Associated Air Center Terms and Conditions of Purchase Order
CONTENTS
02. Terms and Conditions
03. Nature of the Work
04. Contract Price
05. Transportation of Goods
06. Quality of Work
07. Contractor’s Review of Contract Papers
08. Warranty
09. Billing, Payments, and Standard Terms of Settlement
10. Books And Records; Record Retention
11. Data, Patents And Copyrights
12. Contractor's Employees
13. Termination For Convenience
14. Reports
15. Security Classification Laws and Regulations -- Precautions
16. Modification
17. Time
18. Contractor’s Representations and Indemnification
19. Dispute Resolution
20. Fair Labor Standards Act
21. Default
22. Citizenship Status
23. Purchaser’s Property
24. Changes
25. Contractor Information
26. Assignment and Change in Ownership
27. Set-Off
28. Work On Purchaser’s Or Its Customer's Premises
29. Release Of Information
30. Nondiscrimination In Employment
31. Intellectual Property Indemnity
32. Labor Notice
33. Materials Scheduling
34. Prior Agreements
35. Access To Purchaser's Computer Systems
36. Export And International Traffic In Arms Regulations
37. Reserved
38. Security Interest
39. Severability
40. Gratuities
41. Prohibited Goods and Services
42. Removals and Replacements
43. Governing Law
44. Contractor Security and Crisis Management Policy
45. Inspection
46. Classified Information
47. Reserved
48. Environmental Matters
49. Waiver
APPENDICES
I. Appendix I
1. DEFINITIONS
As used throughout these terms and conditions, the following terms shall have the meaning set forth below.(1) “Contractor” means the party contracting with Purchaser to perform the work required under a purchase order placed by Purchaser.
(2) “Purchaser” means the party contracting with Contractor for goods and/or services and identified as the purchasing entity on the face of this purchase order.
(3) “Prime Contract” means a contract that is specified in this purchase order and under which the purchase is made.
(4) “Government” means the United States of America or any department or agency thereof.
(5) “Subcontract,” unless provided otherwise in this purchase order, means all contracts placed by the Contractor or lower tier subcontractors for the purpose of performing any of the work under this purchase order.
(6) “Goods” means the physical product supplied by the Contractor, including without limitation, all components and assemblies thereof.
(7) “Services” means labor, supervision, and related duties required by and listed in the purchase order.
(8) “Work” means the Goods and/or Services listed in this purchase order.
2. TERMS AND CONDITIONS
(a) Either Contractor’s written acknowledgement or Contractor’s full or partial performance under this purchase order, whichever occurs first, will constitute acceptance of all terms and conditions contained herein. Any acceptance of this purchase order is limited to acceptance of the express terms of the offer set forth in this purchase order. Any proposal for additional or different terms or any attempt by Contractor to vary in any degree any of the terms of this offer in Contractor’s acceptance or acknowledgement or any other communication issued by the Contractor is hereby objected to and rejected, but such proposal shall not operate as a rejection of this offer unless such variances are in the terms of the quantity description, price or delivery schedule of the Work, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by the Contractor without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Contractor, such acceptance is limited to the express terms set forth in this order.(b) These terms and conditions may be invoked in a purchase agreement, between Purchaser and Contractor, against which Purchaser may place multiple purchase orders. Under such circumstances, each fully executed purchase order shall constitute a separate and distinct contract between the parties and these terms and conditions shall be in addition to those of such order, and shall be deemed incorporated in each such order. Regardless of whether a purchase order is issued in connection with a purchase agreement invoking these terms or independently of any purchase agreement, these terms and conditions shall supersede and replace all terms and conditions appearing or referred to on the face or on the reverse of any proposal, acknowledgement, or acceptance or any other communication issued by the Contractor in connection with such order.
3. NATURE OF THE WORK
Contractor agrees to undertake the performance of all Work called for in any purchase order, to pursue the same diligently, and to complete the same within any time limit specified in the order. With respect to each purchase order, the Work contracted for shall be as described in the order, and in any Prime Contract, plans, specifications, general conditions, or other papers attached to or referred to in the purchase order, which together with these terms and conditions are hereafter called the “Contract Papers,” and said Work shall include the furnishing of all materials, tools, equipment, labor, superintendence and facilities necessary therefore, excepting however, any items which are to be specifically furnished or performed by Purchaser as provided in the Contract Papers. Purchase orders placed in connection with these terms and conditions may relate to Work: (a) called for by contracts between Purchaser and any other legally constituted body or person; or (b) for Purchaser's own account.4. CONTRACT PRICE
(a) Contractor shall be compensated by Purchaser in connection with each purchase order in the manner and in the amount (“Lump Sum”) specified on the purchase order. The Lump Sum can only be changed by written change order as set forth in section 24.(b) Contractor shall compute its employees’ wages and withhold applicable federal, state and local taxes, and federal social security payments. Contractor shall remit its employee withholdings to the proper government authorities and make employer contributions for FICA and federal and state unemployment insurance payments.
5. TRANSPORTATION OF GOODS
(a) Unless otherwise stipulated on the face of this purchase order, Goods shall be shipped by Contractor F.O.B Purchaser’s facility at Love Field, Dallas, Texas, U.S.A.(b) If Contractor does not comply with the stated delivery schedules, Purchaser may, in addition to any other right Purchaser may have, require the Contractor to make delivery by fastest way, with the full cost of such delivery absorbed by Contractor.
(c) Contractor shall immediately notify the Purchaser in the event of any actual or anticipated difficulty in complying with the delivery date.
6. QUALITY OF WORK
All Work performed hereunder shall be subject to the inspection of an engineer or manager designated by Purchaser and shall be of best quality and in strict accordance with the requirements of the Contract Papers. The Contractor agrees to use only experienced, trained and qualified employees in the performance of services required by any purchase order. All services performed must be performed in a workmanlike manner, in accordance with all warranties and obligations imposed by this Agreement or applicable law.7. CONTRACTOR’S REVIEW OF CONTRACT PAPERS
The Contract Papers are complimentary. Before starting the Work, and each portion thereof, the Contractor shall carefully study the Contract Papers and existing field conditions. Errors, omissions and/or inconsistencies shall be reported immediately to Purchaser verbally and in writing.8. WARRANTY
The Contractor warrants to the Purchaser that materials and equipment will be of best quality and new unless otherwise permitted by the Purchase Order, that the Work will be free of defects and that the Work will e in strict compliance with the requirements of the Contract Papers. Work not conforming strictly with the Contract Papers may be considered defective.9. BILLING AND PAYMENTS AND STANDARD TERMS OF SETTLEMENT (STS)
(a) STANDARD: Contractor shall submit bills to Purchaser weekly, or as otherwise agreed by Purchaser and Contractor in the purchase order, for the Work performed in the preceding week or other period. Purchaser’s standard terms of settlement shall be issuance of payment of the full invoiced amount to Contractor within seventy-five (75) days. Settlement and invoicing may be paperless, and in a format acceptable to Purchaser. Contractor must provide banking information to establish electronic funds transfer for U.S. suppliers and wire transfer for non-U.S. suppliers.(b) ACCELERATED PAYMENT PROGRAM: Purchaser reserves the right to choose the settlement of invoices with Contractor by using Purchaser's accelerated payment program as follows: Contractor agrees to accept the invoice amount discounted by two percent (2%), in exchange for Purchaser's initiation of payment on the 15th day following the Payment Start Date (as defined in (d) below) (“net 15 less 2 %). If payment is initiated earlier than such 15th day, the invoice amount may be further discounted to reflect substantially similar economics as “net 15 less 2%”.
10. BOOKS AND RECORDS
(a) Contractor shall maintain complete and accurate records on a job order basis in connection with the Work required under any purchase order and all charges for Goods or Services will be substantiated by proper receipts, bills of lading, time clock cards, time vouchers, or other similar records signed by employees doing Work under any purchase order.(b) Purchaser and, when purchase orders relating to government contracts are involved, the United States of America and any department thereof, shall have the right from time to time to inspect and audit, during any reasonable hours, all of the Contractor's books and records concerning the Work carried on under any purchase order, including those books and records pertaining to overhead and other general expenses. This clause survives the expiration of any order placed for five (5) years following the final payment hereunder.
(c) Contractor shall retain, for four (4) years following final payment by Purchaser, all books, records, accounting procedures and practices, and other data related to the performance of Work under this purchase order, regardless of type of data and regardless of whether such items are in written form, in the form of computer data, or in any other form. Retained records shall include, but not be limited to records related to labor, supplies, equipment, material, or services purchased and/or used to perform Work under this purchase order. For orders relating to Government Contracts, Contractor shall retain records in accordance with FAR SUBPART 4.7 - CONTRACTOR RECORDS RETENTION.
11. DATA, PATENTS AND COPYRIGHTS
(a) Purchaser shall be entitled to full ownership of all data, information, inventions, or discoveries, whether patented or unpatented, conceived or first actually reduced to practice in the performance of any order placed by Purchaser with Contractor.(b) The Contractor agrees to promptly disclose any such data, information, invention or discovery to Purchaser. With respect to any such invention or discovery, the Contractor further agrees that it will cooperate with Purchaser, its officers and agents, in obtaining, at the expense of Purchaser with respect to the prosecution thereof, patents on such inventions or discoveries in the name of and for the benefit of Purchaser in the United States and/or foreign countries to the extent that Purchaser may consider desirable, and that it will procure from its employees without charge to Purchaser the execution of all patent applications, assignments and other instruments necessary to the procurement of such patents and to the vesting of title thereto in Purchaser.
(c) Purchaser shall become the sole owner of any and all notes, reports, memoranda, drawings, designs, schematics, and any other written information made or prepared in connection with any purchase order placed by Purchaser, and such material shall not be copyrighted by Contractor. Contractor will not use any material developed by Contractor under this Agreement without first obtaining the written consent of Purchaser. All such materials shall be deemed to be works for hire and shall belong exclusively to Purchaser. If by operation of law any of the material is not work made for hire, then Contractor agrees to assign, and hereby assigns, to Purchaser the ownership of such material including all copyrights thereto. Purchaser may obtain and hold in its own name copyrights, registrations, and other protection that may be available in such material, and Contractor shall provide any assistance required to perfect such protection.
(d) If the work under any order under this Agreement is in respect of any government contracts, Contractor and Purchaser shall comply with the rights in data, patents and copyrights clauses as set forth in the government contract, and unless otherwise specified, the rights of Purchaser shall be those of paragraphs 7.1, 7.2 and 7.3.
(e) The Contractor agrees that it will cause its employees to execute contracts of employment or other agreements assuring the Contractor the ability to comply fully with the foregoing provisions of this clause.
12. RESERVED
13. TERMINATION FOR CONVENIENCE
(a) Purchaser shall have the right, at any time, upon written notice to the Contractor, to terminate all or any Work required by any purchase order placed hereunder. Upon receipt of notice to terminate, the Contractor shall cease Work upon the purchase order to the extent required and shall turn over to Purchaser all completed Work and Work in process, including all designs, drawings, specifications, plans, lists, and other material required or produced in connection with such Work and Purchaser, upon receipt thereof, shall reimburse the Contractor upon the basis expressed in the subject purchase order for all Work performed under the purchase order to date of receipt of notice of termination. In the event Purchaser wrongfully terminates this purchase order for default, in whole or in part, such termination becomes a termination for convenience under this clause.(b) Contractor agrees to waive any claims under this clause for a value less than $1,000.00.
14. REPORTS
The Contractor shall render progress reports as often as reasonably requested by Purchaser, pertaining to the Work performed hereunder, showing goods delivered and incorporated in the Project and time expended daily by each of its personnel for each component of various projects both periodically and cumulatively. Such reports shall be in a form which will enable Purchaser to evaluate the progress made and the schedules to be met, and to keep a current account of time and monies expended upon each and every project.15. SECURITY PRECAUTIONS
The Contractor agrees to take all reasonable precautions to assure that the work carried on hereunder shall be protected against theft, destruction, or unauthorized disclosure. The Contractor further agrees to comply with all applicable security classification laws and regulations of the United States Government, insofar as said laws, rules and regulations pertain to any purchase order hereunder.16. MODIFICATION
No waiver, alteration or modification of any of the provisions of any order or these terms and conditions shall be binding upon either party unless in writing signed by the duly authorized representative of the party intended to be bound thereby.17. TIME
Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, set forth in the purchase order for the completion of Work by the Contractor. Unless otherwise specifically defined, the term “day” shall mean calendar day. Time is of the essence. By executing the purchase order, the Contractor confirms that the Contract Time is a reasonable period for performance of the Work set forth in the purchase order. The Contractor shall begin on the date set forth in the purchase order and shall proceed expeditiously with adequate forces and shall achieve completion of the purchase order within the Contract Time.18. CONTRACTOR’S REPRESENTATIONS AND INDEMNIFICATION
(a) Contractor represents, warrants, certifies and covenants that it shall perform all Work required under this purchase order in compliance with all applicable international, national, state and local laws, including, but not limited to environmental, health and safety laws and regulations.(b) Any Goods related to Contractor’s Work under this purchase order may be exported worldwide, including countries that prohibit the importation of goods manufactured with child labor or forced, indenture or convict labor. Contractor represents, warrants, certifies and covenants that no goods supplied or services provided under this purchase order have been or will be produced or performed using forced, indentured or convict labor, or the labor of persons in violation of the minimum working age laws of the country of manufacture, or in violation of minimum wage, hour of service or overtime laws of the country of manufacture or in violation of minimum wage, hour of service or overtime laws of the country of the country in which the goods will be produced or services will be performed.
(c) If Purchaser determines any of Contractor’s representations, warranties, certifications or covenants hereunder to be untrue, Purchaser shall have the right to terminate this purchase order without further compensation to Contractor, and Contractor shall defend, indemnify and hold harmless Purchaser and all of its directors, officers, employees, agents and representatives (“Indemnified Party”) from and against all claims, losses, loss of use, damages, attorney’s fees, actions, liability, demands, judgments, costs and expenses arising from Contractor’s untrue representations, warranties, certifications and covenants, from Contractor’s negligent acts or omissions, or from Contractor’s failure otherwise to comply with the terms of this purchase order. An Indemnified Party shall have the right to participate in the selection of counsel and Contractor shall not enter into any settlement agreement that contains any admission of liability on the part of Purchaser.
(d) The Contractor represents and warrants that the Lump Sum and the time for completion specified in the purchase order is based on its review of the Contract Papers which, even if incomplete, are sufficient to establish the nature and complexity of the work. Contractor expressly waives any claim or defense that late or incomplete performance of the Work arises out of a misapprehension or mistake regarding the scope, nature or complexity of the Work.
(e) From time to time, at Purchaser’s request, Contractor shall provide certificates to Purchaser in form and substance acceptable to Purchaser relating to the requirements of this clause. Contractor shall permit Purchaser or its representatives to have reasonable access to the site where Work under this purchase order is performed to assess 1) Contractor’s work quality and compliance with Purchaser’s specifications and 2) Contractor’s compliance with its representations, warranties, certifications and covenants hereunder.
19. DISPUTE RESOLUTION
(a) Except as specifically provided for in paragraph I below, the parties intend to forsake litigation and resolve with finality any and all disputes arising under or related to any order exclusively by the process identified in this clause15. This clause 15 shall remain effective in the event that a petition in bankruptcy is filed by or against either party or if a party makes an assignment for the benefit of creditors, or if any other insolvency proceeding is commenced against a party.(b) Any and all disputes, controversies or claims arising under or relating to any order or the breach, termination or invalidation thereof shall upon written notice, be referred to a senior management representative from each of the parties who will confer in good faith to attempt to resolve the matter. The party sending the first written notice (the "initial notice") shall (1) set forth in detail all of its claims or issues in dispute and (2) designate its representative to negotiate a resolution with the other party. The other party shall have 5 business days to designate its representative and add any other issues or claims for resolution not identified in the initial notice. The representatives shall have 30 days from the date of the initial notice to resolve the issues identified in the notices.
(c) If the representatives are unable to resolve the matter, either party may refer the matter to administered mediation, through the American Arbitration Association (“AAA”) located in Phoenix, Arizona, unless the parties agree in writing to retain another mediator. Such mediation shall be started within 30 days from the date of referral, and the mediation process must be concluded within 30 days from the start date.
(d) If the dispute or claim is not fully resolved pursuant to paragraphs B or C then each party hereto agrees that any and all disputes arising from or related to this purchase order or the Work shall be finally resolved through binding arbitration as set forth herein. Either party may after 90 days, but not later than 120 days from the date of the initial notice, make a written demand for binding arbitration to be administered by the AAA by one arbitrator in accordance with its commercial arbitration rules then in effect, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. A party's failure to make a timely demand for arbitration shall result in the forfeiture of all the claims and issues that party identified in its written notice.
(e) The arbitration proceedings shall be conducted in Phoenix, Arizona, and the Contract Papers shall be interpreted and applied in accordance with the laws of the state of Arizona without regard to Arizona’s choice of law provisions. Each party will be permitted to take the deposition of one individual, limited to no longer than four hours. No other discovery shall be conducted except by the written agreement of both parties, or in the case of a substantial need demonstrably presented to the Arbitrator. All fees and expenses of the arbitration shall be shared equally by the parties. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs pending the outcome of the arbitration. The prevailing party in the arbitration shall be entitled to an award of attorneys’ fees and costs of suit. The arbitrator shall have no authority to award punitive or other damages beyond the prevailing party's actual damages and shall not, in any event, make any ruling, finding, or award that does not conform to the terms and conditions of the contract. The arbitration award shall be in writing and shall specify the factual and legal basis for the award. The right to appeal the award shall be governed by Arizona law, and any such appeal shall be brought in a court of general jurisdiction located in Phoenix, Arizona.
(f) Either party may at any time, without inconsistency with this contract, seek from a court of general jurisdiction located in Phoenix, Arizona, any equitable, interim or provisional relief only to avoid irreparable injury.
(g) The parties intend all statements made and documents provided or exchanged in connection with this dispute resolution process to be confidential and neither party shall disclose the existence or content of the dispute or claim, or the results of any dispute resolution process, to third parties other than outside counsel, except with the prior written consent of the other party or pursuant to legal process.
(h) The parties may by written mutual consent agree to dates and times other than those set forth in this clause.
(i) The provisions of this clause shall not modify or displace the procedures specified in Article Termination for Convenience. In addition, this clause shall not apply to and will not bar litigation regarding any claims related to a party's proprietary or intellectual property rights.
20. FAIR LABOR STANDARDS ACT
By accepting any order, Contractor represents that the goods or services to be furnished hereunder, were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and unless otherwise agreed in writing, Contractor shall insert a certificate on all invoices submitted in connection with any order stating that the goods or services covered by the invoice were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including section 12(a).21. DEFAULT
Purchaser may by written notice of default to Contractor (a) terminate the whole or any part of any order in any one of the following circumstances: (i) if the Contractor fails to perform within the time specified therein or any extension thereof; or (ii) if Contractor fails to perform any of the other provisions of any purchase order, or so fails to make progress as to endanger performance of any purchase order in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of ten (10) calendar days after receipt of Purchaser's notice or such longer period as Purchaser may authorize in writing; and (b) upon such termination Purchaser may procure, upon such terms as it shall deem appropriate, supplies or services similar to those terminated, in which case Contractor shall continue performance of such purchase order to the extent not terminated and shall be liable to Purchaser for any excess costs for Purchaser's procurement of such similar Goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion may elect (1) to extend the schedule and/or (2) to waive deficiencies in Contractor's performance, in which case an equitable reduction in the purchase order price shall be negotiated. In the event Contractor for any reason anticipates difficulty in complying with the required schedule, or in meeting any of the other requirements of any purchase order, Contractor shall promptly notify Purchaser in writing. The rights and remedies of Purchaser provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under any Purchaser purchase order.22. CITIZENSHIP STATUS
For services to be rendered by Contractor in the United States, only U.S. citizens, permanent resident aliens or those aliens authorized to be employed in the U.S. shall be permitted to work on Purchaser orders. Contractor certifies to Purchaser that it has verified that each individual assigned to work on any order hereunder is legally entitled to work in the U.S. and has preserved such records as required by the Immigration and Naturalization Service. There may be jobs which require U.S. citizenship because of national security or exposure to classified or export restricted information. In such cases, each such job will be separately identified by Purchaser as requiring U.S. citizenship. The Contractor will not inquire whether applicants are U.S. citizens except for those jobs which Purchaser designates as requiring U.S. citizenship. For all services to be rendered by Contractor in any other country, Contractor shall comply with all applicable employment laws or regulations in effect in such country.23. PURCHASER'S PROPERTY
(a) All tangible and intangible property, including but not limited to tools, tool drawings, materials, drawings, computer software, documents, information or data of every description furnished to Contractor by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the personal property of Purchaser, and, unless otherwise agreed to in writing by Purchaser shall be used by Contractor solely to render services or provide products to Purchaser. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Contractor as being the property of Purchaser or Purchaser’s designee, and shall be safely stored separate and apart from Contractor's property. Contractor shall not substitute any property for Purchaser's property and shall not use such property except in filling Purchaser's purchase orders. Such property while in Contractor's custody or control shall be held at Contractor's risk and shall be insured by Contractor for replacement cost with loss payable to Purchaser. Such property shall be subject to removal at Purchaser's written request, in which event Contractor shall prepare such property for shipment and shall deliver it as directed by Purchaser in the same condition as originally received by Contractor, reasonable wear and tear excepted, all at Contractor's expense(b) Purchaser hereby grants Contractor a license to use the drawings, specifications (including Purchaser's 'S' specifications), computer software, and other data (hereinafter collectively referred to as "Data") furnished or paid for by Purchaser hereunder for the sole purpose of performing this order for Purchaser. All Data is the property of Purchaser and shall not be used, disclosed to others or reproduced for any purpose, including, but not limited to, the design, manufacture or repair of parts or to obtain FAA or other Government approval to do so; provided; however, Contractor may provide Data furnished or paid for by Purchaser hereunder to Contractor's contractors for the sole purpose of enabling Contractor's contractors to assist Contractor in performing this purchase order for Purchaser and on condition that Contractor's contractors agree in writing for Purchaser's benefit to the terms of this paragraphs 19 and 21 . This license is nonassignable, and this license is terminable with or without cause by Purchaser at any time. All Data furnished or paid for by Purchaser shall be deemed to be proprietary property to Purchaser, whether or not it is marked with any restrictive legend.
(c) Purchaser shall have the right to audit all pertinent books and records of Contractor, and to make reasonable inspections of Contractor’s facilities to verify compliance with this section.
(d) In the event Contractor, without Purchaser's prior written consent and authorization, designs or manufacturers for sale to any person or entity other than Purchaser any hardware that is substantially similar to or can replace or repair a Purchaser’s parts, or obtains FAA or other governmental approval for such hardware or repair, the Contractor, in any adjudication involving or relating to Purchaser's Data, shall be required to establish by clear and convincing evidence that neither Contractor nor any of its employees, contractors or agents used in whole or in part, directly or indirectly any of Purchaser's Data in such design or manufacture or in obtaining FAA or other governmental approval with respect to such hardware or repair.
(e) In the event Contractor is notified by Purchaser that Goods ordered under this purchase order are patented, Contractor agrees to mark such Goods with any patent numbers or other markings designated by Purchaser, including updates to such numbers or markings.
24. CHANGES
Purchaser, at any time, shall have the right to make changes in the Work set forth in the purchase order. Any such change that has a significant impact shall entitle either Contractor or Purchaser to an equitable adjustment in time and/or purchase order price. However, no additional time or charge will be allowed unless authorized by Purchaser's written amendment to this purchase order in the form of an approved Change Order, attached as Appendix ___. Information, such as technical direction or guidance provided to Contractor by representatives of the Purchaser in connection with the Contractor's performance of this purchase order shall not be construed either as a change within the meaning of this provision or as direction to proceed outside the scope of this order. Nothing in this clause, including any disagreement with Purchaser as to the equitable adjustment to be made, shall excuse Contractor from proceeding with the order as changed.25. CONTRACTOR INFORMATION
Notwithstanding any document marking to the contrary, any knowledge or information which Contractor shall have disclosed or may hereafter disclose to Purchaser incident to the placing and filling of any purchase order shall not, be deemed to be confidential or proprietary information and accordingly shall be acquired free from any restriction on use or disclosure.26. ASSIGNMENT AND CHANGE IN OWNERSHIP
(a) Any assignment or attempt to assign this purchase order or any part thereof without the advance written consent of Purchaser shall be null and void and shall give Purchaser the right to terminate this order for default.(b) If a third party submits a solicited or unsolicited offer to Contractor that would result in a Change of Ownership or Control of Contractor, as defined below, Contractor shall give notice of such offer to Purchaser as early as commercially practical following Contractor’s receipt of the offer. The notice shall include the identity of the offeror, the date and time of the offer and the conditions of the offer. Before Contractor accepts the offer, it shall give Purchaser an opportunity, within a reasonable time, to advise Contractor of its objection to the offer. If despite Purchaser’s objections, the Change in Ownership and Control occurs, Purchaser has the right at its discretion to terminate this purchase order for default at no cost to Purchaser. In the event of such termination, Contractor agrees to render full cooperation to Purchaser in order to minimize disruption to the Purchaser's program. Pending termination or in lieu of termination, Purchaser may require Contractor to provide adequate assurance of performance, including, but not limited to the institution of special controls regarding the protection of Purchaser's proprietary information."
(c) For purposes of this clause, the terms “Change in Ownership or Control” shall mean any of the following: i) the sale of equity shares controlling 20% or more of the voting rights in Contractor or Contractor’s parent, ii) the sale, lease, transfer or other disposition of substantially all of the assets of Contractor or Contractor’s parent, iii) a merger, reorganization, consolidation, share exchange, recapitalization, business combination, liquidation or dissolution or similar transaction, iv) a tender offer or exchange offer for any of the outstanding shares of capital stock of Contractor or Contractor’s parent, v) a sale by Contractor of the assets relating to the product Contractor produces or will produce for Purchaser or vi) any public disclosure of a proposal or plan or intention to do any of the foregoing
27. SET-OFF
Purchaser shall be entitled to set off any amount, owing at any time from Contractor to Purchaser or any of Purchaser's affiliated companies against any amount payable at any time by Purchaser in connection with any purchase order.28. WORK ON PURCHASER'S OR ITS CUSTOMER'S PREMISES
If Contractor's Work under any purchase order involves operations by Contractor on the premises of Purchaser or one of its customers, then:(a) Contractor shall comply with all of Purchaser's safety and security procedures and shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work. Contractor shall maintain such public liability, property damage and employees liability and compensation insurance as will protect Contractor from said risks and from any claims under any applicable workers' compensation and occupational disease acts, and upon Purchaser’s request provide Purchaser proof of such insurance.
(b) Contractor agrees that all of its employees whom may require access to Purchaser’s or its customer’s premises to perform work pursuant to this order shall be tested and certified (in writing) to be free from illegal or unauthorized drugs prior to being assigned to perform such work, including but not limited to: cannabinoid metabolites (marijuana) opiate derivatives (heroin, morphine, codeine)cocaine metabolites (benzoylecgonine, ecgonine) amphetamines (methamphatimines) phencyclidine.
In addition, such drug tests shall include screening for prescription drug use. In the event Contractor’s employee acknowledges use of prescription drugs, or if the drug screening results are positive for prescription drug use, Contractor shall not assign such employee to perform work pursuant to any order unless, (1) Contractor confirms that there are corresponding documented medical authorizations for use of such prescription drugs; and (2) Contractor determines, using appropriately qualified resources, that the employee is fit to perform the work under any order and free of any impairment that would prevent the employee from performing competent and safe work under any order.
(c) Contractor’s employees shall be retested and recertified to be free of these unauthorized drugs after a six (6) month absence from performing work on Purchaser’s or its customer’s premises.
(d) Contractor shall comply with any and all federal, state, or local anti-drug, alcohol abuse and /or drug testing statutes or regulations for any of its employees who may be covered by such statutes or regulations. Contractor shall have, retain, and be able to provide to Purchaser, upon request, an approved drug and alcohol misuse prevention plan.
(e) Contractor shall conduct a criminal convictions records investigation of its employees before they are assigned to work on any order that requires the employee to enter Purchaser’s premises or the premises of a customer of Purchaser (hereinafter collectively “Purchaser Premises”). A Criminal Convictions Records Investigation shall consist of a records search (documented by a written report retained by the Contractor of the results of such search) by the appropriate law enforcement or other local or state agency in each location in which the employee has resided and worked in at least the five years preceding the date of the criminal conviction records investigation. Purchaser reserves the right, at its discretion, to request from Contractor documentation of the completion of a criminal convictions records investigation for any employee assigned to work on Purchaser’s or its customer’s premises. Contractor’s failure to have completed a criminal convictions investigation of any of its employees in accordance with this clause shall be grounds for immediate expulsion of the Contractor and its employees from Purchaser’s or its customer’s premises and Purchaser shall have the right to terminate all orders for default.
(f) Contractor shall not assign any person to perform work on Purchaser’s or its customer’s premises that has been:
(i) convicted of murder; manslaughter; kidnapping; rape; sexual battery or gross sexual imposition; domestic violence; assault; arson; robbery; burglary; theft; embezzlement; fraud; drug possession, manufacturing or trafficking.
(ii) convicted as an adult of any felony, convicted of more than one misdemeanor in the previous two years, or convicted of more than five misdemeanors in the previous five years.
(g) Purchaser may require Contractor’s employees, before entering Purchaser’s or its customer’s premises, to complete a criminal convictions questionnaire. In the event that Purchaser has grounds to believe that an employee of Contractor has falsified the criminal convictions questionnaire in any way, such person shall not perform work on Purchaser’s or its customer’s premises.
(h) Contractor shall include this clause “Drug Testing and Security Checks” in any subcontract placed pursuant to a purchase order with a subcontractor who will perform work on Purchaser’s premises.
29. RELEASE OF INFORMATION
No public release (including without limitation, photographs, films, announcements, and denials or confirmations of the placing of any purchase order) shall be made with respect to any purchase order, or the subject matter thereof, without prior written approval of Purchaser.30. NONDISCRIMINATION IN EMPLOYMENT
(a) Contractor will comply with Executive Order 11246 and the EEO clause as defined in 41 CFR 60-1.4(a) by not discriminating against any employee or applicant for employment because of race, religion, color, sex, age, or national origin. Contractor will further take affirmative action to employ and advance its employees without regard to race, color, religion, sex, age, or national origin.(b) Contractor will also comply with the affirmative action clauses for veterans and handicapped workers as defined in 41 CFR 60-250 and 41 CFR 60-741 by not discriminating against any employee or applicant for employment because of physical or mental handicap or because he or she is a disabled veteran or veteran of the Vietnam War. Contractor will further take affirmative action to employ and advance its employees without regard to physical or mental handicap or because he or she is a disabled veteran or a veteran of the Vietnam War.
(c) In the event that subcontracting opportunities exceeding $10,000 exist, Contractor will comply with 49 CFR CH. 1 Sec. 52.219-8 and 48 CFR CH. 1 Sec. 52.219-13 in using best efforts to give small business concerns, small disadvantaged business concerns and woman-owned small business the maximum practicable opportunity to participate. In the event that the subcontracting opportunities exceed $500,000, Contractor will comply with 48 CFR CH. 1 Sec. 52.219-9 in adopting a subcontracting plan.
31. INTELLECTUAL PROPERTY
Contractor shall indemnify and save Purchaser and its customers harmless from and against any expense or liability, including costs, fees and damages, arising out of any claim, suit or proceeding that the manufacture or furnishing of goods and/or services under this purchase order, or the use of such goods (without modification or further combination) or sales of such goods constitutes infringement of any patent, trade secret or copyright. If an injunction should issue, Contractor shall procure for Purchaser and its customers the rights to continue using said goods, or modify them in a manner acceptable to Purchaser so they become non-infringing, or with the written approval of Contractor, remove said goods and refund the purchase price.32. LABOR NOTICE
(a) The Contractor shall immediately give notice to Purchaser (to be followed by written notices and reports) of any and all impending or existing labor complaints, troubles, disputes or controversies and the progress thereof. The Contractor shall use its best efforts to resolve any such complaint, trouble, dispute or controversy.(b) Contractor warrants that Purchaser shall have no liability or bargaining obligations under any collective bargaining agreement between Contractor and its employees. Contractor agrees to give Purchaser copies of any collective bargaining agreements existing between it and its employees and agrees to give Purchaser prompt notice of any union organization with respect to its employees.
33. MATERIALS SCHEDULING
Upon Purchaser’s request, Contractor shall work with Purchaser to implement pull production, bin stocking and/or kitting for hardware supplied by Contractor. Contractor shall provide commitments to Purchaser’s schedule within seventy-two (72) hours of a change in Purchaser’s production schedule. If Contractor is unable to meet Purchaser’s schedule, Contractor shall immediately notify purchaser and shall cooperate with proper reconciliations.34. PRIOR AGREEMENTS
This instrument contains the entire agreement between the Contractor and Purchaser with respect to orders, contracts or arrangements made or placed hereafter for services and supersedes all pre-existing understandings, agreements, or arrangements with respect thereto.35. ACCESS TO PURCHASER'S COMPUTER SYSTEMS
Access to Purchaser's computer systems by Contractor's personnel shall include only those persons identified on Purchaser's systems security statement and who have been issued a systems user ID. Purchaser reserves the right to, at any time, verify the citizenship status of all Contractor personnel who have access to Purchaser's computer systems. Such access shall be limited by Purchaser to those systems, which in Purchaser's sole discretion, are required for the Contractor's personnel to perform assigned work and shall be valid until such access is revoked or surrendered. Such access shall be surrendered by Contractor's personnel upon Purchaser's request or upon removal or reassignment by Contractor.36. EXPORT AND INTERNATIONAL TRAFFIC-IN-ARMS REGULATIONS
(a) Contractor agrees to comply with all export regulations and the International Traffic-in-Arms Regulations (ITAR) including, but not limited to, parts 122 entitled "Registration of Manufacturer and Exporter" and 130 entitled "Political Contributions, Fees and Commissions."(b) With respect to defense articles and services furnished hereunder, Contractor agrees that it has not paid, offered or agreed to pay, and agrees that it shall not pay, offer or agree to pay, for the purpose of soliciting, promoting or otherwise to secure the sale of defense articles and services to or for the use of the armed forces of an international organization or non-U.S. country, any (i) fees or commissions in excess of $1,000 or (ii) political contribution (including any gift, rebate or payment of expenses) to a non-U.S. person or entity.
(c) In the event Contractor is supplying defense articles in connection with the performances of services under this order, Contractor agrees to maintain a valid and current Office of Defense Trade Controls (“ODTC”) registration. Contractor shall provide its ODTC registration name, number and expiration date to Purchaser and promptly advise Purchaser of any updates or changes to such information, in the format requested by Purchaser. With respect to defense articles and services furnished hereunder, Contractor certifies that it has not paid, offered or agreed to pay, and agrees that it shall not pay, offer or agree to pay, for the purpose of soliciting, promoting or otherwise to secure the sale of defense articles and services to or for the use of the armed forces of an international organization or non-U.S. Country, any (i) fees or commissions in excess of $1,000 or (ii) political contribution (including any gift, rebate or payment of expenses) to a non-U.S. person or entity.
(d) If Contractor intends to conduct work for Purchaser in a foreign country, including but not limited to the use of Contractor’s own facility outside of the United States or the use of a foreign affiliate or unrelated subcontractor, Contractor must provide advance written notification to Purchaser. Customer is responsible for compliance with applicable export control laws and regulations and for obtaining all export control licenses required by law or requested by Purchaser.
37. RESERVED
38. SECURITY INTEREST
In the event items will be bailed to Contractor or progress payments will be made, Contractor grants Purchaser a security interest in machinery, equipment, contract rights, inventory, goods, merchandise, and new material, whether now existing or hereafter arising, and any replacements, improvements, substitutions, attachments, accessories and accessions thereto or thereon provided by further or precluded by Contractor with progress payments or advances made by Purchaser and to be used by Contractor in manufacturing Goods ordered by Purchaser under this purchase order. Contractor will execute and deliver all documents requested by Purchaser to protect, maintain, and perfect Purchaser’s security interest.39. SEVERABILITY
If any provisions of these terms and conditions or any part hereof are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all conditions and provisions of these terms and conditions which can be given effect without such invalid, unlawful or unenforceable provision shall, nevertheless, remain in full force and effect.40. GRATUITIES
(a) Any officers, employees or agents of Purchaser, the United States Government, or Purchaser's customers, are prohibited from soliciting or accepting entertainment, gifts, gratuities, compensation or favors from Contractor. Contractor shall at all times comply with the requirements of this policy. When Contractor has reasonable grounds to believe that a violation of this gratuity policy by Contractor or Purchaser’s representatives may have occurred, Contractor shall promptly report the potential violation to Purchaser by reporting it to Purchaser’s representative orally and in writing. (b) For violation of this clause 36 by Contractor, this purchase order may be terminated in whole or in part. Purchaser may also require Contractor to provide proof that it has implemented internal management controls sufficient to prevent future violations. These rights and remedies of Purchaser are not exclusive and are in addition to any other rights and remedies provided to Purchaser under this purchase order or by law.41. PROHIBITED GOODS AND SERVICES
The United States of America prohibits the importation of goods or the purchase of services from the following countries: Cuba, Iran, Iraq, Libya, North Korea, territory of Afghanistan controlled by the Taliban, and Yugoslavia (Serbia and Montenegro). No goods or services from the aforementioned prohibited countries may be used directly or indirectly in the design, manufacture, test, or other methods of providing any of the items (whether goods, services, or otherwise) covered by this purchase order. Such list can change from time to time and it is Contractor's responsibility to ensure compliance with such list at all times. Current information can be obtained by accessing the Internet at URL http://www.treas.gov/ofac/.42. REMOVALS AND REPLACEMENTS
Contractor agrees that, notwithstanding the provisions of any warranties, expressed or otherwise, negotiated with respect to Goods purchased from Contractor by Purchaser or Purchaser’s customers, Contractor shall reimburse for labor and material cost, including overhead and administration expenses, reasonably incurred by Purchaser in connection with: (a) the unscheduled removal and/or replacement of Goods or components thereof from a higher level assemblage due to failure of Goods to conform to the purchase order or defective material, workmanship, or design; or (b) any removal of Goods at Contractor’s request.43. GOVERNING LAW
This purchase order shall be governed by the laws of the State of Arizona, notwithstanding its conflicts of laws rules.44. CONTACTOR SECURITY AND CRISIS MANAGEMENT POLICY
Contractor shall have and comply with a company security and crisis management policy. Upon Purchaser’s request, Contractor shall provide Purchaser a copy thereof. Contractor shall revise and maintain the policy proactively, and as may be requested by Purchaser, in anticipation of security and crisis risks relevant to the Contractor’s business. Contractor’s policy, at a minimum, shall identify, and require the taking, by Contractor’s management and employees, of the measures necessary to do the following:
(a) provide for the physical security of the people working on Contractor’s premises and others working for or on behalf of Contractor;
(b) provide for the physical security of Contractor’s facilities and physical assets related to the performance of work, including, in particular, the protection of Contractor’s mission critical equipment and assets;
(c) protect from the loss of, misappropriation of, corruption of, and/or other damage to software related to the performance of work;
(d) protect from the loss of, misappropriation of, corruption of, and/or other damage to Purchaser’s and Contractor’s drawings, technical data, and other proprietary information related to the performance of work;
(e) provide for the prompt recovery -- including through preparation, adoption, and maintenance of a disaster recovery plan -- of facilities, physical assets, software, drawings, technical data, other intellectual property, and the Contractor’s business operations in the event of a security breach, incident, crisis or other disruption of Contractor’s ability to use the necessary facilities, physical assets, software, drawings, technical data, or other intellectual property or to continue operations.
Purchaser reserves the right to inspect Contractor’s policy and to conduct on-site audits of Contractor’s facility and practices to determine whether Contractor’s policy and Contractor’s implementation of the policy are reasonably sufficient to protect Contractor’s interests. If Purchaser reasonably determines that Contractor’s policy and/or policy implementation is/are insufficient to protect Purchaser’s property and interests, Purchaser may give Contractor notice of such determination. Upon receiving such notice, Contractor shall have forty-five (45) days thereafter to make the policy changes and take the implementation actions reasonably requested by Purchaser. Contractor’s failure to take such actions shall give Purchaser the right to terminate this purchase order immediately without further compensation to Contractor.
45. INSPECTION
(a) All Work, including, but not limited to, engineering and design/development work, shall strictly comply with all applicable specifications and shall be subject to inspection and test by the Purchaser and its customer at all times and places. If any inspection or test is made on the premises of Contractor or its supplier, Contractor, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and tests on the premises of Contractor or its supplier shall be performed in such a manner as not to unduly delay the Work.(b) Purchaser's failure to inspect the Work shall neither relieve Contractor from responsibility for such Work as is not in accordance with the order requirements nor impose liabilities on Purchaser therefor. The inspection or test of any services by Purchaser shall not relieve Contractor from any responsibility regarding defects or other failures to meet purchase order requirements, which may be discovered subsequently.
(c) For engine components and other ancillary components, Seller shall provide and maintain quality control, inspection and process control systems acceptable to Purchaser and its customer. Records of all inspections shall be kept complete and available to Purchaser and its customers.
46. CLASSIFIED INFORMATION
Upon completion of work by Contractor under this purchase order, Contractor shall return to Purchaser all classified information furnished by Purchaser in connection herewith, including all reproductions thereof, then in Contractor’s possession or control, and Contractor shall surrender classified information or materials developed by Contractor in connection with this order, unless the information has been destroyed or the retention of the information is authorized in writing by Purchaser or the government.47. RESERVED
48. ENVIRONMENTAL MATTERS
(a) Hazardous Substances. Contractor warrants that, except as specified on the face of the purchase order, none of the chemical substances constituting or contained in any good(s) sold or otherwise transferred to Purchaser under this order are "hazardous substances" as defined in the Comprehensive, Environmental Response, Compensation and Liability Act (“CERCLA”), and Contractor agrees to supply Purchaser with any and all required Material Data Safety Sheets.(b) Asbestos. Contractor agrees to provide goods and/or materials which are free of asbestos unless Contractor has notified Purchaser in advance and has obtained Purchaser's prior written consent to the use of asbestos. Contractor agrees to include this clause in any subcontracts issued hereunder. If Contractor intends to rely upon any drawing which requires or permits the use of asbestos, written notice to, and approval by, the Purchaser must be obtained prior to such use.
(c) Use of Cadmium. Unless specifically defined as a requirement by Purchaser’s engineering drawings or specifications, the use of cadmium plating or nickel cadmium plating is strictly prohibited in the manufacture of any good or delivery of services under this order. The use of cadmium plating or nickel cadmium plating is strictly prohibited on all tooling, fixturing, and test equipment that is used for manufacturing, assembly, test, or material handling unless Contractor has notified Purchaser in advance and has obtained its prior written consent to such use. Approval shall not be granted where there is a potential for items containing cadmium to come into contact with items containing titanium.
(d) Ozone Depleting Substances ("ODS's"). Contractor agrees to comply with the U.S. Clean Air Act Amendments of 1990 regarding warning statements on products manufactured with ODS's, products containing ODS's, and containers containing ODS's. The need for warning statements, the specific wording of statements, and the placement of statements shall be in accordance with requirements of the U.S. Environmental Protection Agency implementing regulations. Any usage of Class I ODS's is subject to evaluation and approval of Purchaser or the U.S. Government. For purchases of materials to be supplied to the U.S. Government, Contractor shall also comply with any labeling requirements arising under the Federal Acquisition Regulation (“FAR”). Supplier will eliminate the use of Class I ODS's to the maximum extent possible. Any usage of Class I ODS's which cannot be eliminated is subject to evaluation and approval by the Purchaser or the U.S. Government. Contractor will notify Purchaser of any such use of Class I ODS's which cannot be eliminated and will provide Purchaser with any requested information which may be required in order to complete the evaluation and approval of the continued usage.
(e) Representations and Warranties. Contractor represents and warrants that it shall perform all activities related to this order in compliance with all applicable federal, state and local environmental, health and safety laws and regulations. Contractor represents and warrants that it will use best efforts to prevent and minimize accidental releases of hazardous substances or constituents to the environment, as well as prevent and minimize risk of endangerment to human health or the environment from any manufacturing process. Contractor represents and warrants that in the event of a release or spill, it will use best efforts to mitigate actual or potential impacts to the environment or human health.
(f) Environmental Claims. Contractor agrees to indemnify, release, defend and hold harmless Purchaser, its directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities resulting from: (1) death or injury to any person, including officers and employees of Contractor and those of Purchaser, arising out of or in any way connected with Contractor's failure to comply with this article 43, (2) damage to any property, real or personal, including property of Contractor and that of Purchaser, arising out of or in any way connected with Contractor's failure to comply with this Article 43, (3) any and all pre-existing conditions of real or personal property of Contractor, or (4) any failure to comply with any federal (including FAR/DFAR clauses), state or local environmental, health, or safety requirements. Contractor agrees to include this clause in any subcontracts issued hereunder.
(g) Material Ownership. Contractor and Purchaser agree that at all times prior to delivery and acceptance by Contractor of any goods, all raw materials, wastes and work-in-progress shall remain the property of Contractor, except as otherwise provided herein.
(h) Waste Management. Contractor shall be directly and solely responsible for managing all wastes associated with processes it applies to perform work under this order. Contractor shall manage any and all such wastes in compliance with applicable federal, state and local laws and regulations.
(i) Waste Disposal Certifications. Contractor agrees to generate and maintain detailed records certifying the proper disposal of all wastes associated with its processes, including wastes generated from the remediation or cleanup of any releases, leaks or spills. Such records will include the names and addresses of any treatment, storage or disposal facility receiving such wastes, the amount of waste received, and the dates of shipment and receipt. Contractor shall maintain all records relating to environmental compliance and waste disposal.
(j) Process Flow Diagram and Material Balance. Where Contractor is relying upon Purchaser’s engineering drawings to provide goods, upon request by Purchaser, Contractor agrees to make available to Purchaser detailed process flow diagram for its manufacturing processes, identifying unit quantities of raw material and associated waste. The process flow diagram will contain a material balance for the processes and will indicate the ultimate fate of each raw material or associated waste.
(k) Notification of Significant Events. Contractor agrees to notify Purchaser in writing within five days after learning of any significant event involving any of its manufacturing processes that may affect Contractor's ability to comply with its obligations under this purchase order, including but not limited to, any spill, leak or release to the environment which also requires notification to a state or federal agency, including, but not limited to: (a) the date of release; (b) the quantity and type of material released; (c) efforts to clean up the material released; and (d) efforts to mitigate impacts from the release.
(l) Hazardous Material Identification. Contractor shall identify hazardous materials contained in goods, materials, and/or other items (hereafter “Items”) delivered to Purchaser, provide Material Safety Data Sheets (“MSDS”) for such Items, and, where applicable, comply with the OSHA Hazard Communication Standard, 29 CFR 1910.1200 ("HAZCOM"). For each such Item, identification shall reference the stock or part number of the delivered Item. Hazardous materials include, but are not limited to, materials embedded in a delivered Item in such a manner as to present a potential for personal injury or harm or property damage in the course of normal use, repair, accidents or disposal. All MSDS forms and hazard warning labels required under this section and HAZCOM shall be provided to Purchaser.
(m) Contractor Competence. Contractor represents and warrants that it possesses the facilities skills, knowledge and expertise to handle and provide the Goods and/or Services specified herein in a safe and responsible manner, and that all persons, including any subcontractors, involved in handling any materials processed or provided for under this purchase order will be shown any MSDS associated with such materials and be advised of its safe and proper use and handling.
49. WAIVER
Purchaser's failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Purchaser's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
APPENDIX I
If contractor is located outside of the United States, the preceding Terms and Conditions are modified as follows:1. Clause 8.3, "CONTRACTOR'S EMPLOYEE'S," shall be modified to read as follows: "Contractor's employees are not authorized, expressly or otherwise, to enter into any agreements or make any commitments, financial or otherwise, for or on behalf of Purchaser. Specifically, no employee of Contractor shall make contact with the DOD or other United States Government agency employees, members of the United States Congress, congressional employees or any analogous foreign government agency or employees thereof regarding the continuation, renewal, amendment or modification of a . Government Contract to Purchaser.
2. Clause 15, "DISPUTE RESOLUTION," is deleted and replaced with the following: "Dispute Resolution. This purchase order shall be interpreted in accordance with the laws of the state of Arizona, USA without regard to Arizona’s choice of law provisions. Except as otherwise provided, the United Nations Convention on Contracts for the International Sale of Goods is not applicable to this order. All disputes arising in connection with this order shall be finally settled under the rules of conciliation and arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The arbitration shall be held in New York City or in another location agreed to by the parties, and any arbitrator's award shall not exceed actual compensatory damages."
3. Clause16, "FAIR LABOR STANDARDS ACT," shall be deleted.
4. Clause 18, “CITIZENSHIP STATUS,” shall be deleted and replaced with the following: “CITIZENSHIP STATUS” For data export purposes, only citizens of the country in which the Contractor is located shall be permitted to work on Purchaser orders without prior written approval from Purchaser. Contractor shall preserve such records as required by local laws and regulations regarding the citizenship status of Contractor’s employees.
5. Clause 26, "NONDISCRIMINATION IN EMPLOYMENT," shall be deleted.
6. Clause 43, “ENVIRONMENTAL MATTERS,” shall apply to orders the extent its provisions and/or the legal and regulatory references therein, based on a reasonable interpretation thereof, have extraterritorial application outside of the United States and/or relate to, or arise from, goods, materials, and/or other items to be imported to the United States.
Add the following articles:
I-1 ENGLISH LANGUAGE.
Except as the parties may otherwise agree, any order, data, notices, shipping invoices, correspondence and other writings issued pursuant to this agreement shall be written in the English language. In the event of any inconsistency between any terms herein and any translation thereof into another language, the English language meaning shall control.
I-2 IMPORTER OF RECORD.
(a) If Contractor is the U.S. Importer of record, Contractor agrees that Purchaser will not be a party to the importation of any product of this order; that the transactions represented by this order will be consummated subsequent to importation; that the Contractor will neither cause nor permit Purchaser's name to be shown as "IMPORTER OF RECORD" on any customs declaration; and that, if any product related to the services to be performed hereunder must be returned to Contractor, Contractor agrees to be the U.S. Exporter and to comply with all applicable export regulations.
(b) If Purchaser is the U.S. Importer of record, Contractor shall ship any products related to the services to be performed hereunder to the port of entry as advised by Purchaser and show proper broker notification on all shipping waybills. Any additional transportation or clearance charges incurred by Purchaser due to Contractor's nonadherence to this clause will be the responsibility of Contractor.
(c) Regardless of which party is the U.S. Importer of Record, Contractor's shipping cartons and documentation must meet all U.S. Customs country of origin marking and invoicing requirements. Contractor will be responsible for any fines or liabilities resulting from insufficient, improper or negligent invoicing or marking of shipments.
I-3 U.S. EXPORTER.
If Contractor is the U.S. Exporter for any U.S. Origin bailed or purchased material required by Contractor to complete this order, Contractor shall be responsible for obtaining any required export license, authorizing a U.S. Freight forwarder, and complying with U.S. Export administration regulations/international traffic-in-arms regulations. If Contractor requests Purchaser to export the materials, Purchaser shall be responsible for procuring the export license, utilizing its duly authorized freight forwarder, and complying with U.S. Export Administration Regulations and International Traffic-In-Arms Regulations