- Title/Risk of Loss
- Patent Infringement, Use and Consent
- Small Business and Small Disadvantaged Business Subcontracting
- Equal Opportunity
- Davis Bacon
- Contract Work Hours and Safety Standards Act
- Clean Air and Water
- Export Regulations
- Publication and Press Releases
- Audits and Records
- Sales Tax Exemption Codes
The following Clauses are Incorporated by Reference with the same force and effect
as if they were given in full text.
Seller shall provide AURA the items described on the face of the Purchase Order,
or any attachment thereto, in accordance with the following Terms and Conditions:
1) DEFINITIONS: The following definitions apply to this Purchase Order:
- AURA is the Association of Universities for Research in Astronomy, Inc.,
and Arizona corporation
- Procurement Manager is the person acting on behalf of AURA;
- NOAO is the National Optical Astronomy Observatory which comprises the
Kitt Peak National Observatory, located in Tucson, Arizona, and the Cerro Tololo
Inter-American Observatory, Located in La Serena, Chile, South America.
- NSF is the National Science Foundation, and independent agency of the United
States Government, with whom AURA has a cooperative agreement.
- NSO is the National Solar Observatory.
- Purchase Order is the agreement between the Seller and AURA.
- Seller is the person or organization to whom this Purchase Order is issued.
- Work is comprised of all material, equipment, components, supplies, services,
to be provided by the Seller, as specified in this Purchase Order.
2) DOCUMENTATION: Include this Purchase Order, Terms and Conditions, and
all other documentation and drawings attached hereto or incorporated by reference.
3) ACCEPTANCE: Seller's acceptance of this Purchase Order, or delivery of
the Work to AURA by the delivery date specified in this Purchase Order, shall constitute
Seller's acceptance of the terms and conditions of this Purchase Order. Any confirmation
of this Purchase Order by Seller which purports to state terms which are additional
to or different from the those stated in this Purchase Order shall be construed
as a proposal to add such terms to the Purchase Order, and such different or additional
terms shall not become a part of the agreement between Seller and AURA unless AURA
expressly agrees to such terms in writing.
4) TITLE/RISK OF LOSS: Title to the Work shall remain with the Seller until
completion and delivery of such Work to AURA at the address specified in this Purchase
Order. Seller shall be responsible for, and shall bear all losses resulting from,
any loss of and damage to, including complete destruction of, the Work or any portion
thereof from any and all causes occurring prior to acceptance of such Work by AURA.
"SELLER HEREBY CERTIFIES THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH ALL
APPLICABLE REQUIREMENTS OF SECTION 6,7, AND 12 OF THE FAIR LABOR STANDARDS ACT,
AS AMENDED, AND OF REGULATIONS AND ORDERS OF THE U.S. DEPARTMENT OF LABOR ISSUED
UNDER SECTION 14 THEREOF.
- Invoices in duplicate shall be mailed to AURA's Accounts Payable Department when
items are shipped or as otherwise specified in this purchase order. The time for
payment shall not commence before actual or scheduled receipt; whichever is later,
of items at their destination or before complete performance by Seller in accordance
with the requirements of this order. Without limiting AURA's other remedies, if
product data is not furnished when scheduled, AURA may withhold remaining payments
(or such portion thereof as AURA may deem equitable) until such data is furnished.
- All taxes, when applicable, and freight charges shall be billed as separate items
on Seller's invoice. Seller shall apply the appropriate tax exemption as indicated
- Each invoice presented hereunder shall contain the certification:
- This Purchase Order may only be modified by a written document executed by AURA.
All purported verbal modifications to this Purchase Order shall be null and void.
- If any Change Order causes an increase or decrease in the cost of, or time required
for completion of the Work, the Seller shall notify the Procurement Manager, or
duly authorized representatives(s), in writing and shall request that an equitable
adjustment be made to the time required for completion of the work, the amount payable
for the work under this Purchase Order, or both. Such notice shall include a description
of the change, the amount of equitable adjustment to be made for completion of the
Work - detailed to enable AURA's analysis of all material, labor, equipment, transportation,
and supplies required for such change or modification - or revised date for completion
of the Work. Any claim for adjustment under this paragraph 6 b must be asserted
in writing within thirty (30) days from the date of receipt by Seller of the Change
Order. The Procurement Manager will, upon receipt of such notification, modify the
Purchase Order to incorporate the change.
7) PATENT INFRINGEMENT, USE AND CONSENT:
- Seller warrants that the Work and Seller's performance under this Purchase Order
shall not infringe any valid United States or foreign patents, trademarks or copyrights,
except where such infringement arises solely from a process or product specified
by AURA under this Purchase Order unless Seller or its subcontractors have information
that use of such process or product will or may cause an infringement, and fail
to promptly notify AURA of such infringement. Seller shall report to the Procurement
Manager, or his authorized representative, promptly and in reasonable written detail,
each notice or claim of patent or copyright infringement based on the performance
of this Purchase Order of which the seller has knowledge.
- In the event of any claim or suit against AURA on account of any alleged patent
or copyrights infringement arising out of the performance of the Work or out of
the use of any supplies furnished or Work performed hereunder. Seller shall furnish
to AURA, when requested by the Procurement Manager, all evidence and information
in possession of the Seller pertaining to such suit or claim. Seller agrees to defend
at it's sole expense any suit against AURA or it's customers based on a claim that
any item furnished under this purchase order or the normal use or sale thereof infringes
any Patent, trademark, or copyright. Seller agrees to pay costs and damages finally
awarded in any such suit, provided that Seller is notified in writing of the suit
and given assistance at Seller's expense for the defense of the same. If the use
or sale of said item is enjoined as a result of such suit, Seller further agrees,
at no expense to AURA, to obtain for AURA and it's customers the right to use and
sell said item, or shall substitute an equivalent item acceptable to AURA and extend
the patent indemnity thereto.
- The Government of the United States has given its authorization and consent for
all use and manufacture of any invention described in and covered by a patent of
the United States in the performance of this Purchase Order or any part hereof or
any amendment hereto or any subaward hereunder (including any lower-tier subcontract).
- Seller shall pay all royalties and license fee related to this Purchase Order.
8) SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING: It is
AURA Policy that small business concerns and small socially and economically disadvantaged
business concerns be given the maximum practicable opportunity to compete for subawardss
in order to assure maximum small business participation consistent with fulfilling
AURA's contractual obligations in an efficient and economical manner.
9) EQUAL OPPORTUNITY: During performance of this Purchase Order, Seller agrees
- It shall not discriminate against any employee or applicant for employment because
of race, color, religion, sex or national origin, or handicap.
- Seller shall take affirmative action to ensure that applicants are employed, and
the employees are treated during employment, without regard to their race, color,
religion sex, or national origin, or handicap.
- Seller shall post in conspicuous places available to employees and applicants
for employment the notices to be provided by AURA that explain this clause.
- Seller shall, in all solicitations or advertisements for employees placed by,
on behalf of Seller, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, or national origin.
- The Seller shall comply with Executive Order 11246, "Equal Employment Opportunity,"
as amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment
Opportunity," and as supplemented by regulations at 41 CFR Part 60, "Office of Federal
Contract Compliance Programs, Equal Employment Opportunity, Department of Labor",
and the rules, regulations, and orders of the Secretary of Labor.
- The Seller shall furnish to the National Science Foundation all information required
by Executive Order 11246, as amended, and by the rules, regulations, and orders
or the Secretary of Labor. Standard Form 100 (EEO-1), or any successor form, is
the prescribed form to be filed within 30 days following the date of the Purchase
Order, unless filed within 12 months proceeding the date of the Purchase Order.
- The Seller shall permit access to its premises, during normal business hours,
by the subawarding agency or the Office of Federal Contract Compliance Programs
(OFCCP) for the purpose of conducting on-site compliance evaluations and complaint
investigations. The Seller shall permit the Government to inspect and copy any books,
accounts, records (including computerized records), and other material that may
be relevant to the matter under investigation and pertinent to compliance with Executive
Order 11246, as amended, and rules and regulations that implement the Executive
- If the OFCCP determines that the Subawardee is not in compliance with this clause
or any rule, regulation, or order of the Secretary of Labor, this Purchase Order
may be cancelled, terminated, or suspended in whole or in part and the Seller may
be declared ineligible for further Government purchase orders, under the procedures
authorized in Executive Order 11246, as amended. In addition, sanctions may be imposed
and remedies invoked against the Subawardee as provided in Executive Order 11246,
as amended, so these terms and conditions will be binding on each subawardee or
- The Seller shall include the terms and conditions of subparagraphs 1 through 11
of this clause in every purchase order or subaward that is not exempt by the rules,
regulations, or order of the Secretary of Labor issued under Executive Order 111246,
as amended, so that these terms and conditions will be binding upon each seller
- The Seller shall take such action with respect to any subaward or purchase order
as Procurement Manager may direct as a means of enforcing these terms and conditions,
including sanctions for noncompliance, provided, that if the Seller becomes involved
in, or is threatened with, litigation with a subcontractor, as a result of any direction,
the Seller may request the United States to enter into the litigation process to
protect the interest of the United States.
- Notwithstanding any other clause in this purchase order, disputes relative to
this clause will be governed by the procedures in 41 CFR 60-1.1.
10) DAVIS-BACON, as amended (40 U.S.C. 276a to a-7) (applicable to subawards for
construction exceeding $2,000.): All purchase orders for construction shall
comply with the provision titled "Davis-Bacon Act (40 U.S.C. 276A to a-7) and as
supplemented by the Department of Labor regulations (29 CFR part 5, "Labor Standards
Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction").
Under this Act, the contract shall be required to pay wages to labor and mechanics
at a rate not less than the minimum wages specified in a wage determination made
by the Secretary of Labor. In addition, subawardee shall be required to pay wages
not less than once a week. The Subawardee shall place a copy of the current prevailing
wage determination issued by the Department of Labor in each solicitation and the
award of a subaward or purchase order shall be conditioned upon the acceptance of
the wage determination.
The recipient shall report all suspected or reported violations to AURA.
11) CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. 327-333) (contracts
for construction exceeding $2,000.): Purchase Orders for construction, which,
involve the employment of mechanics or labors shall include a provision for compliance
with Section 102 and 107 of the Contract Work and Safety Standards Act (40 U.S.C.
327-333), as supplemented by Department of Labor regulations (29 CFR part 5). Under
Section 102 of the Act, each contractor shall be required to compute the wages of
every mechanic and laborer on the basis of a standard work week of 40 hours. Work
in excess of the standard work week is permissible provided that the worker is compensated
at a rate of not less 1 ½ times the basic rate of pay for all hours worked
in excess of 40 hours in the work week. Section 107 of the Act is applicable to
construction work and provides that no labor or mechanic shall be required to work
in surroundings or under working conditions which are unsanitary, hazardous or dangerous.
These requirements do not apply to the purchase of supplies or materials or articles
ordinarily available on the open market, or contracts for transportation or transmission
12) CLEAN AIR AND WATER: (This clause is only applicable for awards exceeding
$100,000, or a facility to be used has been subject to of a conviction under the
Clean Air Act (42 U.S.C 7413(cc) (1)) or the Clean Water Act (33 U.S.C. 1319©
and is listed by EPA, or the award is not otherwise exempt.)
- Seller warrants that the Work shall conform to the description given in this Purchase
Order or any Attachment included with this order.
- Seller warrants that the Work shall conform to all verbal and written descriptions
of the Work given to AURA by the Seller, and shall conform to any statements of
fact or promises given to AURA by Seller regarding the Work, whether given before
or after the issuance of the Purchase Order.
- Seller warrants that the Work shall conform to all descriptions, sample or model
given to AURA by the Seller - either before or after this Purchase is issued - of
the Work published by Seller or the manufacturer of the Work.
- The warranties given in this section are in addition to any other warranties given
by Seller, or provided by the Work's manufacturer.
- Any purported disclaimers of implied warranty of merchantability or implied warranties
of fitness fro a particular purpose contained in documents within the packaging
of the Work shall be null and void.
14) INDEMNIFICATION: Seller agrees to indemnify, defend, and hold harmless
AURA, including its directors, officers, employees, agents and representatives,
from and against any and all damages, costs, liabilities, injuries, expenses, penalties,
claims, actions or losses of any nature whatsoever incurred by the Indemnified Parties,
including defense costs and attorney's fees through any appeal,
- arising from or related to sickness disease, and injury to - including death of
- any person(s) and damage to or loss of any property caused in whole or in part
by any defective Work;
- any design errors or omissions by seller; and
- any default in performance by Seller or Seller's subcontractors under this Purchase
15) REPRESENTATIONS/CERTIFICATIONS: The Seller certifies, that:
- The Seller and/or any of its Principals are not presently debarred, suspended,
proposed for debarment, or declared ineligible for the award of contracts by any
United States Federal agency;
- "Principals" - for the purpose of this certification - means officers; directors;
owners; partners; and, persons having primary management or supervisory responsibilities
within a business entity (e.g., general manager; plant manager; head of a subsidiary,
division, or business segment, and similar positions).
16) EXPORT REGULATIONS: Hardware, software, and related materials, including
technical data, may be subject to U.S. export control laws, including the U.S. Export
Administration Act, Arms Export Control Act, and their associated regulations, and
may be subject to export or import regulations in other countries.
Upon receipt of ordered materials, AURA will accept responsibility to comply with
all applicable export regulations should AURA decide to export the materials to
an overseas location.
Subawardee agrees to:
- Notify AURA when purchased materials are restricted for export by US government
- Strictly comply with all U.S. Export Control Regulations and acknowledges that,
when applicable, it has the responsibility to obtain export licenses, or other export
authority as may be required, for hardware, software, and related materials and
services, including technical data, related to the performance of this Subaward,
which are in its possession or under its control.
17) PUBLICATION AND PRESS RELEASES:
- Sellers agrees to acknowledge NSF support in all news releases, publications,
World Wide Web pages and other items prepared by the Seller, its employees, or subawardee's
which describe AURA, or its respective centers, activities or the results of research
using AURA or its respective centers facilities or archival data shall acknowledge
the sponsorship of the NSF. This acknowledgment shall include the following:
"This material is based on work supported by the National Science Foundation under
Cooperative Agreement No. AST 0132798.
- The Seller shall include in all such press releases, Web pages, publications a
disclaimer which states "Any opinions, findings, or recommendations expressed in
this report represent the views of the author(s) and do not necessarily reflect
the views of NSF or other affiliates of AURA."
- The Seller shall, within 5 working days, notify AURA of any actual or potential
labor dispute that may threaten to delay the timely performance of this Purchase
Order. The Seller shall immediately provide notice, including all relevant information,
to the Procurement Manager, or authorized designate.
- The Seller agrees to insert the substance of this clause in any subcontract to
which a labor dispute may delay the timely performance of this Purchase Order; except
that each subcontract shall provide that in the event its timely performance is
delayed or threatened by delay by any actual or potential labor dispute, the subcontractor
shall immediately notify the next higher tier subcontractor or AURA, as the case
may be, of all relevant information concerning the dispute.
19) AUDIT AND RECORDS: (Applicable for Purchase Orders in excess of $100,000.)
The Seller agrees that the Procurement Manager, Director of the NSF, and Comptroller
General of the United States, or any of their duly authorized representatives, shall,
until the expiration of three (3) years after final payment under this Purchase
Order, have access to and the right to examine any directly pertinent books, documents,
papers, and other records of the Seller for the purpose of performing audits, examination,
excerpts, transcriptions, copies of such documents pertinent to the award of this
Purchase Order. This right also includes timely and reasonable access to Seller's
personnel for the purpose of interview and discussion related to such documents.
Seller further agrees to include the substance of this clause in all subcontracts.
- AURA, by written notice stating the extent and effective date, terminate this
order for convenience in whole or in part at any time. AURA shall pay Seller as
full compensation for performance until such termination:
- the unit or pro rata order price for the delivered and accepted portion; and
- a reasonable amount, not otherwise recoverable from other sources by Seller as
approved by AURA, with respect to the undelivered or unacceptable portion of this
order, provided compensation hereunder shall in no event exceed the total order
- AURA may, by written notice of the Procurement Manager, terminate the Purchase
Order for Seller's default, in whole or in part, at any time, if Seller refuses
or fails to comply with the provisions of this Purchase Order, or so fails to make
progress as to endanger performance and does not cure such failure within ten (10)
days after receipt of written notice of such failure, or fails to complete the work
within the time required by this Purchase Order, or any written extension thereof.
If after receipt of notice of termination it is determined that Seller was not in
default, or it AURA ascertains that Seller's failure to perform or make progress
was a result of causes beyond the control and without the negligence or willful
misconduct of Seller or its subcontractors (including acts of Force Majeur ), termination
shall be deemed for convenience of AURA, unless AURA determines that the Work could
have been obtained from other sources in the time scheduled for delivery of the
Work under this Purchase Order. Seller shall promptly provide AURA with written
notice of any such delay, which shall contain all relevant details related to the
- If any delay in performance of the Work is due to the failure of AURA, and not
caused by or contributed to by Seller, the time and price of this Purchase Order
will be subject to the provisions of the clause titled "Changes."
- Neither this purchase order nor any interest herein nor claim hereunder may be
assigned by Seller either voluntarily or by operation of law, nor may all or substantially
all of this purchase order be further subcontracted by Seller without the prior
written consent of AURA, Inc. No consent shall be deemed to relieve Seller of its
obligations to comply fully with the requirements hereof.
- This purchase order is assignable to the United States government or the National
Science Foundation. Unless this Purchase Order is assigned to the NSF, it does not
bind or purport to bind the NSF or the United States of America. Any assignment
of this Purchase Order by Seller without the prior written consent of AURA shall
22) INTEGRATION: This Purchase Order is the final, complete, and exclusive
statement of the agreement between the AURA and the Seller. Except as expressly
provided otherwise in this Purchase Order, no terms, conditions, understandings,
usages of the trade, courses of dealing, or agreements purporting to modify, vary
explain or supplement this Purchase Order shall be binding unless agreed to by the
parties in writing.
23) PRECEDENCE: Conflicting provisions hereof, if any, shall prevail in the
following descending order of precedence:
- typed provisions on the face of this order;
- the printed portion of this order, including these purchase order Terms and Conditions;
- purchase order attachments and,
- specifications attached or incorporated by reference.
24) SEVERABILITY: The invalidity in whole or in part of any provision of
this order shall not affect the validity of other provisions. AURA's failure to
enforce a right hereunder promptly shall not be deemed a waiver of such right, and
no waiver of a right under a provision shall constitute a waiver of any other right
under such provision or any other provision. Time shall be of the essence hereunder,
but Seller shall perform work and make deliveries hereunder no earlier than, and
only to the minimum extent consistent with, delivery schedule and other requirements.
25) SURVIVAL: The terms, conditions, representations, indemnifications and
warranties contained in this Purchase Order shall survive the termination of this
Purchase Order and acceptance of the Work.
26)LAW: The Purchase Order shall be governed by and interpreted in accordance
with the laws of the State of Arizona without regard for its rules related to conflicts
of law, as if this transaction were entered into by residents of and fully performed
within the State of Arizona. Any action to require compliance with any provision
of this Subaward shall be brought in the State or Federal Courts of the State of
Arizona or at any other jurisdiction reasonably selected by, or approved by AURA.
TAX EXEMPTION CODES APPLICABLE TO AURA PURCHASE ORDERS
The following are the descriptions of the Tax Codes assigned to and indicated on
the face of the Purchase Order:
- Exempt from 50% of the AZ State Retail Sales Tax under ARS Section 42, Para. 5061,
- Exempt from 50% of the AZ Retail Sales Tax and City of Tucson Sales Tax in accordance
with ARS Section 42, Para. 5061, Part L and the Tucson City Code, Ch. 19-465.14.b.
- Exempt from AZ Use Tax on purchases of property from Manufacturers, Modifiers,
Assemblers or Repairers in accordance with ARS Section 42, Para 5159 Part A para
39 and on purchases of machinery or equipment used in Research and Development activities
under ARS Section 42, Para 5159, Part B.14.
- Exempt from all of the AZ Sales Tax on purchases of property from AZ Manufacturers,
Modifiers, Assemblers or Repairers under ARS Section 42, Para. 5061, Part K.1 and
- Exempt from all of the City of Tucson Sales Tax on purchases of property from
Tucson Manufacturers, Modifiers, Assemblers or Repairers in accordance with the
Tucson City Code, Ch. 19-465.14.a. and exempt from all of the AZ Sales Tax on purchases
of property from AZ Manufacturers, Modifiers, Assemblers or Repairers under ARS
Section 42, Para. 5061, Part K.1 and K.3.
- Exempt from all of the AZ Retail Sales Tax on purchases of machinery or equipment
used in Research and Development activities under ARS Section 42, Para. 5061, Part
- Exempt from New Mexico Gross Receipt Taxes for tangible personal property pursuant
to Section 72-13-29, NMSA 1953. New Mexico ID No. 01-829635-00-4.
- Exempt from California and Louisiana Sales Tax in accordance with State regulations.
Purchases are delivered to a licensed freight forwarder for shipment out of the
United States. CA Tax Code Article 6396; LA Tax Code RS 47:305.10.B.
- NO TAX EXEMPTION CLAIMED