. CHANGE ORDERS: The City shall have the right to revoke, amend or modify the Purchase Order at any time by giving written notice. Upon receipt of any such notice, Seller shall promptly make the changes in accordance with the terms of the notice.  If any such changes cause an increase or decrease in the cost of, or in the time required for the performance of the contract, then Seller must deliver to City a statement showing the effect of any such changes as promptly as possible, and in any event within fifteen (15) calendar days of receipt of the City’s notice of change. An equitable adjustment shall be negotiated promptly and the Purchase Order modified in writing accordingly. Any claim by Seller for adjustment in this cause must be approved by the City’s authorized representative(s) in writing before Seller proceeds with such change. Failure of Seller to submit the statement within the time limit shall constitute its consent to perform the change without increase in compensation or time for performance. 
  10. COMPLIANCE WITH LAW: Seller warrants that it will comply with all federal, state, and local laws, ordinances, rules and regulations applicable to its performance under the Purchase Order. 
  11. GOVERNING LAW: This Purchase Order and the contract between the parties evidenced hereby shall be deemed to be made in the County of Alameda, State of California and shall in all respects be construed and governed by the laws of that State. 
  12. PATENTS, COPYRIGHTS OR TRADEMARKS: Seller shall hold harmless and fully indemnify the City and its officers, employees and agents from all damages or claims for damages, costs or expenses in law or equity that may arise for any infringement of the patent right, copyright or trademark of any person as a consequence of the use by the City or any of its officers, employees or agents, of goods supplied under the Purchase Order. 
  13. INDEMNIFICATION:  TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES, AGAINST ANY CLAIM, LOSS OR LIABILITY, COSTS, EXPENSES (COLLECTIVELY, “CLAIMS”), INCLUDING WITHOUT LIMITATION CLAIMS FOR INJURIES OR DEATH TO PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY, INCLUDING ECONOMIC LOSS, CAUSED BY OR RESULTING FROM THE ACTS OR OMISSIONS OF SELLER, ITS OFFICERS, AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE PURCHASE ORDER, OR THE BREACH BY SELLER OF ANY OF ITS OBLIGATIONS UNDER THE PURCHASE ORDER.
  14. INSURANCE: Seller shall maintain Worker’s Compensation and Employer’s Liability insurance as required by statute, and Commercial General and Business Automobile Liability insurance adequate to protect Seller and Seller’s obligations hereunder. The Seller may be required to file with the City certificates of such insurance. Failure to furnish such evidence, if required, may be considered a material default of the Seller.
  15. TERMINATION / RIGHT TO CANCEL: City reserves the right to cancel any portion of the Purchase Order at any time prior to delivery.   City reserves the right to immediately terminate at any time for Seller’s breach or default, including but not limited to (i) if Seller fails to timely deliver the goods, or if no time is specified, within a reasonable time; (ii) if the goods delivered are incorrect or unsatisfactory; (iii) if Seller fails to perform any of the other provisions of the Purchase Order, or so fails to make progress as to endanger performance of the Purchase Order; or (iv) if the Seller becomes insolvent. In the event of termination for fault of Seller, City may reduce payment to the Seller in the amount necessary to offset City’s resulting damages, procure substitute goods or services at Seller’s expense, and/or pursue any other available recourse against Seller. 
  16. MISCELLANEOUS:
    1. The waiver of any term, condition or provision hereof shall not be construed to be a waiver of any other such term, condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term condition or provision.
    2. In any action by a party to enforce its rights hereunder, the non-prevailing party shall pay the prevailing party’s legal costs and expenses (including reasonable attorney’s fees).
    3. Seller shall not assign its rights or obligations under the Purchase Order without the prior written consent of the City.
    4. Seller shall not insure the goods for City's account unless the terms of the Purchase Order so require.
    5. Stenographic and clerical errors, whether in mathematical computations or otherwise, made by City or on the Purchase Order or any other forms delivered to Seller shall be subject to correction.
    6. The entire understanding and agreement of the parties with respect to the transactions contemplated herein is contained in this document, and any prior understandings, agreements, and representations, oral or written, shall be deemed superseded and merged herein. Any modification hereof, to be valid, must be in writing and executed by both parties.