STANDARD TERMS AND CONDITIONS OF PURCHASE ORDER

Transcription

1 STANDARD TERMS AND CONDITIONS OF PURCHASE ORDER 1. Acceptance This Purchase Order must be accepted in writing by Seller by signing and returning promptly to Buyer the acknowledgement copy, but if for any reason Seller should fail to sign and return to Buyer the acknowledgement copy, the commencement of any work or performance of any services by Seller shall constitute acceptance by Seller of this Purchase Order and all of its terms and conditions. Acceptance of this Purchase Order is expressly limited to the terms hereof. Any terms proposed by Seller which conflict with the terms herein shall be void and the terms of this Purchase Order shall govern. If this Purchase Order has been issued by Buyer in response to an offer, the terms of which are in addition to or different from any of the provisions of this Purchase Order, then Buyer is only willing to proceed upon the terms hereof and acceptance of the offer is conditional on Seller s assent to the terms of this Purchase Order. Prices stated in this Purchase Order apply to all shipments made or services rendered hereunder. Buyer shall have no obligation to honor invoices for goods and/or services at any increased price until such increase shall have been confirmed in writing by Buyer. No charges of any kind including, but not limited to, charges for boxing, crating or storage will be allowed unless specifically agreed to by Buyer in writing. Buyer shall have the right to correct all clerical errors. 2. Delivery The obligation of Seller to meet dates, specifications and quantities as set forth in this Purchase Order is of the essence of this Purchase Order. No substitutions of materials or goods may be made without Buyer s written consent. Shipment in greater or lesser quantity than ordered may be returned at Seller s expense, unless written authorization is issued by Buyer. If Seller s deliveries 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 Buyer s account. Any goods delivered in advance of schedule are delivered at the risk of Seller and may, at Buyer s option: (a) be returned at Seller s expense for scheduled delivery; (b) have payment therefore withheld by Buyer until the date that the goods are scheduled for delivery; or (c) be stored for Seller s account until the scheduled delivery date. Except as otherwise provided herein, title and risk of loss on all goods shall remain with Seller until delivery to Buyer s premises or as otherwise directed by Buyer. 3. Inspection The goods and services delivered hereunder shall be subject to inspection by Buyer. If any of the goods or services shall be defective in material or workmanship or otherwise not in conformity with the requirements of this Purchase Order, Buyer, in addition to its other rights, may reject the same for full credit or require prompt correction or replacement thereof at Seller s expense. In no event shall Buyer be deemed to have accepted the goods until Buyer has had a reasonable opportunity of examining the same to ascertain whether the goods are in conformity with the Purchase Order. Buyer reserves the right to reject and return at the risk of and expense of Seller all or such portion of any shipment which may be defective or nonconforming without invalidating the remainder of the Purchase Order. Nothing herein shall release Seller of the obligation to make full and adequate testing and inspection of goods sold hereunder. 4. Warranty Seller represents and warrants that all goods and services provided hereunder will conform in all respects with the specifications of this Purchase Order and will be merchantable and free from any defects in material, design, and workmanship and will be fit for the purpose for which the same was intended. Seller agrees that the foregoing warranty shall survive delivery of, acceptance of and payment for the goods or services, and that Seller shall indemnify, defend and hold Buyer harmless against any loss, damage (including consequential and incidental damages), liability, cost or expense whatsoever including attorney s fees that Buyer may incur, directly or indirectly, as a result of any breach of such representations and/or warranties. 5. Compliance with Laws Seller shall, in the performance of work under Buyer s order, fully comply with all applicable Federal, state and local laws and regulations (including, without limitation, the Walsh-- Healey Act, 41 U.S.C.A , the Occupational Safety and Health Act of 1970, 29 U.S.C.A ; The Fair Labor Standards Act of 1938, 29 U.S.C.A , as amended); and hold Buyer harmless from any liability, cost or expense (including, without limitation, Buyer s court costs and reasonable attorney s fees) resulting from Seller s failure of compliance. Seller agrees upon request to furnish Buyer with a certification of compliance with respect to any or all such laws and regulations in such form as Buyer may require. 6. Payment All payments are made conditional upon final acceptance by Buyer of the goods and/or services provided hereunder. Seller s price shall be exclusive of any federal, state or local taxes. 7. Changes Buyer may at any time, by written order, make changes within the general scope of this Purchase Order in (a) specifications; (b) method of shipment; (c) place or time or date of delivery; and/or (d) materials, methods or manner of production, and, in any Federal Procurement Procedures Page 1 of 8

2 such case, Seller shall comply therewith. If any such change causes an increase or decrease in the cost of or time required for performance of this Purchase Order, an equitable adjustment shall be made in the order price or delivery schedule or both and this Purchase Order shall be modified in writing accordingly. Seller shall notify Buyer thirty (30) days in advance of Seller s change in place of performance and such change shall be subject to Buyer s written approval. 8. Non-Waiver of Rights The failure of Buyer to insist upon strict performance of any of the terms and conditions in this Order or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of same or to rely on any such terms or conditions at any time thereafter. Any rights and remedies specified under this Order shall be cumulative, non-exclusive and in addition to any other rights and remedies available at law or equity. The invalidity in whole or in part of any term or condition of this Order shall not affect the validity of other parts thereof. 9. New Materials The work/output to be delivered hereunder shall consist of new materials, not used, or reconditioned, remanufactured, or of such age as to impair its usefulness or safety. Assignment and Subcontracting No right or obligation under this Buyer Order shall be assigned, delegated, or subcontracted by Seller without the prior written consent of Buyer and any purported assignment, delegation, or subcontract without such consent shall be void. 10. Termination (Default Cancellation) Buyer reserves the right, by written notice of default, to cancel this Purchase Order without liability to Buyer in the event of the happening of any of the following: (a) insolvency of Seller, (b) the filing of a voluntary petition in bankruptcy by Seller; (c) the filing of any involuntary petition to have Seller declared bankrupt; (d) the appointment of a receiver or trustee for Seller; or (e) the execution by Seller of any assignment for the benefit of creditors. In addition, if Seller fails to perform its obligations under this Purchase Order or so fails to make progress as to endanger performance under this Purchase Order and in accordance with its terms, Buyer reserves the right, without any liability to Buyer, upon giving Seller written notice and allowing Seller reasonable time to remedy such deficiency, to (i) cancel this Purchase Order in whole or in part by written notice to Seller and/or (ii) obtain the goods and/or services from another source (with any excess costs resulting there from chargeable to Seller) if such deficiencies are not promptly remedied in the event of Seller s default or apparent inability to perform this Purchase Order. 11. Remedies: Damages Buyer and Seller agree to first enter into negotiations to resolve any controversy, claim or dispute ( dispute ) arising under or relating to this Order. The parties agree to negotiate in good faith to reach a mutually agreeable resolution of such dispute within a reasonable period of time. If good faith negotiations are unsuccessful, Buyer and Seller agree to resolve the dispute by binding and final arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall take place in the County of Knox, State of Tennessee. The arbitrator(s) shall be bound to follow the provisions of this Order in resolving the dispute, and may not award punitive damages. The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction. 12. Governing Law This Agreement shall be governed by the laws of the State of Tennessee without regard to any conflicts of law principles, and the federal and state courts in Knox County, Tennessee shall have exclusive jurisdiction and venue over disputes arising here from. 13. Indemnity Seller shall indemnify and hold Buyer harmless against all liability, cost and expense (including, without limitation, Buyer s costs of testing and inspection, court costs and reasonable attorney s fees) on account of claims or injuries to persons or damage to property based in whole or in part upon any act or omission of Seller, its agents, employees and subcontractors or as a consequence of any breach of Seller s warranties. Further, Seller agrees to indemnify and hold Buyer harmless against all liability costs and expense (including, without limitation, Buyer s costs of testing and inspection, court costs and reasonable attorney s fees (incurred by Buyer in connection with or related to any recall, inspection, testing, replacement or correction of the goods or any part or equipment into which the goods are incorporated, which results from or is related to, in whole or in part, a defect or alleged defect in the goods. 14. Export-Controlled Items (APR 2010) DFARS to the extent same are applicable to Buyer s order, are incorporated by reference herein. (a) Definition. Export-controlled items, as used in this clause, means items subject to the Export Administration Regulations (EAR) (15 CFR parts ) or the International Traffic in Arms Regulations (ITAR) (22 CFR parts ). The term includes: (1) Defense items, defined in the Arms Export Control Act, 22 U.S.C. 2778(j)(4)(A), as defense articles, defense services, and related technical data, and further defined in the ITAR, 22 CFR part 120. Federal Procurement Procedures Page 2 of 8

3 (2) Items, defined in the EAR as 'commodities, software, and technology,' terms that are also defined in the EAR, 15 CFR (b) The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for Contractors to register with the Department of State in accordance with the ITAR. The Contractor shall consult with the Department of State regarding any questions relating to compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR. (c) The Contractor's responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause. (d) Nothing in the terms of this contract adds to, changes, supersedes, or waives any of the requirements of applicable Federal laws, Executive orders, and regulations, including but not limited to-- (1) The Export Administration Act of 1979, as amended (50 U.S.C. App. 2401, et seq.); (2) The Arms Export Control Act (22 U.S.C. 2751, et seq.); (3) The International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.); (4) The Export Administration Regulations (15 CFR parts ); (5) The International Traffic in Arms Regulations (22 CFR parts ); and (6) Executive Order 13222, as extended. (e) The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts. 15. Equal Employment The contract provisions set forth in Section 202 of Executive Order (equal opportunity), as amended, and the regulations promulgated there under (41 CFR Part ), and the provisions, representations or agreements contained in Executive Order (employment of veterans), as amended and the regulations promulgated there under (41 CFR Part and 41 CFR Part ) Executive Order (employment of the handicapped), as amended, and the regulations promulgated there under (41 CFR Part ) and Executive Order (utilization of minority business enterprises) as amended, and the regulations promulgated there under (41 CFR Chapter ) to the extent same are applicable to Buyer s order, are incorporated by reference herein as if fully rewritten with respect thereto. Seller agrees, upon request, to furnish Buyer a certification of compliance with such Executive Orders in such form as Buyer may require. 13. Hazard Communication/ Right-- To-- Know Seller shall comply with all requirements of the OSHA Hazard Communication Standards of the OSHA Hazard Communication Standards (29 CFR Section ) all state and local right-- to-- know laws, and all other Federal, state and local laws regulations relating to hazardous chemicals, including without limitation, the material safety data sheet and product labeling requirements. 16. ENTIRE AGREEMENT This Order, including all documents incorporated herein by reference, shall constitute the entire agreement and understanding between the parties hereto and shall supersede and replace any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof. FEDERAL Acquisition Regulations (FAR) When the materials or products furnished are for use in connection with a U.S. Government prime contractor subcontract, the following provisions shall apply. The effective version of each Federal Acquisition Regulation (hereinafter FAR ) provision shall be the same version as that which appears in Buyer s prime contractor higher tier subcontract under which this Purchase Order is a subcontract. In the event of a conflict between these FAR provisions and the Standard of Purchase, the FAR provisions shall control. The following clauses set forth in the FAR in effect as of the date of Camel s prime contract, or higher tier subcontract, are incorporated herein by reference. In all clauses listed herein, the terms Government, Contracting Officer, and Contractor shall be deemed revised to suitably identify the contracting parties herein and affect the proper intent of the provision except where further clarified or modified below. Subcontractor, however, shall mean Seller s Subcontractor under the Purchase Order. Federal Procurement Procedures Page 3 of 8

4 A. APPLICABLE TO ALL PURCHASE ORDERS: 1. Gratuities Covenant Against Contingent Fees Price or Fee Adjustment for Illegal or Improper Activity Security Requirements Personal Identity Verification of Contractor Personnel Material Requirements Defense Priority and Allocation Requirements Contract Terms Required to Implement Executive Orders Utilization of Small Business Concerns Notice to Government of Labor Disputes Service Contract Act of 1965, as amended Combating Trafficking in Persons Exemption From Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment Requirements 14. Exemption From Application of the Service Contract Act to Contracts for Certain Services --- Requirements 15. Hazardous Material Identification and Material Safety Data Notice of Radioactive Materials ( Government means Government and Buyer ) Ozone-depleting Substances Privacy Act Buy-America Act-Supplies Duty-free Entry Restrictions on Certain Foreign Purchases Authorization and Consent --- Alternate Refund of Royalties Filing of Patent Applications --- Classified Subject Matter Patent Rights-Retention by the Contractor (Short Form) Patent Rights ---Retention by the Contractor (Long Form) Rights in Data --- General (Not applicable under Department of Defense procurements) 28. Commercial Computer Software --- Restricted Rights (Not applicable under Department of Defense procurements) 29. Worker s Compensation Insurance (Defense Base Act) Workers Compensation (War Hazard Insurance Overseas) Insurance --- Work on a Government Installation Industrial Resources Developed Under Defense Production Act Title III Accident Prevention Protection of Government Buildings, Equipment, and Vegetation Changes Fixed-Price Competition in Subcontracting Subcontracts for Commercial Items Government Property Government Property (Fixed - Price Contracts) Government means Government and/or Buyer. The fourth sentence of paragraph (h) is revised to read: Neither the Government nor Buyer shall be liable 40. Use and Charges Special Tooling --- In paragraph (c) Government means Government or Buyer Special Test Equipment --- In paragraph (b)(4) Government means Government or Buyer. 43. Government Property Furnished As Is Federal Procurement Procedures Page 4 of 8

5 44. Inspection of Supplies --- Fixed Price Inspection of Supplies --- Cost Reimbursement Inspection of Services --- Fixed Price Responsibility for Supplies Preference for U.S. Flag Air Carriers Preference for Privately Owned U.S. Flag Commercial Vessels Termination for Convenience of the Government (Fixed Price) Government shall mean Buyer. B. Orders Over $10,000 Shall Also Include the Following: 1. Walsh-Healy Public Contracts Act Prohibition of Segregated Facilities Equal Opportunity Affirmative Action for Workers with Disabilities C. Orders Over $25,000 Shall Also Include the Following: 1. Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans 2. Employment Reports on Disabled Veterans and Veterans of the Vietnam Era Promoting Excess Food Donations to Nonprofit Organizations D. Orders Over $100,000 Shall Also Include the Following: 1. Restrictions on Subcontractor Sales to the Government Anti-Kickback Procedures (less paragraph (c) (1)) Limitation on Payments to Influence Certain Federal Transactions Audit and Records --- Negotiation Integrity of Unit Prices (less paragraph b) Contract Work Hours and Safety Standards Act --- Overtime Compensation Equal Opportunity for Special Disabled Veterans and Veterans of Vietnam Era and other Eligible Veterans 8. Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era and other Eligible Veterans 9. Notification of Employee Rights Concerning Payment of Union Dues or Fees Employment Eligibility Verification Refrigeration Equipment and Air Conditioners Toxic Chemical Release Reporting (less paragraph (e)) Notice and Assistance Regarding Patent and Copyright Infringement 14. Bankruptcy Value Engineering E. Unless Otherwise Exempt Also Include the Following: 1. Contractor Code of Business Ethics and Conduct Display of Hotline Posters Protecting Government Interest when Subcontracting with Contractors Debarred, suspended, or Proposed for Debarment 4. Price Reduction for Defective Cost or Pricing Data Price Reduction for Defective Cost or Pricing Data Modifications Subcontractor Cost or Pricing Data Federal Procurement Procedures Page 5 of 8

6 7. Subcontractor Cost or Pricing Data Modifications Requirements for Cost or Pricing Data or Information other than Cost or Pricing Data Requirements for Cost or Pricing Data or Information other than Cost or Pricing Data Modifications 10. Davis-Bacon Act Subcontracts --- Labor Standards Child Labor --- Cooperation with Authorities and Remedies Pre-award On-site Equal Opportunity Compliance Evaluation Affirmative Action Compliance (Construction) Buy American Act --- Free Trade Agreements-Israeli Trade Act Trade Agreements Contractor Personnel in a Designated Operational Area Patent Rights --- Acquisition by the Government State of New Mexico Gross Receipts & Compensating Tax Cost Accounting Standards --- Educational Institution Prompt Payment for Construction Contracts Earned Value Management System Change Order Accounting Notification of Changes CERTIFICATIONS The Offeror, by signing its offer, hereby certifies compliance with the following clauses and is, therefore eligible for award. A. Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions (over $100,000) B. Certification Regarding Debarment, Suspension, Proposed Debarment and Other Responsibility Matters (over $100,000) C. Previous Contracts and Compliance Reports (over $10,000) D. Certification of Toxic Chemical Release Reporting (over $100,000) ADDITIONAL CLAUSES (FOR OTHER THAN COMMERCIAL CONTRACTS): A. Cost Accounting Standards (Applicable unless otherwise exempt) 1. Cost Accounting Standards Disclosure and Consistency of Cost Accounting Standards Administration of Cost Accounting Standards Department of Defense FAR Supplement (DFARS) Government Contract Provisions 1. When the materials or products furnished are for use in connection with a U.S. Government Department of Defense prime contract or subcontract, the following provisions shall apply. The effective version of each Department of Defense FAR Supplement (hereinafter DFARS ) provision shall be the same version as that which appears in Buyer s prime contract or higher tier subcontract under which this Purchase Order is a subcontract. In the event of a conflict between these DFARS provisions, or the FAR provisions, and the Standard Purchase Order, the DFARS provisions shall control. Federal Procurement Procedures Page 6 of 8

7 2. The following clauses set forth in the DFARS in effect as of the date of Camel s prime contract or higher tier subcontract are incorporated herein by reference. In all clauses listed herein, the terms Government, Contracting Officer and Contractor shall be deemed revised to suitably identify the contracting parties herein and affect the proper intent of the provision except where further clarified or modified below. Subcontractor, however, shall mean Seller s Subcontractor under the Purchase Order. The Seller, by signing its offer, hereby certifies compliance with the following clauses and is, therefore eligible for award. A. APPLICABLE TO ALL PURCHASE ORDERS: DFARS 1. Disclosure of Information Intent to Furnish Precious Metals as Government-Furnished Material Contract Terms & Conditions (Implementation of Executive Orders) Item Identification & Valuation Pricing of Adjustments Excessive Pass-Through Charges Restrictions on Employment of Personnel Hazard Warning Labels Safety Precautions for Ammunition and Explosives Change in Place of Performance Prohibition on Storage and Disposal of Toxic and Hazardous Materials (Alternate) Safeguarding Sensitive Conventional Arms, Ammunition and Explosives Buy American Act -- Balance of Payments Certificate Buy America Act and Balance of Payments Program Qualifying Country Sources as Subcontractors Quarterly Reporting of Actual Contract Performance Outside the United States Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies 18. Restriction on Acquisition of Certain Articles Containing Specialty Metals Restriction on Acquisition of Super Computers Preference for Certain Domestic Commodities Duty-Free Entry Preference for Domestic Specialty Metals (Alt 1) Restriction on Acquisition of Hand or Measuring Tools Restriction of Acquisition of Ball and Roller Bearings Restriction on Acquisition of Foreign Anchor and Mooring Chain Trade Agreements Certificate Trade Agreements Restriction on Acquisition of Forgings Restriction on Contingent Fees for Foreign Military Sales Exclusionary Policies and Practices of Foreign Governments Restriction of Acquisition of Carbon, Alloy and Armor Steel Plate Secondary Arab Boycott of Israel Buy American Act Free Trade Agreements- Balance of Payments Program Restriction on Acquisition of Air Circuit Breakers Anti-terrorism Protection for Defense Contractors Outside the United States Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns 37. Rights in Technical Data Noncommercial items Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation 39. Technical Data Commercial Items Rights in Bid or Proposal Information (No substitutions for Government or Contracting Officer are made) 41. Identification and Assertion of Use, Release or Disclosure Restrictions Federal Procurement Procedures Page 7 of 8

8 42. Validation of Asserted Restrictions Computer Software Rights in Special Works Rights in Data Existing Works Limitation on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends (No substitution is made for Government ) 46. Deferred Delivery of Technical Data or Computer Software Deferred Ordering of Technical Data or Computer Software Technical Data or Computer Software Previously Delivered to the Government Technical Data Withholding of Payment Rights In Shop Drawings Validation of Restrictive Markings on Technical Data Patent Rights Ownership by Contractor Patents Reporting of Subject Inventions Accident Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles 55. Status of Contractor as Direct Contractor (Spain) Reporting of Foreign Taxes US Assistance Supplemental Cost Principles Frequency Authorization Modification Proposals -- Price Breakdown Requirement for Competition Opportunity for American Steel Producers, Fabricators and Manufacturers 61. Training for Contractor Personnel Interacting with Detainees Protection Against Compromising Emanations Telecommunications Security Equipment, Devices, Techniques and Services Earned Value Management System (Applicable only when specifically stated on the Purchase Order) 65. Cost Schedule Status Report (Applicable only when specifically stated on the Purchase Order) Pricing of Contract Modifications Subcontracts for Commercial Items and Commercial Components Reports of Government Property Warranty of Data Notification of Potential Safety Issues Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer Representation of Extent of Transportation by Sea Notification of Transportation of Supplies by Sea B. Orders Over $100,000 Shall Also Include the Following: 74. Prohibition on Persons Convicted of Fraud or Other Defense Contract Related Felonies Transportation of Supplies by Sea Notification of Anticipated Contract Terminations or Reductions Federal Procurement Procedures Page 8 of 8