1) GENERAL: Each order constitutes Buyer’s offer to purchase the materials, services and articles, all of which are herein called “articles” described elsewhere in each order, in accordance with its provisions which include the provisions set forth on the face of each order, the provisions attached hereto, and/or the provisions incorporated herein by reference.
2) SHIPPING INSTRUCTIONS: (a) On the date of shipment, include original bill of lading, air bill, or express receipt reflecting each order number with the articles to be delivered. (b) Do not deliver ahead of schedule unless authorized by Buyer. Describe shipments in accordance with the carrier’s tariffs to obtain the lowest freight rate. Do not insure or declare value on shipments beyond FOB point. When a shipment is subject to freight rates dependent upon value, annotate the Bill Lading, air bill, or express receipt to show that the shipment is released at the maximum value which applies to the lowest rate provided in applicable tariffs. If the value in any single shipment exceeds $200,000, notify Buyer at least 2 days prior to shipment. Consolidate all shipments to be forwarded to the same delivery address on one day. (c) Articles furnished in excess of the quantities specified or in excess of any allowable overage will be retained by the Buyer at no additional cost, unless Seller notifies Buyer within 30 days after shipment that it desires the return thereof. Seller will reimburse Buyer for the full cost of returning such over shipment or a minimum charge of $50, whichever is greater. (d) STATE SHIPPING POINT ON ALL INVOICES. Each case or parcel and accompanying packing list of contents MUST show Buyer’s order number. If no packing list accompanies the shipment, Buyer’s count will be conclusive on Seller.
3) PACKAGING AND EXTRAS: No separate charges will be allowed for transportation, packaging, packing, or returnable containers unless explicitly stated in each order. All shipments must be packaged to conform with Buyer’s packaging specification referred to elsewhere in each order, if any, so as to permit efficient handling and to provide protection of the articles in shipment, and if tendered to a common carrier for delivery, must also conform to the packaging requirements applicable to such carrier. Damage to any article resulting from improper packaging will be charged to Seller.
4) SPECIFICATIONS: All articles ordered to Government or Buyer’s specifications will comply with such specifications as to the date of each order unless otherwise specified by Buyer in writing.
5) WARRANTY: Unless otherwise agreed to in writing by the parties, Seller warrants that articles ordered to specifications will conform thereto and to any drawings, samples, or other description furnished or adopted by Buyer, or, if not ordered to specifications, will be fit and sufficient for the purpose intended, and that all articles will be merchantable, of good material and workmanship, and free of defect. Such warranties, together with Seller’s service warranties and guarantees, if any, shall survive inspection, test, acceptance of, and payment for the articles and shall extend to Buyer, its successors, assigns, and customers. Except for latent defects, fraud or such gross mistakes of Seller as to amount of fraud, notice of any defect or nonconformity must be given by the Buyer to the Seller within one (1) year after delivery, or one (1) year after receipt of satisfactory qualification test reports, if required hereunder, whichever is later. Buyer may, at its option, either return for creditor refund or require prompt correction or replacement of the defective or nonconforming article or part thereof. Return to Seller of any defective or nonconforming article and delivery to Buyer of any corrected or replaced articles shall be at Seller’s expense. Articles 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 extent as the articles originally delivered under each order. Buyer reserves the right to financial reimbursement from Seller for any and all amounts of the cost of further “value-added” by the Buyer, its successors, assigns, and customers in the event of the detection of nonconforming articles supplied by Seller with in (1) year after delivery or receipt, whichever is later.
6) INSPECTION: All articles shall be subject to inspection and test at all times and places, including the period of manufacture, by Buyer or Buyer’s Customer in conjunction with Buyer’s approval, and, if each order is placed under a Government contract, the Government. 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, Buyer’s Customer, and Government Inspectors. Such inspections and tests shall be performed in such a manner as to not unduly delay the work. All articles are subject to final inspection and acceptance at Buyer’s premises notwithstanding any payments or other prior inspections. Such final inspection shall be made within a reasonable time after delivery.
7) RELEASE OF NEWS INFORMATION AND ADVERTISING: Seller shall not, without the prior written consent of Buyer: (a) make any news release, public announcement, denial or confirmation of all or any part of the subject matter of each order, or any phase of any program hereunder; or (b) in any manner advertise or publish the fact that Buyer has placed each order.
8) TERMINATION: Buyer shall have the right to terminate each order or any part thereof at any time: (a) Without Cause – in case of termination by Buyer of all or any part of each order without cause, any termination claim must be submitted to Buyer within sixty (60) days order for cause and shall not apply to a termination for cause. (b) For Cause – If Seller fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise fails to observe or comply with any of the other instructions, terms, conditions, provisions or warranties applicable to each order or fails to make reasonable progress so as to endanger the performance of each order or in the event of any proceedings by or against Seller in bankruptcy or insolvency or appointment of a receiver or trustee or an assignment for the benefit of creditors, Buyer may, at its discretion in addition to any other right or remedy provided by each order or by law, terminate all or any part of each order by written notice to Seller without any liability by Buyer to Seller on account thereof. Buyer reserves the right to request a financial statement from Seller at any time during the term of each order for the purpose of determining Seller’s capability in contract performance. In the event of termination for Cause, Buyer may produce or purchase or otherwise acquire articles elsewhere on such terms or in such manner as Buyer may deem appropriate and Seller shall be liable to Buyer for any excess cost or other expenses incurred by Buyer.
9) PATENT INDEMNITY: Seller hereby indemnifies Buyer, its successors, assigns, agents, customers, and users of the articles against loss, damage, or liability, including costs, expenses and attorney’s fees, which may be incurred on account of any suit, claim, judgment or demand involving infringement or alleged infringement of any patent rights in the manufacture, use or disposition of any articles supplied hereunder, provided Buyer shall notify Seller of any suit instituted against it and, to the fullest extent of its ability to do so, shall permit Seller to defend the same or make settlement in respect thereof. Buyer does not grant indemnity to Seller for infringement of any patent, trademark, copyright, data rights, or similar intellectual property.
10) EXCUSABLE DELAYS: neither party shall be liable for damages for delay in delivery arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God or 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. If the delay is caused by the delay of a subcontractor of Seller and if such delay arises out of the causes beyond the reasonable control of both Seller and the subcontractor, and without the fault or negligence of either of them, Seller shall not be liable to Buyer in damages unless the articles or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery schedule. Seller will notify Buyer in writing within ten (10) days after the beginning of any such cause.
11) ASSIGNMENT: Neither each order nor any rights or obligations herein may be assigned by Seller nor may Seller subcontract in whole, or substantially in whole, the performance of its duties hereunder without, in either case, Buyer’s prior written consent.
12) INFORMATION: Drawings, data, design, inventions, computer software and other technical information or intellectual property supplied by Buyer shall remain Buyer’s property and shall be held in confidence by Seller. Such information shall not be reproduced, used or in any way conveyed to others by Seller without Buyer’s written consent, and shall be returned to Buyer upon completion by Seller of its obligations under each order or upon demand. (b) Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the articles covered by each order shall be deemed to have been disclosed as part of the consideration for each order, and Seller shall not assert any claim against Buyer by reason of Buyer’s use thereof.
13) BUYER’S PROPERTY: (a) All property used by Seller in connection with each order which is owned, furnished, charged to or paid for by Buyer including, but not limited to, materials, tools, dies, jigs, molds, patterns, fixtures, equipment, drawings and other technical information, specifications, and any replacement thereof, shall be and remain the property of Buyer subject to removal and inspection by Buyer at any time without cost or expense to Buyer and Buyer shall have free access to Seller’s premises for the purpose of inspecting or removing such property. All such property shall be identified and marked as Buyer’s property, used only for each order and adequately insured by Seller at its expense for Buyer’s protection. Seller shall assume all liability for and maintain and repair such property and return the same to Buyer in its original condition, reasonable wear and tear accepted, and when such property is no longer required hereunder, Seller shall furnish Buyer disposition instructions applicable thereto. Buyer shall not be obligated to pay any invoices for tooling until the first article produced therefrom shall have been received and accepted.
14) GRATUITIES: Seller warrants that neither it nor its employees, agents or representatives has offered or given any gratuities to Buyer’s employees, agents or representatives with a view toward securing each order or securing favorable treatment with respect thereto.
15) EFFECT OF INVALIDITY: The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.
16) RIGHTS, REMEDIES, AND WAIVER: The rights and remedies provided Buyer herein shall be cumulative, and in addition to any other rights and remedies provided by law or equity. A waiver or breach of any provision hereof shall not constitute a waiver of any other breach.
17) APPLICABLE LAW: The laws of the State shown in the Buyer’s address printed on the face of each order shall apply in the construction hereof.
18) TAXES: Seller is liable for and shall pay all taxes, impositions, charges, and exactions imposed on or measured by each order except those Buyer specifically agrees or is required by law to pay and which are separately stated on the Seller’s invoice. Prices shall not include any taxes, impositions, charges, and exactions for which Buyer has furnished an exemption certificate.
19) TITLE: Except if title has heretofore passed to Buyer or Buyer’s customers under other provisions of each order, title to the articles shall pass to Buyer upon delivery of the articles to the F.O.B. point named herein.
20) HAZARDOUS MATERIALS (MSDS REPORTING): Seller shall identify any hazardous or injurious material and notify Buyer in writing of the effects of such materials on human beings and the physical manifestations that could result for each article so identified. Seller shall supply Buyer standard OSHA approved warning labels and/or instructional materials appropriate to warn persons coming in contact therewith of the hazard and its effects.
21) HOLD HARMLESS: Seller shall indemnify and hold Buyer harmless against all damages and expense incurred by Buyer as a result of Buyer being required (a) to recall from Buyer’s customers or others any articles furnished hereunder or an end product employing any such articles as a part or component thereof and (b) to repair, replace or refund the purchase price of such articles or end product , provided that such recall and such repair, replacement, or refund is based upon a defect, whether of design or manufacture in the articles furnished by Seller or the failure of such articles to conform to any standard to which such articles are required by law to conform or the failure of the articles to conform to any specification or standard to which it is ordered which creates the reasonable possibility of injury to persons or property. In the event Seller’s articles shall not be the sole cause for such action by Buyer, then buyer shall apportion its costs, damages and expenses in such manner as it shall determine in its sole judgment is reasonable and equitable. Buyer shall not be required to consult with, or seek Seller’s concurrence in the reporting by Buyer to any administrative or regulatory body, of any information which Buyer obtains indicating that the articles furnished by Seller either fail to conform to any standard required by law, or constitute or create of themselves or within the end product of which they are a part or component, a situation requiring recall or notice as defined by the applicable law. Seller hereby releases and discharges Buyer from any liability for any error or omission in the reporting of such information unless such error or omission is attributable to the willful conduct of Buyer. Seller shall prepare, maintain, and file with the appropriate authority such records and reports as pertain to the manufacture, sale, use and characteristics of the articles furnished to Buyer hereunder as may be required by any federal, state or local law or regulation concerning the manufacture, sale or use of the articles or the end products of which the articles may be a part or component and shall provide Buyer with copies of such records as Buyer may require and permit Buyer access to Seller’s records to permit Buyer to ascertain Seller’s compliance hereunder.
22) CHANGE CONTROL: Any product realization change affecting Buyer’s requirements or Buyer’s customer requirements requires notification to, and agreement from, the Buyer. Seller will inform Buyer of any product realization change. The above change control requirement applies to product and manufacturing process changes.
23) COMPLIANCE WITH LAWS: To the extent applicable hereto, Seller shall in the performance of each order comply with the Fair Labor Standards of 1938; the Walsh-Healey Public Contracts Act; Occupational Safety and Health Act of 1970; and shall conform to all other applicable regulations and standards promulgated hereunder.