TERMS AND CONDITIONS OF
1. DEFINITIONS. “Agree” and “Agreement” means to agree in writing. “Goods”
includes raw materials, components, intermediate assemblies and end
TERMS AND CONDITIONS. No terms and
conditions other than those set forth in this order or in any document attached
to or incorporated by reference in it, will bind Buyer unless accepted by it in
a writing signed by an authorized officer. Buyer rejects and will not be bound by
terms or conditions contained in any acknowledgement of this order which are
different from or in addition to the terms and conditions of this order,
whether or not they would materially alter this order. Seller will be deemed to
have assented to all terms and conditions in this order if any part of the
goods covered by this order is shipped or an invoice is presented in connection
with the goods.
EXTRA CHARGES AND PACKAGING REQUIREMENTS. No
charges of any kind, including charges for boxing and shipping, will be allowed
unless Buyer agrees. Seller will pack and package sufficiently to withstand
transportation hazards and will prepare shipments pursuant to Buyer
instructions. Packaging requirements for shipments on commercial bills of
lading must meet commercial standards and accepted practices of the industry
with full protection of the material to ultimate destination and must conform
to governing classifications; including but not limited to, Uniform Freight
Classification, for rail; National Motor Freight Classification, for truck;
U.S. Official Postal Manual, for parcel post; and Official Air Freight Rules
Tariffs, for air freight.
TRANSPORTATION. Unless otherwise
stipulated on the face of this order or as modified by routing letter from
Buyer, goods covered by this order will be shipped "FOB" Buyer's
plant, title to the goods to pass to Buyer on delivery to Buyer's specified end
destination, regardless of point at which goods may be picked up by Buyer's
private carriage for transportation. Delivery in advance of Buyer’s specified
shipping date will not, however, cause passage of title or establish FOB point.
Transportation charges on goods delivered FOB destination must be prepaid
unless otherwise agreed. No charges for unauthorized transportation will be
allowed. Any unauthorized shipment which will result in excess transportation
charges must be fully prepaid by the Seller. Unauthorized transportation
charges not prepaid will be billed to Seller by Buyer. Seller will release rail
or truck shipments at the lowest released valuation permitted in the governing
tariff or classification. If Seller does not comply with Buyer's delivery
schedule, Buyer may, in addition to any other rights which Buyer may have under
this order, require delivery by fastest way and charges resulting from the
premium transportation must be fully prepaid and absorbed by Seller.
ANTICIPATION OF DELIVERY SCHEDULE.
Unless otherwise agreed, Seller will not make material commitments or
production arrangements exceeding the amount or in advance of the time
necessary to meet Buyer's delivery schedule. It is Seller's responsibility to
comply with this schedule but not to anticipate Buyer's requirements. Goods
shipped to Buyer in advance of schedule may be returned to Seller at Seller's
Seller will default if it fails to: (a) perform within the
time specified in this order; (b) perform any of the other terms of this order,
or (c) make progress, such that performance of this order pursuant to its terms
is endangered. If Seller fails to cure the default within 10 days after receipt
of Buyer’s notice of default, Buyer may terminate this order. On termination,
Buyer may procure, on such terms as it deems appropriate, goods or services
similar to those described in this order. Seller will continue performance of
this order to the extent not terminated and will be liable to Buyer for any
excess costs for the similar goods or services. As an alternate remedy Buyer
may, at its sole discretion, elect to (i) extend the delivery schedule, or (ii)
waive other deficiencies in Seller's performance, in exchange for an equitable
reduction in the purchase price. Buyer’s right and remedies described in this
Section 9 are not exclusive and are in addition to any other rights and
remedies provided by law or under this purchase order.
If this order is placed under a U.S. Government contract or
subcontract, Buyer may terminate this order under Federal Acquisition
BUYER'S TANGIBLE AND INTELLECTUAL PROPERTY.
Unless otherwise agreed, all tools, equipment, materials,
drawings, or other documented data of every description furnished to Seller by
Buyer or specifically paid for by Buyer, any replacement of them, or any
materials affixed or attached to them, will be and remain Buyer’s personal
property. Seller will mark all components of the property as Buyer's property.
Seller will safely store the property separate from Seller's property. Seller
will not substitute any property for Buyer's property and will not use the
property except in filling Buyer's orders. while the property is in Seller's
(or its subcontractors’) custody or control, it will be held at Seller's risk,
will be kept insured by Seller at Seller's expense, in an amount equal to its
replacement cost, with loss payable to Buyer. The property will be subject to
removal at Buyer's request, in which event Seller will prepare the property for
shipment and will deliver it as directed by Buyer in the same condition as originally
received by Seller, reasonable wear and tear excepted, all at the Seller's
expense. The foregoing will not be deemed to affect the rights, if any, of the
United States Government in the property.
Seller will keep confidential all drawings, specifications
and other data furnished or specifically paid for by Buyer and will not
divulge, export from its own country, or use, directly or indirectly, the
drawings, specifications or data for the benefit of any other party without
Buyer's prior agreement. Except as required for the efficient performance of
this order, Seller will not make copies or permit copies to be made without
Buyer's prior agreement. If consent is given for any reproduction, this notice
will be attached to the reproduction. This provision will not apply to
information in the public domain otherwise than as a result of a breach of this
provision, nor will it limit any rights the Government may have in the
drawings, specifications or other data.
INTELLECTUAL PROPERTY. Any knowledge or information which
Seller discloses to Buyer related to this order will not, unless an officer of
Buyer agrees, be deemed to be confidential or proprietary information and
accordingly will be acquired free from any restriction on use or disclosure.
may make changes in this order, but no additional charge will be allowed unless
Buyer agrees. If a change affects delivery or the amount to be paid by Buyer,
Seller will notify Buyer immediately, and negotiate an adjustment in accordance
with this Section 12.
any event, Buyer’s maximum liability for obsolescence, scrap, or rework
resulting from any change will be limited to those materials and parts in
process at the time of the change, which are within Seller's normal
manufacturing cycle required to meet the established delivery schedule. Buyer
will have no liability for cost of obsolescence, scrap or rework of materials
and parts which Seller has released for manufacture in advance of Seller's
normal manufacturing process.
Seller will notify Buyer of changes in product and/or
process, changes of suppliers, changes of manufacturing facility location and,
where required, obtain Buyer's approval of same.
Assignment of this order without Buyer’s consent is prohibited, except that
Seller may assign its accounts receivable arising from this order provided that
the assignee agrees to be bound by Section 15 below.
Buyer will be entitled at all times to set-off any amount owing at any time
from Seller to Buyer or any of Buyer's affiliated companies against any amount
payable at any time by Buyer in connection with this order.
12. INSOLVENCY. If
Seller ceases to conduct its operations in the normal course of business
(including inability to meet its obligations as they mature) or if any
proceeding under the bankruptcy or insolvency laws is brought by or against
Seller, or a receiver for Seller is appointed or applied for or an assignment
for the benefit of creditors is made by Seller, Buyer may terminate this order
without liability except for deliveries previously made or for goods covered by
this order then completed and subsequently delivered in accordance with the
terms of this order.
ON BUYER'S OR ITS CUSTOMER'S PREMISES. If Seller's work
under this order involves operations by Seller on the premises of Buyer or one
of its customers, Seller will take all necessary precautions to prevent the
occurrence of any injury to person or property during the progress of the work.
Except to the extent that any injury is due solely and directly to Buyer's or
its customer's negligence, Seller will indemnify Buyer against all loss which
may result in any way from any act or omission of the Seller, its agents,
employees, or subcontractors, and Seller will maintain all liability and
workers compensation insurance necessary to protect Buyer from those risks and
from any claims under any applicable Workmen's Compensation and Occupational
COMPLIANCE AND MATERIALS TEST CERTIFICATION.
By accepting this order Seller certifies that: (a) the goods
supplied will conform to all requirements of this order including any
referenced specification (with applicable revision) in effect as of the order
date or as modified under Section 12 above; and (b) objective evidence of
conformance to these requirements is on file and available for Buyer’s
examination. “Objective evidence of conformance” means statements of fact
pertaining to the quality of a product or service based on observations,
measurements or tests which can be fully verified. Evidence must be expressed
in terms of specific quality requirements or characteristics. These
characteristics are identified in drawings, specifications, and other documents
which describe the term, process or procedure.
Each lot or shipment made to specifications that require
reporting of numerical test results will be accompanied by a copy of a report
of laboratory tests obtained by Seller and conducted according to the applicable
specifications which lists the numerical results of the specific tests. Seller
will notify Buyer of nonconforming product and will make arrangements with
Buyer for Buyer’s inspection of, and approval or rejection of, the
nonconforming product. Seller will include this section’s requirements
(including this sentence) in all contracts with its suppliers and require its
suppliers to do the same.
Seller will give to Buyer, Buyer's customers and regulatory
authorities access to all facilities involved in the manufacturing and
fulfillment of the goods described in this order. Seller will include this
section’s requirements (including this sentence) in all contracts with its
suppliers and require its suppliers to do the same.
All goods will be subject to inspection and test by Buyer and
its Customer at all times and places, including during manufacturing, and prior
to final acceptance by the Buyer and its Customer.
If any inspection or test is made on the premises of Seller
or its supplier, Seller without additional charge, will provide all reasonable
facilities and assistance for the safety and convenience of the inspectors in
the performance of their duties.
Final acceptance or rejection of the goods will be made as
promptly as practical after delivery, except as otherwise provided in this
order, but failure to inspect and accept or reject goods will neither relieve
Seller from responsibility for such goods as are not in accordance with the
other requirements nor impose liabilities on Buyer therefor.
Buyer reserves the right of access by Seller, its customer,
and regulatory authorities to applicable ares of all facilities at any level of
the supply chain involved in this order and to all quality records.
Buyer further reserves the right for processing approval
where required as well as notification of discrepancies, product changes, etc.
Seller will notify Buyer of any non-conforming product.
Seller will obtain Buyer’s approval before disposing of any
16. REJECTIONS. If
any of the goods are found at any time to be defective in material or
workmanship, or otherwise not in conformity with the requirements of this order,
Buyer, in addition to any other rights which it may have under warranties or
otherwise, may, at its option, correct or have corrected the nonconformity at
Seller's expense, or reject and return the goods at Seller's expense. Returned
goods may not be replaced without Buyer agreement.
RELEASE OF INFORMATION. Seller may make no public release
related to this order or Buyer’s relationship with Seller, will be made without
Buyer’s prior agreement.
WITH LAWS. Seller will comply with all applicable State, Federal and
local laws, rules and regulations, including, without limitation, the
Fair Labor Standards Act. In
accepting this order, Seller represents that the goods to be furnished, were or
will be produced in compliance with the Fair Labor Standards Act of 1938, as
amended (“FLSA”). Unless otherwise agreed, Seller will insert a certificate on
all invoices submitted in connection with this order stating that the goods
covered by the invoice were produced in compliance with FLSA.
Nondiscrimination in Employment.
Seller will not discriminate against any employee or applicant for employment
because of race, religion, color, sex, age, or national origin. Seller will
further take affirmation action to employ and advance handicapped workers,
disabled veterans, and veterans of the Vietnam era.
Toxic Substances Control Act.
Seller further warrants that each and every chemical substance constituting or
contained in the product(s) sold or otherwise transferred to Buyer under this
order is on the list of chemical substances complied and published by the
Administrator of the Environmental Protection Administration pursuant to the
Toxic Substances Control (PL 94-469).
AND COPYRIGHT INDEMNITY. Seller, at its expense,
will handle all claims and defend any suit or proceeding brought against Buyer,
its customers and their assigns, so far as based on any claim that the
manufacture or furnishing of goods under this order, or the use or sale of such
goods, constitutes infringement of any patent or copyright of any country.
Seller will indemnify and save Buyer, its customers and their assigns, from and
against any expense or liability, including costs and damages, arising out of
any such claim, suit or proceeding. In case the goods are seized or their use
or ownership is enjoined, Seller will, at its own expense and option, procure
for Buyer and its customers the rights to continue using the goods, or modify
them so they become non-infringing, or if Buyer agrees, refund the purchase
price and the goods’ transportation and installation costs. The foregoing
patent and copyright indemnity and warranty obligations will be inapplicable:
(a) where the alleged infringement results from detail designs supplied by the
Buyer, unless goods embodying such designs are normally sold or advertised for
sale to others by Seller; or (b) to the extent that a suit based on said
infringement claim may be maintained only against the U.S. Government.
FACILITIES. Unless this order authorizes the use of Government-owned
facilities, Seller must negotiate the use of Government-owned facilities used
in the manufacture of goods purchased hereunder with the appropriate Government
Agency furnishing Government facilities to Seller. All charges to Buyer for
such use must be concurrently billed as a separate item aside from all other
Seller agrees to furnish to Buyer, at Buyer's request and at
no additional cost to Buyer, a complete set of engineering data, including
drawings, specifications and manufacturing process information, resulting from
performance by Seller under this order, or used or to be used by Seller in the
manufacture of the goods to be furnished, or in the provision of services under
this order and to keep such data current.
If this order is for goods designed by Seller, Seller grants
to Buyer the right to manufacture or purchase from a third party the goods
covered by this order in the event that Seller is unable to meet purchase order
RIGHTS. If this order is a contract having experimental,
developmental or research work as one of its purposes, and in consideration of
the funds allocated for that purpose under this order, Seller hereby grants to
Buyer an irrevocable, fully paid license under any patents covering inventions
conceived or reduced to practice in the development of the subject matter
covered by this order, to make, have made, use or sell such inventions, with
the right to extend such license to Buyer's customers, including the U.S.
Government to the extent appropriate under any independent research and
development agreement, and to any of Buyer's licensees or co-producers of
Buyer's products. If Seller contemplates practicing any process or making any
product which results from such work other than for Buyer, Seller agrees to
give written notice to Buyer and, prior to initiation of the other practice, to
negotiate with Buyer an agreement providing for payment to Buyer of an
appropriate fee based on such other practices.
SUPPORT. For goods ordered under this order which are of Seller’s
design, Seller will maintain a service organization reasonably constituted to
handle requests from Buyer or it customers for technical assistance on
operation, maintenance, service, repair and overhaul of the goods. Seller will
to maintain a reasonable inventory of finished goods to support Buyer or
Buyer's customer's unanticipated requirements arising from emergency
conditions, during which goods must be shipped within 24 hours of order.
Furthermore, Seller will maintain tooling and manufacturing and overhaul
capability as long as the goods ordered are used in commercial service.
BACK. If surpluses of goods are recognized after one year and not
longer than three years, from the date of this order and the quantities of
goods provisioned have been recommended by Seller, Seller agrees to buy back
the surplus goods without cost to Buyer or its Customer.
GOVERNMENT CONTRACTS .
If this order is placed under a U.S. Government contract or
subcontract, the following clauses of the Federal Acquisition Regulations, as
in effect on the date on which performance under them is required by Seller,
are incorporated in this order by reference: FAR-52.203-1, 52.203-3, 52.203-5,
52.203-6, 52.203-8, 52.203-9, 52.204-2, 52.208-1, 52.209-1, 52.210-5, 52.210-7,
52.212-8, 52.214-26, 52.215-1,52.215-2, 52.219-8, 52.219-9, 52.219-13,
52.220-3, 52.220-4, 52.222-1, 52.222-3, 52.222-4, 52.222-20, 52.222-26,
52.222-35, 52.222-36, 52.222-37, 52.223-2, 52.223-3, 52.225-10, 52.225-11,
52.225-13, 52.227-1, 52.227-2, 52.227-3, 52.227-9, 52.227-10, 52.228-5,
52.230-3, 52.230-5, 52.230-4, 52.245-17, 52.245-18, 52.246-23, 52.247-63,
If this order is placed under a U.S. Government contract or
subcontract where the contracting party is any arm of the Department of
Defense, including any of the military services, the following clauses of the
Department of Defense Federal Acquisition Regulation Supplement, as in effect
on the date on which performance under them is required by Seller, are
incorporated herein by reference: DFARS 52.208-7000, 52.208-7001, 52.208-7002,
52.208-7003, 52.208-7005, 52.209-7001, 52.215-7001, 52.223-7000, 52.225-7001,
52.225-7008, 52.225-7011, 52.227-7013, 52.227-7018, 52.227-7034, 52.228-7006,
If this order is placed under a U.S. Government contract or
subcontract where the contracting party is the National Aeronautics and Space
Administration, the following clauses of the NASA Federal Acquisition
Regulation Supplement, as in effect on the date on which performance under them
is required by Seller, are incorporated herein by reference: NASA FARS
52.204-70, 52.223-70, 52.223-71, 52.223-72, 52.227-14, 52.227-19, 52.227-72,
52.243-70, 52.244-70, 52.245-73, 52.252-70.
All references to the "Contractor" in the preceding
clauses will mean Seller and all references to the "Contracting
Officer" will mean Buyer's authorized representative (at Buyer's option)
for purposes of these terms and conditions.
a. Seller agrees to comply with the U.S. Export Administration
Act, 50 USC §§2401-2420; the Export Administration Regulations, 15 CFR
§§730-774; the U.S. Arms Export Control Act, 22 USC §§2751-2780; the
International Traffic in Arms Regulations, 22 CFR §§120-130; the
Regulations of the Office of Foreign Assets Control of the U.S. Treasury
Department, 31 CFR §§500-599; the Regulations of the Bureau of Alcohol,
Tobacco, and Firearms, 27 CFR §§447-555; the Homeland Security Act of 2002; the
U.S. Customs and Border Protection Regulations, 19 CFR 1-199 ("CBP");
as well as any applicable export or import requirements of other jurisdictions
regardless of whether or not of the United States. If Seller is supplying
defense articles, Seller agrees to maintain a valid and current Directorate of
Defense Trade Controls ("DDTC") registration. Seller shall
provide its DDTC registration status (whether registered or not, with
expiration date) to Purchaser and promptly advise Purchaser of any updates or
changes to such information, in the format requested by Purchaser. With respect
to defense articles and services furnished hereunder, Seller certifies
that it has not paid, offered or agreed to pay, and agrees that it shall not
pay, offer or agree to pay, for the purpose of soliciting, promoting or
otherwise to secure the sale of defense articles and services to or for the use
of the armed forces of an international organization or non-U.S. Country, any
(i) fees or commissions in excess of $1,000 or (ii) political contribution
(including any gift, rebate or payment of expenses) to a non-U.S. person or
b. If Seller will conduct work on this order in a foreign
country, including but not limited to the use of Seller's own facility outside
of the U.S. Seller must provide advance written notification to
Purchaser. Seller is responsible for compliance with applicable export
control laws and regulations and for obtaining all export control licenses
required by law or requested by Purchase.
c. Seller shall not give any Foreign Person access to
Technical Data, software or Defense Articles, or provide an unauthorized
Defense Service (as those terms are defined in the applicable Export Laws and
Regulations) without Purchaser's prior written consent. Any request for such
consent must state the intended recipient's citizenship(s) and status under 8
U.S.C. §1101 and 8 U.S.C. §1324 and such other information as Purchaser may
reasonably request. No consent granted by Purchaser in response to Seller's
request under this paragraph shall relieve Seller of its obligations to comply
with the provisions of this paragraph or the United States' export laws and
regulations, nor shall any such consent constitute a waiver of the requirements
of this Section 26, nor constitute consent for Seller to violate any provision
of those laws and regulations.
d. Seller shall indemnify and save Purchaser harmless from and
against any and all damages, liabilities, penalties, fines, costs, and
expenses, including attorneys' fees, arising out of claims, suit, allegations
or charges of Seller's failure to comply with United States export laws and
regulation clauses, breach of its obligations described in this Section 26, or
both. Any failure of Seller to comply with this Section 26's requirements shall
be a material breach of this contract.
e. Seller will include this Section 26's requirements in all
purchase orders and subcontracts related to this purchase.
PREVENTION. Seller shall not
deliver any products to buyer containing any Counterfeit Parts. “Counterfeit
Parts” means a copy or substitute without the legal right or authority to do so
or a part whose material, performance, or characteristics are knowingly
misrepresented by a supplier in the supply chain. Counterfeit Parts include,
but are not limited to:
a. Parts not containing the proper internal construction that
is consistent with the desired or ordered parts;
b. Used, refurbished, or reclaimed parts represented as new
c. Parts with different packaging style, type, or surface
plating/finishing than the required or ordered product
d. Parts not successfully completing the full production
and/or test flow of the Original Component Manufacturer (OCM) that are
represented as completed product;
e. Parts sold or delivered as up-screened product that have
not successfully completed the up-screening process;-Parts sold or delivered with
modified labeling or marking intended to misrepresent the form, fit, function,
or grade of the intended product.
HUMAN TRAFFICKING. If Seller has a U.S.
presence, it certifies that it complies with FAR § 52.222-50 (regardless of
whether this purchase is related to government contract).
If Seller has no U.S. presence, it certifies that the
materials incorporated into its products complies with all human trafficking and
forced labor laws of the countries in which it does business.
LAW. This order will be governed in all respects by Ohio law.
RETENTION. Seller will retain all records related to this purchase for
11 years and make those records available to Buyer on Buyer's request.
Seller will flow these terms and
conditions and all Seller’s other order requirements down to all levels of its
Form 189 ver