As used throughout this Order, the following definitions apply unless otherwise specifically stated:
This Order sets forth the entire agreement between the Parties hereto and supersedes all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. All special terms and conditions or supplemental attachments, schedules, exhibits or appendices which may be annexed hereto or referenced herein, are made part of this Order as though fully set forth herein.
Seller’s written acknowledgement of the Order, its commencement of any performance under the Order, or acceptance of any payment under the Order, shall constitute Seller’s unqualified and irrevocable acceptance of this Order subject solely to these terms and conditions. In the event that this Order does not state price or delivery terms, Buyer will not be bound to any prices or delivery terms to which it has not specifically agreed to in writing. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions contained in this Order shall be void and of no effect unless specifically agreed to in writing by Buyer, regardless of whether or not such terms and conditions materially alter this Order and irrespective of any payment by Buyer hereunder.
The following additional conditions apply to all orders.
Shipments made pursuant to this Order will be FOB Destination unless otherwise negotiated with Buyer and stated on the Purchase Order. Unless otherwise specified, Seller hereby agrees to the following:
All Supplies shall be subject to inspection and test at all times and places, including the period of manufacture, by Buyer. If any inspection or test is made on Seller’s premises, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer personnel to perform their duties of inspection and test. In the event any Supplies fail the applicable acceptance tests, or are otherwise found not to conform to applicable drawings or specifications, Buyer may:
Seller shall not return rejected Supplies to Buyer unless notification of such past rejection is submitted with the returns and Buyer has consented to such returns. Seller shall maintain an approved inspection system. A Certificate of Conformance, signed by Seller’s Quality Assurance organization, shall accompany each shipment hereunder. Each Certificate of Conformance shall refer specifically to the Supplies being shipped.
Pursuant to any instructions stated in or pursuant to this Order, Seller shall pack, mark and ship all goods and supplies in accordance with the requirements of this Order and so as to be in compliance with all applicable transportation regulations and good commercial practice for protection against damage from weather and shipment, including any applicable federal, state and local laws and regulations for the packaging, labeling, transportation and shipping of hazardous materials. Seller shall secure the most advantageous transportation services and rates consistent therewith. No separate or additional charge shall be payable by Buyer for containers, crating, boxing, handling, storage or any other services unless specifically stated in this Order or otherwise agreed to by Buyer in writing. Any expense incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Seller. Seller shall mark each container with the number of this Order and shall enclose a packing slip with this Order number in an envelope attached to each container. Any transportation charges paid by Seller for which Seller is entitled to reimbursement shall be shown on Seller’s invoice as a separate line item with the receipted freight bill attached to the invoice. If because of Seller’s failure to meet the delivery requirements of this Order, it becomes necessary to require shipment of any of the Supplies covered by this Order by a method of transportation other than the method originally specified by Buyer, Seller shall reimburse Buyer any amount by which the cost of the more expeditious method of transportation exceeds the cost of the method of transportation originally specified.
Buyer Order is being issued to Seller with the expectation that Seller will ship the order to Buyer from a location within the United States. Any shipments originating outside the customs territory of the United States, will import under the terms of sale Delivered Duty Paid (DDP) Buyer Facility Incoterms 2010. Seller shall communicate its customs clearance instructions to its International Third-Party supplier prior to the product’s arrival into the United States to avoid any delays in delivery to Buyer. Under no circumstances is Buyer to be listed as the importer of record (or consignee for shipments delivered via courier) on customs documents for any orders shipped directly to Buyer from a foreign location and Seller expressly agrees to accept all liability associated with said customs entries for any such orders.
Seller shall be paid, upon submission of valid invoices, for materials and supplies delivered and accepted or for services performed and accepted. Unless otherwise negotiated and stated on the purchase order, payment terms are 2% 30, 1% 45, and Net 60. Seller may request earlier payment on their invoice, but decision to make earlier payment and accept the discounted price is at the sole discretion of the Buyer. The price or prices applicable shall be those specified in the Order and shall include all applicable U.S. Federal, State and local taxes and will not be changed as a result of the failure by Seller to include any applicable tax or as a result of any change in Seller’s tax liabilities. Any taxes imposed by U.S. Federal, State or local governments, from which Buyer has not claimed exemption, shall be separately stated on the invoice. Buyer shall not be obligated to pay earlier then the scheduled payment date for materials or supplies delivered earlier than required except by prior agreement.
Title to all Supplies to be delivered hereunder shall remain with Seller until such Supplies are delivered and accepted by Buyer at the named delivery point or destination specified elsewhere herein. All risk of loss of, or damage to, Supplies shall remain with Seller until Buyer accepts the Supplies. Seller shall bear all risk of loss of, or damage to, nonconforming Supplies rejected by Buyer, after notice of rejection and until such Supplies are redelivered to Buyer, except for the loss, damage or destruction of such rejected Supplies resulting from the negligence of Buyer, its officers, agents or employees acting within the scope of their employment.
Seller expressly warrants that all Supplies ordered to specifications will conform thereto, and to any drawings, samples or other descriptions furnished or adopted by Buyer, or, if not ordered to specifications, that they will be fit and sufficient for the purpose intended and that all Supplies will be of good quality and workmanship and free from defects. Such warranties, together with Seller’s service warranties and guarantees, if any, shall survive inspection, test, acceptance of, and payment for the Supplies, and shall run to Buyer, its successors and assigns, customers, purchasers (intermediate and immediate) and agents for a period of twelve months after Buyer’s acceptance of the Supplies. Defective or non-conforming Supplies shall be corrected or replaced only upon Buyer’s written order. Supplies required to be corrected or replaced shall be subject to the provisions of this clause and the clause hereof entitled “INSPECTION” in the same manner and to the same extent any Supplies originally delivered under this Order, but only as to the corrected or replaced part or parts thereof. This express warranty is in lieu of any and all warranties or representations, expressed or implied, to Buyer or the user of the Supplies.
In the event Seller encounters difficulty in meeting performance requirements, or when Seller anticipates difficulty in complying with the Order delivery schedule or date, Seller shall immediately notify Buyer, in writing, giving all pertinent details; provided, however, that this data shall be informational only in character and this provision shall not be construed as a waiver by Buyer of any delivery schedule or date or of any rights or remedies provided by law or under this Order.
This Order may be terminated as a result of the Buyer’s Prime Contract or Order being similarly terminated for convenience by the Buyer’s Customer or the Government; in which case then the rights, duties, and obligations of the parties shall be determined in accordance with the applicable termination for convenience clause incorporated into this Order by the Supplemental Terms and Conditions.
Neither Party shall be liable to the other for damages for any delay resulting from causes beyond its control and without its fault or negligence, including but not limited to acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather. Seller is responsible for delays caused by the delay of a lower tier subcontractor of Seller.
All disputes between Buyer and Seller that cannot be satisfactorily resolved will be referred to the Buyer finally resolved by arbitration in accordance with the rules of the American Arbitration Association. The arbitration will be conducted in the English language in Portsmouth, Virginia, U.S.A. The decision of the arbitrator(s) will be final and binding on the Parties. Each Party shall bear its own costs in respect of the arbitration, and the costs incurred by the arbitrator(s) shall be borne equally by the Parties. Pending resolution of the dispute, both Parties shall continue with timely performance of the Order.
In addition to any other indemnification provision of this Order, Seller shall indemnify, defend and hold harmless Buyer, its officers, directors, and employees, from any and all claims, liabilities, losses, damages, costs, and expenses, including attorneys’ fees for:
This Order shall be construed and interpreted accordance with, and governed by, the laws of the Commonwealth of Virginia, U.S.A., without reference to its choice of law rules.
No agreement or understanding varying or extending the terms and conditions of this Order will be binding unless in writing signed by a duly authorized officer or representative of Buyer. No conditions stated by the Seller in its acknowledgement of this order will be binding upon Buyer if such conditions are in conflict with, inconsistent with, or in addition to the terms and conditions contained herein unless expressly accepted in writing by Buyer.
In the event of any inconsistency between these General Terms and Conditions of this Order and any other parts of this Order, the special terms and conditions (if any) will govern, followed by these General Terms and Conditions, followed by the applicable drawings or specifications.
Failure of Buyer to insist upon strict performance of any terms and conditions herein shall not be deemed a waiver of any rights or remedies Buyer shall have and shall not be deemed a waiver of any subsequent default hereunder. Neither the submission by Seller of any written materials required by this Order nor any assistance or advice rendered by Buyer to Seller shall relieve Seller of its obligation under this Order to deliver in a timely manner the purchased Supplies in accordance with the specifications and other provisions of this Order. Shipping or receiving of any Supplies under this Order shall not constitute a waiver of any right of Buyer hereunder or of any obligation of Seller to comply with any of the terms and conditions of this Order.
Except as required by law or regulation, no news release, public announcement or advertising material concerned with this Order shall be issued by Seller without prior written consent of Buyer.
This Order may not be assigned, delegated or subcontracted in whole or in part to a third Party without the prior written consent of Buyer, except that Seller may, without such consent, contract to a third Party work whose value does not exceed twenty-five percent of the price of this Order.
Any property or materials furnished by or through Buyer to Seller will be deemed to be bailed to Seller, with title to such property or material not passing to Seller unless mutually agreed upon by Buyer and Seller and specifically confirmed by Buyer in writing, regardless of whether such property or material shall be affixed to any structure or promises Buyer may, in its sole and absolute discretion, replace any defective property or material that may be furnished to Seller, it being understood, however, that any such replacement shall not be deemed to be an admission of liability by Buyer. Seller agrees to provide appropriate and necessary maintenance, safeguards and storage of any material or property furnished in accordance with the terms and, unless specifically waived in writing by Buyer, shall provide appropriate insurance coverage in a form satisfactory to Buyer for fire, theft, mysterious disappearance, malicious mischief or vandalism for such items. The materials or property furnished in accordance with the terms hereof shall be disposed of or returned to Buyer, as Buyer in its sole and absolute discretion may determine, in the condition in which received, subject only to consumption in the performance of work under this Order and normal wear and tear.
Seller shall not use or disclose any data, designs, or other information belonging to or supplied by or on behalf of Buyer, which is proprietary to Buyer and is so labeled when delivered to Seller (hereinafter in this Clause “Buyer Proprietary Data”). Upon Buyer’s request, such Buyer Proprietary Data, and any copies thereof, shall be returned to Buyer.
All tools, dies, jigs and fixtures specifically manufactured or procured by Seller for the performance of this Order, whether to the design of Seller, Buyer, or a third Party (herein referred to as “Tools”), shall become, upon acquisition, the property of Buyer, and the cost of such Tools is included in the total price appearing or provided for on the face of this Order. However, Tools made or acquired by Seller for the manufacture of any or all Supplies shall remain the property of Seller if such Tools are standard commercial articles generally and normally sold other than to Buyer.
Seller warrants that, except where articles specified herein are made entirely to a design supplied by Buyer, the Supplies specified herein and the sale or use of them will not infringe any U.S. or foreign patent. Seller will indemnify and hold harmless Buyer and Buyer’s vendors, against any and all claims, losses, damages, liabilities or costs, of whatsoever kind or nature, brought or asserted by anyone, alleging that the use, manufacture or sale of the Supplies constitutes an infringement of any U.S. or foreign patent. Seller agrees, if requested by Buyer, to pay all costs royalties and license fees required for the continued use and sale of such Supplies. In the event any action or claims shall be brought or asserted against Buyer or Buyer’s vendors, mediate or immediate, in respect of which claim indemnity may be sought against Seller hereunder, Seller, if promptly notified of such action or claim by Buyer, and if requested to do so by Buyer, shall assume the defense thereof, including the employment of counsel and payment of all expenses. Where the Supplies specified herein are made entirely from a design supplied by Buyer, Buyer agrees that, if requested to do so by Seller, it will defend, at its own cost and expense, every action or claim which may be brought against Seller for alleged infringement of any U.S. or foreign patent by reason of the manufacture of such Supplies and, if not so requested, Buyer agrees to pay all costs and damages recoverable in any such action against Seller.
Seller shall comply with any and all applicable regulations pertaining to safety, health and the environmental protection. Seller further agrees to abide by all safety, health, environmental, and drug and/or alcohol abuse regulations, policies and procedures in effect at all work sites. Further, Seller represents and warrants that all goods are and will be when delivered free of all hazardous substances and that no claim, demand, or notice has been filed nor any proceeding commenced alleging liability of seller in connection with the use of any hazardous substances relating in any way to the manufacture or sale of the goods or the provision of services. Seller shall provide a material safety data sheet for each item or substance containing toxic substances purchased by Buyer from Seller, and Seller shall affix on each container containing toxic substances the chemical name and the appropriate hazard warning for the use and safe handling of the substance, along with any other required markings and legends. Seller shall provide other material safety data sheets relating to the goods upon request.
Seller represents, warrants and covenants that, to Seller’s knowledge after reasonable investigation, the goods are, and upon delivery will be, DRC Conflict Free (as such term is defined in the US Securities Exchange Act of 1934, as amended by Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the related rules and regulations of the US Securities and Exchange Commission). Seller shall promptly notify Buyer in writing in the event that Seller is or becomes aware of any reason to believe that the goods are not DRC Conflict Free. To the extent Seller procures gold, tin, tantalum and/or tungsten from a smelter or refiner for incorporation into the goods, Seller represents, warrants and covenants that such materials shall be procured solely from one or more of the smelters or refiners appearing on the applicable compliant smelter and refinery list available at www.conflictfreesmelter.org. Seller shall complete and update as required, Buyer’s Conflict Mineral Reporting Template. Buyer’s Conflict Mineral Policy is available to Seller upon request.
Seller represents, warrants and covenants that it and its Associated Persons have conducted, and will at all times conduct, its and their respective businesses in accordance with applicable laws, rules, regulations, decrees and/or official governmental orders of the United States, United Kingdom and any country in which goods and/or services are provided hereunder relating to anti-bribery, anti-corruption and anti-money laundering. Seller and its Associated Persons shall maintain adequate procedures in furtherance of the foregoing. Seller and its Associated Persons have not made, offered, promised to make or authorized the making of, and shall not make, offer or promise to make, or authorize the making of: (a) any payment or other transfer of anything of value if and to the extent that to do so is or would be in violation of or inconsistent with the principles or requirements of any anti-bribery, anti-corruption or anti-money laundering laws applicable to Buyer or to Seller, or to their respective parent companies, including without limitation, the US Foreign Corrupt Practices Act and, where applicable, the UK Bribery Act (2010); or (b) any so-called “facilitation” or “grease” payments irrespective of local custom and even though in some countries such payments may be lawful. Any failure to comply with this clause shall be a material breach of the Purchase Order not capable of remedy. “Associated Persons” means any person associated with Seller including, but not limited to, Seller’s parents, subsidiaries and its and their respective owners, directors, officers, employees, agents, representatives, sub- contractors and suppliers.
Buyer’s supplemental terms and condition attachment identifies the applicable Federal Acquisition Regulation (FAR) and other federal agency acquisition regulation flow down clauses, that are fully incorporated in to this order. Except as modified herein the cited terms shall have the following meaning: “Contractor” means Seller; “Contract” means this order; “Contracting Officer” means Buyer; “Subcontracts” as applied to lower tier subcontracts includes Orders. The FAR and other federal agency clauses incorporated herein shall be those in effect on the date of Buyer’s prime contract.