These GENERAL CONDITIONS are applicable to all bids and contracts with the Kentucky Community & Technical College System (KCTCS), Procurement to Payment Services Department.
We encourage you/your firm to study these conditions and retain copies for reference, as they are an integral part of all contracts awarded by the KCTCS Procurement to Payment Services Department.
The following GENERAL CONDITIONS are applicable to each Invitation to Bid issued by KCTCS and to each purchase made by any authorized method of acquisition. Each firm submitting a bid or selling to KCTCS shall be deemed to have assented to these conditions by the act of bidding and/or acceptance of a purchase request.
These GENERAL CONDITIONS will not be repeated in each Invitation to Bid although they shall be an integral part of each invitation and resulting contract. These General Conditions will be sent to any vendor upon request.
Additional conditions may be incorporated in specific Invitations to Bid, and contracts, and are generally termed "Special Conditions." Such special conditions will in no way operate to alter or nullify the general conditions and each bidder shall be responsible for compliance with both the general and special conditions. However, in cases of irreconcilable conflict, the special conditions will govern.
Select the title of each section to expand its content.
Contract – The entire written agreement between the parties including, but not limited to, the Invitation to Bid and its terms, conditions and specifications, solicitation instructions, solicitation addenda, contractor's offer, the contract document, and contract amendments if any, including, without limitations, these General Terms and Conditions and the purchase order or price agreement document excluding correspondence of any type unless specifically accepted by both parties in writing.
Contractor – A person, company, corporation, organization or other legal entity with whom KCTCS has executed a Contract.
KCTCS - Kentucky Community & Technical College, an agency and instrumentality of the Commonwealth of Kentucky.
2. BID SUBMISSION COMPLIANCE AND PROVISIONS:
3. Applicability of General Terms and Conditions:
These terms are in addition to the terms and conditions set forth in any solicitation document and/or purchase agreement and should be read in conjunction with the same unless the document indicates otherwise. To the extent that Contractor terms and conditions conflict with these KCTCS General Terms and Conditions, the latter shall control. Either party's failure to insist upon the performance of any provision of these General Terms and Conditions shall not be construed as a waiver of that party's present or future right to such performance or each party's obligation in respect thereto shall continue in full force and effect.
4. Contract Provisions by Reference
It is mutually agreed by and between KCTCS and the Contractor that KCTCS's acceptance of the Contractor's offer by the issuance of a Purchase Order or Contract shall create an agreement between the parties thereto containing the following:
Unless otherwise specified, in the event of any conflicts, the documents shall control in the following order:
5. Governing Law and Dispute Resolution
Contracts with KCTCS shall be governed and construed in accordance with the laws of the Commonwealth of Kentucky. Any claim, action, suit, or proceeding between KCTCS and the Contractor that arises from or relates to any contract between the parties shall be brought in the Franklin Circuit Court in accordance with Kentucky Revised Statutes (KRS 45A.245). Pursuant to KRS 45A.230, any dispute arising under the Contract shall be submitted to KCTCS's Executive Vice President for Finance and Administration.
The Contractor shall indemnify, hold and save harmless KCTCS, its affiliates and subsidiaries and their officers, agents, and employees from losses, claims, suits, actions, expenses, damages, costs (including attorney fees of attorneys of KCTCS's choice and court costs) expenses, all liability of any nature or kind arising out of or relating to the Contractor's performance hereunder. This clause shall survive the termination of any contract for as long as necessary to protect KCTCS.
The successful Contractor shall procure and maintain, at its expense, the following minimum insurance coverages insuring all services, work activities and contractual obligations undertaken in this contract. These insurance policies must be with insurers acceptable to KCTCS. Insurance requirements may be modified in the Special Conditions of any solicitation document. In such cases, the insurance requirements of the Special Conditions shall prevail.
Prior to the beginning of the contract, the contractor will furnish to KCTCS Procurement to Payment Services Certificates of Insurance that show it has and will maintain all insurance protection (including products liability insurance) at the contractor's expense.
The Kentucky Community and Technical College System must be named as an additional insured in the policy for Comprehensive General Liability. In the event of failure by the contractor to maintain, in force, insurance coverage acceptable to KCTCS, KCTCS will have the right to terminate this Agreement immediately upon written notice to the contractor. Copies of the Insurance Certificates are to be furnished to the KCTCS Procurement to Payment Services Department. Modification of this requirement must be requested in writing with supporting statements, prior to the time of the bid submission.
Any deductibles or self-insured retention in the above-described policies must be paid and are the sole responsibility of the Contractor. Coverage is to be primary and non-contributory with other coverage, if any, purchased by KCTCS. All of these required policies must include a Waiver of Subrogation, except Workers' Compensation, in favor of KCTCS, its trustees and employees.
8. Termination for Convenience
KCTCS reserves the right to terminate any contract at any time, in whole or in part, by thirty (30) day written notice to Contractor. Upon receipt by the Contractor of the "notice of termination", the Contractor shall discontinue all services with respect to the applicable contract. KCTCS, after deducting any amount(s) previously paid, shall pay for all services rendered or goods supplied by the Contractor, as well as any reasonable costs incurred by Contractor up to the time of termination but not including Contractor's loss of profit. The cost of any agreed upon services provided by the Contractor will be calculated at the agreed upon rate prior to "notice of termination" and a fixed fee contract will be pro-rated (as appropriate).
9. Termination for Non-performance
KCTCS may terminate the resulting contract for non-performance, as determined by KCTCS, for such causes as:
Demand for Assurances
In the event KCTCS has reason to believe Contractor will be unable to perform under the Contract, it may make a demand for reasonable assurances that Contractor will be able to timely perform all obligations under the Contract. If Contractor is unable to provide such adequate assurances, then such failure shall be an event of default and grounds for termination of the Contract.
KCTCS will provide ten (10) calendar days written notice of default. Unless arrangements are made to correct the non-performance issues to KCTCS's satisfaction within ten (10) calendar days, KCTCS may terminate the contract by giving forty-five (45) days' notice, by registered or certified mail, of its intent to cancel this contract.
10. Attorney's Fees
In the event that either party deems it necessary to take legal action to enforce any provision of the contract, and in the event KCTCS prevails, the Contractor agrees to pay all expenses of such action, including attorney's fees and costs at all stages of litigation.
11. Compensable Damages for Breach:
During the performance of each contract the vendor agrees:
The Contractor agrees that the following items shall be included as compensable damages for any breach of a contract with KCTCS.
The enumeration of compensable damage contained in this section is not intended to be exclusive and will not operate to bar recovery by KCTCS for any other damages occasioned by the Contractor's breach of a contract. However, in cases where contract provides for liquidated damages, said liquidated damages shall be in lieu of all other damages, including those enumerated.
12. Assignment and Subcontracting
The Contractor(s) may not assign or delegate its rights and obligations under any contract in whole or in part without the prior written consent of KCTCS. Any attempted assignment or subcontracting shall be void.
13. Contractor's Responsibility in Performing Work:
The Contractor is solely responsible for the fulfillment of the contract with KCTCS.
Contractor and its agents, subcontractors, and representatives shall be independent contractors and not act as agents of KCTCS. All persons furnished or retained by Contractor in connection with any contract shall be considered employees or agents of the Contractor.
Contractor shall control all employee misconduct while on KCTCS's premises. Any employee under the influence of alcohol or controlled substances, other than prescription medications, shall not be allowed on the premises of KCTCS and shall be permanently dismissed if found to be so. Further, offensive language, sexual or other types of harassment of students, employees or visitors to KCTCS campus could result in immediate and permanent dismissal of the offending person(s) from KCTCS site.
Contractor shall comply with KCTCS's tobacco-free policy. This policy prohibits the use of tobacco in or around its facilities including UK HealthCare. Additional information on this policy is available at: www.uky.edu/TobaccoFree/.
Contractor shall ensure that employees abide by any applicable University policies and regulations concerning behavior/conduct.
14. Additions, Deletions or Contract Changes
KCTCS reserves the right to add, delete, or change related items or services to any contract. No modification or change of any contract provision shall be made, unless such modification is mutually agreed to in writing by the Contractor and KCTCS, and incorporated as a written modification to the contract. Memoranda of understanding and correspondence shall not be interpreted as a modification to or part of the contract, unless specifically agreed to by both parties.
15. Permits, Licenses and Taxes
The Contractor shall procure all necessary permits and licenses and abide by all applicable laws, regulations and ordinances of all federal, state, and local governments in which work under this contract is performed. The Contractor shall pay any sales, use, personal property, and other taxes arising out of this contract and the transactions contemplated hereby. Any other taxes levied upon this contract, the transaction, or the equipment or services delivered pursuant hereto shall be the responsibility of the Contractor.
16. Royalties, Patents, Copyrights and Trademarks
The Contractor shall pay all applicable royalties and license fees. If a particular process, products or device is specified in the contract documents and it is known to be subject to patent rights or copyrights, the existence of such rights shall be disclosed in the contract documents and the Contractor is responsible for payment of all associated royalties. To the fullest extent permitted by law the Contractor shall indemnify, hold KCTCS harmless, and defend all suits, claims, losses or damages resulting from any infringement of patent, copyright, and trademark rights resulting from the incorporation in the Work or device specified in the Contract Documents.
Unless provided otherwise in the contract, the Contractor shall not use KCTCS's name nor any of its trademarks or copyrights, although it may state that it has a Contract with KCTCS.
17. Copyright Ownership and Title to Designs and Copy
Contractor and University both consider the products and results of the services to be rendered by Contractor to be a work made for hire. Contractor acknowledges and agrees that the work and all rights therein, including, without limitation, copyright, belongs to and shall be the sole and exclusive property of KCTCS. For any work that is not considered a work made for hire under applicable law, title and copyright ownership shall be assigned to KCTCS.
Title to all dies, type, cuts, artwork, negatives, positives, color separations, progressive proofs, plates, copy, and any other requirement not stated herein required for completion of the finished product for use in connection with any KCTCS job shall be the property of and owned by KCTCS. Such items shall be returned to the appropriate department upon completion and/or delivery of work unless otherwise authorized by KCTCS. In the event that time of return is not specified, Contractor shall return all such items to the appropriate University department within one week of delivery.
18. Proprietary Information, Data Duplication, and Disclosure
Contractor agrees that any information disclosed from KCTCS to the Contractor for the purpose of any contract shall be used only in the performance of the contract. Contractor will keep information confidential, will not disclose it to any third party except as authorized by the Owner, and will only disclose it to those within its organization who need to use it in performance of the Contract. Upon completion or termination of this contract, Contractor shall return all such information to KCTCS or make such other disposition thereof as may be directed or approved by KCTCS.
No item furnished under this contract, or tools, plans, designs or specifications for producing the same which have been specifically designed for by KCTCS shall be duplicated or used by Contractor. Upon completion or termination of this contract, Contractor shall return all items, tools, plans, designs or specifications to KCTCS or make such other disposition thereof as may be directed by or approved by KCTCS.
Contractor agrees that it will not, without prior written approval of KCTCS, publicize this contract or disclose, confirm or deny any details thereof to third parties, or use KCTCS's name in connection with Contractor's sales promotion or publicity without prior written approval of KCTCS.
Nothing in this provision shall restrict Contractor's right to use or disclose any information which is or becomes generally known to the public without breach of this provision by Contractor, or is rightfully obtained without restriction from other sources.
19. Contractor's Responsibility for Records, Audits and Reports
Contractor shall retain all records and documents and shall provide unlimited access, at all reasonable times and upon reasonable notice, to all accounting records and supporting documentation relating to the goods and services furnished during any contract and for a period of five (5) years thereafter, unless required to be retained for a longer period by state or federal statute. KCTCS reserves the right to audit such records and employ any auditor KCTCS deems appropriate to perform an audit of Contractor's records. Should such audit disclose incorrect billings or improprieties, KCTCS reserves the right to charge the Contractor for the cost of the audit and pursue appropriate reimbursement.
Contractor will be responsible for providing line item usage reports to KCTCS Procurement to Payment Services Department on a quarterly basis. Procurement to Payment Services reserves the right to request other pertinent reports.
20. Non-discrimination and Equal Opportunity
Contractor is subject to and shall comply with all applicable Federal, state and local laws and regulations governing equal employment opportunity and affirmative action including, but not limited to, the Kentucky Equal Employment Act of 1978 (KRS 45.550 et. seq. of the Kentucky Revised Statutes) and the Federal requirements set forth in Titles VI and VII of Civil Rights Act of 1964, as amended; Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act of 1990, as amended; Executive Order 11246 as amended; The Age Discrimination in Employment Act of 1967, as amended; the Age Discrimination Act of 1975, as amended; The Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; and all regulations and administrative rules established pursuant to the foregoing laws. Expressly, Contractor shall not discriminate in employment on the basis of race, color, religion, age, sex, national origin, physical or mental disability, or because he or she is a disabled veteran or a veteran of the Vietnam era.
21. Contractor and Subcontractor Responsibility with Federally Funded Contracts
Section 503: Disabilities
This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
22. Open Records
Any contract with KCTCS, and all related information and documentation may be subject to public disclosure under the Kentucky Revised Statutes 61.870 et. seq. Contractor is hereby notified that KCTCS strictly adheres to this statute and the interpretations thereof rendered by the courts and the Kentucky Attorney General. Contractor shall be deemed to have knowledge of this law and the means of protecting Contractor's legitimate interests.
23. Debarred, Suspended and Ineligible Status
Contractor certifies that is has not been debarred, suspended, or declared ineligible as defined in the Federal Acquisition Regulation (FAR 48 C.F.R Ch. 1 Subpart 9.4). Contractor will immediately notify KCTCS if the Contractor is placed on the Consolidated List of Debarred, Suspended, and Ineligible Contractors.
24. Conflicts of Interest
Contractor affirms that, to the best of Contractor's knowledge, there exist no conflicts of interest between the Contractor of KCTCS or its employees as defined by all applicable Kentucky Revised Statutes and University of Kentucky ethics and compliance policies and procedures. In the event of change in Contractor's interests, Contractor shall inform KCTCS regarding any conflicts of interest that are likely to arise as a result of such change. Contractor hereby represents that it has not participated in any illegal or unethical conduct in connection with the contract. If, at any time, KCTCS determines the Contractor is in violation of the forgoing representation, KCTCS may cancel the contract upon written notice to the Contractor and KCTCS shall have no further obligation to the Contractor.
25. General Warranties
Contractor warrants that all goods shall conform to the specifications of the contract and shall be merchantable, free from defects (including defects in design and fit) and suitable for the intended purposes. Contractor further warrants that all services shall conform to the specifications of the contract and shall be performed in a professional and workmanlike manner. These warrantees shall remain in effect for at least one year following University's acceptance of the goods or services or for the duration of Contractor's standard warranty period if such period exceeds one year. The foregoing warranties are in addition to, and shall not limit, any other warranties or buyer protections that exist by operation of law.
26. Price Warranty:
Contractor warrants that the price(s) for the articles or services sold to KCTCS hereunder are not less favorable than those extended to any other customer (whether government or commercial) for the same or similar articles or services in similar quantities. In the event Contractor reduces its price(s) for such articles or services during the term of this contract, Contractor agrees to reduce the prices hereof accordingly. Contractor warrants that prices shown on this contract shall be complete, and no additional charges of any type shall be added without KCTCS's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, customs, duties, taxes, storage, insurance, boxing and crating.
27. Final Inspection and Acceptance:
KCTCS reserves the right to perform inspection and/or expediting of the materials and fabrication thereof at the facility of the Contractor or its suppliers at any reasonable times. All materials and services are subject to final inspection and acceptance by KCTCS at destination, notwithstanding any prior payments or inspection at the source. Such final inspection shall take place within thirty (30) days from the date of delivery or installation or completion of services whichever is latest.
In addition to other remedies which may be available under law or in equity, KCTCS, at its option may return to the Contractor any nonconforming or defective item(s), at no cost to KCTCS, and require correction or replacement of the item(s). If KCTCS does not require correction or replacement of nonconforming or defective item(s), Contractor shall repay such portion of the contract price or such additional amount as is equitable under the circumstances. The rights of KCTCS are in addition to and shall not be limited by Contractor's standard warranties.
28. Delivery, Transportation and Packaging
The Contractor covenants that, if awarded a contract, the Contractor shall:
Adequately pack all commodities and equipment according to accepted commercial practice and according to the packing and marking instructions stated in the contract documents or purchase order.
Make deliveries as stated in the contract; it is understood by the Contractor that all deliveries shall be made by the end of KCTCS's fiscal year in which the contract is awarded unless otherwise specified in a specific contract.
Make deliveries during normal working day hours to the point or points specified in the contract documents or purchase order unless otherwise noted.
29. Price Redetermination
Prices quoted shall be firm and fixed unless otherwise stipulated in the Special Conditions of the Invitation to Bid. For multiple year contracts, prices shall remain firm and fixed during the initial term of the contract. At the end of the initial contract term, and at the end of each contract term thereafter, the Contractor may request a price adjustment. Such requests must be submitted in writing at least 60 calendar days prior to the end of the contract term and shall include the cause for the adjustment, the amount of change requested, and documentation to support the requested adjustment.
Only pass through price adjustments will be considered and any proposed price increase must be proven to be general throughout the industry. Requests for price increases must be accompanied by sufficient documentation to justify the request including, for example, certified letters from a manufacturer or published price indices such as the Producer Price Index that substantiate a price increase.
KCTCS Procurement to Payment Services must agree to and approve any proposed price adjustment before its effective date. The adjusted price(s) become effective starting with the term beginning after the approval and shall be firm and fixed for the next contract term.
KCTCS's freight terms are F.O.B. destination, freight prepaid and allowed. If shipment is indicated on the purchase order as freight prepaid and added, the Contractor will prepay the freight charges and, if mutually agreed to, add them to the invoice. Separate freight invoices will not be accepted. Collect shipments will be returned at Contractor's expense unless otherwise instructed by KCTCS.
31. Terms for Prompt Payment
KRS 45.451 to 45.458 require that all bills shall be paid within 30 working days of either the receipt of correct invoice, and receipt of goods or services in satisfactory condition. A penalty payment of 1% per month shall be added to the amount due the vendor for each full or partial month that the payment exceeds 30 working days unless the invoice is in dispute. As an incentive for earlier payment, bidders for state contracts are encouraged to offer discounts for payments made in less than the prescribed 30 days.
32. Procurement Card
KCTCS utilizes a procurement card program as the preferred method of payment. KCTCS assumes that all successful bidders will accept KCTCS's procurement card as a method of payment unless a specific exception is stated in the bidder's response to the Invitation For Bid. No additional charges may be added for acceptance of the procurement card.
33. Payment Card Industry - Data Security Standard Requirements (PCI-DSS)
Contractor shall be required to comply with the Gramm-Leach-Bliley Act (GLBA). To the extent any purchase includes services, including support, such that the provider of the service (defined in the GLBA as "Service Provider") may receive "customer information" through the course of contracted activities with KCTCS, Service Provider agrees to the following additional terms and conditions:
(a) Throughout the term of this Agreement, Service Provider shall implement and maintain "appropriate safeguards", as that term is used in § 314.4(d) of the FTC Safeguard Rule, 16 C.F.R. § 314, for all "customer information," as that term is defined in 16 C.F.R. § 314.2(b), received by Service Provider pursuant to this Agreement.
(b) Service Provider shall promptly notify KCTCS, in writing, of each instance of (i) unauthorized access to or use of any customer information that could result in substantial harm or inconvenience to a customer of KCTCS or (ii) unauthorized disclosure, misuse, alteration, destruction or other compromise of any customer information. Within 30 days of the termination or expiration of this Agreement, Service Provider shall destroy all records, electronic or otherwise, in its or its agents' possession that contains such customer information and shall deliver a written certification of the destruction to KCTCS.
(c) Service provider consents, upon reasonable advance notice, to KCTCS's right to conduct an on-site audit of Service Provider's security program.
(d) Notwithstanding any other provisions of this Agreement, KCTCS may terminate this Agreement for cause if Service Provider has allowed a material breach of its security program, if Service Provider has lost or materially altered customer information, or if KCTCS reasonably determines that Service Provider's security program is inadequate.
(e) Service Provider shall defend, indemnify, and hold harmless KCTCS, its agents, officers, board members, and employees from and against any and all claims, damages, losses, and expenses, including reasonable attorney's fees, for any claims arising out of or in any way relating to any allegations of security breaches, violations of the Safeguard Rule caused by Service Provider's negligence, intentional acts or omissions, or any loss or material alteration of customer information.
(f) Service Provider shall reimburse KCTCS for any damages, including but not limited to any costs required to reconstruct lost or altered information, resulting from any security breach, loss, or alteration of customer information.
Contractor hereby agrees as follows:
(a) Contractor shall be responsible for the security of cardholder data that it possesses, even temporarily, including any functions relating to storing, processing and transmitting of cardholder data on behalf of KCTCS. In the case of a payment processing system and/or equipment purchased from Contractor that is covered by PA DSS (Payment Application Data Security Standard), Contractor warrants and represents that its software and/or equipment shall not impede the KCTCS's PCI DSS (Payment Card Industry Data Security Standard) compliance efforts. In the event that Contractor's software and/or equipment does impede such efforts, KCTCS may, in its sole discretion, upon thirty (30) days' notice and opportunity to cure, terminate this Agreement, with any prepaid amounts refunded to KCTCS on a pro-rata basis.
(b) Contractor warrants and represents that, as of the effective date of this Agreement, it has complied with all applicable requirements for validation and compliance with the PCI DSS (Payment Card Industry Data Security Standard), as appropriate for its Service Provider level. Contractor agrees to supply the current status of its PCI DSS compliance, and evidence of its most recent validation of compliance, upon execution of this Agreement. Further, Contractor must supply to the KCTCS a new status report and evidence of validation of compliance at least annually and upon request by KCTCS. Contractor will immediately notify KCTCS if it learns that it is no longer PCI DSS compliant and will immediately report to KCTCS the steps being taken to remediate the non-compliance status. In no event should Contractor's notification to KCTCS be later than seven (7) calendar days after Contractor learns it is no longer PCI DSS compliant. Failure to maintain PCI DSS compliance shall be a breach of contract and KCTCS may, at its sole discretion, terminate this Agreement if Contractor does not become compliant within thirty (30) days, with any prepaid amounts refunded to KCTCS on a pro-rata basis.
(c) Contractor warrants and represents that, as of the effective date of this Agreement; it has complied with all applicable requirements for validation with the PA DSS (Payment Application Data Security Standard) for its payment processing system. Contractor agrees to supply evidence of its most recent validation upon execution of this Agreement. Further, Contractor agrees to maintain PA DSS validation for the installed payment processing system version throughout the term of any maintenance agreement with KCTCS. If the PA DSS validation deadline for the payment system lapses, Contractor acknowledges that it shall be in breach of this Agreement and KCTCS may, at its sole discretion, terminate this Agreement if Contractor does not become compliant within thirty (30) days, with any prepaid amounts refunded to KCTCS on a pro-rata basis.
(d) While doing business in KCTCS facilities or on its property, if credit card payments will be processed over the internet via the Contractors own system and/or equipment and through its own merchant account, Contractor will provide its own internet connection to process such payments, and will not be permitted to use KCTCS's network and equipment.