General Terms and Conditions.
Definition.
As used throughout this document, including those referenced herein, the following terms shall have the meanings as stated: “Contracting Officer or Buyer” means Cherokee Tech LLC; “DoD” means Department of Defense; “FAR” means Federal Acquisition Regulation; “DFAR” means Defense Federal Acquisition Regulation; “Prime Contract” means the contractual document under which Buyer is performing for its customer (Government Agency or Industrial Firm); “Contracting Officer or Government” means Contracting Officer, Buyer or Subcontract Administrator; “Contractor” means Seller; “Subcontractor” means Seller’s Supplier (Vendor); “Purchase Order, Order, or Subcontract” means this Purchase Order; and “RFQ” or “RFP” means Buyer’s Request for Quotation or Proposal.
Acceptance of Purchase Order.
Agreement by Seller to furnish the materials, products, or services hereby ordered, or its commencement of such performance, or acceptance of any payment, shall constitute acceptance by Seller of this Purchase Order subject to these terms and conditions. In the event that this Purchase Order does not state price or delivery, Buyer will not be bound to any prices or delivery to which it has not specifically agreed in writing. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions of purchase herein contained shall be void and of no effect unless specifically agreed to by Buyer in writing. Modifications hereof or additions hereto, to be effective, must be made in writing and be signed by Buyer’s purchasing representative. These terms and conditions, together with any referenced exhibits, attachments or other documents, constitute the entire agreement between the parties with respect to the subject matter of this Purchase Order; and supersede any prior or contemporaneous written or oral agreements pertaining thereto.
Complete Agreement.
This Purchase Order which includes any supplementary sheets, schedules, exhibits, riders, and attachments annexed hereto by Buyer contains the complete and entire agreement between the parties and supersedes any other communications, representations or agreements, whether verbal or written with respect to the subject matter hereof.
Laws to Govern.
This Purchase Order shall be construed according to the Laws of the State of California, without regard to its conflicts of law principles or any UN or other international conventions.
Compliance With Law.
(a) Seller warrants that the materials to be furnished and the services to be rendered under this Purchase Order shall be manufactured, sold, used and rendered in compliance with all relevant federal, state, local law, orders, rules, ordinances, and regulations and in compliance with applicable international prohibitions on child labor. Seller certifies that with respect to the production of the articles and/or the performance of the services covered by this Purchase Order, it has fully complied with Sections 6, 7, 12, and 15 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the United States Department of Labor under Section 14 thereof, if applicable. (b) Seller warrants that all equipment and materials delivered under this Purchase Order are in conformance with the latest OSHA requirements. (c) The Seller warrants that in the performance of this Purchase Order, it will comply with all applicable U.S. Department of Transportation regulations on hazardous materials and any other pertinent federal, state, or local statutes, laws, rules, or regulations; and Seller further agrees to save Buyer harmless from any loss, damage, fine, penalty, or expense whatsoever that Buyer may suffer as a result of Seller’s failure to comply with this warranty. The foregoing is in addition to and not in mitigation of any other requirements of this Purchase Order. (d) Seller warrants that it has complied with the Anti-Kickback Act of 1986 and has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity or any kickback within the meaning of the Anti-Kickback Act of 1986. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller. (e) For orders procuring an item meeting the Federal Acquisition Regulation (FAR) definition of a commercial item, the following clauses set forth in the FAR or the Defense Federal Acquisition Regulation Supplement (DFARS) in effect as of the date of said prime contract are incorporated herein by reference. In all clauses listed herein the terms “Government” and “Contractor” shall be revised to identify properly the contracting parties under this Purchase Order. The Seller shall include the terms of this Article, including this Section 19(e) in all purchase orders or subcontracts awarded under this Purchase Order.
Utilization of Small Business Concerns 52.219-8
Equal Opportunity 52.222-26(b)
Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans 52.222-35
Affirmative Action for Workers with Disabilities 52.222-36
Notification of Employee Rights Concerning Payment of Union Dues or Fees 52.222-39
Subcontracts for Commercial Items 52.244-6
Preference for Privately Owned U.S.-Flag Commercial Vessels 52.247-64
Preference for Domestic Specialty Metals and Alternate 1 (DoD Contracts) 252.225-7014 and Alt. 1
Preference for Domestic Specialty Metals (DEVIATION) and Alternate I (DEVIATION) 252.225-7014 (These deviations apply to Purchase Orders under prime (Deviation) and contracts entered into after November 15, 2006.) Alt. I (Deviation)
Subcontracts for Commercial Items and Commercial Components 252.244-7000
Notification of Potential Safety Issues 252.246-7003
Transportation of Supplies by Sea 252.247-7023
Notification of Transportation of Supplies by Sea 252.247-7024
Force Majeure.
Except for defaults of Seller’s subcontractors at any tier, neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the Government in its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance of this Purchase Order is hindered, delayed or adversely affected by causes of the type described above (“Force Majeure”), then the Party whose performance is so affected shall so notify the other Party’s authorized representative in writing and, at Buyer’s option, this Purchase Order shall be completed with such adjustments as are reasonably required by the existence of Force Majeure or this Purchase Order may be terminated for convenience.
Disputes.
Any dispute that arises under, or is related to this Purchase Order that cannot be settled by mutual agreement of the parties may be decided by a court of competent jurisdiction. Pending final resolution of any dispute hereunder, Seller shall diligently proceed with performance of this Purchase Order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute. An Alternate Dispute Resolution (ADR) process may be used and considered binding if all parties agree.
Order of Precedence.
(a) In the event of any inconsistency or conflict between or among the provisions of this Purchase Order, such inconsistency or conflict shall, subject to Section 21(d), be resolved by the following descending order of preference: 1. Order-specific provisions which are typed or handwritten on the Purchase Order as additions to the pre-printed terms; 2. Documents incorporated by reference on the face page(s) of this Purchase Order; 3. These General Terms and Conditions of Purchase and Supplements thereto; 4. Statement of Work; and 5. Specifications attached hereto or incorporated by reference. Buyer’s specifications shall prevail over those of the United States Government, and both of the foregoing shall prevail over specifications of Seller. (b) In the event of conflict between specifications, drawings, samples, designated type, part number, or catalog description, the specifications shall govern over drawings, drawings over samples, whether or not approved by Buyer and samples over designated type, part number, or catalog description. In cases of ambiguity in the specifications, drawings, or other requirements of this Purchase Order, Seller must, before proceeding, consult Buyer, whose written interpretation shall be final.
Packing, Shipment, Transportation and Taxes.
All charges for boxing, packing, crating, drayage, storage and all applicable federal, state and local taxes are included in the price stated herein. All components must be packaged to industry standards to insure safety of product. Materials shall be suitably packed to secure lowest transportation costs and to conform to the requirements of common carriers and any applicable specifications. Transportation charges on materials sold “Delivered Destination” must be prepaid by the Seller. If purchase terms are F.O.B. Shipping Point, Seller will conform to Buyer’s established routing and shipping instructions. If Seller prepays authorized F.O.B. transportation charges, Buyer will require a copy of the carrier’s bill or other evidence prior to reimbursement to Seller. The FOB Point will be listed on the face of the Purchase Order.
Delivery.
Time is of the essence in performance of this ORDER by Seller. Delivery shall be made both in full quantities and at time specified, strictly in accordance with Buyer’s delivery schedule. If Seller’s deliveries fail to meet such schedule, Buyer, without limiting its other remedies, may direct expedited routing and the difference between the expedited routing and the order routing costs shall be paid by Seller. Also at Buyers option, Seller agrees to earnestly negotiate an equitable reduction in the price of items that are delivered after the stated contractual delivery date. Material fabricated beyond Buyer’s release is at Seller’s risk. Unless otherwise specified herein, no deliveries shall be made in advance of Buyer’s delivery schedule. Material delivered in excess of the quantity specified will be retained at no cost to the Buyer. Neither party shall be liable for excess costs of deliveries or defaults due to causes beyond its control and without its fault or negligence, provided, however, that when the Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to the Buyer. If Seller’s delay or default is caused by the delay or default of a subcontractor such delay or default shall be excusable only if it arose out of causes beyond the control of both Seller and subcontractor and without the fault or negligence of either of them and the supplies or services to be furnished were not obtainable from other sources in sufficient time to permit Seller to meet required delivery schedule. Representatives of Buyer and/or the Government shall at all reasonable times have access to Seller’s plant, and that of Seller’s subcontractors, for the purpose of assuring delivery in accordance with the schedule.
Assignment and Organization Change.
(a) Performance of the ORDER shall not be assigned by Seller without the prior written consent of Buyer. (b) Claims for money due to Seller from Buyer arising out of this ORDER may be assigned, but Buyer shall be under no obligation to pay the Assignee unless and until the Buyer has received written notice of the assignment, a true copy of the instrument of assignment, and suitable documentary evidence of Seller’s authority so to assign. (c) In no event shall copies of this ORDER or of plans, specifications or other similar documents relating to work under this order, be furnished to any Assignee if such documents are designated as Classified under Government security requirements or as proprietary to the Buyer.
Set-Off. Not Applicable
Advertising, Announcements and News Releases.
Seller shall not, and shall require that its subcontractors at any tier shall not, at any time without first obtaining written consent of Buyer, in any manner advertise or publish or issue any news releases or make any public announcements or denial or confirmation of same concerning the fact that Seller has furnished or contracted to furnish the Buyer the articles herein mentioned or concerning work done by Seller hereunder. Seller shall be liable to Buyer for any breach of such obligation by any subcontractor. Seller shall not use Buyer trade name or product logo and markings with out written authorization.
Remedies.
(a) Except as otherwise provided herein, the rights and remedies of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of either party to enforce any of its rights shall not constitute a waiver of such rights or of any other rights and shall not be construed as a waiver or relinquishment of any such provisions, rights or remedies; rather, the same shall remain in full force and effect. (b) Buyer shall be entitled at all times to set off any amount owing at any time from Seller or any of its affiliated companies to Buyer, against any amount payable at any time by Buyer or any of its affiliated companies to Seller.
Prices and Payment.
Defense Priorities and Allocations System.
If a DPAS priority rating appears on the face of this ORDER, this is a rated order certified for national defense use, and you are required to follow all the provisions of the Defense Priorities and Allocations System Regulation (15 CFR Part 700).
Your obligation under 15 CFR 700:
Persons receiving rated orders must give them preferential treatment as required by the regulations. This means a person must accept and fill a rated order for items that the person normally suppliers. The existence of previously accepted unrated or lower rated orders is not sufficient reason for rejecting a rated order. Persons are required to reschedule unrated orders if they conflict with performance against the rated order. Similarly, persons must rescheduled DO rated order if they conflict with performance against a DX rated order. All rated orders must be scheduled to the extent possible to ensure delivery by the required delivery date. Persons who received rated orders must in turn place rated orders with their suppliers for the items they need to fill the order. This provision ensures that suppliers will give priority treatment to ratted orders from contractor to subcontractor to suppliers throughout the procurement chain.
Subcontracting.
Seller shall not subcontract all or substantially all work on any article to be supplied under this ORDER without prior written approval of Buyer. This provision shall not apply to purchases of standard commercial, nationally advertised articles or new materials.
Labor.
If this ORDER covers the performance of labor or involves operations by Seller on the premises of Buyer or one of its customers then: (a) Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Buyer’s or its customer’s negligence, as the case may be, shall indemnify and protect Buyer against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of this contract including the cost of defending against any such claim. Seller further agrees to furnish insurance carrier’s certificates naming Buyer as additional insured, showing that the Seller has adequate Workers’ Compensation, Employer’s Liability, General Comprehensive Liability and Automobile Liability insurance coverage’s. Said certificates must set forth the amount of coverage, number of the policy and date of expiration and provide that said policy shall not be canceled without ten (10) days written notice to Buyer. If Seller is a self-insurer, the certificate of the appropriate state agency of the state in which said labor is to be performed, must be furnished by such state agency directly to Buyer. (b) When in the performance of work under this ORDER, it is necessary for the Seller, his agents, employees, representatives or lower-tier subcontractors shall be bound by the security regulations prescribed in Buyer’s Security Policies and in addition, by the requirements of the Department of Defense, “Industrial Security Manual for Safeguarding Classified Information” when this ORDER is issued under a government contract as evidenced on the face of this ORDER.
Confidential or Proprietary Information.
Seller shall keep confidential and otherwise protect from disclosure all information and property obtained from Buyer in connection with this ORDER Unless otherwise expressly authorized herein or by Buyer, Seller shall use such information and property, and the features thereof, only in the performance and for the purpose of this ORDER. Upon Buyer’s request, and in any event upon the completion, termination or cancellation of this ORDER, Seller shall return all such information and property to Buyer or make such other disposition thereof as directed by Buyer. Seller shall not sell or dispose of as scrap or otherwise any completed or partially completed or defective proprietary property before receiving written authorization from Buyer and before rendering such property unsuitable for use. In all subcontracts and purchase orders issued by Seller for performance of work related to this ORDER, Seller shall provide to Buyer the same rights and protection as contained in this clause.
Intellectual Property.
All Technical Information and Inventions conceived or developed or first actually reduced to practice in performing the Work under this ORDER shall be the property of Buyer and the Seller shall have no rights in and to the same except as may be provided by Buyer. The Seller shall not divulge or use such Technical Information and Inventions, other than in performing the Work under this ORDER, and shall not sell other than to Buyer under this ORDER any articles or things embodying such Technical Information and Inventions.
Proprietary Rights.
(a) Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other items supplied to Buyer by Seller shall be disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without restriction, unless (i) otherwise required by the U.S. Government Regulations referred to below, or (ii) the Buyer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like. (b) Unless otherwise expressly agreed in writing to the contrary and subject to Section 21 (d) below, all specifications, information, data, drawings, software and other items which are (i) supplied to Seller by Buyer or (ii) obtained or developed by Seller in the performance of this Purchase Order or paid for by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing goods or services to Buyer pursuant to this Purchase Order, and shall not be disclosed to any third party without Buyer’s express written consent. All such items supplied by Buyer or obtained by Seller in performance of this Purchase Order or paid for by Buyer shall be promptly provided to Buyer on request or upon completion of this Purchase Order. (c) Unless otherwise expressly agreed in writing to the contrary and subject to Section 21 (d) below, any invention or intellectual property first made or conceived by Seller in the performance of this Purchase Order or which is derived from or based on the use of information supplied by Buyer shall be considered to be the property of Buyer; and Seller shall execute such documents necessary to perfect Buyer’s title thereto. Unless otherwise expressly agreed in writing to the contrary and subject to Section 21(d) below, any work performed pursuant to this Purchase Order which includes any copyright interest shall be considered a “work made for hire”. (d) Applicable Government Procurement Regulations incorporated into this Purchase Order shall, when applicable, take precedence over any conflicting provision of this Section 21 to the extent that such Regulations so require. The incorporation by reference of such U.S. Government Regulations dealing with subcontractors rights in Technical Data, subject inventions, copyrights, software and similar intellectual property are not intended to, and shall not, unless otherwise required by applicable law, obviate or modify any greater rights which Seller may have previously granted to Buyer pursuant to prior agreements between the parties.
Buyer’s Property.
(a) All drawings, tools, jigs, dies, fixtures, materials, and other property supplied or paid for by Buyer shall be and remain the property of Buyer; and if Seller fails to return such property upon Buyer’s demand, Buyer shall have the right, upon reasonable notice, to enter Seller’s premises and remove any such property at any time without being liable for trespass or damages of any sort. (b) All such items shall be used only in the performance of work under this Purchase Order unless Buyer consents otherwise in writing. (c) Material made in accordance with Buyer’s specifications and drawings shall not be furnished or quoted by Seller to any other person or concern without Buyer’s prior written consent. (d) Seller shall have the obligation to maintain any and all property furnished by Buyer to Seller and shall be responsible for all loss or damage to said property except for normal wear and tear.
Equal Employment Opportunity Program.
By performance hereunder, Seller certifies herewith that it is in compliance with and not found deficient in the requirements of the Equal Employment Opportunity, Veterans and Handicapped Programs pursuant to applicable Executive Orders, public laws and rules and regulations of the Secretary of Labor, which are incorporated by reference as if stated in their full text. Seller also certifies it does not maintain segregated facilities as defined in the regulations cited above, and has developed, filed and will maintain Affirmative Action Plans and reports required under the above programs.
Cancellation.
In addition to any remedies provided by law, Buyer shall have the right to cancel this ORDER or any portion thereof without liability if Seller becomes insolvent or commits an act of bankruptcy. Upon any default or breach of this ORDER by Seller, Buyer in addition to other remedies provided by law, may at its option require Seller to transfer to Buyer all materials, work in process, completed supplies, tooling, plans, and specifications allocable to the canceled portion of this ORDER, and Buyer shall pay Seller the fair value of such items.
Termination for Convenience.
(a) Work may be terminated under this Purchase Order by Buyer in whole or in part at any time by written or electronic notice. (b) In the event this contract is terminated for any reason other than failure of the Seller to comply with the provisions of this order, the clause applicable to this order contained in FAR 52.249-06 & 52.249-02 “Termination for Convenience of Government” in effect on the date hereof shall be applicable to the termination of this order.
Termination for Default.
(a) Buyer may, by notice in writing, terminate this Purchase Order in whole or in part at any time for breach of any one or more of its terms, for failure to make progress so as to endanger performance of this Purchase Order, or failure to provide adequate assurance of future performance. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order. (b) In the event of Seller’s default hereunder, the Buyer may exercise any or all rights accruing to it, both at law, including without limitation, those set forth in Article 2 of the Uniform Commercial Code, or in equity.
Resale Certificates.
Buyer holds valid California Seller’s permit SR EAA 24-907023 issued pursuant to the Sales & Use Tax Law. Items described in this ORDER are exempt from state, local sales and use taxes, in those cases where they are: (I) Purchased for purpose of resale as tangible property either in the same form as purchased or as an ingredient or constituent part of goods produced for resale by the Buyer within the meaning of the Sales or Use Tax Laws, or (2) purchased for exempt use as provided by the Sales and Use Tax destination of the tangible personal property, or (3) Purchased for Export outside the United States. The Buyer shall list on the face of the ORDER whether these Items are taxable or not.
Infringement.
Seller warrants that all work, materials, services, equipment, parts and other items provided by Seller pursuant to this Purchase Order, which are not of Buyer’s design, shall be free from claims of infringement (including misappropriation) of third party intellectual property rights and that any use or sale of such items by Buyer or any of Buyer’s customers shall be free from any claims of infringement. Seller shall indemnify and save Buyer, and its customers harmless from any and all expenses, liability, and loss of any kind (including all costs and expenses including attorneys’ fees) arising out of claims, suits, or actions alleging such infringement, which claims, suits, or actions Seller, hereby, agrees to defend, at Seller’s expense, if requested to do so by Buyer. Seller may replace or modify infringing items with comparable goods acceptable to Buyer of substantially the same form, fit, and function so as to remove the source of infringement, and Seller’s obligations under this Purchase Order including those contained in Section 32 and in this Section 33 shall apply to the replacement and modified items. If the use or sale of any of the above items is enjoined as a result of such claim, suit or action, Seller, at no expense to Buyer, shall obtain for Buyer and its customers the right to use and sell said item
Patents.
By accepting this ORDER, Seller guarantees that the material hereby ordered and the sale, lease, or use of it will not infringe any patent or other intellectual property right, and Seller agrees to defend, protect and hold harmless Buyer, its successors, assigns, customers and users of its products against all law suits at law or in equity, and from all damages, claims or demands for actual or alleged infringement of any patent or other right by reason of the sale, lease or use of the material hereby ordered, unless the articles to be furnished hereunder by the Seller are to be manufactured in accordance with drawings and specifications furnished by the Buyer, in which event the Buyer agrees to hold and save Seller harmless from liability for claims or suits involving infringement.
Tooling.
Unless otherwise herein agreed: (a) Special Tools, dies, jigs, fixtures and patterns, gauges, molds and test equipment (hereinafter collectively referred to as “Special Tooling”) used in the manufacture of items ordered shall be furnished by and at the expense of Seller, shall be kept in good condition and when necessary, shall be replaced by Seller without expense to Buyer. Buyer has the option, however, to take possession of and title to such tooling in accordance with the last sentence of paragraph 24 above. (b) If the price stated on the face of the ORDER identifies the cost of any Special Tooling or special equipment fabricated or acquired by Seller for the purpose of filling this ORDER, such Special Tooling and equipment and any process sheets related thereto shall become the property of Buyer and to the extent feasible shall be identified by Seller as such. Buyer shall make payment therefore only upon acceptance of the first run of parts fabricated therewith. All invoices for payment of tooling costs must be accompanied by a “Tooling Manifest” form completed by the Seller. Seller shall, at its own expense, maintain such Special Tooling and equipment in proper working order and shall be responsible for all loss of or damage thereto while in its possession and shall use the same only for the production of materials for Buyer, unless otherwise authorized in writing. Seller shall follow its normal industrial practice in maintaining property control records on such Special Tooling and equipment. Unless specifically provided to the contrary in this ORDER, Seller warrants that the price set forth herein does not include any amount representing rent for the use of Government owned facilities, equipment or Special Tooling. Seller shall insert the substance of this clause in all subcontracts of any tier.
Indemnification.
Seller shall indemnify and defend Buyer against, and hold Buyer harmless from, any loss, expense, damage, liability or claim arising out of or relating to: any breach of the warranties by Seller set out above with respect to any material, services and/or software supplied by Seller; and/or any act or omission of Seller, or its employees, subcontractors or agents, in the performance of services for Buyer.
Representations and Warranties.
Seller represents and warrants to Buyer, in addition to all warranties implied by law, that all material or service delivered or performed hereunder shall: (a) strictly conform to all applicable drawings, specifications, samples, descriptions, and other requirements of this ORDER (b) be free from defects in material, workmanship and design and, with respect to services, be performed in a first class, workmanlike manner; (c) comply with, be suitable for use under, be manufactured or performed, as the case may be, in accordance with and where required, be registered under, all applicable Federal, State and Local Laws; (d) not infringe or encroach upon personal, contractual or proprietary rights of any third party. This warranty shall begin upon final acceptance and extend for a period of one (1) year. If any non-conforming Work is identified within the warranty period, Seller, at Buyers option, shall promptly repair, replace, or re-perform the Work. Transportation of replacement Work or return of non-conforming Work and re-performance of Work shall be at Seller’s expense. If repair, replacement, or re-performance of Work is not timely, Buyer may elect to return, re-perform, repair, replace, or re-procure the non-conforming Work at Seller’s expense. All representations and warranties shall run to Buyer and its successors, assigns and customers. Seller further represents and warrants that all statements in its Certificate of Compliance will be true and complete. Upon Buyer’s request, Seller shall furnish to Buyer a certified report detailing the materials and workmanship incorporated into the articles or utilized in connection with the performance of the services. Further, upon Buyer’s request, Seller shall provide Material Safety Data Sheets with respect to hazardous chemicals as required by regulations of the U.S. Occupational Safety and Health Administration.
Inspection and Review.
(a) All material and workmanship shall be subject to inspection and test at all reasonable times and places by Buyer or Buyer’s customer before, during and after performance and delivery. The Buyer may require Seller to repair, replace or reimburse the purchase price of rejected material or Buyer may accept any materials and upon discovery of nonconformance, may reject or keep and rework any such materials not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or re-inspection by Buyer shall be at Seller’s expense. Buyer’s acceptance of work and services shall not be deemed to diminish Buyer’s rights or be final or binding on Buyer if latent defects, fraud, or misrepresentation on the part of Seller exists. (b) If inspection and test are made on the premises of Seller or Seller’s lower-tier subcontractors, Seller shall furnish without additional charge all reasonable facilities, information and assistance necessary for the safe and convenient inspection and tests required by the inspectors in the performance of their duty. The foregoing provisions of this Article are supplementary to and not in lieu of the provisions of Section 14(a) above. (c) Buyer’s failure to inspect does not relieve Seller of any responsibility to perform according to the terms of the Purchase Order.
Drawings.
Drawings, data and written information and copies made thereof or therefrom, furnished by Buyer shall not be used directly or indirectly for any purpose other than the production for the Buyer herein unless authorized in writing, provided, however, the Seller may procure items for direct sale to the U.S. Government where the U.S. Government has the right to use the equipment, tools, gauges, patterns, drawings, engineering data or other technical or proprietary information furnished by Buyer which are required to produce the items. Upon completion of the Work by the Seller, the Seller shall promptly return to the Buyer all drawings, specifications and other data furnished by the Buyer, together with all copies or reprints thereof in Seller’s possession or control. If drawings, data and written information or copies thereof are made available to persons other than the Seller, similar restrictions will be placed upon them by the Seller.
Responsibility and Insurance.
Seller shall be responsible for the actions and failure to act of all parties retained by, through, or under Seller in connection with the performance of this Purchase Order. Seller shall also maintain and cause its subcontractors to maintain such General Liability, Property Damage, Employer’s Liability, and Workers’ Compensation Insurance, Professional Errors and Omissions Insurance, and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance as are specified in this Purchase Order or, if none are specified, such amount as will protect Seller (and its subcontractors) and Buyer from said risks and from any claims under any applicable Workers’ Compensation, Occupational Disease, and Occupational Safety and Health statutes. Seller shall provide Buyer with certificates evidencing required insurance upon Buyer’s request.
Indemnity Against Claims.
(a) Seller shall keep its work and all items supplied by it hereunder and Buyer premises free and clear of all liens and encumbrances, including mechanic’s liens, in any way arising from performance of this Purchase Order by Seller or by any of its vendors or subcontractors. Seller may be required by Buyer to provide a satisfactory release of liens as a condition of final payment. (b) Seller shall, without limitation, indemnify and save Buyer and its customer(s) and their respective officers, directors, employees and agents harmless from and against (i) all claims (including claims under Workers’ Compensation or Occupational Disease laws) and resulting costs, expenses and liability which arise from personal injury, death, or property loss or damage attributed to, or caused by, the goods, services or other items supplied by Seller pursuant to this Purchase Order, including, without limitation, latent defects in such goods, services or other items, except to the extent that such injury, death, loss or damage is caused solely and directly by the negligence of Buyer, and (ii) all claims (including resulting costs, expenses and liability) by the employees of Seller or any of its subcontractors.
International Transactions.
(a) Payment will be in United States dollars unless otherwise agreed to by specific reference in the Purchase Order. (b) Seller agrees that the Buyer, its subsidiaries, affiliates or its designees may exclusively use the value of the Purchase Order to satisfy any international offset obligations that Buyer may have with Seller’s country, subject to the offset qualifying laws, rules and regulations of that country.
Export / Import Controls.
(a) If Seller is a U.S. company that engages in the business of either manufacturing or exporting defense articles or furnishing defense services the Seller hereby certifies that it has registered with the U.S. Department of State Directorate of Defense Trade Controls and understands its obligations to comply with International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). (b) Seller shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with U.S. export control laws and regulations, including but not limited to the ITAR. Seller agrees that no technical data, information or other items provided by the Buyer in connection with this Purchase Order shall be provided to any foreign persons or to a foreign entity, including without limitation, a foreign subsidiary of Seller, without the express written authorization of the Buyer and the Seller’s obtaining of the appropriate export license, technical assistance agreement or other requisite documentation for ITAR-controlled technical data or items. It shall be the sole responsibility of Seller to determine whether the information provided by Buyer is technical data as outlined in the ITAR (22 CFR 120-130) prior to any release to a third party abiding by the terms outlined herein. Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller. (c) Seller shall immediately notify Buyer if it is or becomes listed on any Excluded or Denied Party List of an agency of the U.S. Government or its export privileges are denied, suspended or revoked. (d) Should the Seller’s products or services originate from a foreign location, those products may also be subject to the export control laws and regulations of the country in which the articles or services originate. Seller agrees to abide by all applicable export control laws and regulations of that originating country. Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by the Buyer in connection with any violations of such laws and regulations by Seller. The Buyer shall be responsible for complying with any laws or regulations governing the importation of the articles into the United States of America. (e) The Buyer may be required to obtain information concerning citizenship or export status of Seller’s personnel. Seller agrees to provide such information as necessary and certifies the information to be true and correct.
Severability.
If any provision of this Purchase Order or application thereof is found invalid, illegal or unenforceable by law, the remainder of this Purchase Order will remain valid, enforceable and in full force and effect, and the parties will negotiate in good faith to substitute a provision of like economic intent and effect.
Standards of Business Ethics and Conduct.
By the acceptance of this Purchase Order, Seller represents that it has not participated in any conduct in connection with this Purchase Order that violates the Buyer’s Standards of Business Ethics and Conduct or, alternatively, equivalent Business Ethics and Conduct Standards of the Seller. If, at any time, Buyer determines that Seller is in violation of the applicable Standards of Business Ethics and Conduct, Buyer may cancel this Purchase Order upon written notice to Seller and Buyer shall have no further obligation to Seller.
Survivability.
Seller’s obligations, including but not limited to obligations under the Termination for Convenience, Termination for Default, Proprietary Rights, Advertising, Announcement and News Releases, Warranty, Infringement, Compliance with Law, Responsibility and Insurance, Indemnity Against Claims, and Export/Import Controls provisions of this Purchase Order, shall survive termination, expiration, or completion of this Purchase Order.
Changes.
By written order, Buyer may make changes in quantities, drawings, designs, specifications, place or time of delivery, method of shipment and packing (ref: FAR 52.243-02). If any such change causes an increase or decrease in the price of this ORDER or in the time required for performance, under this ORDER, an equitable adjustment shall be made in the price or delivery schedule or both and this ORDER shall be modified in writing accordingly. Seller shall submit any such claim for equitable adjustment within fifteen (15) calendar days from the date of receipt by Seller of notification of such change. However, nothing in this clause shall excuse Seller from proceeding immediately with this ORDER as changed. Where the cost of material made obsolete or excess as a result of a change is included in the Seller’s claim for adjustment, the Buyer shall have the right to prescribe the disposition of such property.
Additional Procurements Terms and Conditions.
In addition to the above provisions, the following clauses which are incorporated by reference from the “Federal Acquisition Regulation” (FAR) or DoD Federal Acquisition Regulation (DFAR) shall apply to this Purchase Order to the extent indicated. In all of the following clauses, “Contractor” shall mean Seller.