TERMS AND CONDITIONS OF SALE (COMPLETE VERSION)
1. FORMATION OF CONTRACT; ACCEPTANCE OF ORDER
These standard terms and conditions of sale (“Terms and Conditions of Sale”) together with the sales covenants, the general specifications, the technical specifications, and any addendum thereto, including any acknowledgment by Seller, comprise the “Proposal” or “Quotation” (collectively the “Quotation”), which upon acceptance by Buyer become the “Contract”. Buyer may accept the Quotation through (i) delivering a purchase order that incorporates the Quotation by reference and payment of the initial deposit or (ii) other written indication by Buyer of its acceptance of the Quotation along with payment of the initial deposit or (iii) other written indication by Buyer of its acceptance of the Quotation and agreement by both parties on a payment plan that does not require an initial deposit or (iv) receipt by Buyer of Seller’s acknowledgement without formal notice of rejection within five (5) days of receipt by Buyer. The effective date of the Contract shall be the date that Seller communicates to Buyer via Seller’s acknowledgement, in writing. Seller’s obligations under a Quotation or the Contract shall not commence until the effective date.
The scope of work for the Contract is limited to the Component parts, machinery, goods, engineering services (if applicable) and/or related commissioning services (through subcontractors or otherwise) (if applicable) specifically set forth in the Contract (“Component parts”). The scope of work does not include installation or any onsite services unless specifically identified as being included in the price in the Contract.
Any terms and conditions contained in any purchase order, correspondence or accompanying payment for delivery of the Component parts specified herein, which are different from or in addition to the terms of the Contract shall not be binding on Seller, whether or not they would materially alter the Contract, and Seller hereby objects thereto. Any Quotation made by Seller either directly or by a sales representative of Seller shall expire in thirty (30) days, and after such time will no longer be valid unless renewed in writing by Seller.
2. CONFIDENTIALITY
All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information submitted by Seller to Buyer in a Quotation or the Contract are the confidential and proprietary information of Seller; and Buyer and its employees, agents or other parties for whom Buyer is responsible may not disclose Seller’s confidential and proprietary information to any third party, or use Seller’s confidential and proprietary information for its own account or that of any third party, except in the performance of the Contract. No transfer of ownership of any information provided by Seller to Buyer shall take place pursuant to fulfillment of the Contract.
3. DRAWINGS AND DESIGNS; PERMISSIVE VARIATIONS
Selection, application and design of machines, roller dies, tooling, accessories, options and auxiliary Component parts shall be based upon information furnished by Buyer. Buyer shall make available to Seller in a timely manner all information reasonably necessary for Seller to complete the work specified in the Contract, including drawings, diagrams, specifications of all electrical, mechanical and structural interfaces (if any) and shall promptly answer in writing all inquiries for information that Seller deems necessary from time to time to perform Seller’s obligations under the Contract. Buyer understands that Seller is relying upon this information.
All drawings submitted by Seller, if any, with the Contract are submitted only to indicate the general style and outline, suggested arrangement, and approximate overall dimensions of the Component parts quoted. Except as otherwise provided in the Contract for the approval of Buyer, no detailed shop or engineering drawings of any part of the Component parts will be furnished to Buyer.
If the Component parts is to be procured, designed and/or manufactured in accordance with Buyer’s specifications, Buyer represents that the drawings, prints and parts, if any, submitted in connection with its order reflect Buyer’s latest revisions of such specifications. Any subsequent modification to Buyer’s specifications may result in a change to the Contract and Seller reserves its rights set forth in Section 5 below. With respect to tolerance, capacity, accuracy, production rates and the like, the terms of this Quotation shall supersede Buyer’s specifications.
Unless otherwise agreed to by Buyer and Seller in the Contract, the Component parts shall be manufactured in accordance with Seller’s standard practices as they exist from time to time. Component parts and items ordered herein are of the stated capacity and range, designed and built for operation with good commercial accuracy as set forth in the Purchase Order. The produced component parts shall meet the specifications of Buyer as agreed in the Purchase Order, and shall be subject to dimensions, tolerances and variations consistent with usages of the trade for said products in the regular industry practice.
No governmental or other specification other than the Seller’s shall be incorporated by reference herein unless a copy of said specification is agreed by Seller and attached to the Contract. Any deviation in usage from the conditions as provided or as set forth in the Contract shall be at Buyer’s risk.
4. PRICE; PAYMENT TERMS
All payment terms are subject to Seller’s credit approval at the time of acknowledgment and again, prior to shipment of the Component parts. Payments are due upon Buyer’s receipt of an invoice from Seller or in the event that the payment terms are set forth in the Contract, as of the specific date listed on the applicable payment schedule in the Contract.
If Buyer requests that the Component parts availability date and/or scheduled date for shipment be extended or otherwise changed, such request shall be considered to be a Buyer-proposed Contract change and shall be addressed as set forth in Section 5.
Change Orders. Once the Component parts is near completion and/or is ready for preparation for Demonstration and shipment and/or Demonstration is delayed by any act or omission of Buyer beyond the scheduled date, Buyer shall pay any amounts that are due under the Contract upon notification to Buyer that the Component parts is ready for, and/or prior to, shipment, or any similarly worded language, within fourteen (14) days after the originally scheduled delivery date regardless of whether delivery has occurred. If the scheduled Component parts ‘start-up and commissioning’ or any other on-site services, if included in the scope of work to be provided to Buyer by Seller, is delayed by any act or omission of Buyer beyond the scheduled date then final payment of all amounts due from Buyer as set forth in the Contract shall be due thirty (30) days after the originally scheduled shipment date.
Time is of the essence with respect to all payments. Payments that are outstanding more than ten (10) days from their respective due date shall bear an interest rate of one and one-half percent (1 ½%) per month (eighteen percent (18%) annually) until fully paid, including any interest accruing thereon. If the rate of interest stated in the preceding sentence exceeds the maximum rate of interest that the applicable state law allows, then the rate of interest that will be accrued shall be at the applicable state maximum. In the event Buyer does not pay within the terms of the Contract, all collection costs incurred by Seller, including attorneys’ fees will be paid by Buyer.
Payment for the sale of Component parts furnished under the Contract shall not be subject to offset, deduction or back charges by Buyer. Any sums that have been deducted by Buyer in violation of this paragraph shall be considered overdue and are subject to the above interest charge and collection costs.
The price set forth in the Contract and all payments due to Seller from Buyer shall be in the lawful currency of the United States of America unless otherwise set forth in the Contract.
Unless otherwise set forth in the Contract the terms of payment for international transactions shall be as follows: A deposit in an amount specified by Seller shall be paid via wire-transfer upon placement of order (“Initial Deposit”) and the balance of the total purchase price shall be paid upon Seller’s notification to Buyer that the Component parts is being readied for international shipment. If a letter of credit is to be used to cover any payments, Buyer shall open, in favor of Seller, an irrevocable, documentary Letter of Credit in the amount equal to those payments in the specific form and format described in Seller’s letter of credit instructions incorporated into the Contract by attachment or reference. The minimum requirements for any such letter of credit are that it must be payable “at sight” at the counters of Seller’s bank in the USA, it must allow for confirmation by Seller’s bank, it must allow partial shipments and partial draws from any point of origin, it must allow trans-shipment and it must specify that bank charges in addition to those charges by Seller’s bank shall be payable by the Buyer. If the letter of credit is advised or in any way processed by additional banks other than Buyer’s original issuing bank and Seller’s specified advising bank, Buyer shall be responsible for any fees charged by such additional banks. In the event that Buyer elects to use an issuing bank with which Seller’s bank does not have a corresponding relationship, Seller reserves the right to require payment by wire-transfer in lieu of acceptance of a letter of credit. The letter of credit shall specify the latest date of shipment for the Component parts to be at least sixty (60) days after the estimated delivery time indicated in the Contract and shall remain valid for at least sixty (60) days beyond the latest date of shipment. The letter of credit shall not require any documentation for collection other than those specified and agreed upon by the Seller. The Buyer agrees to have its issuing bank forward a draft version of the letter of credit to Seller for its review and approve prior to issuance of the final version.
5. CHANGE ORDERS
Changes to the design, specifications, scope of supply, delivery schedule, Component parts demonstration site or date, shipping instructions of the Component parts or any material term of the Contract, may only be made upon execution by Buyer and Seller in writing (collectively, “Change Order”). Such Change Order shall state the parties’ agreement on (i) change in the specifications, designs, scope of work, delivery schedule or shipping instructions for the Component parts, (ii) an adjustment to the purchase price, and (iii) an adjustment in the date of shipment of the Component parts and/or the period of performance. Both parties agree and acknowledge that unless a Change Order is agreed upon in writing by both parties, the Contract shall not be modified in any manner. In addition, Seller has the right to suspend performance of its obligations hereunder without liability during the period while the change is being evaluated and negotiated.
In the event Buyer has communicated proposed changes to Seller, Seller, at its sole discretion, shall either (a) accept the Change Order; (b) reject the Change Order and continue performance under the existing Contract; or (c) cancel the Contract. In the event that Seller elects (b) above Buyer shall either (i) agree to continue performance (of Seller) pursuant to the Contract or (ii) cancel the Contract. In the event of (b)(ii), Buyer shall pay Seller for all amounts then due and owing under the Contract plus thirty percent (30%) of the incurred costs.
6. DEFAULT; CANCELLATION/REMEDIES
If Buyer fails to perform any of its obligations hereunder, including without limitation, failure to make payments as provided in Section 4 or otherwise, or if Buyer fails to promptly give reasonable assurances of future performance when requested by Seller, then Seller may, upon five (5) days’ written notice to Buyer, declare Buyer to be in default and Seller may suspend performance of its obligations hereunder without liability and retain all rights and remedies Seller may possess at law, in equity and/or as provided in these Terms and Conditions of Sale.
In addition to the remedies noted in Section 5 above, to the extent that (i) Seller declares a default under this Section 6 or (ii) if an order, or portion thereof, for Component parts that Seller considers to be standard Component parts is cancelled for any reason, other than (a) default by Seller or (b) Force Majeure, Buyer will make payment to Seller in an amount which shall equal all incurred costs (direct material, labor, burden, and application engineering) on the completed work plus thirty percent (30%) of the incurred costs net of any payments previously made by Buyer to Seller under the Contract. If an order, or portion thereof, for Component parts considered by Seller to be non-standard Component parts, i.e. built to Buyer specifications or otherwise customized, is cancelled for any reason, other than (a) default by Seller or (b) Force Majeure, then Seller reserves the right to charge Buyer up to 100% of the price of the cancelled non-standard Component parts.
7. TAXES, PERMITS, FEES, LAWS
Unless expressly stated in Seller’s invoice, Quotation or the Contract, the purchase price for the Component parts furnished hereunder excludes all governmental or brokerage taxes, duties, fees, charges or assessments. Seller may elect to add any such taxes, duties, fees, charges or assessments to the invoice amount payable to Seller by Buyer. Buyer must provide to Seller in advance of the shipment of the Component parts documentation in a form and substance acceptable to Seller of any exemptions claimed from taxes, duties, permits, fees, charges or assessments. Except to the extent expressly assumed by Seller, Buyer shall secure and pay for all permits and fees necessary for the delivery and installation of the Component parts.
It is Buyer’s duty to ascertain that the Component parts ordered by Buyer and/or proposed by Seller and its subsequent installation and use is in accordance with applicable local laws, statues, ordinances and building codes (“laws”). Seller shall not be responsible for compliance of the Component parts to such laws, but shall to the extent reasonably possible, promptly notify Buyer of any discrepancies that come to Seller’s attention.
Seller has complied with and will continue to comply with all aspects of the New Jersey Consumer Fraud Act, the Uniform Commercial Code (UCC) as adopted in the State of New Jersey, and other applicable federal and state laws as applicable to any transaction by Seller. To the extent that any provision or obligation set forth in these Terms and Conditions conflict with any aspect of the New Jersey Consumer Fraud Act, the Uniform Commercial Code (UCC) as adopted in the State of New Jersey, and other applicable federal and state laws as applicable to any transaction, that said provision shall be disregarded or interpreted in accordance with the above-referenced laws.
8. SELLER’S PERFORMANCE DATES; DELIVERY TERMS; TITLE; RISK OF LOSS; PURCHASE MONEY SECURITY INTEREST
The scheduled dates for manufacturing, testing, shipment and/or commissioning of the Component parts are estimates based on production loading at the time of Contract and may be set forth as a range of weeks after receipt of order, initial deposit and timely supply by Buyer of necessary information, acceptable to Seller required for the manufacturer of the Component parts. Although Seller shall use all commercially reasonable efforts to have the Component parts offered in the Contract available within the time estimated, the times are not intended to be exact dates but rather reasonable estimates for the time anticipated by Seller to prepare the Component parts for factory inspection (if applicable) and to be prepared for shipment.
In order to initiate and to correctly complete the manufacture of the Component parts in a timely fashion, it may be necessary for Buyer to provide and/or confirm to Seller certain information. This information might include, but not be limited to, the floor space allocation for the Component parts, layout and location of existing Component parts, building support columns and/or any other obstructions, Component parts layout, line direction, location of Component parts controls, power and/or air drop locations, ‘pass line’ height, and/or electrical/voltage requirements. If Seller requires such information, Seller shall submit a request to Buyer, typically referred to as a ‘Layout’, ‘Line’ or ‘Approval’ drawing or similar form as soon as reasonably possible after the effective date of the Contract. Upon receipt of Buyer’s approval and/or provision of the required information, Seller shall proceed with the manufacturing process. If the drawings submitted by Seller to Buyer require changes, Buyer shall submit such request for changes to Seller within seven (7) days of Buyer’s receipt of Seller’s original drawing(s) and/or request for information. Seller shall respond promptly and re-submit revised drawing(s) to Buyer for approval. Buyer shall then provide its approval within seven (7) days of receipt of the revised drawing(s). The estimated scheduled dates to have the Component parts available is contingent upon Buyer responding to Seller’s request for information, including any Buyer-requested changes to the information provided for Buyer’s approval within the times set forth herein. Delays in receipt of Buyer’s approval or request for changes may result in additional time being required for the Component parts to be available at Seller’s discretion without liability. The dates for completion of tooling and product profile designs (if applicable) are subject to revision based upon the results of preliminary design review and testing. Seller reserves the right to reschedule shipment of tooling and the associated Component parts until the profile meets the agreed-upon specifications and dimensional requirements for the profile. Seller is not responsible for any actual, incidental or consequential damages arising by reason of any delay or reschedule in delivery. Upon notification to Buyer from Seller that Component parts is ready for shipment, Buyer must promptly meet all of its obligations hereunder, including but not limited to making any required payments, shipping arrangements, site and installation preparations and requirements and/or all other obligations noted in the Contract and acknowledgment.
The term of delivery for all Component parts covered by the Contract shall be Seller’s or manufacturer’s factory, (“Delivery”), with freight routing at the discretion of the Buyer unless otherwise agreed between the parties and confirmed in writing. The term “Delivers” “Delivery” and/or “Delivered” shall refer to the transfer of Component parts to the Buyer as described in the Delivery term. Partial shipments shall be allowed however Buyer understands and agrees that the Contract price is based upon Seller shipping all Component parts when it is completed by Seller. If multiple or partial shipments are required by Buyer, Buyer must notify Seller in advance of such requirement. If multiple or partial shipments are requested or are necessary because of acts or omissions on the part of Buyer, then Seller reserves the right to adjust the price to reflect any additional costs that Seller may incur as a result of such multiple or partial shipments.
Title and risk of loss to the Component parts for all purposes shall pass to Buyer upon the earlier of (i) acceptance of the Component parts by Buyer in Seller’s factory as set forth in Section 13 or (ii) Delivery as defined above.
For domestic transactions, notwithstanding any passage of title, Seller reserves a Purchase Money Security Interest under the Uniform Commercial Code in the Component parts and in the proceeds derived from such Component parts. At any time upon request of Seller, Buyer shall execute and provide Seller with such documents as Seller may require, including, but not limited to, a Security Agreement, one or more Financing Statements, signed waivers and consents from landowner(s) and mortgagee(s) and provide to Seller evidence of other actions necessary to perfect any such Purchase Money Security Interest.
9. DELAYS, FORCE MAJEURE; SUSPENSIONS
If Seller is delayed at any time by the acts or omissions of Buyer, Buyer’s agents, subcontractors or material suppliers, Change Orders, or by any Force Majeure defined below then the period of performance shall automatically be extended to accommodate Seller’s revised engineering and production schedules, material purchases and/or labor remobilization.
“Force Majeure” means circumstances beyond the respective party’s reasonable control, including without limitation, acts of God, acts of public enemies, wars, other hostilities, blockades, insurrections, riots, epidemics, quarantine restrictions, floods, unavailability of components or supplies, lightning, fire, storms, earthquakes, severe weather, blizzard, washouts, arrests, restraints of rulers and people, civil disturbances, acts of any governmental or local authority, and any other acts and causes, not within the control of the party claiming excuse from performance, which by the exercise of due diligence and reasonable commercial effort, that party shall not have been able to foresee, avoid or overcome. During the period of any Force Majeure condition, the parties shall cooperate to perform under the Contract to the best of the parties’ abilities.
If either party in good faith is rendered wholly or partially unable by Force Majeure conditions to carry out its obligations under the Contract, or if Seller’s supplier is unable to provide Component parts or materials, and if that party gives prompt written notice and full particulars of such Force Majeure condition to the other party, that party shall be excused from performance of its obligations during the continuance of any such inability, but for no longer period. Such cause shall be remedied to the extent possible with all reasonable speed, and with all reasonable commercial efforts, and notice shall be given when the cause is remedied.
Notwithstanding the provisions of sub-part (c), if performance by a party is precluded or restrained by Force Majeure for more than one hundred-eighty (180) days from the onset of the underlying Force Majeure event, either party may terminate the Contract upon written notice to the other. In the event that Seller is delayed by the failure of Buyer to provide access to the site or furnished Component parts, information or services in accordance with the schedule and requirements set forth in the Contract, Seller shall receive an equitable adjustment to the delivery schedule, and Contract price.
Seller reserves the right to suspend, without any liability to or recourse from Buyer, all or part of the services to be performed hereunder (including the commissioning and shipment of Component parts) during any period when, in the reasonable judgment of Seller, the health and/or safety of Seller and/or its subcontractors’ personnel performing any such service could be jeopardized.
10. SOURCE OF COMPONENT PARTS
Seller reserves the right to manufacture the Component parts at any of its facilities and the price of the Component parts shall not be affected by the location where it is manufactured. The Seller’s factory at which the Component parts demonstration will be conducted under Section 13 below will be communicated to Buyer in the Quotation or with Seller’s acknowledgment. Any request by Buyer for a change to that location of the Component parts demonstration or other testing will require the issuance of a Change Order, including a change in Contract price, in accordance with Section 5, above. Buyer shall notify Seller as soon as possible, but not later than 14 days of the Seller’s acknowledgement whether the source of the Component parts may conflict with Buyer’s requirements for country of origin labeling, content restrictions, or duty or freight, and Buyer and Seller shall consult with each other on the possible impact of such requirements on the Contract price. Buyer’s failure to notify Seller within the 14 day notice period shall create an irrefutable presumption that the source(s) of the Component parts is(are) acceptable to Buyer and that Buyer will bear the costs and consequences thereof.
11. INSTALLATION
The scope of work does not include installation or any onsite services. The Buyer is responsible for the installation of the Component parts including, without limitation, all engineering work, unloading, unpacking and proper installation of Component parts and the disposal of packing materials required for the Component parts and the costs of the foregoing. Seller’s service department can make a service technician available for consultation on site to assist Buyer with the Buyer’s responsibilities listed below. This service will be priced at Seller’s usual and customary daily service rates plus reasonable expenses.
Any additional service or training time over the included fixed number of business days set forth in the Contract is available at Seller’s usual and customary daily service rates as announced from time to time plus reasonable expenses.
12. LAWS/SAFETY STANDARDS
The Component parts furnished hereunder conforms to applicable industry standards. However, the end user is the party responsible under the terms of all applicable Federal, state, local and regional laws applicable to such Component parts including the Occupational Health and Safety Act of 1970 (the “Act”), or the industrial safety laws applicable to the facility where the Component parts is installed, to ensure the Component parts meets such requirements, and Seller hereby disclaims any liability for any violations of the Act or other applicable regulation or law for safe and healthy operation that may be imposed respecting the Component parts furnished under the Contract.
Buyer shall train, require and cause its employees to (i) comply with directions set forth in documented inspections of the Component parts and in maintenance, safety and installation instructions, manuals, drawings, safety notices and warnings and other instructions furnished by Seller; (ii) use reasonable care and all safety Component parts and applicable safety guards and safety systems in the set-up, adjustment, operation and maintenance and repair of the Component parts; (iii) not remove, or disable or permit anyone to remove or disable any safety Component parts, safety feature, warning placards, labels or warning signs from the Component parts nor permanently remove or disable any guards or safety features; and (iv) assure that the Component parts is used in accordance with all applicable laws, regulations, customs, permits and standards in force.
13. COMPONENT PARTS DEMONSTRATION AND ACCEPTANCE
For certain Component parts lines, systems and/or product applications, the Seller may determine that testing in Seller’s factory in the presence of Buyer (“Demonstration”) is required. If Seller does not require a Demonstration, Buyer may request a Demonstration however Buyer understands that unless Seller included a Demonstration in its Quotation, then Buyer’s request for the addition of a Demonstration shall be considered as a request for a change to the Contract (reference Section 5). Buyer may also witness the standard final quality testing that Seller routinely performs prior to shipment from its factory at no additional charge. In the case of Demonstration, Seller will demonstrate the Component parts at its facility only to the extent that the Component parts purchased under the Contract can be appropriately demonstrated at such location. If material is to be part of the testing process, Buyer is responsible to furnish, freight prepaid, the required amount of material necessary for this purpose. Such material must be of acceptable quality and conform to the material properties as specified in the Contract.
The successful Demonstration of the Component parts shall constitute acceptance by Buyer of the Component parts and Buyer agrees to execute a certificate generated by Seller, in Seller’s presence and prior to shipment of the Component parts so stating. Such certificate shall also constitute passage of title to Buyer and permission to ship the Component parts after completion of any checklist, tear down and packaging. Buyer further agrees to execute a “clean” certificate after the completion of the checklist upon Seller’s request.
In the absence of any Demonstration at Seller’s facility, Buyer’s receipt of the Component parts delivered hereunder shall be an unqualified acceptance of and shall also constitute a waiver of any defect which reasonable inspection would have revealed unless Buyer gives Seller notice of rejection of the Component parts within thirty (30) days after such receipt. In the event that Buyer gives such notice of rejection, Buyer shall afford Seller (i) reasonable opportunities to inspect any alleged non-conforming Component parts and ii) a reasonable opportunity to make the Component parts conforming, or provide substitute conforming Component parts. Buyer shall not return any Component parts without Seller’s prior written consent.
14. DISPUTE RESOLUTION/GOVERNING LAW
All claims, disputes or controversies (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) these Terms and Conditions of Sale; (b) any advertisement, promotion, or proposal relating to these Terms and Conditions of Sale, or (c) the relationship which results from these Terms and Conditions of Sale (including relationships with third parties who are not party to these Terms and Conditions of Sale) (collectively “Claims”) will be resolved, first, by a formal mediation conducted by an experienced mediator mutually agreed upon by Buyer and Seller, and, if mediation should fail to resolve the claim or dispute, secondly, by reference to and determination by binding arbitration governed by the Federal Arbitration Act and administered by the American Arbitration Association under its rules for the resolution of disputes, or under other mutually agreed procedures. Any such proceedings under mediation or arbitration shall be conducted in Middlesex County, New Jersey in the United States of America, and the proceedings shall be conducted, and all submissions of the parties and rulings of the arbitrator(s) shall be in the English language. Notwithstanding the rules of the arbitral body, the parties agree that (a) any arbitration proceeding shall be presided over by a neutral arbitrator selected by the parties who shall be admitted to the practice of law and be in good standing or in retirement status in the jurisdiction where the proceeding is held, (b) guidelines for “discovery” of facts through document production and deposition of witnesses by the parties shall be delineated by the arbitrator in writing, conducted in an orderly manner, conducted over a fixed period not to exceed 90 days — and failures to reasonably comply shall be subject to summary process in a court of law in the jurisdiction where the arbitration is being conducted, (c) the decision of the arbitrator shall be based on the relevant and credible facts as presented into evidence and (d) the arbitrator shall prepare a written memorandum of decision setting forth the findings of fact and conclusion of law. Because this method of dispute resolution is personal, individual and provides the exclusive method for resolving such disputes, Buyer further agrees, to the extent permitted by applicable laws, to waive any right to commence or participate in any class action or class-wide litigation or arbitration against Seller related to any Claim. BOTH PARTIES WAIVE THE RIGHT TO A JURY TRIAL.
Buyer agrees that in the event of any breach of the Contract by Buyer that may cause irreparable harm to Seller for which an award of money damages is insufficient relief, Seller may, in addition to any remedies which Seller may have available to it, pursue injunctive or other equitable relief in a court of competent jurisdiction to prevent or curtail any breach by Buyer of its obligations to be performed under the Contract. All remedies provided to Seller under the Contract are cumulative, and may be exercised by Seller singularly or in conjunction with other available remedies, from time to time and at any time.
This provision shall survive the termination of the Contract governed by the Terms and Conditions of Sale.
The Governing law shall be the laws of the State of New Jersey. With respect to international transactions, the UN Convention on the international sale of goods is hereby excluded from application to the Contract.
15. WARRANTY
Seller warrants to the original purchaser that the Component parts provided under the Contract shall be free from defects in material or workmanship for a period of one (1) year, measured from the date of shipment. The foregoing warranty will become void, and Seller will have no obligation whatsoever under this warranty, with respect to any of the following: Component parts that is (i) not installed, used or maintained in a normal and proper manner, in accordance with all manuals and instructions; (ii) Component parts that are modified, altered or repaired without the prior written approval of Seller; (iii) Buyer fails to make any payments when due under Section 4 or otherwise in the Contract or (iv) Component parts that is assigned, sold or transferred to an entity other than the Buyer unless Buyer is a financing entity, lessor or dealer and has notified Seller in advance at time of order that Buyer will not be the end-user of the Component parts. Seller will repair or replace at its option components which upon inspection it finds to be defective, based on claims made in writing to Seller within a reasonable time after discovery and within the warranty period. Component parts alleged to be defective must be returned to Seller for repair or replacement, freight prepaid, within thirty (30) days of Buyer’s receipt of the return authorization number, obtained from Seller, which must be clearly marked on the outside of the return container. Replacement component parts may be shipped from Seller upon Buyer’s request and receipt of a valid purchase order number so the validity of the Warranty can be determined. Unless otherwise specified, replacement components shall be Delivered to Buyer, Seller, or designated location. Any labor or Component parts rental costs incurred in the dismantling and reassembly of the Component parts shall be at Buyer’s sole expense. This warranty excludes Component parts, materials and components furnished by the Seller but manufactured by another party, which may be incorporated in the Component parts, line or system sold under the Contract. Such components and Component parts shall bear no warranties other than the warranties extended by and enforceable against the manufacturer thereof at the time of Delivery to Buyer (which warranties Seller will furnish on Buyer’s written request), for the period stated in that warranty. Notwithstanding the foregoing, to the extent the Component parts or component is deemed by Seller, or in the case of a component, the manufacturer of the component, to be obsolete, such Component parts or component shall bear no warranty.
THE WARRANTY STATED HEREIN IS PERSONAL TO BUYER AND SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE COMPONENT PARTS FURNISHED HEREUNDER AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ABOVE WARRANTY SHALL CONSTITUTE BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO THE COMPONENT PARTS FURNISHED HEREUNDER.
If Buyer removes or permits anyone to remove any safety Component parts or warning signs, placards and/or labels or fails to observe any condition in this Section 15, or if any injury or damage is caused, in whole or in part, by the end-user’s failure to comply with applicable federal, state or local safety requirements or Seller’s instructions as set forth in Section 12 above, Seller shall have no obligation to Buyer, and Buyer shall indemnify and hold Seller harmless against any claims, loss or expense for injury or damage arising from the improper use of the Component parts. Seller specifically disclaims any and all liability arising out of the utilization of the Component parts other than the warranty liabilities to the original Buyer.
16. LIMITATION OF LIABILITY
BUYER UNDERSTANDS AND ACKNOWLEDGES THAT WITH RESPECT TO THE CONTRACT, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, OR LABOR, EXPENSES, LOST PROFITS, LOST OPPORTUNITIES, OR SIMILAR DAMAGES OF ANY KIND; AND REGARDLESS OF THE LEGAL THEORY OR CAUSES OF ACTION BY WHICH CLAIMS FOR ANY SUCH DAMAGES AS SET FORTH IN THE ENTIRETY OF THE CONTRACT ARE ADVANCED, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
For international transactions:
IN ADDITION TO THE FOREGOING, SELLER MANUFACTURES AND SELLS ITS COMPONENT PARTS IN ACCORDANCE WITH AND NOT INFRINGING ON THE CUSTOMS, SPECIFICATIONS, PATENTS AND STANDARDS OF TRADE IN FORCE AND IN USE AND KNOWN TO SELLER IN THE UNITED STATES OF AMERICA. IT IS THE RESPONSIBILITY OF THE BUYER TO ASSURE THAT THE COMPONENT PARTS IS USED IN ACCORDANCE WITH AND NOT INFRINGING UPON THE CUSTOMS, SPECIFICATIONS, PATENTS AND STANDARDS OF TRADE IN FORCE AND IN USE IN THE COUNTRY OF INSTALLATION.
17. INDEMNITY
Buyer agrees to indemnify and hold harmless Seller and its vendors and/or subcontractors from any and all claims or liabilities asserted against Seller or its vendors in connection with the manufacture, sale, delivery, re-sale, or repair or use of any Component parts covered by or furnished under the Contract arising in whole or in part out of or by reason of the failure of Buyer, its agents, servants, employees or customers to follow directions, instructions, warnings or recommendations furnished by Seller or its vendors in connection with such Component parts, or by reason of the failure of Buyer, its agents, servants, employees or customers to comply with all federal, state or local laws and regulations applicable to such Component parts, including the Occupational Safety and Health Act of 1970, or by reason of the negligence of Buyer, its agents, servants, employees or customers.
18. PATENT INDEMNITY
Buyer represents and warrants that the methods, directives, specifications or designs for Component parts or tooling that Buyer provides to Seller shall be the property of Buyer or at a minimum, shall be free of any claim by a third party as to ownership or license or any infringement on a patent, trademark or other intellectual property right. In the event that the Buyer provides methods, directions, specifications or designs for Component parts or tooling, Buyer shall indemnify and hold Seller harmless from and against any and all claims, demands, actions, lawsuits, proceedings, liabilities, losses, costs, expenses (including without limitation attorneys’ fees) arising from or related to any actual or alleged infringement of any United States patents of any third party resulting from the methods, directions, specifications or design of the Component parts or tooling supplied or required by Buyer for the Component parts or the production of any parts or the processing of any material on the Component parts. If a permanent injunction shall prohibit the use, sale or distribution of the Component parts or any part thereof by reason of any patent infringement covered by this indemnity, Buyer shall, at its own expense, either (a) procure for Seller a license for the right to continue manufacturing the Component parts or the part thereof found to be infringing; (b) replace or modify the Component parts or any part thereof found to be infringing so that the same becomes non-infringing, without any increase in the price of the Component parts, or (c) reimburse Seller for the purchase price of the Component parts. The provisions of this section shall survive the performance or termination of the Contract.
19. SOFTWARE LICENSE/IP LICENSE
If any software programs are deliverable, Buyer shall have a temporary license to such software only, until full payment has been made whereupon Buyer shall receive a full license to the use of the software in accordance with the terms and conditions of that license and as set forth below. The temporary license can be suspended or terminated by Seller at any time without notice to Buyer after the period for payment by Buyer has expired. For the sake of clarification, Buyer understands and acknowledges that failure to pay for the Component parts in accordance with the Agreement may result in the termination of the temporary software license and disruption of operation and service. In addition, such license of Seller, and any licenses procured by Seller on Buyer’s behalf are not transferrable without notice to Seller and payment of the required transfer fee.
Subject to Buyer’s compliance with the terms of the Agreement, Seller grants to Buyer a non-exclusive, limited license to use Seller’s intellectual property that is incorporated in the Component parts (if any) for its own account for the purposes intended in installing the Component parts. Notwithstanding the foregoing, Seller is, and shall be, the exclusive owner of such intellectual property and retain all right, title and interest in such intellectual property.
20. EXPORT CONTROL, SUSPENSION/DEBARMENT AND TRADE RESTRICTIONS
All transactions under the Agreement shall at all times be subject to and conditioned upon compliance with all applicable export control laws and regulations and any amendments thereto. The parties hereby agree that they shall not, except as said applicable laws and regulations may expressly permit, make any disposition by way of transshipment, re export, diversion or otherwise, of any goods, technical data, or software, or the direct product thereof, furnished by either party in connection with the Agreement. The obligations of the parties to comply with all applicable export control laws and regulations shall survive any termination or discharge of any other contract obligations. Buyer shall provide immediate notice to Seller in the event of Buyer, or in the case of re-sale of Component parts by Buyer any of Buyer’s customers, being suspended, debarred or declared ineligible by any government entity or upon receipt of a notice of proposed debarment from any such entity during the performance of the Agreement. In the event that Buyer is suspended, debarred or declared ineligible by any government entity, Seller may terminate the Agreement immediately without liability to Buyer. Buyer also agrees that it will not resell or otherwise supply or export any Component parts sold to Buyer under the Agreement to Buyer’s customers that are (is): (i) a government of a country defined by the U.S. State Department as a “State Sponsor of Terrorism” or “SST”; or (ii) a company incorporated, formed or otherwise organized in a SST country or owned, in whole or in part, by the government of a SST country or a national of a SST country, regardless of where that company is located or doing business. Buyer understands and acknowledges that Buyer has an obligation to cooperate with Seller and to disclose the intended end-use, final destination of the Component parts and if Buyer intends to resell or otherwise provide and export the Component parts purchased under the Agreement, the identities of Buyer’s customers, in order for Seller to determine the export eligibility of the sale of Component parts to Buyer. In addition, Seller may, from time to time and for business reasons, withdraw from and/or restrict its business dealings in certain foreign jurisdictions, regions, territories and/or countries and thus Seller may terminate the Agreement immediately without liability to Buyer upon written notification to Buyer.
21. MISCELLANEOUS
The Contract supersedes and replaces any and all prior or contemporaneous agreements, understandings, arrangements or representations, whether oral or written heretofore made between the parties and relating to the subject matter hereof, and constitutes the entire understanding of the parties with respect to the subject matter of the Contract.
If Buyer intends to resell or otherwise transfer the Component parts covered by the Contract, Buyer must advise its customer of the details of the Warranty, Limitation of Liability, Software and IP License and Export Control, Suspension/Debarment And Trade Restrictions contained in Sections 15, 16, 18, 19, and 20 respectively.
The language of the Contract and any related correspondence, including notices to either party shall be English. In the event that any translations of the Contract or portions thereof to another language are included in the Contract documentation, the parties understand and agree that such translations are for convenience and the English version shall take precedence in the event of any conflict or inconsistency.
If either Party, at its option, agrees to a waiver of any of the terms and conditions recited herein, such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or any other terms and conditions; nor shall such a waiver be deemed as a course of conduct.
If any provision or clause, or portion thereof, of the Contract, or application thereof to any person or circumstances is held invalid or unconscionable, such invalidity or unconscionability shall not affect other provisions, or portions thereof, or applications of the Contract which can be given effect without the invalid or unconscionable provision, or portion thereof, or application, and to this end the provisions of these Terms and Conditions of Sale are declared to be severable.
Captions and heading in the Contract are strictly for the purpose of convenience and general reference only, and shall not affect the meaning or interpretation of any of the provisions of the Contract.
Except as required to obtain necessary licenses or governmental approvals, each party shall obtain the written approval (which approval shall not be unreasonably withheld) of the other in advance of the disclosure of any news releases, articles, brochures, advertisements, prepared speeches and other information releases, concerning the Contract or the work performed or to be performed hereunder.
VENDOR TERMS AND CONDITIONS
1. Complete Agreement
This Purchase Order, which includes any supplementary sheets, schedules, exhibits, and attachments annexed hereto by GMI (Grimes Manufacturing legal entity placing the Purchase Order), contains the complete and entire agreement between the parties with respect to the subject matter of this order, when accepted by acknowledgement or commencement of performance. It supersedes any other communications, representations or agreements whether verbal or written. The order may be accepted only on all the terms and conditions herein stated. Additional or different terms proposed by the Supplier shall not be applicable, unless accepted in writing by an authorized employee of the GMI and made a part of this order. No acceptance by GMI of or payment for goods ordered hereunder shall be deemed a waiver of the foregoing or an acceptance of any additional or different terms contained in any acknowledgement, invoice or other form sent or delivered by Supplier to GMI. No usage or trade or course of dealing shall serve to alter or supplement the terms and conditions herein stated.
2. Changes
GMI shall have the right to make, from time to time, changes as to packing, testing, destination, specifications, designs, quantity and delivery schedule of goods covered by this order. Supplier shall promptly notify GMI when such changes affect price or other terms and shall request GMI’s written authorization to modify this order accordingly. Claims for adjustments under this clause must be asserted within thirty (30) days from the date of receipt of notification of the change(s).
3. Price
The price of goods covered by this order shall be as set forth on the face hereof and shall not be subject to increase without GMI’s prior written consent. Notwithstanding the above, the Supplier agrees that the price of such goods shall not be less favorable than that extended to any other customer of Supplier for same or like goods in equal quantities, and that if the price of such same or like goods is reduced prior to the delivery of goods hereunder, the price hereunder shall be reduced correspondingly. Unless otherwise set forth on the face hereof, the price of goods covered by this order shall include all extra charges, including charges for packing, containers, insurance and transportation. All taxes based upon and measured by the sales, use or manufacture and imposed on this sale shall be shown separately on Supplier’s invoice.
4. Delivery
Time of delivery as set forth on the face hereof is of the essence. If Supplier for any reason does not complete delivery of all goods covered by this order within the time set forth on the face hereof, GMI may, at its option, either approve the revised delivery schedule, reduce the total quantity of goods covered by this order by the amount of omitted shipments, reduce the price pro rata, or terminate this order by notice to Supplier as to stated items not yet shipped or services not yet rendered and purchase substitute items or services elsewhere and charge Supplier with any loss sustained, without incurring any liability whatsoever for any such revision, reduction or termination. Deliveries of goods covered by this order in advance of the time set forth on the face hereof are prohibited without GMI’s prior written consent.
5. Shipping
Title to and risk of loss on all goods shipped by Supplier to GMI hereunder shall pass to GMI upon GMI’s inspection and acceptance of such goods at GMI’s plant. All delivered goods shall be packed and shipped in accordance with instructions or specifications of this order. In the absence of any such instructions, Supplier shall comply with best commercial practice to ensure safe arrival at destination at the lowest transportation cost. If to comply with GMI’s required delivery date it becomes necessary for Supplier to ship by a more expensive method than specified in this order, Supplier shall pay any increased transportation costs, unless the necessity for such rerouting or expedited handling is due to the fault of GMI. Numbered packing slips, bearing the order number, must be placed in each container. Supplier must list the packing slip number on its invoice.
6. Grimes Manufacturing Requirements for Shipping and Transportation
Supplier agrees to abide by the GMI’s Shipping and Transportation Requirements. When these Requirements are not stated on the above Purchase Order, the Supplier should use best commercial transportation available for the meeting the delivery requirement.
7. Documentation Requirements for Importation
Supplier shall provide all Documentation Requirements for Importation to the GMI location, or shipping on GMI’s behalf. Supplier shall be responsible for any penalties assessed by U.S. Customs on the GMI due to non-compliant documentation.
8. Warranties
Supplier expressly warrants that all goods or services provided under this order shall: (i) be wholly new and contain entirely new components and parts; (ii) be merchantable; (iii) be free from defects in material, workmanship and packaging; (iv) be fit and sufficient for the purpose for which they are intended; (v) conform to all applicable specifications and appropriate standards; (vi) be equivalent in materials, quality, fit finish, workmanship, performance and design to any samples submitted to and approved by GMI; and (vii) have been produced in compliance with all applicable federal, state and local laws, orders, rules and regulations. Supplier further warrants that it has good warrantable title to the goods, and that it owns all patents, trademarks, trade names, trade dress, copyrights, trade secrets and other proprietary rights (other than proprietary rights owned by GMI) used by Supplier in connection with the goods and services or has been properly authorized by the owner of such proprietary rights. Supplier shall indemnify and hold GMI harmless for all damages arising out of any breach of these warranties. Supplier shall extend all warranties it receives from its vendors and suppliers to GMI, and to GMI’s customers, and Supplier’s warranties herein shall survive the delivery of goods to GMI and any resale of goods by GMI. Breach of these warranties, or any other term of this order, shall entitle GMI to all available remedies, including those under applicable law.
9. Quality
Supplier shall meet all requirements in the GMI’s Purchase Order, specifications, and attachments to the Purchase Order, in addition to any quality requirements detailed on the face of this order.
10. Inspection
All goods covered by this order shall be subject to GMI’s inspection and acceptance at GMI’s plant or at any other place that GMI may reasonably designate. GMI expressly reserves the right, without any liability hereunder or otherwise, to reject and refuse acceptance of goods covered by this order that do not conform in all respects to any instructions of GMI contained on the face hereof or GMI’s specifications, drawings, blueprints and data. Neither GMI’s payment of nor its inspection of goods covered by this order prior to their delivery to GMI’s plant shall in any way waive GMI’s right to make final inspection and acceptance of such goods at its plant.
11. Rejection
In case any goods delivered hereunder are defective in material or workmanship or otherwise not in conformity with the drawings, specifications, samples, and/or other descriptions or the order, such goods shall be returned to Supplier for credit or refund and shall not be replaced or repaired by Supplier except upon written instructions from GMI, excepting however, those goods which GMI and Supplier agree in writing shall be repaired by GMI at Supplier’s expense. Any return goods shall be shipped transportation collect (declared at full value, unless Supplier advises otherwise), and Supplier shall have all risk of loss from and after the time of shipment. The inspection rights set forth herein are in addition to and not in limitation of any other rights and remedies under applicable law and the failure by GMI to exercise its right to reject any goods shall not by implication or otherwise cause a waiver of any such rights or remedies. Any goods returned to Supplier for credit or refund, not repaired by Supplier, pursuant to written instructions, shall be destroyed and not resold or disposed of to any other party or parties.
12. Termination
GMI may terminate all or any part of this order at any time or times, for convenience, by written notice to the Supplier. Supplier shall submit its termination claim to GMI within thirty (30) days from the effective date of termination. The provisions of this paragraph shall not limit or affect the right of the GMI to terminate this order for default. GMI shall have the right to terminate this order or any part thereof without further cost or liability to GMI in the event of the happening of any of the following: filing of a voluntary petition in bankruptcy by Supplier; filing of an involuntary petition to have Supplier declared bankrupt, if such petition is not vacated within thirty (30) days from the date of filing; the appointment of a receiver or trustee for Supplier, if such appointment is not vacated within thirty (30) days from the date thereof; the execution by Supplier of an assignment of the benefit of creditors; Supplier’s failure to make or delay in making deliveries hereunder or any other failure of Supplier to perform in accordance with this order, without excluding any other remedies available to GMI. In the event GMI terminates this order, in whole or in part as provided in this paragraph, GMI may procure, upon such terms and in such manner as GMI may deem appropriate, supplies and services similar to those so terminated, and Supplier shall be liable to GMI for any excess costs for such similar suppliers and services. Supplier must furnish GMI with written notice of any cause of failure which is beyond its control and without fault or negligence, within five (5) days of the occurrence.
Upon any default or breach of this order by Supplier, GMI in addition to other remedies, may at its option, require Supplier to immediately transfer to GMI all materials, work in process, completed goods, tooling, plans, and specifications allocable to the canceled portion of this order.
13. Payment
Unless otherwise set forth on the face hereof, net invoices relating to goods purchased hereunder shall be paid within thirty (30) days after the date of invoice or thirty (30) days after the date of acceptance of such goods, whichever is later. Upon reasonable notification to Supplier, GMI may withhold and deduct from any part of the purchase price due under this order all or any part of the damages including consequential damages, resulting from any breach of terms and conditions contained herein, or any other amount which Supplier owes GMI or any of GMI’s associated companies.
14. Discounts
Cash discount period shall be computed either from date of acceptance of goods purchased hereunder, or date of receipt of correct and proper invoices relating to such goods, whichever date is later. GMI shall be deemed to have paid for goods purchased hereunder on the date on which payment is mailed to Supplier.
15. Intellectual Property Indemnity
Supplier warrants the goods purchased hereunder and the use of such goods by GMI or its customers shall not infringe or misappropriate any intellectual property rights, including, without limitation, any copyright, trademark, trade secret, patent, or other intellectual property right. Supplier shall defend, indemnify, and hold GMI and its customers harmless from any liability, or claim of liability, for such infringement or misappropriation, including damages, costs, expense, attorney’s fees and lost profits arising from any claim or suit brought against GMI or its customer alleging such infringement or misappropriation, provided, however, that Supplier is notified of such suit. In the event an injunction shall issue against GMI in any such suit which prohibits or limits GMI’s use of goods purchased hereunder, Supplier shall, at no cost to GMI, at GMI’s request, furnish GMI with non-infringing and/or non-misappropriated replacement goods of a similar kind and quantity or procure for GMI the right to continue using the original goods.
16. Indemnification
Supplier assumes entire responsibility and liability for any breach by Supplier of its obligations under this Agreement and for all damage and/or injury of any kind or nature whatsoever, (including death resulting there from) to all persons, and to all property caused by, resulting from, arising out of or occurring in connection with Supplier’s goods sold hereunder. Except to the extent, if any, expressly prohibited by statute, should any claims, actions and/or lawsuits for such damage, injury and/or death be made or asserted, Supplier agrees to defend, indemnify, save and keep harmless GMI, its officers, agents, customers, directors, employees and affiliated companies from and against any and all such claims, actions and/or lawsuits and further from and against any and all loss, cost, expense, judgment, settlement liability, damage or injury, including legal fees and disbursements, that GMI, its officers, agents, customers, directors, employees and affiliated companies may directly or indirectly sustain, suffer or incur as a result thereof and the defense of any action at law which may be brought against GMI, its officers, agents, customers, directors, employees and affiliated companies upon or by reason of any such claim, actions, and/or lawsuits and to pay on behalf of GMI, its officers, agents, directors, employees and affiliated companies upon demand, the amount of any judgment and/or settlement that may be entered against GMI, its officers, agents, directors, employees and affiliated companies in any such claim, action and/or lawsuit.
17. Inspection of Records
Supplier agrees that all reasonable records pertaining to this order by Supplier, shall at all reasonable times be subject to audit and inspection by any authorized representative of GMI. Supplier agrees to allow GMI or his representative to inspect Supplier’s facilities as required to ensure order compliance.
18. Confidentiality- Information and Materials
All information and materials including, without limitation, drawings, artwork, data, customers’ names, or the like furnished by GMI in connection with this order, shall remain property of the GMI and shall be used by Supplier only for work being done for GMI and shall be held in strict confidence by Supplier.
Any knowledge or information which the Supplier shall have disclosed or may hereafter disclose to the GMI related to the placing and filing of this order shall not, unless otherwise specifically agreed upon in writing by the GMI, be deemed to be confidential or proprietary information, and accordingly shall be acquired free from any restrictions.
19. Compliance with Laws, Regulations and Supplier Code of Conduct
Supplier agrees that it will comply with all federal, state and local laws and regulations applicable to the goods, sale and delivery of the goods or the furnishing of any labor or services called for by the order and any provisions required thereby to be included herein shall be deemed to be incorporated herein by reference.
20. Conflict Minerals
Supplier agrees to abide by RoHS 3/ REACH, The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or other international regulations, unless specified on the face of the Purchase Order or on the documentation sent in attachment to the Purchase Order.
21. Export Laws
Supplier acknowledges that the goods and related technical data and services related thereto is or may be subject to United States (U.S.), European Union (EU), or national export control laws, regulations or the like, and agrees that it will not transfer, export or re-export the goods or any technical data, including without limitation any documentation, or information that incorporates, is derived from or otherwise reveals such, without complying with all applicable U.S., EU, or national export control laws, regulations and the like.
22. Compliance with Department of Defense Trade Controls (DDTC) Regulations
Supplier acknowledges that per ITAR §122.1, for Purchase Orders that require compliance or registration with ITAR / BSI, any manufacturer of defense articles is required to register with DDTC. Manufacturers who do not engage in exporting must nevertheless register. Failure to register with DDTC may result in a loss of ITAR related business.
23. Compliance with Safeguarding Covered Defense Information Controls (DFARS)
For Purchase Orders that have a DOD compliance requirement and is marked as such on the face of the order, in accordance with DFARS 252.204-7012 “Safeguarding covered defense information and cyber incident reporting” Supplier shall indicate to GMI whether deviation from any of the security requirements in the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, “Protecting Controlled Unclassified Information in Nonfederal Systems Information Systems and Organizations” (http://dx.doi.org/10.6028/NIST.SP.800-171) is anticipated in the performance of the purchase order by Supplier or contractors at any tier consistent with paragraph (b)(2)(ii)(B) of this clause; and provide the incident report number, automatically assigned by DoD, to GMI as soon as practicable, when reporting a cyber incident to DoD as required in paragraph (c) of this clause.
24. Manufacturer’s Affidavit and Certificate of Origin
When required by GMI customers, GMI may ask that Supplier complete a Manufacturer’s Affidavit and Certificate of Origin to have on file for Customs compliance matters. The Manufacturer’s Affidavit is to be filled out by Supplier’s party knowledgeable of the manufacturing of the products, or who can access the manufacturing records. The Manufacturer’s Affidavit will be completed as per GMI instructions or per GMI’s customer requirements as applicable.
25. Business Continuity
Supplier acknowledges that single points of failure exist within the supply chain and agrees to take commercially reasonable efforts to mitigate the risk of business interruption. Efforts include, but are not limited to, the creation and implementation of a comprehensive disaster recovery plan, periodic testing to ensure plan remains valid and executable, and supply chain/supply base analysis and programs to eliminate exposure to single points of failure including tooling, materials, and any other elements critical to the manufacturing of products.
26. Assignment
Supplier shall not assign this order or any contract resulting here from, or any rights hereunder, without first obtaining the written consent of GMI. Any such assignment without the written consent of GMI shall, at GMI’s option, be void.
27. Waiver
No course of dealing between GMI and Supplier or any delay on the part of GMI in exercising any rights hereunder or under any contract resulting here from shall operate as a waiver of any of GMI’s rights, except to the extent expressly waived in writing by GMI.
28. Subcontracting
Supplier shall not subcontract any work or any goods to be supplied under this order without the prior written approval of GMI.
29. Government Subcontract
If a government contract number appears on the face of this order, Supplier agrees to comply with all terms and conditions of that government contract.
30. Independent Contractor
Supplier shall perform the work necessary for performance of this contract with Supplier’s employees and agents under the control of Supplier.
31. Set-Off
GMI shall be entitled at all times to set-off any amount owing at any time from Supplier to GMI.
32. Use of GMI’s Name
Supplier shall not, without first obtaining prior written consent from GMI, in any manner publish the fact that Supplier has furnished or contracted to furnish GMI the goods herein mentioned or use the name of GMI or any of its customers, in Supplier’s advertising or other publication.
33. Force Majeure
Neither GMI or Supplier shall be liable for delay or failure of performance due to changes in government priorities or control of materials or other necessary compliance with changes in government regulations, or strikes, fires, accidents, acts of God, or other causes beyond such party’s control and affecting its operations. Notwithstanding the foregoing, GMI may terminate all or any portion of this order without liability to Supplier if such delay or failure to perform by Supplier or on the part of Supplier extends beyond thirty (30) days after GMI’s requested delivery date. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Supplier shall immediately give notice thereof to GMI.
34. Material Safety Data Sheets
All chemical purchases under the terms and conditions of this order shall be accompanied with a Material Safety Data Sheet provided by the chemical supplier/manufacturer. All chemical suppliers certify by acceptance of this order that the chemicals purchased are on the Toxic Substances Control Act, 15 U.S.C.S. Section 2601, et. seq., chemical inventory or are subject to an exemption and that such exemption is specified in the Material Safety Data Sheet.
35. Process Control
Supplier shall make no change in material or supply chain used, construction or fabrication techniques, test methods used without prior written approval of GMI. Any such changes desired by the Supplier shall be requested in writing indicating reason for such change and including effect on cost and performance.
36. Severability
If any one or more of the conditions of this order shall be invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining conditions contained herein shall not be affected or impaired in any way.
37. Remedies
Nothing is this order shall be claimed or deemed to limit or exclude those remedies otherwise available to GMI at law or in equity, and no disclaimers or modifications or attempted disclaimers or modifications of any express or implied warranties relating to the goods by Supplier shall be valid or effective.
38. Applicable Law
This order and any contract resulting here from shall be construed and enforced in accordance with and governed by the laws of the jurisdiction where the GMI is located, without reference to any choice-of-law rules that would otherwise require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this order.
Any proceeding arising out of or relating to this Agreement may be brought in the courts closest to where the GMI is located, and Supplier irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now of hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court.
39. EEO (Equal Employment Opportunity)
Unless exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the contractor and subcontractor shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
40. Survival
The provisions of this order that by their nature may reasonably be presumed to have been intended to survive any termination or expiration of this order, shall survive any termination or expiration of this order.