Terms and Conditions of Purchase

Revised 12 14 21

ARTICLE 1 – GENERAL

The equipment, materials, or supplies (“Goods”) and/or services (“Services”) furnished by Supplier (together, the “Goods and

Services”) and covered by the UC Purchase Order (“PO”) and/or other agreement (which, when combined with these Terms and

Conditions and any other documents incorporated by reference, will constitute the “Agreement”) are governed by the terms

and conditions set forth herein. As used herein, the term "Supplier" includes Supplier and its sub-suppliers at any tier. As used

herein, “UC” refers to The Regents of the University of California, a corporation described in California Constitution Art. IX, Sec.

9, on behalf of the UC Locations identified in the Agreement and/or the PO. UC and Supplier individually will be referred to as

“Party” and collectively as “Parties.” Any defined terms not defined in these Terms and Conditions of Purchase will have the

meaning ascribed to such term in any of the other documents incorporated in and constituting the Agreement. No other terms

or conditions will be binding upon the Parties unless accepted by them in writing. Supplier accepts all of the Agreement’s terms

and conditions either in writing, by shipping any portion of the Goods, or performing any portion of the Services. The terms of

any proposal referred to in the Agreement are included and made a part of the Agreement only to the extent the proposal

specifies the Goods and/or Services ordered, the price therefor, and the delivery thereof, and then only to the extent that such

terms are consistent with the terms and conditions of the Agreement.

ARTICLE 2 – TERM AND TERMINATION

A. As applicable, the term of the Agreement (“Initial Term”) will be stated in the Agreement. Following the Initial Term, the

Agreement may be extended by written mutual agreement.

B. UC’s obligation to proceed is conditioned upon the appropriation of state, federal and other sources of funds not

controlled by UC ("Funding"). UC will have the right to terminate the Agreement without damage, penalty, cost or further

obligation in the event that through no action or inaction on the part of UC, the Funding is withdrawn.

C. UC may, by written notice stating the extent and effective date thereof, terminate the Agreement for convenience in

whole or in part, at any time. The effective date of such termination shall be consistent with any requirements for

providing notice specified in the Agreement, or immediate if no such terms are set forth in the Agreement. As specified in

the termination notice, UC will pay Supplier as full compensation the pro rata Agreement price for performance through

the later of the date that

a. UC provided Supplier with notice of termination or

b. Supplier’s provision of Goods and/or Services will terminate.

D. UC may by written notice terminate the Agreement for Supplier’s breach of the Agreement, in whole or in part, at any

time, if Supplier refuses or fails to comply with the provisions of the Agreement, or so fails to make progress as to

endanger performance and does not cure such failure within five (5) business days, or fails to supply the Goods and/or

Services within the time specified or any written extension thereof. In such event, UC may purchase or otherwise secure

Goods and/or Services and, except as otherwise provided herein, Supplier will be liable to UC for any excess costs UC

incurs thereby.

E. If any of the following appendices are incorporated in to the agreement, then they will control in the event that the

appendices conflict with the provisions of this Article:

UC’s Appendix – Data Security,

Appendix – BAA, and/or

Appendix – GDPR

ARTICLE 3 – PRICING, INVOICING METHOD, AND SETTLEMENT METHOD AND TERMS.

Pricing is set forth in the Agreement or PO, and the amount UC is charged and responsible for shall not exceed the amount

specified in the Agreement unless UC has given prior written approval. Unless otherwise agreed in writing by UC, Supplier will

use the invoicing method and payment settlement method (and will extend the terms applicable to such settlement method)

set forth in UC’s Supplier Invoicing, Terms & Settlement Matrix (

https://www.ucop.edu/procurement-services/procurement-

systems/supplier-invoicing,-terms-and-settlement-matrix.html). UC will pay Supplier, upon submission of acceptable invoices,

for Goods and/or Services provided and accepted. Invoices must be itemized and reference the Agreement or PO number. UC

will not pay shipping, packaging or handling expenses, unless specified in the Agreement or PO. Unless otherwise provided,

freight is to be FOB destination. Any of Supplier’s expenses that UC agrees to reimburse will be reimbursed under UC’s Travel

Policy, which may be found at

http://www.ucop.edu/central-travel-management/resources/index.html. Where applicable,

Supplier will pay all taxes imposed on Supplier in connection with its performance under the Agreement, including any federal,

state and local income, sales, use, excise and other taxes or assessments. Notwithstanding any other provision to the contrary,

UC will not be responsible for any fees, interest or surcharges Supplier wishes to impose.

ARTICLE 4 – INSPECTION.

Terms and Conditions of Purchase

Revised 12 14 21

The Goods and/or Services furnished will be exactly as specified in the Agreement, free from all defects in Supplier's

performance, design, skill and materials, and, except as otherwise provided in the Agreement, will be subject to inspection and

test by UC at all times and places. If, prior to final acceptance, any Goods and/or Services furnished are found to be incomplete,

or not as specified, UC may reject them, require Supplier to correct them at the sole cost of Supplier, or require provision of

such Goods and/or Services at a reduction in price that is equitable under the circumstances. If Supplier is unable or refuses to

correct such deficiencies within a time UC deems reasonable, UC may terminate the Agreement in whole or in part. Supplier

will bear all risks as to rejected Goods and/or Services and, in addition to any costs for which Supplier may become liable to UC

under other provisions of the Agreement, will reimburse UC for all transportation costs, other related costs incurred, or

payments to Supplier in accordance with the terms of the Agreement for unaccepted Goods and/or Services and materials and

supplies incidental thereto. Notwithstanding final acceptance and payment, Supplier will be liable for latent defects, fraud or

such gross mistakes as amount to fraud.

ARTICLE 5 – ASSIGNED PERSONNEL; CHARACTER OF SERVICES

Supplier will provide the Services as an independent contractor and furnish all equipment, personnel, and supplies sufficient to

provide the Services expeditiously and efficiently, during as many hours per shift and shifts per week, and at such locations as

UC may so require. Supplier will devote only its best-qualified personnel to work under the Agreement. Should UC inform

Supplier that anyone providing the Services is not working to this standard, Supplier will immediately remove such personnel

from providing Services and those individuals will not again be assigned to provide Services without UC’s written permission. At

no time will Supplier or Supplier’s employees, sub-suppliers, agents, or assigns be considered employees of UC for any purpose,

including but not limited to workers’ compensation provisions. Supplier shall not have the power nor right to bind or obligate

UC, and Supplier shall not hold itself out as having such authority. Supplier shall be responsible to UC for all Services performed

by Supplier’s employees, agents and subcontractors, including being responsible for ensuring payment of all unemployment,

social security, payroll, contributions and other taxes with respect to such employees, agents and subcontractors.

ARTICLE 6 – WARRANTIES

In addition to the warranties set forth in Articles 11, 12, 17, 23, 24, 25 and 26 herein, Supplier makes the following warranties.

Supplier acknowledges that failure to comply with any of the warranties in the Agreement will constitute a material breach of

the Agreement and UC will have the right to terminate the Agreement without damage, penalty, cost or further obligation.

A. General Warranties. Supplier represents, warrants and covenants that: (i) Supplier is free to enter into this Agreement and

that Supplier is not, and will not become, during the Term, subject to any restrictions that might restrict or prohibit

Supplier from performing the Services or providing the Goods ordered hereunder; (ii) Supplier will comply with all

applicable laws, rules and regulations in performing Supplier’s obligations hereunder; (iii) the Goods and/or Services shall

be rendered with promptness and diligence and shall be executed in a skilled manner by competent personnel, in

accordance with the prevailing industry standards; and if UC Appendix Data Security is NOT included:(iv) Supplier has

developed a business interruption and disaster recovery program and is executing such program to assess and reduce the

extent to which Supplier’s hardware, software and embedded systems may be susceptible to errors or failures in various

crisis (or force majeure) situations; (v) if Supplier uses electronic systems for creating, modifying, maintaining, archiving,

retrieving or transmitting any records, including test results that are required by, or subject to inspection by an applicable

regulatory authority, then Supplier represents and warrants that Supplier’s systems for electronic records are in

compliance; and (vi) Supplier agrees that the Goods and/or Services furnished under the Agreement will be covered by the

most favorable warranties Supplier gives to any customer for the same or substantially similar goods or services, or such

other more favorable warranties as specified in the Agreement. The rights and remedies so provided are in addition to and

do not limit any rights afforded to UC by any other article of the Agreement.

B. Permits and Licenses. Supplier agrees to procure all necessary permits or licenses and abide by all applicable laws,

regulations and ordinances of the United States and of the state, territory and political subdivision or any other country in

which the Goods and/or Services are provided.

C. Federal and State Water and Air Pollution Laws. Where applicable, Supplier warrants that it complies with the

requirements in UC Business and Finance Bulletin BUS-56 (Materiel Management; Purchases from Entities Violating State

or Federal Water or Air Pollution Laws). Consistent with California Government Code 4477, these requirements do not

permit UC to contract with entities in violation of Federal or State water or air pollution laws.

D. Web Accessibility Requirements. As applicable to the Supplies and/or Services being provided under the Agreement,

Supplier warrants that:

a. It complies with California and federal disability laws and regulations; and

b. The Goods and/or Services will conform to the accessibility requirements of WCAG 2.0AA.

c. Supplier agrees to promptly respond to and resolve any complaint regarding accessibility of its Goods and/or

Services;

Terms and Conditions of Purchase

Revised 12 14 21

E. General Accessibility Requirements. Supplier warrants that:

a. It will comply with California and federal disability laws and regulations;

b. Supplier will promptly respond to remediate to any identified accessibility defects in the Goods and Services to

conform to WCAG 2.0 AA; and

c. Supplier agrees to promptly respond to and use reasonable efforts to resolve and remediate any complaint

regarding accessibility of its Goods and/or Services.

F. Warranty of Quiet Enjoyment. Supplier warrants that Supplier has the right of Quiet Enjoyment in, and conveys the right of

Quiet Enjoyment to UC for UC’s use of, any and all intellectual property that will be needed for Supplier’s provision, and

UC’s use of, the Goods and/or Services provided by Supplier under the Agreement.

G. California Child Abuse and Neglect Reporting Act ("CANRA"). Where applicable, Supplier warrants that it complies with

CANRA.

H. Debarment, Suspension, U.S. Government Restricted Party Lists. Supplier warrants that it is not on the U.S. government’s

Denied Parties List, the Unverified List, the Entities List, the Specially Designated Nationals and Blocked Parties List, and is

not presently debarred, suspended, proposed for debarment or otherwise declared ineligible for award of federal

contracts or participation in federal assistance programs or activities.

I. UC Trademark Licensing Code of Conduct. If the Goods will bear UC’s name (including UC campus names, abbreviations of

these names, UC logos, UC mascots, or UC seals) or other trademarks owned by UC, Supplier warrants that it holds a valid

license from UC and complies with the Trademark Licensing Code of Conduct policy, available at

http://policy.ucop.edu/doc/3000130/TrademarkLicensing

J. Outsourcing (Public Contract Code section 12147) Compliance. Supplier warrants that if the Agreement will displace UC

employees, no funds paid under the Agreement will be used to train workers who are located outside of the United States,

or plan to relocate outside the United States as part of the Agreement. Additionally, Supplier warrants that no work will be

performed under the Agreement with workers outside the United States, except as described in Supplier’s bid. If Supplier

or its sub-supplier performs the Agreement with workers outside the United States during the life of the Agreement and

Supplier did not describe such work in its bid, Supplier acknowledges and agrees that (i) UC may terminate the Agreement

without further obligation for noncompliance, and (ii) Supplier will forfeit to UC the amount UC paid for the percentage of

work that was performed with workers outside the United States and not described in Supplier’s bid.

K. Supplier warrants that the Goods and Services rendered under this Agreement will not require Supplier to use for UC, or

provide to UC to use, "covered telecommunications equipment or services" as a substantial or essential component of any

system, or as critical technology as part of any system, within the meaning of Federal Acquisition Regulation (“FAR”)

Section 52.204-25.

Supplier will provide “Timely Notice” to the UC of any changes to the statements, confirmations or representations made

in its proposal response or in any information provided as part of the contract award process, including in particular any

changes to the certifications or representations made regarding NDAA Section 889. Timely Notice means that Supplier will

notify UC in writing within 3 business days of any changes to the representations or confirmations made in relation to

NDAA Section 889. Notice shall include the representations or confirmations made and the changes to those

representations or confirmations. The notice shall be provided by a Supplier representative authorized to bind the

Supplier.

ARTICLE 7 – INTELLECTUAL PROPERTY, COPYRIGHT, PATENTS, AND DATA RIGHTS

A. Goods and/or Services Involving Work Made for Hire.

a. Unless UC indicates that the Goods and/or Services do not involve work made for hire, Supplier acknowledges

and agrees that any deliverables provided to UC by Supplier in the performance of the Agreement, and any

intellectual property rights therein, (hereinafter the "Deliverables") will be owned by UC. The Deliverables will be

considered "work made for hire" under U.S. copyright law and all right, title, and interest to and in such

Deliverables including, but not limited to, any and all copyrights or trademarks, will be owned by UC. In the event

that it is determined that UC is not the owner of such Deliverables under the "work made for hire" doctrine of

U.S. copyright law, Supplier hereby irrevocably assigns to UC all right, title, and interest to and in such

Deliverables and any copyrights or trademarks thereto.

b. The Deliverables must be new and original. Supplier must not use any pre-existing copyrightable or trademarked

images, writings, or other proprietary materials (hereinafter "Pre-Existing Materials") in the Deliverables without

UC’s prior written permission. In the event that Supplier uses any Pre-Existing Materials in the Deliverables in

which Supplier has an ownership interest, UC is hereby granted, and will have, a non-exclusive, royalty-free,

irrevocable, perpetual, paid-up, worldwide license (with the right to sublicense) to make, have made, copy,

Terms and Conditions of Purchase

Revised 12 14 21

modify, make derivative works of, use, perform, display publicly, sell, and otherwise distribute such Pre-Existing

Materials in connection with the Deliverables.

c. Whenever any invention or discovery is made or conceived by Supplier in the course of or in connection with the

Agreement, Supplier will promptly furnish UC with complete information with respect thereto and UC will have

the sole power to determine whether and where a patent application will be filed and to determine the

disposition of title to and all rights under any application or patent that may result.

d. Supplier is specifically subject to an obligation to, and hereby does, assign all right, title and interest in any such

intellectual property rights to UC as well as all right, title and interest in tangible research products embodying

any such inventions whether the inventions are patentable or not. Supplier agrees to promptly execute any

additional documents or forms that UC may require in order to effectuate such assignment.

B. Goods and/or Services Not Involving Work Made for Hire.

a. If the Goods and/or Services do not involve work made for hire, and in the event that Supplier uses any Pre-

Existing Materials in the Deliverables in which Supplier has an ownership interest, UC is hereby granted, and will

have, a non-exclusive, royalty-free, irrevocable, perpetual, paid-up, worldwide license (with the right to

sublicense) to make, have made, copy, modify, make derivative works of, use, perform, display publicly, sell, and

otherwise distribute such Pre-Existing Materials in connection with the Deliverables.

b. The Deliverables must be new and original. Supplier must not use any Pre-Existing Materials in the Deliverables

without UC’s prior written permission.

c. Whenever any invention or discovery is made or conceived by Supplier in the course of or in connection with the

Agreement, Supplier will promptly furnish UC complete information with respect thereto and UC will have the

sole power to determine whether and where a patent application will be filed and to determine the disposition

of title to and all rights under any application or patent that may result.

d. Supplier is specifically subject to an obligation to, and hereby does, assign all right, title and interest in any such

intellectual property rights to UC as well as all right, title and interest in tangible research products embodying

any such inventions whether the inventions are patentable or not. Supplier agrees to promptly execute any

additional documents or forms that UC may require in order to effectuate such assignment.

C. General. Should the Goods and/or Services become, or in Supplier’s opinion be likely to become, the subject of a claim of

infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of

any third party, Supplier will provide written notice to UC of the circumstances giving rise to such claim or likely claim. In

the event that UC receives notice of a claim of infringement or is made a party to or is threatened with being made a party

to any claim of infringement related to the Goods and/or Services, UC will provide Supplier with notice of such claim or

threat. Following receipt of such notice, Supplier will either (at Supplier’s sole election) (i) procure for UC the right to

continue to use the affected portion of the Goods and/or Services, or (ii) replace or otherwise modify the affected portion

of the Goods and/or Services to make them non-infringing, or obtain a reasonable substitute product for the affected

portion of the Goods and/or Services, provided that any replacement, modification or substitution under this paragraph

does not effect a material change in the Goods and/or Services’ functionality. If none of the foregoing options is

reasonably acceptable to UC, UC will have the right to terminate the Agreement without damage, penalty, cost or further

obligation.

D. UC Rights to Institutional Information. Institutional Information shall belong exclusively to UC and unless expressly

provided, this Agreement shall not be construed as conferring on Supplier any patent, copyright, trademark, license right

or trade secret owned or obtained by UC. Any right for Supplier to use Institutional Information is solely provided on a

non-exclusive basis, and only to the extent required for Supplier to provide the Goods or Services under the Agreement. As

used herein, “Institutional Information” means any information or data created, received, and/or collected by UC or on its

behalf, including but not limited to application logs, metadata and data derived from such data.

ARTICLE 8 – INDEMNITY AND LIABILITY

To the fullest extent permitted by law, Supplier will defend, indemnify, and hold harmless UC, its officers, employees, and

agents, from and against all losses, expenses (including, without limitation, reasonable attorneys' fees and costs), damages, and

liabilities of any kind resulting from or arising out of the Agreement, including the performance hereunder of Supplier, its

officers, employees, agents, sub-suppliers, or anyone directly or indirectly employed by Supplier, or any person or persons

under Supplier's direction and control, provided such losses, expenses, damages and liabilities are due or claimed to be due to

the acts or omissions of Supplier, its officers, employees, agents, sub-suppliers, or anyone directly or indirectly employed by

Supplier, or any person or persons under Supplier's direction and control. UC agrees to provide Supplier with prompt notice of

any such claim or action and to permit Supplier to defend any claim or action, and that UC will cooperate fully in such defense.

UC retains the right to participate in the defense against any such claim or action, and the right to consent to any settlement,

which consent will not unreasonably be withheld.

Terms and Conditions of Purchase

Revised 12 14 21

In the event Appendix DS applies to this Agreement, Supplier shall reimburse or otherwise be responsible for any costs, fines or

penalties imposed against UC as a result of Supplier’s Breach of Institutional Information and/or failure to cooperate with UC’s

response to such Breach. As used herein, “Breach” means:

a. Any disclosure of Institutional Information to an unauthorized party or in an unlawful manner;

b. Unauthorized or unlawful acquisition of information that compromises the security, confidentiality or integrity of

Institutional Information and/or IT Resources; and

c. The acquisition, access, use, or disclosure of Protected Health Information or medical information in a manner not

permitted under the Health Insurance Portability and Accountability Act (HIPAA) or California law. “IT Resources”

means IT infrastructure, cloud services, software, and/or hardware with computing and/or networking capability that

is Supplier owned/managed, or UC-owned, or a personally owned device that stores Institutional Information, is

connected to UC systems, is connected to UC networks, or is used for UC business.

ARTICLE 9 – INSURANCE

Supplier, at its sole cost and expense, will insure its activities in connection with providing the Goods and/or Services and

obtain, keep in force, and maintain the following insurance with the minimum limits set forth below, unless UC specifies

otherwise:

A. Commercial Form General Liability Insurance (contractual liability included) with limits as follows:

a. Each Occurrence $ 1,000,000

b. Products/Completed Operations Aggregate $ 2,000,000

c. Personal and Advertising Injury $ 1,000,000

d. General Aggregate $ 2,000,000

B. Business Automobile Liability Insurance for owned, scheduled, non-owned, or hired automobiles with a combined single

limit of not less than one million dollars ($1,000,000) per occurrence. (Required only if Supplier drives on UC premises or

transports UC employees, officers, invitees, or agents in the course of supplying the Goods and/or Services to UC.)

C. If applicable, Professional Liability Insurance with a limit of two million dollars ($2,000,000) per occurrence or claim with

an aggregate of not less than two million dollars ($2,000,000). If this insurance is written on a claims-made form, it will

continue for three years following termination of the Agreement. The insurance will have a retroactive date of placement

prior to or coinciding with the effective date of the Agreement.

D. Workers' Compensation as required by applicable state law and Employer’s Liability with limits of one million dollars

($1,000,000) per occurrence.

E. If applicable, Supplier Fidelity Bond or Crime coverage for the dishonest acts of its employees in a minimum amount of one

million dollars ($1,000,000). Supplier will endorse such policy to include a “Regents of the University of California

Coverage” or “Joint Payee Coverage” endorsement. UC and, if so requested, UC’s officers, employees, agents and sub-

suppliers will be named as "Loss Payee, as Their Interest May Appear” in such Fidelity Bond.

F. In the event Appendix DS applies to this Agreement, Supplier, at its sole cost and expense, will obtain, keep in force, and

maintain one or more insurance policies that provide coverage for technology, professional liability, data protection,

and/or cyber liability. Typically referred to as Privacy, Technology and Data Security Liability, Cyber Liability, or Technology

Professional Liability insurance, it will cover liabilities for financial loss due to the acts, omissions, or intentional

misconduct of Supplier, its officers, employees, agents, sub-suppliers, or anyone directly or indirectly employed by

Supplier, or any person or persons under Supplier’s direction and control, in connection with the performance of this

Agreement, as well as all Supplier costs, including damages it is obligated to pay UC or any third party, that are associated

with any confirmed or suspected Breach or compromise of Institutional Information. In some cases, Professional Liability

policies may include some coverage for data breaches or loss of Institutional Information. Regardless of the type of

policy(ies) in place, such coverage will include without limitation:

a. Costs to notify parties whose data were lost or compromised;

b. Costs to provide credit monitoring and credit restoration services to parties whose data were lost or

compromised;

c. Costs associated with third party claims arising from the confirmed or suspected Breach or loss of Institutional

Information, including litigation costs and settlement costs;

d. Any investigation, enforcement, fines and penalties, or similar miscellaneous costs; and

e. Any payment made to a third party as a result of extortion related to a confirmed or suspected Breach. The

following insurance coverage is based on the highest Protection Level Classification of Institutional Information

identified in Exhibit 1 to Appendix DS:

P1 - This insurance policy must have minimum limits of $500,000 each occurrence and $500,000 in the

aggregate.

P2 - This insurance policy must have minimum limits of $1,000,000 each occurrence and $1,000,000 in the

aggregate.

Terms and Conditions of Purchase

Revised 12 14 21

P3 and P4, less than 70,000 records - this insurance policy must have minimum limits of $5,000,000 each

occurrence and $5,000,000 in the aggregate.

P3 and P4, 70,000 or more records - this insurance policy must have minimum limits of $10,000,000 each

occurrence and $10,000,000 in the aggregate.

G. Protection Level Classifications are defined in the UC Systemwide Information Security Classification of Information and IT

Resources: https://security.ucop.edu/policies/institutional-information-and-it-resource-classification.html

H. Additional other insurance in such amounts as may be reasonably required by UC against other insurable risks relating to

performance. If the above insurance is written on a claims-made form, it will continue for three years following

termination of the Agreement. The insurance will have a retroactive date of placement prior to or coinciding with the

effective date of the Agreement. If the above insurance coverage is modified, changed or cancelled, Supplier will provide

UC with not less than fifteen (15) days’ advance written notice of such modification, change, or cancellation, and will

promptly obtain replacement coverage that complies with this Article.

I. The coverages referred to under A and B of this Article must include UC as an additional insured. It is understood that the

coverage and limits referred to under A, B and C of this Article will not in any way limit Supplier’s liability. Supplier will

furnish UC with certificates of insurance (and the relevant endorsement pages) evidencing compliance with all

requirements prior to commencing work under the Agreement. Such certificates will:

a. Indicate that The Regents of the University of California has been endorsed as an additional insured for the

coverage referred to under A and B of this Article. This provision will only apply in proportion to and to the

extent of the negligent acts or omissions of Supplier, its officers, agents, or employees.

b. Include a provision that the coverage will be primary and will not participate with or be excess over any valid and

collectible insurance or program of self-insurance carried or maintained by UC.

ARTICLE 10 – USE OF UC NAME AND TRADEMARKS

Supplier will not use the UC name, abbreviation of the UC name, trade names and/or trademarks (i.e., logos and seals) or any

derivation thereof, in any form or manner in advertisements, reports, or other information released to the public, or place the

UC name, abbreviations, trade names and/or trademarks or any derivation thereof on any consumer goods, products, or

services for sale or distribution to the public, without UC’s prior written approval. Supplier agrees to comply at all times with

California Education Code Section 92000.

ARTICLE 11 – FEDERAL FUNDS

Supplier who supplies Goods and/or Services certifies and represents its compliance with the following clauses, as applicable.

Supplier shall promptly notify UC of any change of status with regard to these certifications and representations. These

certifications and representations are material statements upon which UC will rely.

A. For commercial transactions involving funds on a federal contract (federal awards governed by the FAR), the following

provisions apply, as applicable:

a. FAR 52.203-13, Contractor Code of Business Ethics and Conduct;

b. FAR 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of

Whistleblower Rights;

c. FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements;

d. FAR 52.219-8, Utilization of Small Business Concerns;

e. FAR 52.222-17, Non-displacement of Qualified Workers;

f. FAR 52.222-21, Prohibition of Segregated Facilities;

g. FAR 52.222-26, Equal Opportunity;

h. FAR 52.222-35, Equal Opportunity for Veterans;

i. FAR 52.222-36, Equal Opportunity for Workers with Disabilities;

j. FAR 52.222-37, Employment Reports on Veterans;

k. FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act;

l. FAR 52.222-41, Service Contract Labor Standards;

m. FAR 52.222-50, Combating Trafficking in Persons;

n. FAR 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for

Maintenance, Calibration, or Repair of Certain Equipment - Requirements;

o. FAR 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain

Services - Requirements;

p. FAR 52.222-54, Employment Eligibility Verification;

q. FAR 52.222-55, Minimum Wages Under Executive Order 13658;

Terms and Conditions of Purchase

Revised 12 14 21

r. FAR 52.222-62, Paid Sick Leave under Executive Order 13706;

s. FAR 52.224-3, Privacy Training;

t. FAR 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations;

u. FAR 52.233-1, Disputes; and

v. FAR 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels.

B. For non-commercial transactions involving funds on a federal contract, the UC Appendix titled ‘Federal Government

Contracts Special terms and Conditions (Non-Commercial Items or Services)’ and located at www.ucop.edu/procurement-

services/policies-forms/index.html is hereby incorporated herein by this reference.

C. For transactions involving funds on a federal grant or cooperative agreement (federal awards governed by CFR Title 2,

Subtitle A, Chapter II, Part 200) the following provisions apply, as applicable:

a. Rights to Inventions. If Supplier is a small business firm or nonprofit organization, and is providing experimental,

development, or research work under this transaction, Supplier must comply with the requirements of 3 CFR

Part 401, “Rights to Inventions Made by nonprofit Organizations and Small Business Firms Under Government

Grants, Contracts, and Cooperative Agreements”.

b. Clean Air Act. Supplier agrees to comply with all applicable standards, orders or regulations issued pursuant to

the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C.

1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the

Environmental Protection Agency (EPA).

c. Byrd Anti-Lobbying. Supplier certifies that it will not, and has not used Federal appropriated funds to pay any

person or organization for influencing or attempting to influence an officer or employee of any agency, a

member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection

with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352.

d. Procurement of Recovered Materials. If Supplier is a state agency or agency of a political subdivision of a state,

then Supplier must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act.

e. Domestic Preferences for Procurements. As appropriate and to the extent consistent with law, Supplier should,

to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or

use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum,

steel, cement, and other manufactured products). ‘‘Produced in the United States’’ means, for iron and steel

products, that all manufacturing processes, from the initial melting stage through the application of coatings,

occurred in the United States. ‘‘Manufactured products’’ means items and construction materials composed in

whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl

chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

D. In these provisions, the term "contractor" as used therein will refer to Supplier, and the terms “Government” or

“Contracting Officer” as used therein will refer to UC. Where a purchase of items is for fulfillment of a specific U.S.

Government prime or subcontract, additional information and/or terms and conditions may be included in an attached

supplement. By submitting an invoice to UC, Supplier is representing to UC that, at the time of submission:

a. Neither Supplier nor its principals are presently debarred, suspended, or proposed for debarment by the U.S.

government (see FAR 52.209-6);

b. Supplier has filed all compliance reports required by the Equal Opportunity clause (see FAR 52.222-22); and

c. Any Supplier representations to UC about U.S. Small Business Administration or state and local classifications,

including but not limited to size standards, ownership, and control, are accurate and complete.

d. Byrd Anti-Lobbying. Supplier certifies that it will not, and has not used Federal appropriated funds to pay any

person or organization for influencing or attempting to influence an officer or employee of any agency, a

member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection

with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352.

ARTICLE 12 – EQUAL OPPORTUNITY AFFIRMATIVE ACTION

Supplier will abide by the requirements set forth in Executive Orders 11246 and 11375. Where applicable, Supplier will comply

with 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), incorporated by reference with this statement: “This contractor and

subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit

discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and

prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or

national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action

to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender

identity, national origin, protected veteran status or disability.” With respect to activities occurring in the State of California,

Supplier agrees to adhere to the California Fair Employment and Housing Act. Supplier will provide UC on request a breakdown

Terms and Conditions of Purchase

Revised 12 14 21

of its labor force by groups as specified by UC, and will discuss with UC its policies and practices relating to its affirmative action

programs. Supplier will not maintain or provide facilities for employees at any establishment under its control that are

segregated on a basis prohibited by federal law. Separate or single-user restrooms and necessary dressing or sleeping areas

must be provided, however, to ensure privacy.

ARTICLE 13 – LIENS

Supplier agrees that upon UC’s request, Supplier will submit a sworn statement setting forth the work performed or material

furnished by sub-suppliers and material men, and the amount due and to become due to each, and that before the final

payment called for under the Agreement, will upon UC’s request submit to UC a complete set of vouchers showing what

payments have been made for such work performed or material furnished. Supplier will promptly notify UC in writing, of any

claims, demands, causes of action, liens or suits brought to its attention that arise out of the Agreement. UC will not make final

payment until Supplier, if required, delivers to UC a complete release of all liens arising out of the Agreement, or receipts in full

in lieu thereof, as UC may require, and if required in either case, an affidavit that as far as it has knowledge or information, the

receipts include all the labor and materials for which a lien could be filed; but Supplier may, if any sub-supplier refuses to

furnish a release or receipt in full, furnish a bond satisfactory to UC to indemnify it against any claim by lien or otherwise. If any

lien or claim remains unsatisfied after all payments are made, Supplier will refund to UC all monies that UC may be compelled

to pay in discharging such lien or claim, including all costs and reasonable attorneys' fees.

ARTICLE 14 – PREMISES WHERE SERVICES ARE PROVIDED

A. Cleaning Up. Supplier will at all times keep UC premises where the Services are performed and adjoining premises free

from accumulations of waste material or rubbish caused by its employees or work of any of its sub-suppliers, and, at the

completion of the Services; will remove all rubbish from and about the premises and all its tools, scaffolding, and surplus

materials, and will leave the premises "broom clean" or its equivalent, unless more exactly specified. In case of dispute

between Supplier and its sub-suppliers as to responsibility for the removal of the rubbish, or if it is not promptly removed,

UC may remove the rubbish and charge the cost to Supplier.

B. Environmental, Safety, Health and Fire Protection. Supplier will take all reasonable precautions in providing the Goods and

Services to protect the health and safety of UC employees and members of the public and to minimize danger from all

hazards to life and property, and will comply with all applicable environmental protection, health, safety, and fire

protection regulations and requirements (including reporting requirements). In the event that Supplier fails to comply with

such regulations and requirements, UC may, without prejudice to any other legal or contractual rights of UC, issue an order

stopping all or any part of the provision of the Goods and/or Services; thereafter a start order for resumption of providing

the Goods and/or Services may be issued at UC’s discretion. Supplier will not be entitled to make a claim for extension of

time or for compensation or damages by reason of or in connection with such stoppage. Supplier will have sole

responsibility for the safety of all persons employed by Supplier and its sub-suppliers on UC premises, or any other person

who enters upon UC premises for reasons relating to the Agreement. Supplier will at all times maintain good order among

its employees and all other persons who come onto UC's premises at Supplier's request and will not engage any unfit or

unskilled person to provide the Goods and/or Services. Supplier will confine its employees and all other persons who come

onto UC's premises at Supplier's request or for reasons relating to the Agreement and its equipment to that portion of

UC's premises where the Services are to be provided or to roads leading to and from such work sites, and to any other area

which UC may permit Supplier to use. Supplier will take all reasonable measures and precautions at all times to prevent

injuries to or the death of any of its employees or any other person who enters upon UC premises at Supplier’s request.

Such measures and precautions will include, but will not be limited to, all safeguards and warnings necessary to protect

workers and others against any conditions on the premises that could be dangerous and to prevent accidents of any kind

whenever the Goods and/or Services are being provided in proximity to any moving or operating machinery, equipment or

facilities, whether such machinery, equipment or facilities are the property of or are being operated by, Supplier, its sub-

suppliers, UC or other persons. To the extent compliance is required, Supplier will comply with all relevant UC safety rules

and regulations when on UC premises.

C. Tobacco-free Campus. UC is a tobacco-free institution. Use of cigarettes, cigars, oral tobacco, electronic cigarettes and all

other tobacco products is prohibited on all UC owned or leased sites.

ARTICLE 15 – LIABILITY FOR UC - FURNISHED PROPERTY

Supplier assumes complete liability for any materials UC furnishes to Supplier in connection with the Agreement and Supplier

agrees to pay for any UC materials Supplier damages or otherwise is not able to account for to UC's satisfaction. UC furnishing

to Supplier any materials in connection with the Agreement will not, unless otherwise expressly provided in writing by UC, be

construed to vest title thereto in Supplier.

Terms and Conditions of Purchase

Revised 12 14 21

ARTICLE 16 – COOPERATION

Supplier and its sub-suppliers, if any, will cooperate with UC and other suppliers and will so provide the Services that other

cooperating suppliers will not be hindered, delayed or interfered with in the progress of their work, and so that all of such work

will be a finished and complete job of its kind.

ARTICLE 17 – ADDITIONAL TERMS APPLICABLE TO THE FURNISHING OF GOODS

The terms in this Article have special application to the furnishing of Goods:

A. Price Decreases. Supplier agrees immediately to notify UC of any price decreases from its suppliers, and to pass through to

UC any price decreases.

B. Declared Valuation of Shipments. Except as otherwise provided in the Agreement, all shipments by Supplier under the

Agreement for UC's account will be made at the maximum declared value applicable to the lowest transportation rate or

classification and the bill of lading will so note.

C. Title. Title to the Goods purchased under the Agreement will pass directly from Supplier to UC at the f.o.b. point shown, or

as otherwise specified in the Agreement, subject to UC’s right to reject upon inspection.

D. Changes. Notwithstanding the terms in Article 34, Amendments, UC may make changes within the general scope of the

Agreement in drawings and specifications for specially manufactured Goods, place of delivery, method of shipment or

packing of the Agreement by giving notice to Supplier and subsequently confirming such changes in writing. If such

changes affect the cost of or the time required for performance of the Agreement, UC and Supplier will agree upon an

equitable adjustment in the price and/or delivery terms. Supplier may not make changes without UC’s written approval.

Any claim of Supplier for an adjustment under the Agreement must be made in writing within thirty (30) days from the

date Supplier receives notice of such change unless UC waives this condition in writing. Nothing in the Agreement will

excuse Supplier from proceeding with performance of the Agreement as changed hereunder. Supplier may not alter or

misbrand, within the meaning of the applicable Federal and State laws, the Goods furnished.

E. Forced, Convict and Indentured Labor. Supplier warrants that no foreign-made Goods furnished to UC pursuant to the

Agreement will be produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction. If

UC determines that Supplier knew or should have known that it was breaching this warranty, UC may, in addition to

terminating the Agreement, remove Supplier from consideration for UC contracts for a period not to exceed one year. This

warranty is in addition to any applicable warranties in Articles 6 and 11.

F. Export Control. Supplier agrees to provide UC (the contact listed on the PO) with written notification that identifies the

export-controlled Goods and such Goods’ export classification if any of the Goods is export-controlled under the

International Traffic in Arms Regulations (ITAR) (22 CFR §§ 120-130), the Export Administration Regulations (15 CFR §§

730-774) 500 or 600 series, or controlled on a military strategic goods list. Supplier agrees to provide UC (the contact listed

on the PO) with written notification if Supplier will be providing information necessary for the operation, installation

(including on-site installation), maintenance (checking), repair, overhaul, and refurbishing of the Goods that is beyond a

standard user manual (i.e. ”Use” technology as defined under the EAR 15 CFR § 772.1), or “Technical Data” (as defined

under the ITAR 22 CFR § 120.10).

ARTICLE 18 – CONFLICT OF INTEREST

Supplier affirms that, to the best of Supplier’s knowledge, no UC employee who has participated in UC’s decision-making

concerning the Agreement has an “economic interest” in the Agreement or Supplier. A UC employee’s “economic interest”

means:

A. An investment worth $2,000 or more in Supplier or its affiliate;

B. A position as director, officer, partner, trustee, employee or manager of Supplier or its affiliate;

C. Receipt during the past 12 months of $500 in income or $440 in gifts from Supplier or its affiliate; or

D. A personal financial benefit from the Agreement in the amount of $250 or more.

In the event of a change in these economic interests, Supplier will provide written notice to UC within thirty (30) days after such

change, noting such changes. Supplier will not be in a reporting relationship to a UC employee who is a near relative, nor will a

near relative be in a decision making position with respect to Supplier.

ARTICLE 19 – AUDIT REQUIREMENTS

The Agreement, and any pertinent records involving transactions relating to this Agreement, is subject to the examination and

audit of the Auditor General of the State of California or Comptroller General of the United States or designated Federal

authority for a period of up to five (5) years after final payment under the Agreement. UC, and if the underlying grant,

cooperative agreement or federal contract so provides, the other contracting Party or grantor (and if that be the United States

or an instrumentality thereof, then the Comptroller General of the United States) will have access to and the right to examine

Terms and Conditions of Purchase

Revised 12 14 21

Supplier’s pertinent books, documents, papers, and records involving transactions and work related to the Agreement until the

expiration of five (5) years after final payment under the Agreement. The examination and audit will be confined to those

matters connected with the performance of the Agreement, including the costs of administering the Agreement.

ARTICLE 20 – PROHIBITION ON UNAUTHORIZED USE OR DISCLOSURE OF INSTITUTIONAL INFORMATION

A. Prohibition on Access, Use and Disclosure of Institutional Information. Supplier will not access, use or disclose Institutional

Information, other than to carry out the purposes for which UC disclosed the Institutional Information to Supplier, except

as required by applicable law, or as otherwise authorized in writing by UC prior to Supplier’s disclosure. Supplier shall have

the limited right to disclose Institutional Information to Supplier’s employees provided that: (i) Supplier shall disclose only

such Institutional Information as is necessary for the Supplier to perform its obligations under this Agreement, and (ii)

Supplier informs such employees of the obligations governing the access, use and disclosure of Institutional Information

prior to Supplier’s disclosure. Supplier shall be liable for any breach of this Agreement by its employees. For avoidance of

doubt, this provision prohibits Supplier from using for its own benefit Institutional Information and any information

derived therefrom. For the avoidance of doubt, the sale of Institutional Information is expressly prohibited.

B. Compliance with Applicable Laws and Industry Best Practices. Supplier agrees to comply with all applicable state, federal,

and foreign laws, as well as industry best practices, governing the collection, access, use, disclosure, safeguarding and

destruction of Institutional Information. Supplier agrees to protect the privacy and security of Institutional Information

according to all applicable laws and industry best practices, and no less rigorously than it protects its own information, but

in no case less than reasonable care.

C. Confidential Institutional Information. Supplier agrees to hold UC’s Confidential Institutional Information, and any

information derived therefrom, in strict confidence. Confidential Institutional Information shall be defined as any

Institutional Information which is (i) marked as “Confidential” at the time of disclosure; (ii) if disclosed orally, identified at

the time of such oral disclosure as confidential, and reduced to writing as “Confidential” within thirty (30) days of such oral

disclosure; and (iii) if not marked as “Confidential,” information that would be considered by a reasonable person in the

relevant field to be confidential given its content and the circumstances of its disclosure. Confidential Information will not

be considered confidential to the extent that: (i) Supplier can demonstrate by written records was known to Supplier prior

to the effective date of the Agreement; (ii) is currently in, or in the future enters, the public domain other than through a

breach of the Agreement or through other acts or omissions of Supplier; (iii) is obtained lawfully from a third party; or (iv)

is disclosed under the California Public Records Act or legal process. For the avoidance of doubt, as applicable to Supplier’s

Services, Confidential Institutional Information may include any information that identifies or is capable of identifying a

specific individual, including but not limited to:

a. Personally identifiable information,

b. Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996

(HIPAA) and the HIPAA regulations (including, but not limited to 45 C.F.R. § 160.103),

c. Medical information as defined by California Civil Code § 56.05,

d. Cardholder data,

e. Student records, or

f. Individual financial information that is subject to laws restricting the use and disclosure of such information,

including but not limited to:

i. Article 1, Section 1 of the California Constitution; the California Information Practices Act (Civil Code §

1798 et seq.);

ii. The federal Gramm-Leach-Bliley Act (15 U.S.C. §§ 6801(b) and 6805(b)(2));

iii. The federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g);

iv. The federal Fair and Accurate Credit Transactions Act (15 U.S.C. § 1601 et seq.);

v. The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq), and

vi. Applicable international privacy laws, including, but not limited to the General Data Protection

Regulation.

D. Required Disclosures of Institutional Information. If Supplier is required by a court of competent jurisdiction or an

administrative body to disclose Institutional Information, Supplier will notify UC in writing immediately upon receiving

notice of such requirement and prior to any such disclosure (unless Supplier is prohibited by law from doing so), to give UC

an opportunity to oppose or otherwise respond to such disclosure. To the extent Supplier still required to disclose

Institutional Information, Supplier will furnish only that portion that is legally required and will exercise all reasonable

efforts to obtain reliable assurance that confidential treatment will be afforded to any Confidential Institutional

Information.

E. No Offshoring. Supplier’s transmission, transportation or storage of Institutional Information outside the United States, or

access of Institutional Information from outside the United States, is prohibited except with prior written authorization by

UC.

Terms and Conditions of Purchase

Revised 12 14 21

F. Conflict in Terms. UC’s Appendix – Data Security, Appendix – BAA, and/or Appendix GDPR will control in the event that one

or more appendices is incorporated into the Agreement and conflicts with the provisions of this Article.

G. Acknowledgement. Supplier acknowledges that remedies at law would be inadequate to protect UC against any actual or

threatened breach of this Section by Supplier, and, without prejudice to any other rights and remedies otherwise available

to UC, Supplier agrees to the granting of injunctive relief in UC’s favor without proof of actual damages.

ARTICLE 21 – UC WHISTLEBLOWER POLICY

UC is committed to conducting its affairs in compliance with the law, and has established a process for reporting and

investigating suspected improper governmental activities. Please visit http://www.ucop.edu/uc-whistleblower/

for more

information.

ARTICLE 22 – SUSTAINABLE PROCUREMENT GUIDELINES

Supplier will conduct business using environmentally, socially, and economically sustainable products and services (defined as

products and services with a lesser or reduced effect on human health and the environment, and which generate benefits to

the University as well as to society and the economy, while remaining within the carrying capacity of the environment), to the

maximum possible extent consistent with the Agreement, and with the University of California Sustainable Practices Policy

(https://policy.ucop.edu/doc/3100155

) and the University of California Sustainable Procurement Guidelines:

https://www.ucop.edu/procurement-services/for-ucstaff/sustainable-procurement/sustainableprocurementguidelines.pdf

In accordance with the University of California Sustainable Practices Policy, Supplier will adhere to the following requirements

and standards, as applicable. Supplier acknowledges that failure to comply with any of the sustainability standards and

requirements in the Agreement will constitute a material breach of the Agreement and UC will have the right to terminate the

Agreement without damage, penalty, cost or further obligation.

A. Sustainability Marketing Standards. Supplier sustainability related claims, where applicable, must meet UC recognized

certifications and standards set forth in the UC Sustainable Procurement Guidelines and/or meet the standards of Federal

Trade Commission’s (FTC) Green Guides.

B. Electronic Transfer of Supplier Information. Suppliers, when interacting with the UC, shall be prohibited from providing

hard copies of presentations, marketing material, or other informational materials. Suppliers will be required to present all

information in electronic format that is easily transferable to UC staff. Materials may be provided in hard copy or physical

format if specifically required or requested by a UC representative.

C. Packaging Requirements. All packaging must be compliant with the Toxics in Packaging Prevention Act (AB 455) and must

meet all additional standards and requirements set forth in the UC Sustainable Practices Policy. In addition, UC requires

that all packaging meet at least one of the criteria listed below:

a. Uses bulk packaging;

b. Uses reusable packaging (e.g. totes reused by delivery service for next delivery);

c. Uses innovative packaging that reduces the weight of packaging, reduces packaging waste, or utilizes packaging

that is a component of the product;

d. Maximizes recycled content and/or meets or exceeds the minimum post-consumer content level for packaging in

the U.S. Environmental Protection Agency Comprehensive Procurement Guidelines;

e. Uses locally recyclable or certified compostable material.

D. Foodservice Foam Ban. As of 2018, the University no longer allows packaging foam or expanded polystyrene (EPS) for

takeaway containers or other food service items, in any University-owned or -operated food service facility.

E. Product Packaging Foam Ban. Beginning January 1st, 2020, the University will prohibit all contracted and non-contracted

suppliers from selling or distributing packaging foam (other than that utilized for laboratory supply or medical packaging)

to UC campuses. Packaging foam is defined as any open or closed cell, solidified, polymeric foam used for cushioning or

packaging, including but not limited to: low-density polyethylene foam, polypropylene foam, polystyrene foam (i.e.

expanded polystyrene (EPS)), polyurethane foam, polyethylene foam, polyvinyl chloride (PVC) foam, and microcellular

foam. Not included in this ban are easily biodegradable, plant-based foams such as those derived from corn or

mushrooms.

F. E-Waste Recycling Requirements. All recyclers of UC electronic equipment must be e-Steward certified by the Basel Action

Network (BAN).

G. Hosted and Punch-out Catalog Requirements. Suppliers enabled with eProcurement hosted catalog functionality must

clearly identify products with UC-recognized certifications, as defined by the UC Sustainable Procurement Guidelines, in

both hosted and punch-out catalog e-procurement environments.

ARTICLE 23 – PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA) EMPLOYER SHARED RESPONSIBILITY

If the Services involve Supplier furnishing UC with temporary or supplementary staffing, Supplier warrants that:

Terms and Conditions of Purchase

Revised 12 14 21

A. If Supplier is an Applicable Large Employer (as defined under Treasury Regulation Section 54.4980H-1(a)(4)):

a. Supplier offers health coverage to its full-time employees who are performing Services for UC;

b. Supplier’s cost of enrolling such employees in Supplier’s health plan is factored into the fees for the Services; and

c. The fees for the Services are higher than what the Services would cost if Supplier did not offer health coverage to

such full-time employees.

B. If Supplier is not an Applicable Large Employer (as defined above):

a. Supplier offers group health coverage to its full-time employees who are performing Services for UC and such

coverage is considered Minimum Essential Coverage (as defined under Treasury Regulation Section 1-5000A-2)

and is Affordable (as defined under Treasury Regulation Section 54.4980H-5(e)); or

b. Supplier’s full-time employees who are performing services for UC have individual coverage and such coverage

satisfies the PPACA requirements for mandated individual coverage.

C. Supplier acknowledges that UC is relying on these warranties to ensure UC’s compliance with the PPACA Employer Shared

Responsibility provision.

ARTICLE 24 - PREVAILING WAGES

Unless UC notifies Supplier that the Services are not subject to prevailing wage requirements, Supplier will comply, and will

ensure that all sub-suppliers comply, with California prevailing wage provisions, including but not limited to those set forth in

Labor Code sections 1770, 1771, 1771.1, 1772, 1773, 1773.1, 1774, 1775, 1776, 1777.5, and 1777.6. For purposes of the

Agreement, the term “sub-supplier” means a person or firm, of all tiers, that has a contract with Supplier or with a sub-supplier

to provide a portion of the Services. The term sub-supplier will not include suppliers, manufacturers, or distributors.

Specifically, and not by way of limitation, if apprenticable occupations are involved in providing the Services, Supplier will be

responsible for ensuring that Supplier and any sub-suppliers comply with Labor Code Section 1777.5. Supplier and sub-supplier

may not provide the Services unless currently registered and qualified to perform public work pursuant to Labor Code Section

1725.5 and 1771.1. Notwithstanding the foregoing provisions, Supplier will be solely responsible for tracking and ensuring

proper payment of prevailing wages regardless if Services are partially or wholly subject to prevailing wage requirements. In

every instance, Supplier will pay not less than the UC Fair Wage (defined as $13 per hour as of 10/1/15, $14 per hour as of

10/1/16, and $15 per hour as of 10/1/17) for Services being performed at a UC Location (defined as any location owned or

leased by UC).

The California Department of Industrial Relations (DIR) has ascertained the general prevailing per diem wage rates in the

locality in which the Services are to be provided for each craft, classification, or type of worker required to provide the Services.

A copy of the general prevailing per diem wage rates will be on file at each UC Location’s procurement office, and will be made

available to any interested party upon request. Supplier will post at any job site:

A. Notice of the general prevailing per diem wage rates, and

B. Any other notices required by DIR rule or regulation

By this reference, such notices are made part of the Agreement. Supplier will pay not less than the prevailing wage rates, as

specified in the schedule and any amendments thereto, to all workers employed by Supplier in providing the Services. Supplier

will cause all subcontracts to include the provision that all sub-suppliers will pay not less than the prevailing rates to all workers

employed by such sub-suppliers in providing the Services. The Services are subject to compliance monitoring and enforcement

by the DIR. Supplier will forfeit, as a penalty, not more than $200 for each calendar day or portion thereof for each worker that

is paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any

portion of the Services provided by Supplier or any sub-supplier. The amount of this penalty will be determined pursuant to

applicable law. Such forfeiture amounts may be deducted from the amounts due under the Agreement. If there are insufficient

funds remaining in the amounts due under the Agreement, Supplier will be liable for any outstanding amount remaining due.

Supplier will also pay to any worker who was paid less than the prevailing wage rate for the work or craft for which the worker

was employed for any portion of the Services, for each day, or portion thereof, for which the worker was paid less than the

specified prevailing per diem wage rate, an amount equal to the difference between the specified prevailing per diem wage

rate and the amount which was paid to the worker. Review of any civil wage and penalty assessment will be made pursuant to

California Labor Code section 1742.

ARTICLE 25 – FAIR WAGE/FAIR WORK

If the Agreement is for Services that will be performed at one or more UC Locations, does not solely involve furnishing Goods,

and are not subject to extramural awards containing sponsor-mandated terms and conditions, Supplier warrants that it is in

compliance with applicable federal, state and local working conditions requirements, including but not limited to those set

forth in Articles 11, 12 and 14 herein, and that Supplier pays its employees performing the Services no less than the UC Fair

Terms and Conditions of Purchase

Revised 12 14 21

Wage. Supplier agrees UC may conduct such UC Fair Wage/Fair Work interim compliance audits as UC reasonably requests, as

determined in UC’s sole discretion. Supplier agrees to post UC Fair Wage/Fair Work notices, in the form supplied by UC, in

public areas (such as break rooms and lunch rooms) frequented by Supplier employees who perform Services.

For Services rendered (actual spend) not subject to prevailing wage requirements in excess of $100,000 in a year (under the

Agreement or any combination of agreements for the same service), Supplier will

a. At Supplier’s expense, provide an annual independent verification (

https://www.ucop.edu/procurement-services/for-

suppliers/fwfw-resources-suppliers.html) performed by a licensed public accounting firm (independent accountant)

or the Supplier’s independent internal audit department (http://na.theiia.org/standards-

guidance/topics/Pages/Independence-and-Objectivity.aspx) in compliance with UC’s required verification standards

and procedures (https://www.ucop.edu/procurement-services/for-suppliers/fwfw-resources-suppliers.html),

concerning Supplier’s compliance with this provision, and

b. Ensure that in the case of a UC interim audit, its independent accountant/independent internal auditor makes

available to UC its work papers for UC Fair Wage/Fair Work for the most recent verification period. Supplier agrees to

provide UC with a UC Fair Wage/Fair Work verification annually, in a form acceptable to UC, no later than ninety days

after the end of the 12-month period in which $100,000 in spend is reached.

The Fair Wage Fair Work annual independent verification requirement does not extend to contracts for professional services or

consulting for which pre-certification has been provided to UC (

https://www.ucop.edu/procurement-services/for-

suppliers/fwfw-resources-suppliers.html). Please see the UC Procurement/Supply Chain Management Policy BUS-43

(https://www.ucop.edu/procurement-services/policies-forms/business-and-finance/index.html) for the definition of

professional services and consulting.

ARTICLE 26 – MEDICAL DEVICES

This Article applies when the Goods and/or Services involve UC purchasing or leasing one or more medical devices from

Supplier, or when Supplier uses one or more medical devices in providing Goods and/or Services to UC.

Medical Device as used herein will have the meaning provided by the U.S. Food and Drug Administration (“FDA”) and means an

instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including

a component part, or accessory which is:

a. Recognized in the official National Formulary, or the United States Pharmacopoeia, or any supplement to them;

b. Intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of

disease, in humans or other animals, or

c. Intended to affect the structure or any function of the body of humans or other animals, and which does not achieve

any of its primary intended purposes through chemical action within or on the body of humans or other animals and

which is not dependent upon being metabolized for the achievement of any of its primary intended purposes.

Supplier warrants that prior to UC’s purchase or lease of any Medical Device or Supplier’s use of any Medical Device in

providing Goods and/or Services hereunder, Supplier will:

a. Perform security testing and validation for each such Goods and/or Services or Medical Device, as applicable;

b. Perform security scans to detect malware on any software embedded within any Goods and/or Services or Medical

Device, as applicable, in order to verify that the software does not contain any known malware;

c. Conduct a vulnerability scan encompassing all ports and fuzz testing; and

d. Provide UC with reports for a-c. Supplier warrants that all Goods or Medical Devices are compliant with FDA’s most

current guidance or regulation for the quality system related to the cybersecurity and the Management of

Cybersecurity in Medical Devices, and that Supplier will maintain compliance with any updates to such guidance or

regulations.

Throughout Supplier’s performance of this Agreement, Supplier will provide UC with reasonably up-to-date patches, firmware

and security updates for any Medical Device provided to UC, and any other Medical Device used in the course of providing

Services, as applicable. All such patches and other security updates will be made available to UC within thirty (30) days of its

commercial release or as otherwise recommended by Supplier or Supplier’s sub-supplier, whichever is earlier.

Supplier warrants that all software and installation media not specifically required for any Medical Device used by Supplier or

Goods and/or Services delivered to UC under this Agreement as well as files, scripts, messaging services and data will be

Terms and Conditions of Purchase

Revised 12 14 21

removed from all such Goods and/or Services or Medical Device following installation, and that all hardware ports and drivers

not required for use or operation of such Goods and/or Services or Medical Device will be disabled at time of installation. In

addition, Medical Devices must be configured so that only Supplier-approved applications will run on such Medical Devices.

Supplier agrees that UC may take any and all actions that it, in its sole discretion, deems necessary to address, mitigate and/or

rectify any real or potential security threat, and that no such action, to the extent such action does not compromise device

certification, will impact, limit, reduce or negate Supplier’s warranties or any of Supplier’s other obligations hereunder.

Supplier warrants that any Medical Device provided to UC, and any other Medical Device used in the course of providing such

Goods and/or Services, meet and comply with all cyber-security guidance and similar standards promulgated by the FDA and

any other applicable regulatory body.

If the Goods and/or Services entail provision or use of a Medical Device, Supplier will provide UC with a completed

Manufacturer Disclosure Statement for Medical Device Security (MDS2) form for each such Medical Device before UC is

obligated to purchase or lease such Medical Device or prior to Supplier’s use of such device in its performance of Services. If

Supplier provides an MDS2 form to UC concurrently with its provision of Goods and/or Services, UC will have a reasonable

period of time to review such MDS2 form, and if the MDS2 form is unacceptable to UC, then UC in its sole discretion may return

the Goods or terminate the Agreement with no further obligation to Supplier.

ARTICLE 27 – FORCE MAJEURE

Neither Party shall be deemed to be in default of or to have breached any provision of this Agreement due to a delay, failure in

performance or interruption of service, if such performance or service are impossible to execute, illegal or commercially

impracticable, because of the following “force majeure” occurrences: acts of God, acts of civil or military authorities, civil

disturbances, wars, strikes or other labor disputes, transportation contingencies, freight embargoes, acts or orders of any

government or agency or official thereof, earthquakes, fires, floods, unusually severe weather, epidemics, pandemics,

quarantine restrictions and other catastrophes or any other similar occurrences beyond such party’s reasonable control. In

every case, the delay or failure in performance or interruption of service must be without the fault or negligence of the Party

claiming excusable delay and the Party claiming excusable delay must promptly notify the other Party of such delay.

Performance time under this Agreement shall be considered extended for a period of time equivalent to the time lost because

of the force majeure occurrence; provided, however, that if any such delay continues for a period of more than thirty (30) days,

UC shall have the option of terminating this Agreement upon written notice to Supplier.

ARTICLE 28 – ASSIGNMENT AND SUBCONTRACTING

Except as to any payment due hereunder, Supplier may not assign or subcontract the Agreement without UC’s written consent.

In case such consent is given, the assignee or subcontractor will be subject to all of the terms of the Agreement.

ARTICLE 29 – NO THIRD-PARTY RIGHTS

Nothing in the Agreement, express or implied, is intended to make any person or entity that is not a signer to the Agreement a

third-party beneficiary of any right created by this Agreement or by operation of law.

ARTICLE 30 – OTHER APPLICABLE LAWS

Any provision required to be included in a contract of this type by any applicable and valid federal, state or local law, ordinance,

rule or regulations will be deemed to be incorporated herein.

ARTICLE 31 – NOTICES

A Party must send any notice required to be given under the Agreement by overnight delivery or by certified mail with return

receipt requested, to the other Party’s representative at the address specified by such Party.

ARTICLE 32 – SEVERABILITY

If a provision of the Agreement becomes, or is determined to be, illegal, invalid, or unenforceable, that will not affect the

legality, validity or enforceability of any other provision of the Agreement or of any portion of the invalidated provision that

remains legal, valid, or enforceable.

ARTICLE 33 – WAIVER

Terms and Conditions of Purchase

Revised 12 14 21

Waiver or non-enforcement by either Party of a provision of the Agreement will not constitute a waiver or non-enforcement of

any other provision or of any subsequent breach of the same or similar provision.

ARTICLE 34 – AMENDMENTS

The Parties may make changes in the Goods and/or Services or otherwise amend the Agreement, but only by a writing signed

by both Parties’ authorized representatives. In the event there is a Material Change to the Agreement, the parties agree to

meet and confer in good faith in order to modify the terms of the Agreement. A Material Change as used herein refers to:

a. A change to the scope of Goods and/or Services to be provided by Supplier, as agreed to by UC;

b. A change in the Institutional Information Supplier is required to create, receive, maintain or transmit in performance

of the Agreement, such that the Protection Level Classification of such Institutional Information changes;

c. Changes in the status of the parties;

d. Changes in flow down terms from external parties; and

e. Changes in law or regulation applicable to this Agreement.

Each party shall notify the other party upon the occurrence of a Material Change.

ARTICLE 35 – GOVERNING LAW AND VENUE

California law will control the Agreement and any document to which it is appended. The exclusive jurisdiction and venue for

any and all actions arising out of or brought under the Agreement is in a state court of competent jurisdiction, situated in the

county in the State of California in which the UC Location is located or, where the procurement covers more than one UC

Location, the exclusive venue is Alameda County, California.

ARTICLE 36 – ASSISTANCE IN LITIGATION OR ADMINISTRATIVE PROCEEDINGS

Supplier will make itself and its employees, subcontractors, or agents assisting Supplier in the performance of its obligations

reasonably available to UC at no cost to UC to testify as witnesses, or otherwise, in the event of investigations, or proceedings

against UC, its directors, officers, agents, or employees relating to the Goods or Services.

ARTICLE 37 – SUPPLIER TERMS

Any additional terms that Supplier includes in an order form or similar document will be of no force and effect, unless UC

expressly agrees in writing to such terms.

ARTICLE 38 – SURVIVAL CLAUSE

Upon expiration or termination of the Agreement, the following provisions will survive: WARRANTIES; INTELLECTUAL

PROPERTY, COPYRIGHT, PATENTS, AND DATA RIGHTS; INDEMNITY AND LIABILITY; USE OF UC NAMES AND TRADEMARKS;

LIABILITY FOR UC-FURNISHED PROPERTY; COOPERATION; TERMS APPLICABLE TO THE FURNISHING OF GOODS; AUDIT

REQUIREMENTS; PROHIBITION ON UNAUTHORIZED USE OR DISCLOSURE OF INSTITUTIONAL INFORMATION; GOVERNING LAW

AND VENUE, and, to the extent incorporated into the Agreement, the terms of the APPENDIX–DATA SECURITY, APPENDIX–BAA,

and/or APPENDIX-GDPR.

ARTICLE 39 – CONTRACTING FOR COVERED SERVICES

Covered Services, for the purpose of this Agreement, are defined as work customarily performed by employees in the American

Federation of State, County, and Municipal Employees (AFSCME) Patient Care Technical (EX) and Service (SX) bargaining units.

Covered Services include, but are not necessarily limited to, the following services: cleaning, custodial, janitorial, or

housekeeping services; food services; laundry services; grounds keeping; building maintenance (excluding skilled crafts);

transportation and parking services; security services; billing and coding services; sterile processing; hospital or nursing

assistant services; and medical imaging or other medical technician services.

Unless UC notifies Supplier that the Services are not Covered Services, Supplier warrants that it is in compliance with applicable

federal, state and local working conditions requirements, including but not limited to those set forth in in other Articles of the

Agreement. In accordance with Regents Policy 5402 and Article 5 of the AFSCME EX and SX Collective Bargaining Agreements,

Supplier also warrants that it pays its employees performing the Covered Services at UC locations the equivalent value of the

wages and benefits – as determined in the Wage and Benefit Parity Appendix – received by UC employees providing similar

services at the same, or nearest UC location.

Terms and Conditions of Purchase

Revised 12 14 21

Supplier shall be prepared to report to UC the total hours worked by each employee or contract worker (collectively the

“Worker”) who performed services on behalf of Supplier pursuant to this Agreement. Upon request Supplier shall report each

worker’s name and hours worked providing covered services to UC. Failure to comply with the wages or reporting requirements

of this clause will be considered a breach of this Agreement.

Supplier fully acknowledges that should any Worker work (i) 1,000 hours in a rolling twelve (12) month period; or (ii) 35% time

over a rolling thirty-six (36) month period on behalf of Supplier pursuant to this Agreement, that Worker will be deemed a

“qualified individual” (“QI”) and will be eligible for UC employment. Supplier acknowledges and agrees that should UC make an

offer of employment to any QI, and/or if the Worker accepts employment with UC, UC will not be in breach of this Agreement

or in violation of any other legal obligation it has to Supplier.

Upon UC’s request, Supplier also agrees to provide verification of an independent audit of wage and benefit parity compliance.

This audit must be performed by Supplier’s independent auditor or independent internal audit department and at Supplier’s

expense. Supplier agrees to provide UC requested verification, in a form acceptable to UC, no later than ninety days after

receiving request.