Purchasing Terms And Conditions

Terms and Conditions

1. ACCEPTANCE AND CONFLICTING TERMS — The entire Contract between Seller and Buyer is embodied in the terms and conditions of this Purchase Order (“Order”) and such order shall be deemed accepted and binding upon both parties upon the occurrence of either of the following events: (a) when the acknowledgement copy of this Order has been signed and returned to Seller; or (b) when Seller has commenced performance of this Order in accordance with its terms.

ANY ACCEPTANCE OF THIS ORDER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS OF THE OFFER CONTAINED ON THE FACE AND BACK HEREOF ANY TERMS AND CONDITIONS (ORAL OR WRITTEN) DIFFERING FROM, OR IN ADDITION TO, THE TERMS AND CONDITIONS SET FORTH HEREIN, WHETHER OR NOT SUCH DIFFERENT OR ADDITIONAL TERMS MATERIALLY ALTER THE TERMS AND CONDITIONS OF THIS ORDER, ARE HEREBY OBJECTED TO BY BUYER, WAIVED BY SELLER AND SHALL NOT OPERATE AS A REJECTION OF THIS OFFER WHICH SHALL BE DEEMED ACCEPTED WITHOUT SAID DIFFERING OR ADDITIONAL TERMS AND CONDITIONS. If Seller objects in writing to any terms and conditions of this Order, Seller agrees that the terms and conditions of this Order will apply and bind each party until such time as a a written amendment signed by both parties with respect to such terms and conditions objected to by Seller, is negotiated in good faith and executed between the parties. Terms and conditions not objected to by Seller will be binding upon Seller. Additional Terms and Conditions

2. DELIVERY — Time is of the essence for this order. If no delivery time is specified, then delivery will be required in reasonable time. Unless expressly specified, delivery may not be made in installments. Deliveries will be made in quantities and at the time(s) specified herein. If Seller’s deliveries fall to meet schedule, Buyer may, without limiting its other rights or remedies, direct expedited production scheduling and routing and Seller will pay any additional costs incurred. Alternatively, Buyer may exercise its right to terminate pursuant to paragraph 11 herein, any part of or the entire Order in the event, (i) Seller fails to make schedule delivery of any or all of the products ordered, including without limitation, raw material, components, intermediate assemblies and other like supplies (hereinafter “Goods”) or (ii) Seller fails to perform the services described herein or (iii) Seller’s performance, in Buyer’s opinion, substantially endangers completion of this Order. Buyer will not be liable for Seller’s commitments or production arrangements, which are entered into in advance of issuance of this Order or which are in excess of the amount or in advance of the time necessary to meet Buyer’s schedule(s). If Seller delivers Goods in advance of Buyer’s schedule(s), Buyer may withhold payment therefore until the date upon which Goods were actually scheduled for delivery or store the Goods at Seller’s expense until such scheduled delivery date. Delivery of all goods shall be F.O.B (or DDU (Incoterms 2000) for transborder shipments) Buyer’s facility. Risk of loss and title shall transfer to Buyer upon receipt at Buyer’s facility.
3. INSPECTION AND ACCEPTANCE OF GOODS — All Goods ordered will be subject to inspection and test by Buyer at time; and places deemed necessary by Buyer including inspection during the period of manufacture at Seller’s facility; Seller will permit access to its facilities at reasonable times for inspection of Goods by Buyer’s representatives and will provide all tools, facilities and assistance reasonably necessary for such inspection at no cost to Buyer. Such Goods will be subject to inspection and acceptance by Buyer after delivery to Buyer. Inspections and payments made by Buyer prior to delivery will not constitute acceptance.

If Goods do not meet the specifications or otherwise do not conform with the requirements of this Order, Buyer will have the right to reject such Goods. Goods rejected after delivery may, at Buyer’s option, be returned to Seller for reimbursement, credit, replacement or correction at Seller’s expense or Buyer may correct or replace such goods at the Seller’s expense. Any Goods rejected and returned to Seller will not thereafter be rendered for acceptance unless the former rejection or requirement of correction is disclosed to Buyer. Packaging, handling and transportation costs relating to return and re-delivery of rejected Goods will be paid for by Seller. Seller will maintain inspection and quality control systems acceptable to Buyer. The system of quality control including, but not limited to, drawings, specifications and other data, will conform to the quality control requirements specified by Buyer or, if unspecified, will meet the highest standards in the industry, which shall include FAA or equivalent standards for Goods entering the chain of supply. Seller shall maintain adequate inspection and test reports, affidavits, certifica tions and other documents which relate to work performed under this Order. Such documents will be available upon request to Buyer for a period of three (3) years after completion of this Order.
4. CHANGES — Buyer may, at any time, by a written order, make changes in any of the following: (a) tooling drawings, designs or specifications, where the Goods to be furnished are to be specially manufactured for Buyer in accordance therewith, (b) method of shipment of packing; and (c) place of delivery and delivery schedule, and Seller will promptly comply with such change(s). If any such change(s) cause an increase or decrease in the cost of, or the time required for the performance of any work under this Order, an equitable adjustment will be made in the price or delivery schedule, or both, and this Order shall be modified in writing accordingly. Any claim by seller for adjustment under this paragraph must be asserted within fifteen (15) days from the date of receipt of notice of change by Seller unless Buyer expressly waives such requirements in writing. Where the cost of property made obsolete or excess as a result of any change requested by Buyer is included in Seller’s claim for adjustment, Buyer shall have the right to prescribe the manner of disposition of such property. Failure to agree on any claim for an equitable adjustment under this paragraph will be a dispute and either party may thereupon pursue any remedy which it may have in any court of competent jurisdiction or under DAR, if applicable. Pending the resolution of any such dispute, Seller will diligently pursue the performance of this Order as changed.

5. DRAWINGS AND SPECIFICATIONS REVIEW — In the event Buyer reviews drawings, specifications, or other data developed by Seller in connection with the Order and makes suggestions or comments or improves such documents and data, such action is merely an expression of opinion by Buyer and will not serve to relieve Seller of any responsibility for such drawings, specifications or other data or for performance of this Order.

6. BUYER’S CONFIDENTIAL INFORMATION — Seller will keep confidential all information, drawings, specifications or data furnished by Buyer and shall not divulge or use such information, drawings, specifications or data for the benefit of any third person or entity. Except as required for the performance of this Order, Seller will not make copies or permit copies thereof to be made without the prior written consent of Buyer. Seller will, upon completion of this Order, return all such data, including all copies thereof, to Buyer and make no further use, either directly or indirectly, of any such data or of any information derived therefore without obtaining Buyer’s prior written consent. Confidential Information shall not include, and the obligations set forth above shall not apply to information, which: (a) was known to the Seller at the time of disclosure; (b) is at the time of disclosure publicly available or generally known in the industry; (c) subsequent to disclosure becomes publicly available or generally known in the industry through no fault of the Seller; (d) is received by the Seller from a third party having the right to disclose the information and having no obligation of confidentiality to the Disclosing Party; or (e) is required to be disclosed pursuant to an applicable law, regulation, or judicial action, provided that Seller provides Disclosing Party reasonable notice of the disclosure requirement and that Seller cooperates (at Disclosing Party’s expense) with Disclosing Party’s efforts to limit the disclosure requirement.
7. USE OF SELLER’S INFORMATION — Seller agrees that all information heretofore or hereafter furnished or disclosed to Buyer by Seller, in connection with the placing or filling of this Order, is furnished or disclosed as a part of the consideration for this Order. Such information is not, unless otherwise agreed to by Buyer in writing, to be treated as confidential or proprietary. Seller will assert no claims (other than for patent infringement) by reason of the use or disclosure of information so furnished or disclosed, unless such agreement is made in writing and signed by a Division General Manager.
8. DISCLOSURE OF CONTRACT — Seller shall not in any manner advertise or publish that it has furnished, or contracted to furnish Buyer, the Goods or services herein purchased without prior written consent of Buyer.

9. TOOLING — Unless otherwise specified in this Order, all tooling, jigs, dies, and other like articles required for performance, will be furnished by Seller and shall be maintained in good condition and replaced when necessary at Seller’s expense. Seller will pay all applicable taxes, including personal property taxes, assessed upon such tooling, jigs, or other like articles. If Buyer agrees to pay Seller for special tooling, jigs and other articles, either separately or as a stated part of the unit prices of Goods purchased herein, Buyer may, at its option, upon making payment therefore, take title and possession of such special tooling, jigs and articles, including any dies, tools, gauges, fixtures and patterns.

10. PRICES — The prices of the Goods’ purchased hereunder are those stated on the face of this Order and will remain firm for the quantities listed notwithstanding any delays in delivery or acceptance, provided that, in the event Buyer requests and Seller agrees that deliveries be delayed for more than twelve (12) months after the last scheduled date of delivery set forth on the face of this Order, an equitable adjustment in price based upon actual cost increases experienced by Seller as a consequence of such delay will be made. In the event the parties are unable to agree upon such price adjustment, the undelivered balance of this Order may be cancelled. If the price of Seller’s Goods generally avail able is reduced between the time of receipt of this Order and time of shipment, Seller shall reprice its invoice to Buyer and Buyer shall have the advantage of the lower price.

11. TERMINATION FOR DEFAULT — Buyer may, by written notice of default, terminate this Order or any part thereof, without liability to Buyer, in the event of the occurrence of any of the following: (i) Insolvency of Seller, the filing of a voluntary or involuntary petition in bankruptcy by or regarding Seller, appointment of a Receiver or Trustee for Seller, or an assignment by Seller for the benefit of creditors, or (ii) a material uncured breach of any of the terms or conditions hereof. After default (and at Buyer’s option after allowing Seller a reasonable time to remedy such default), Buyer may, (i) terminate this Order in whole or in part, and/or (ii) obtain the Goods or services ordered herein from another source and charge Seller for any excess cost resulting from such re-procurement. Buyer may, at its option, require delivery of any Goods ready for delivery. Seller will assure that such Goods are capable of delivery free and clear of all liens and other encumbrances. If after notice of termination of this Order has been given, it is determined by Buyer that the Seller’s failure to perform this Order is due to any cause beyond Seller’s control, such notice of default shall be deemed to have been issued pursuant to Paragraph 12 and the rights and obligations of the parties shall in such event be governed by such Paragraph, provided Seller notifies Buyer promptly of such cause.

12. TERMINATION AT BUYER’S OPTION: LIABILITY UPON TERMINATION — Buyer may terminate this Order in whole or in part by written notice whereupon Seller will stop work on the date and to the extent specified in the notice and terminate all vendor orders and related subcontracts. Seller will, within five (5) business days, advise Buyer in writing of the quantities of work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof. Seller will comply with Buyer’s instructions regarding transfer and disposition of title and possession of such work and material within (30) days after receipt of such notice of termination, or in event Buyer gives no instruction, Seller will take prudent steps to mitigate its damages. Buyer will have the right to audit such claims at any reasonable time(s) by inspecting and auditing the records, facilities, work or materials of Seller and/or its vendors and subcontractors relating to this Order. Buyer will pay Seller, without duplication, the Order price for finished work accepted by Buyer and the cost to Seller of work in process and raw material allocable to the terminated work, based on any audit Buyer may conduct and generally accepted accounting principles, less, (i) the reasonable value or cost, whichever is higher of any items used or sold by Seller in violation of this Agreement, (ii) the agreed value of any items used or sold by Seller and (iii) the cost of any defective, damaged or destroyed work or material. Buyer will make no payments for finished work, work in process or raw material fabrication or materials procured by Seller in excess or advance of any amounts released by Buyer. Notwithstanding the above, payments made under this clause shall not exceed the aggregate price specified in this Order less payments otherwise made or to be made, and adjustments will be made reducing the payments hereunder for costs of work in process and raw material to reflect on a pro rata basis any indicated loss on the entire Order had it been completed. PAYMENT MADE UNDER THIS CLAUSE WILL CONSTITUTE BUYER’S ONLY LIABILITY IN THE EVENT THIS ORDER IS TERMINATED HEREUNDER.

13. EXCUSABLE DELAYS — Neither party shall be liable for damages for delay in delivery or failure to otherwise perform its obligations hereunder arising out of causes beyond its control and without its fault or negligence, including, but not limited to, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather. If the delay is caused by the delay of Seller’s subcontractor(s) (any tier) or vendor(s) and if such delay arises out of causes beyond the control of both Seller or said subcontractor(s) or vendor(s) and without the fault or negligence of any of them, Seller shall not be liable to Buyer in damages unless the materials or services to be furnished by the said subcontractor(s) or vendor(s) were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery sched ule. Seller will notify Buyer in writing within forty-eight (48) hours after the beginning of any such cause. Nothing herein shall relieve Seller from making deliveries at the earliest possible time. In the event such delay materially interferes with the performance of Buyer’s requirement, Buyer may cancel this Order in whole or in part without further liability.

14. INDEMNIFICATION — To the extent that Seller’s agents, employees or subcontractor(s) or vendor(s) enter upon premises occupied by or under the control of Buyer, or any of its customers or suppliers in performing this Order, Seller shall take steps to prevent the occurrence of any injury (including death) to any persons, or of any damage to any property, arising out of acts or omissions of such agents, employees or subcontractor(s) or vendor(s) and except to the extent that any such injury or damage is due solely and directly to Buyer’s negligence, shall indemnify, defend and hold Buyer, its officers, employees and agents, harmless from any and all costs, losses, expenses, damages, claims, suits or any liability whatsoever, including attorney’s fees, arising out of any act or omission of Seller, its agents, employees or subcontractors. Seller shall maintain and require its subcontractor(s) and vendor(s) to maintain, (a) public liability and property damage insurance including contractual liability (both general and vehicle) in amounts sufficient to cover the obligations set forth above, and (b) Workmen’s Compensation and Employer’s Liability insurance covering all employees engaged in performing this Order against claims arising under applicable Workmen’s Compensation and Occupation Disease Acts. Seller shall furnish, upon Buyer’s request, certificates evidencing such insurance. Seller warrants that no expiration, termination or modification of such insurance will take place without thirty (30) days written notice to Buyer.

15. BUYER’S PROPERTY — Title to all Buyer furnished property shall remain in Buyer. Seller shall not alter or use such property for any purpose, other than that specified by Buyer without the prior written consent of Buyer. Seller shall, at its expense, keep adequate records (which shall be made available to Buyer upon request) and store, protect, pre serve, repair and maintain such property in accordance with sound industrial practices. In the event that such property becomes lost, or damaged to any extent, prior to return to Buyer, Seller agrees to indemnify Buyer for any damages or loss or replace such property, at Seller’s expense and at Buyer’s request. Upon the completion or termination of an Order, Seller shall request disposition instructions for all such property, or the remainder thereof, whether in its original form or in semi-processed form and shall make the disposition directed by Buyer, including preparation, packaging and shipping as directed. Expenses for preparation for shipment will be paid by Seller and shipment shall be made F.O.B. Seller’s plant.

16. TAXES — Seller’s price shall be exclusive of any Federal, State or local sales, use or excise taxes levied upon, or measured by, the sale, the sales price or use of Goods and any like taxes of foreign countries or jurisdictions (including customs duties, forwarding fees, port entry fees and other like impositions, where applicable) in the performance of this Order. Seller shall list separately on its invoice any such tax applicable to any such Goods, payable by Buyer, with respect to which Buyer does not furnish to Seller evidence of exemption. Seller’s prices shall not include any taxes on property owned by the U.S. Government, unless authorized in writing by Buyer. Seller agrees to comply with any reasonable request by Buyer regarding payments under protest and regarding any refunds, claims, litigation or proceedings with respect to any such taxes and to make appropriate adjustments to afford Buyer the benefit of any refund or reduction in such taxes.

17. GOVERNING LAW, DISPUTES AND REMEDIES — This Agreement shall be subject to and governed by the laws of the State of Illinois, without regard to its conflicts of laws provisions, irrespective of the fact that either party is or may become a resident of a different state. The parties agree that venue for any action brought by either party with respect to this Agreement shall be brought in any state or federal court in the state of Illinois having competent jurisdiction and each party hereto hereby irrevocably waives, to the fullest extent permitted by law, any objection that it may have, whether now or in the future, to the laying of venue in, or to the jurisdiction of, any and each of such courts for the purpose of any such suit, action or proceeding and further waives any claim that any such suit, action or proceeding has been brought in an inconvenient forum, and each hereby submits to such jurisdiction. Pending the resolution of any such dispute, Seller shall diligently pursue the performance of this contract. Anything herein to the contrary notwithstanding, if any Government official having cognizance of Buyer’s or its customer’s contract issues a final decision relat ing directly or indirectly to this Order or to the items to be delivered hereunder, such decision, if binding upon Buyer, will in turn be binding upon Seller, and Seller will not be entitled to additional compensation or reimbursement for compliance therewith. The remedies provided Buyer herein will be cumulative and in addition to any other remedies provided by law or equity. Any failure by Buyer to enforce its rights hereunder, or a waiver of a breach of any provision hereof, will not be deemed a waiver of such rights or a waiver of any other breach. No treaty or convention of the United Nations, European Common Market or equivalent multi-country body on the international sale of goods shall control or govern this agreement.


19. NOTICE OF LABOR DISPUTES — Whenever Seller has knowledge that any actual or potential labor dispute which delays or threatens to delay the timely performance of this Order, Seller shall immediately give written notice thereof, including all relevant information with respect thereto to Buyer. Seller agrees to insert the substance of this clause, including this sentence, in any subcontract hereunder or vendor order issued.
20. WARRANTY — Seller warrants that all Goods furnished hereunder will be free of defects in material and workmanship, without liens or encumbrances of title and will conform to applicable written drawings, specifications and other data and if not of Buyer’s specified design, will be free of design defects and fit and sufficient for the purpose intended. All warranties shall survive acceptance and payment, and shall run to Buyer and its customers.

21. INTELLECTUAL PROPERTY INDEMNIFICATION — Seller shall indemnify and save harmless Buyer, its successors, assigns, customers and users of Goods, from and against all loss, liability and damage, including attorney’s fees, costs and expenses, resulting from any claim that the manufacture, use, lease, sale or resale or any Goods supplied under this Order infringe any patent or patent rights, trademarks, trade names, copyrights, or other intellectual property rights. Seller will, when notified, defend any action or claim of such infringement at its own expense. Indemnification shall not apply to Goods manufactured in accordance with Buyer’s specified design or any infringement based solely upon the use of Goods supplied hereunder in combination with other goods not furnished by Seller which but for such combination would not give rise to such claims of infringement, unless such combination is in accordance with recommendations or specifications furnished by Seller. In the event the manufacture, sale, lease or use of such Goods is enjoined, Seller shall, at its own expense at Buyer’s option, either procure for Buyer the right to continue using such Goods, or replace same with equivalent non-infringing goods or modify such Goods so they become non-infringing or remove the same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto.

22. COMPLIANCE WITH LAWS — THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR. Seller shall, in the performance of work or services under this Order, fully comply with all applicable Federal, State, National, Provincial and local laws, rules, regulations, and ordinances, of the United States and/or foreign countries or jurisdictions, where applicable.

23. FAIR LABOR STANDARDS ACT — Seller will comply with all applicable requirements of the Fair Standards Act, as amended, and with all applicable regulations and orders issued thereunder, and so certify on its invoice.

24. OSHA AND CPSA COMPLIANCE — Seller warrants that the Goods sold or the services rendered to Buyer shall conform to the standards and regulations promulgated under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651) and the Consumer Product Safety Act of 1972 (Title 5 U.S.C. 5314, 5315; 15 U.S.C. 2051-2081). In the event Goods sold do not conform to such standards and regulations, Buyer may return Goods for correction or replacement or at Buyer’s option, exercise its rights under Paragraph 11. Seller shall defend, indemnify and hold harmless Buyer from and against any and all claims, losses or expenses resulting from Seller’s failure to comply with any appli cable laws or regulations.

25. GOVERNMENT PROPERTY — In the event any tooling, test equipment articles or materials of any type designated or acquired hereunder as Government property or as Government owned is furnished to Seller in connection herewith, Seller assumes complete liability therefore except for reasonable wear, tear and consummation in the performance of this Order, unless otherwise provided on the face hereof. Seller shall comply with Appendix B of the DAR.

26. GOVERNMENT CONTRACTS — If a U.S. Government contract number appears on the face of this Order, Seller will comply with the provisions of the Anti-Kickback Statute, (Public Law 86-698, 74 Stat. 740, U.S.C. 51-54) and shall hold Buyer harmless from any liability resulting from failure of such compliance. Contract clauses required by the provisions of Defense Acquisition Regulations listed below (unless Buyer, in writing, designates other governmental regulations as applicable are incorporated herein by reference, except that the terms “Government” and “Contracting Officer” and equivalent phrases (unless the context clearly indicates otherwise) shall mean “Buyer” and the terms “Contractor” or “Subcontractor” shall mean “Seller”. If this Order is marked with a Government Contract Number Seller shall comply with the following DAR regulations as aforesaid.

7-103.5 (Contract) 7-103.25 Notice and Assistance Regarding Patent In fringement 7-103.13 Renegotiation 7-103.16 Contract Work Hours Standard Act 7-104.3 Buy American Act 7-103.17 Walsh-Healy Public Contracts Act 7-104.4 Notice to Govt. of Labor Disputes 7-103.18 Equal Opportunity (Seller must comply with 12-815 when it is applicable.) 7-104.6 Filing of Patent Applications 7-104.11 Excess Profit 7-104.12 Military Security Requirements 7-104.29 Price Reduction for Defective Cost or Pricing Data 7-104.14(a) Utilization of Small Business Concerns 7-105.3(c) Stop Work Orders 7-104.15 Examination of Records 9-203 Rights in Technical Data 7-104.18 Priorities, Allocations and Allotments 9-207.2(a) Technical Data-Withholding of Payment 7-104.20(a) Utilization of Labor Surplus Area Concerns 27. EXPORT CONTROL CLAUSES FOR PURCHASING AND SUBCONTRACTING —

1. The Supplier shall upon receipt of an Order or signature of a Contract notify the Buyer in writing if any or all of the goods purchased, including technical documentation, is subject to any type of export control regulation; this condition is a prerequisite to the coming into force of all Orders and /or Contract. The Supplier warrants that all such information provided to the Buyer is correct, complete, accurate and relevant. The Supplier shall forthwith notify the Buyer of any change, or expected change, which would alter the applicable export control regime. 2. The Supplier shall obtain the necessary export license or authorization prior to the export of the goods purchased, when necessary.

3. In the event that the export and/or re-export of the goods purchased from Supplier requires an export license or au thorization from U.S. government authorities, the coming into force of the Orders shall be conditional upon the effective issuance of such license. The Supplier shall forthwith inform the Buyer of such issuance and shall provide to the Buyer a duplicate of such license.

4. In the event that the license is withdrawn, revoked, not renewed or no longer valid, and such circumstances would be attributable to the Supplier, the Buyer shall be entitled to terminate, in whole or in part, all Orders or Contract, without prejudice to any rights or remedies of the Buyer hereunder or by law.

5. The Supplier shall indemnify the Buyer and its Customers against all consequences of any claims of the applicable export control authorities against the Buyer and its Customers in connection with the use or operation of the goods purchased from Supplier regarding the present obligations. The Supplier shall defend and hold harmless the Buyer and Customers from all consequences, including without limitation any costs, outlays, losses and damages which they may suffer or incur there from.

6. In the event that the import of the goods purchased from Supplier requires a temporary or permanent import license from U.S. government authorities, the coming into force of the Orders shall be conditioned upon the effective issuance of such license. The Suppliers shall forthwith inform the Buyer of such need for a license and Buyer shall obtain the necessary license prior to the shipment of goods purchased; Supplier agrees not to ship the goods until Buyer informs Supplier that a required license has been approved.

7. In the event that the import license is not issued, withdrawn, revoked, not renewed or no longer valid, the Buyer shall be entitled to terminate, in whole or in part, all Orders or Contracts, without prejudice to any rights or remedies of the Buyer hereunder or by law.