Nufern as Buyer hereby buys and Seller hereby sells those goods and services set forth on the face hereof subject to the terms and conditions set forth thereon, together with the additional terms and conditions set forth below. Terms “purchase order” and “subcontract” are synonymous herein; except where a purposeful distinction is made clear.
1 - SELLER ACCEPTANCE: A purchase order from Buyer constitutes Buyer’s offer to purchase the goods and services described or referenced thereon from Seller in accordance with the following terms and conditions and any additional terms and conditions printed on the face of the purchase order that do not conflict with such following terms (collectively, “Buyer Terms”). Seller shall be deemed to have accepted this offer, and in the absence of a separate, signed agreement between Buyer and Seller, the Buyer Terms become the exclusive and binding agreement between the parties for the purchase goods and services, upon the earlier of (i) acceptance or acknowledgment of the purchase order whether orally, in writing or otherwise, or (ii) commencement of performance of Seller’s obligations under the purchase order. All other terms and conditions are hereby expressly rejected and superseded by the Buyer Terms, and failure by Buyer to object to any other provision, and/or Buyer’s acceptance of the goods and services, shall not be deemed acceptance of Seller’s terms, nor a waiver of the Buyer Terms. Buyer Terms may only be excluded or amended by express written agreement signed by a duly authorized representative of Buyer. If a separate, signed purchase agreement exists between Buyer and Seller with respect to the goods and services, the terms of such agreement shall prevail over any inconsistent terms herein.
2 - DELIVERY: Time is of the essence in the performance of this purchase order by Seller. Delivery is to be made both in quantities and at times specified herein. Unless noted otherwise on the face of this purchase order, any goods ordered are to be shipped to Buyer FCA Seller’s facility (Incoterms 2010). If Seller's delivery shall fail to meet schedule, Buyer, without limiting its other rights or remedies, may direct expedited routing, and any excess cost incurred thereby shall be debited to Seller's account. Buyer shall not be liable for Seller's commitments or production arrangements in excess of the amount, or in advance of the time, necessary to meet Buyer's delivery schedule. Goods delivered in advance of schedule may, at Buyer's option, (i) be returned at Seller's expense for proper delivery, (ii) have payment therefor withheld by Buyer until the date that goods are actually scheduled for delivery, or (iii) be placed in storage for Seller's account until delivery date specified herein.
3 - INSPECTION AND TEST: All goods and services ordered hereunder shall be subject to inspection and test by Buyer to the extent practicable at all times and places, including the period of manufacture if the goods are to be specifically manufactured for Buyer in accordance with drawings, designs, or specifications furnished by Buyer, and in any event prior to acceptance. Such goods shall be subject to final inspection and to acceptance by Buyer after delivery to Buyer. There shall be no change in the design of the goods, in the material and processes, in their construction or in the Seller’s part number after the first acceptable unit has been received by Buyer, unless requested and/or approved by Buyer in writing. Buyer shall have the right, upon reasonable advance notice to Seller, to visit Seller’s facility to inspect the goods or work and to assess Seller’s compliance with Buyer’s quality requirements and other terms and conditions of this purchase order. Such visits may include personnel from Buyer’s customers.
If the goods ordered herein do not meet the specifications or otherwise do not conform to the requirements of this purchase order, Buyer shall have the right to reject such goods. Goods that have been delivered and rejected may be returned to Seller for replacement, correction, reimbursement, or credit as Buyer may direct. If, after notice, Seller fails to promptly replace or correct such rejected items, same may be replaced or corrected (without thereby exercising wrongful ownership) by Buyer at the expense of Seller. Any goods rejected by Buyer shall be at Seller's risk and expense, and such goods shall not thereafter be tendered for acceptance unless the former rejection or requirement for correction is disclosed. Packaging and handling expense incidental thereto and applicable transportation cost shall be charged to Seller's account. Upon non-acceptance, repudiation or rejection of any goods, Buyer shall not be liable for any profit Seller would have made, nor for incidental damages.
If the goods are to be specifically manufactured for Buyer in accordance with drawings, designs, or specifications furnished by Buyer: (1) Seller shall provide and maintain an inspection and quality control system accept¬able to Buyer and provide access to Seller's facilities at all reasonable times for inspection by Buyer's agents or employees, and shall provide all tools, facilities, and assistance reasonably necessary for inspection relating to the performance of this purchase order; and (2) Seller shall maintain adequate and authenticated inspection and test documents which relate to work performed under this purchase order for a period of three years after completion of this purchase order or as otherwise specified in this purchase order, and shall make such records available to Buyer upon request; and (3) Seller shall supply Buyer with inspection and test reports, affidavits, certifications, or any other documents as may reasonably be requested by Buyer.
4 - WARRANTIES: Seller expressly warrants that all items delivered hereunder shall be free from defects and of good materials and workmanship and shall conform to applicable specifications, drawings, samples, and performance specifications whether set forth in this purchase order or in Seller's sales literature. In the event of a conflict between the terms of this purchase order and such sales literature, the terms of this purchase order shall prevail. Seller also certifies and warrants that it has assessed the goods to be sold in relation to the requirements of each of the “RoHS Directive,” the “PFOS Directive” and the “Deca BDE and Octa BDE Directive” and that they conform in full to the requirements thereof, as amended. “RoHS Directive” means European Parliament and Council Directive 2002/95/EC for the Restriction and use of Certain Hazardous Substances in Electrical and Electronic Equipment, as amended from time to time and in effect at the time of delivery. “PFOS Directive” means European Parliament and Council Directive, 2006/122/EC regarding Perfluoro-Octane Sulfonates, as amended from time to time and in effect at the time of delivery. “Deca BDE and Octa BDE Directive” means European Parliament and Council Directive, 2002/95/EC regarding Deca and Octa Brominated Diphenyl Ether, as amended from time to time and in effect at the time of delivery.
Said warranties shall not be deemed to limit any warranties of additional scope given to Buyer by Seller, nor to limit Buyer's rights or Seller's obligations under any other provision of this purchase order, at law or in equity. No warranties are waived by Buyer by reason of supplying plans, specifications, or data or inspecting or accepting the goods. When Buyer furnishes specifications to Seller, Seller shall immediately notify Buyer of any infringement claim and Buyer may defend or negotiate the disposition of any such claim. Items repaired or replaced pursuant to this clause by Seller shall, unless otherwise provided herein, be subjected by the Seller to the same qualification or acceptance test as applicable to the item(s) at the time of the original delivery to Buyer. The foregoing warranties shall survive inspection and acceptance of and payment for the items delivered hereunder and shall run to Buyer, its successors, assigns, and customers.
5 - DRAWINGS AND SPECIFICATION REVIEW: If, during the term of this purchase order, Buyer representatives review drawings, specifications, or other data developed by Seller in connection with this purchase order and make suggestions or comments or approve such documents and data, such action is only an expression of opinion by Buyer and shall not serve to relieve Seller of any responsibility for the reliability, quality, rate of output, cost, delivery, performance, or any other requirements of this purchase order.
6 - PROPRIETARY DRAWINGS AND DATA: Seller shall keep confidential all information, drawings, specifications, or data and return, upon request, all documents furnished by Buyer, and shall not divulge or use such information, drawings, specifications, or data for the benefit of any other party. Except as required for the efficient performance of this purchase order, Seller shall not make copies or permit copies to be made without the prior written consent of Buyer. Seller shall thereafter make no further use, either directly or indirectly, of any such data or any information derived therefrom without obtaining Buyer's written consent. The obligations of this clause shall survive the completion, cancellation, or termination of this purchase order.
7 - USE OF INFORMATION: RESERVED
8 - DISCLOSURE OF INFORMATION: Seller shall not in any manner advertise or publish the fact that it has furnished, or contracted to furnish, Buyer the goods or services herein described without prior written consent of Buyer. Seller shall not disclose any details in connection with this purchase order to any party except as may be otherwise provided.
9 - TOOLING AND OTHER ARTICLES: RESERVED
10 - EXPORT-RELATED REQUIREMENTS: Seller is advised that Buyer’s contract with the prime contractor may involve the use of or access to articles, technical data or software that is subject to export controls under 22 United States Code 2751 – 2796 (Arms Export Control Act) and 22 Code of Federal Regulations 120-130 (International Traffic in Arms Regulations) or 50 United States Code 2401 – 2420 (Export Administration Act) and 15 Code of Federal Regulations 768 – 799 (Export Administration Regulations) and their successor and supplemental laws and regulations (collectively hereinafter referred to as the “Export Laws and Regulations”). Seller and Buyer shall comply with all requirements of the Export Laws and Regulations as they apply to Seller or Buyer.
11 - INDEMNIFICATION: To the extent that Seller's agents, employees, or subcontractors enter upon premises occupied by or under the control of Buyer, or any of its customers, or suppliers, in the course of the performance of this purchase order, Seller shall take all necessary precautions to prevent the occurrence of any injury (including causing death) of any persons, or of any damage to any property, arising out of acts or omissions of such agents, employees, or subcontractors. Except to the extent that any injury or damage is due directly and solely to Buyer's negligence, Seller shall indemnify, defend, and hold Buyer, its directors, officers, employees, and agents, harmless from any and all costs, losses, expense, damages, claims, suit, or any liability whatsoever, including attorney's fees, arising out of any act or omission of Seller, its agents, employees, or subcontractors.
12 - BUYER'S PROPERTY: Title to all property furnished to Seller by Buyer or paid for by Buyer shall remain with Buyer. Seller shall not alter or use such property for any purpose or for any other party other than that specified by Buyer, without the prior written consent of Buyer. Seller shall keep adequate records, which shall be made available to Buyer upon request, and shall store, protect, preserve, repair, and maintain such property in accordance with sound industrial practice, all at Seller's expense.
In the event that Buyer's property becomes lost or damaged to any extent for any cause while in Seller's possession, Seller agrees to replace or repair such property, at Seller's expense, in accordance with Buyer's request. At the completion or any termination of the work for the goods or services for which Buyer's property was required, Seller shall request disposition instructions for all such property, or the remainder thereof, whether in its original form or in semiprocessed form. Seller shall make such property available to Buyer per Buyer's request, including preparation, packaging, and shipping as directed. Expense for preparation for shipment shall be for Seller's account and shipment shall be made FOB Seller's plant. Buyer may, at its sole discretion and by written notice, divest itself of title in favor of Seller.
13 - COMPLIANCE WITH LAWS: Seller shall, in the performance of work or services under this purchase order, fully comply with all applicable U.S. federal, state, or local laws, rules, regulations, or ordinances and those of other applicable jurisdictions.
14 - TAXES: Seller's prices shall be exclusive of any federal, state, or local sales, use, or excise taxes levied upon, or measured by, the sale, the sales price, or use of goods required in the performance of this purchase order. Seller shall list separately on its invoice (or voucher) any such tax lawfully applicable to any such goods, and payable by Buyer, with respect to which Buyer does not furnish to Seller lawful evidence of exemption. Seller shall comply with any reasonable request by Buyer regarding payments under protest, and regarding any refunds, claims, litigation, or proceedings with respect to any such taxes and shall make appropriate adjustments to afford Buyer the benefit of any refund or reduction in such taxes.
15 - REMEDIES: Each of the rights and remedies reserved by Buyer in this purchase order shall be cumulative and additional to any other or further remedies provided in law or equity or in this purchase order. A waiver of a breach of any provision hereof shall not constitute a waiver of any other breach.
16 - ASSIGNMENT: This purchase order or any interest therein, including any claims for monies due or to become due with respect thereto, may only be assigned upon the prior written consent of Buyer. A change in corporate control of Seller shall constitute an assignment requiring advance consent of Buyer. Any payment to any assignee of any claim under this purchase order, in consequence of such consent, shall be subject to set-off, recoupment, or other reduction for any claim that Buyer may have against Seller.
17 - NOTICE OF LABOR DISPUTES: Whenever Seller has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of this purchase order, Seller shall immediately give written notice thereof, including all relevant information with respect thereto, to Buyer. Seller shall insert the substance of this clause, including this sentence, in any subcontract hereunder.
18 - GOVERNING LAW: This purchase order, and the acceptance thereof, shall be a contract made in the state of Buyer’s office address as shown on the face of this purchase order, and shall be governed by and construed according to the laws thereof and both parties agree to the exclusive jurisdiction of the state and federal courts in such state.
19 - INSURANCE: RESERVED
20 - EXCUSABLE DELAY – FORCE MAJEURE: Neither party shall be responsible to the other party for any delay in performing its obligations under this purchase order due to any events of force majeure, except as otherwise provided for within this clause. Force majeure means any act of God, war, act or failure to act of any government in its sovereign capacity, fire, flood, earthquake, strike, epidemic, quarantine, embargo, nuclear incident, or any other act beyond reasonable control and without the fault of either party or its subcontractors. The party whose performance of obligations hereunder has been affected by any events of force majeure shall notify the other party within five calendar days thereafter by sending a detailed statement and sufficient evidence with respect thereto, and shall likewise notify promptly of any subsequent change in the circumstances. The affected party shall exercise its best efforts under the circumstances to remove or remedy the events of force majeure and the effects thereof and resume full performance hereof as soon as possible.
21 - TERMINATION FOR CONVENIENCE: Buyer may at any time terminate this purchase order in whole or in part for its convenience upon written notice to Seller, in which event Seller shall be entitled to reasonable termination charges consisting of a percentage of the purchase order price reflecting the percentage of the work performed prior to termination, plus any reasonably incurred settlement expenses.
22 - PATENTS, LICENSES, DESIGN RIGHTS: Seller warrants that the sale, use, or incorporation into manufactured products of all machines, devices, material, software, and firmware which are not of Buyer’s design, composition or manufacture shall be free and clear of infringement of any issued or pending United States patent, copyright, trademark, mask works, or other proprietary rights. Seller shall hold Buyer, its customers, officers and directors harmless and defend them (at Buyer’s option) from claims, suits, or actions alleging such infringements and any and all expenses, liability, and loss of any kind, including but not limited to attorney’s fees, all costs, expenses, and fees growing out of claims, suits, or actions alleging such infringements.
Unless this order pertains to Commercial Items as defined in the FAR and the U.S. Government or prime contractor do not require the following rights, Seller, as part consideration for this purchase order and without further cost to Buyer, hereby grants and agrees to grant to Buyer (and Buyer’s prime contractor and the U.S. Government) irrevocable, non-exclusive, royalty-free rights and licenses to use, sell, offer to sell, manufacture and cause to be manufactured products embodying any and all inventions, discoveries and know-how made, conceived, used or actually reduced to practice in connection with Seller’s performance of this purchase order. As Buyer, its prime contractor and the U.S. Government require an uninterrupted supply of the products described in this purchase order, Seller agrees to disclose to Buyer in written form the inventions, discoveries and know- how used by Seller in manufacturing the products. Such disclosure shall be made within 45 days of request by Buyer and shall be of sufficient detail to enable Buyer or its designee to manufacture the product within a reasonable period of time. Such disclosure shall be protected under the confidentiality terms of this agreement, provided however, that Buyer shall be permitted to make all disclosures necessary to permit it to have the product made by others.
23 - CLAUSE MODIFICATION REQUIRED BY BUYER’S CUSTOMER: Seller agrees to incorporate into this purchase order any revised clause or additional clause as Buyer may rea¬sonably deem necessary to enable Buyer to comply with the provisions of any higher-tier contract and any modifications thereto. If any such revised clause or additional clause causes any increase or decrease in the cost of or time required for performance of the purchase order work, an equitable adjustment shall be made in accordance with the procedures of the Changes clause hereof.
24 - CHANGES: Buyer may at any time, by a written order, make changes within the general scope of this purchase order for compliance by Seller, in any one or more of the following: (i) drawings, designs, or specifications, where the supplies or services to be furnished are to be specifically manufactured or produced for Buyer in accordance therewith; (ii) method of shipment or packing; (iii) place of delivery; and (iv) delivery schedule and period of performance of work. If any such change causes an increase or decrease in the cost of or the time required for the performance of any part of the work under this purchase order (whether or not changed by such written order), an equitable adjustment shall be made in the purchase order price or delivery schedule and period of performance, or both, and the purchase order shall be modified in writing accordingly. Any claim by Seller for equitable adjustment under this clause shall be asserted within 20 days from the date of receipt by Seller of the notification of change.
25 - STOP-WORK ORDER: The Buyer may, at any time, by written order to the Seller, require the Seller to stop all, or any part, of the work called for by this purchase order for a period of 90 days after the written order is delivered to the Seller, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this clause. Upon receipt of the stop-work order, the Seller shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work order is delivered to the Seller, or within any extension of that period to which the parties shall have agreed, the Buyer shall either (1) cancel the stop-work order; or (2) terminate the work covered by the stop-work order.
If a stop-work order issued under this clause is canceled or the period of that order or any extension thereof expires, the Seller shall resume work. The Buyer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the purchase order shall be modified in writing accordingly, if (1) the stop-work order results in an increase in the time required for, or in the Seller’s cost properly allocable to, the performance of any part of this purchase order; and (2) the Seller asserts its rights to the adjustment within 20 days after the end of the period of work stoppage.
If a stop-work order is not canceled and the work covered by the stop-work order is terminated for the convenience of the Buyer, the Buyer shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement. If a stop-work order is not canceled and the work covered by the order is terminated for default, the Buyer shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.
26 - ENTIRE AGREEMENT: Except when issued to carry out a written contract between the parties, this purchase order constitutes the entire agreement of sale and purchase of the goods and services identified herein, and is expressly limited to and made conditional upon the acceptance of all the terms and conditions. Any additional or different terms and conditions contained in any prior quotation or that may be contained in any acknowledgment of this purchase order shall be deemed objected to by Buyer without further notice of objection and shall be of no effect nor under any circumstances be binding upon Buyer. Seller shall be deemed to have assented to all terms and conditions of this purchase order if any of the goods are shipped or services provided to Buyer.
27 - LIMITATION OF BUYER’S LIABILITY/STATUTE OF LIMITATIONS: In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages of any kind. Buyer’s liability on any claim of any kind for any loss or damage arising out of or connected with or resulting from this purchase order or from the performance or breach thereof shall, in no case, exceed the price allocable to the goods or services or unit thereof which gives rise to the claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of Buyer as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
28 - TERMINATION FOR DEFAULT: Buyer may forthwith terminate this purchase order in whole or in part for default in the event of the occurrence of any of the following: (1)(i) Insolvency of the Seller–Seller shall be deemed to be insolvent if it has ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not and whether insolvent within the meaning of the Federal Bankruptcy Act or not; (ii) the filing of a voluntary petition to have Seller declared bankrupt; (iii) the appointment of a receiver or trustee for Seller, or (iv) the execution by Seller of an assignment for the benefit of creditors. (2) Failure of Seller per the terms of this purchase order to – (i) deliver the supplies or perform the services within the time specified in this purchase order or any authorized extension, (ii) make progress so as to endanger the performance of this purchase order, or (iii) perform to any other substantive provisions of this purchase order. The Seller shall diligently proceed with performance of any purchase order work not terminated.
29 - GOVERNMENT FLOW-DOWN CLAUSES: Certain U.S. government FAR clauses may be incorporated into this purchase order either (i) in full text if shown or (ii) by reference with full force and effect. Upon request, the Buyer shall make available to the Seller the full text of any such referenced clause hereof (including its date).
All such clauses shall, with respect to the rights, duties, and obligations of the Buyer and Seller thereunder, be interpreted and construed in such manner as to recognize and give effect to: (i) the contractual relationship between the Buyer and the Seller under this purchase order, (ii) the rights of any higher-tier subcontractor with respect thereto under the higher-tier subcontract, and (iii) the rights of the U.S. Government or other customer with respect thereto under the prime contract from which such clauses are derived.