Standard Purchasing Terms

  1. CERTAIN DEFINITIONS: Reference to “products” herein shall include, without limitation, goods, services, work and data, expressly or impliedly, ordered herein or delivered hereunder, or any part thereof. Whenever used in this order, the following terms shall have the indicated meanings unless the context otherwise requires: (a) “order” or “purchase order” shall mean Buyer’s purchase order including all referenced addenda and attachments setting forth the terms and conditions of purchase of products provided for herein; (b) “work” shall mean the furnishing, doing or performing by Seller of all goods, services and other products required under this order; (c) “goods” shall include all materials, equipment and supplies to be  be furnished by Seller under this order; an(d) “delivery” shall be the act of transferring possession of products to Buyer.
  2. ACCEPTANCE; ENTIRE AGREEMENT: Seller’s acceptance or acknowledgment of Buyer’s order or its commencement of performance shall constitute acceptance of the terms and conditions herein. Buyer’s order which includes these terms and conditions represent the entire agreement of the parties and may not be changed, modified or revised unless in writing and signed by the authorized representative of The express terms and conditions hereof supersede any prior understanding, whether written or oral, and control any course of dealing or usage of trade. Notwithstanding the foregoing, any existing confidentiality agreements between Seller and Buyer are not superseded, and continue to remain in effect in accordance with their terms. None of the terms and conditions contained in any Seller terms or conditions of sale or proposal shall be of any effect except as explicitly set forth herein. Notwithstanding anything to the contrary, Buyer hereby expressly rejects, and does not agree to, any other terms and conditions such as those contained   in any proposal or order acceptance prepared or delivered to Buyer by Seller or its representatives.
  3. QUANTITY; INVOICING; PAYMENT: Products shipped in excess of quantity designated in Buyer’s order may be returned at Seller’s expense. Invoices shall not be submitted until after delivery. Payment shall be due and owing in accordance with the terms of Buyer’s order, and if no payment terms are specified, amounts due shall be payable net sixty (60) days from Buyer’s receipt and acceptance of Seller’s invoice. Moreover, if cash discounts are applicable, the cash discount period shall be calculated from the latter of date Buyer receives the invoice or date Buyer receives the product or service being procured. Payment shall not be construed as constituting acceptance of the goods or services.
  4. QUALITY; TITLE AND WARRANTIES: Seller warrants that it shall perform any services to be performed under Buyer’s order in a professional and efficient manner, using due care, skill and diligence, and in accordance with the degree of knowledge, skill and judgment customarily exercised by members of the applicable profession with respect to work of a similar nature. Seller warrants full and unrestricted title to all products free and clear of all  liens, restrictions, reservations, security interests or other encumbrances. Title to the products shall pass to Buyer upon the earlier of payment or delivery. Further, Seller warrants that the products delivered hereunder shall conform to the descriptions and specifications set forth or referred to in Buyer’s order, shall be new (unless specified by Buyer as used), shall be of merchantable quality, shall be free from defects and deficiencies in workmanship and material, shall be free from all defects and deficiencies due to design, and shall be fit for any intended use by Buyer which Seller has reason to know. Upon request of Buyer, Seller, at its sole expense, shall repair or replace all or any part of any product covered by this order which is discovered within one (1) year from the date it is successfully placed in operation, but no later than eighteen (18) months from date of delivery, unless a longer period is specified in Buyer’s order, to be defective or deficient in material, workmanship or design or otherwise fails to meet the requirements of this order. If Seller delays in correcting any such defect, deficiency or failure, Buyer may correct same and Seller shall be liable for all costs without prejudice to Buyer’s rights for breach of contract. Seller shall pay all transportation charges in connection with such repairs and replacements and such repaired and replaced goods shall be subject to the foregoing quality, titleand warranty provisions for a period ending on the later of (a) the end of the period of the original warranties or (b) one (1) year from the date they are fully repaired or replaced and delivered to Buyer. The foregoing warranties do not constitute a waiver of any other rights of Buyer expressed or implied and are in addition to any warranties implied by applicable law. These warranties shall run to Buyer, its customers and users of its products and shall survive inspection and acceptance.
  5. AUDIT ACCESS: Seller shall keep full and detailed accounts as may be necessary and satisfactory to Buyer for proper financial management under this Agreement. Upon thirty (30) days written notice, on an annual basis, or when an invoicing dispute arises, Buyer shall be afforded access to all of Seller’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Agreement. Seller shall preserve all such records for a period of five (5) years after the final payment from Buyer. Seller shall ensure that these same audit rights are provided to Buyer by each of its subcontractors providing products or services in connection with this Agreement.
  6. INSPECTION: All products including raw materials, work in process and end items wherever located shall be subject to inspection and test by Buyer or its designee at all times prior to shipment by Seller. Final inspection and acceptance shall be at Buyer’s premises by Buyer. Buyer may, at its election, (i) refuse to accept and return (at Seller’s expense) any nonconforming products and terminate this order or (ii) correct any nonconforming products at Seller’s expense.
  7. DELIVERY: Each package shall be numbered and labeled with Buyer’s order number, stock number, contents and weight, shall contain an itemized packing slip and shall be properly packed for shipment. No charges shall be allowed for packing, crating, freight, express or cartage, unless specified by Buyer in its order. Time is of the essence hereof and if any products are not delivered within the time specified in this order, or within a reasonable time if  no time is so specified, Buyer may either (i) refuse to accept such products and terminate this order, or (ii) cause Seller to ship the products by the most expeditious means of transportation whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller.
  8. RISK OF LOSS: Products shall be packaged and supported in a manner to ensure safety and protection during shipment and handling. Seller assumes the following risks: (a) all risks of loss or damage to all products, work in process, materials and other things until the delivery thereof as herein provided; (b) all risks of loss or damage to third persons and their property until the delivery of all the products as herein provided, (c) all risks of loss or damage to any property received by Seller from or held by Seller or its suppliers for the account of Buyer until such property has been delivered to Buyer, and (d) all  risks of loss or damage to any of the products or part thereof rejected by Buyer, from the time of shipment thereof to Seller until redelivery thereof to Buyer.
  9. CHANGES: Substitutions or additional charges of any kind initiated by Seller shall not be accepted without written authority from Buyer. Buyer may, by written notice, make changes within the general scope of this order to drawings and specifications, shipping and packing instructions, and place of delivery. Buyer shall have the right to make changes to work and to cancel, in whole or in part at any time, work covered hereby to the extent not shipped or completed prior to cancellation. Changes shall be stated in a formal order revision. Should any such change materially increase or decrease the cost of or the time required for performance, an equitable adjustment in the price and/or delivery schedule will be made including an allowance for obsolescence, rework or scrap, but only for materials in process within the Seller’s normal manufacturing cycle required to meet the delivery schedule. Any claims by Seller for such adjustment must be asserted in writing immediately but in no event later than fifteen (15) calendar days from the date the change is ordered or within such other period of time as may be agreed upon in writing. Failure to agree on any claim for equitable adjustment under this Clause shall be a dispute and the Buyer and/or Seller may thereupon pursue any remedy that it may have in any tribunal of competent jurisdiction. Pending the resolution of any such dispute, the Seller shall diligently perform this order, as changed.
  10. TERMINATION; SURVIVAL: If, in the opinion of Buyer, Seller jeopardizes work or its ability to perform and deliver products as provided hereunder by delay for an unreasonable time or by reason of faulty workmanship, then, in addition to its other remedies, Buyer may, upon twenty-four (24) hours’ notice, terminate all or any part of the work on this order. Buyer may terminate this order for its convenience at any time in whole or in part as to undelivered products, in which event, Buyer and Seller will negotiate an equitable settlement payment for the terminated portion consisting of Seller’s actual cost to date of termination, including an allowance for obsolescence, rework or scrap but only for materials in process within Seller’s normal manufacturing cycle required to meet the delivery schedule plus a reasonable profit thereon, less any value hereof to Seller; provided, however, that in no event shall such payment exceed the amount which would have been payable hereunder for such terminated portion, if this order had not been so terminated. Buyer shall have the right to acquire any inventory relating to this order in the hands of Seller at the time of termination. Any provisions of Buyer’s order and this Agreement which by their nature extend beyond the expiration or termination of Buyer’s order or this Agreement (including, but not limited to, sections 3, 4, 5, 12, 13, 14, 15, 16, 18, 19, 20, 21 and 23) shall continue in full force or effect notwithstanding the expiration or termination of Buyer’s order or this Agreement.
  11. EXCUSABLE DELAYS: Neither party shall be liable for damages for delay in delivery or acceptance of the products arising out of causes beyond its control and without its fault or negligence, including but not limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, hurricanes, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, nor shall such delay effect the remainder of the order if the delay is caused by the delay of a subcontractor of Seller and if such delay arises out of causes beyond the control of both Seller and the subcontractor and without the fault or negligence of either of them. Seller shall not be liable to Buyer in damages unless the materials or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery schedule. Seller will notify Buyer in writing promptly, but in no event more than ten (10) calendar days after the beginning of any cause for an excusable delay, or such cause shall be deemed waived.
  12. PUBLICITY; DISCLOSURE OF ORDER: Seller shall not, without the prior written consent of Buyer, use Buyer’s name in advertising or promotional material or publicity releases or in any manner advertise or publish the fact that Buyer has placed this order with Seller or its subject matter or terms and conditions.
  13. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY: All information or materials, including without limitation patterns, dies or other tools and specifications, drawings, data or Intellectual Property (as defined below), furnished or paid for by Buyer, (collectively, “Information”) shall be confidential, shall remain Buyer’s property, shall be used only in the performance of orders from Buyer or Buyer’s written designees, and together with all copies thereof, be delivered to Buyer or destroyed by Seller, as Buyer specifies. As to consulting, engineering, design, research, testing or similar or related services hereunder, any inventions, improvements, copyrightable work and other work product which are first created or produced by Seller in the performance of such services for Buyer or which are based on or suggested by any Information or by any employee of Buyer or its affiliates, Seller agrees that Buyer is the sole and exclusive owner of such work product, including all patents, copyrights and other intellectual property rights therein (“Intellectual Property’). All such works of authorship will be further deemed “works made for hire” to the extent allowed by law. Seller shall disclose and does hereby assign to Buyer all inventions, improvements, discoveries, techniques and processes resulting herefrom, including Intellectual Property, and does grant Buyer the right to use for any purpose all data specified to be delivered under this order. Seller agrees to assist Buyer in every way in perfecting and recording title to such property (including all Intellectual Property) in the name of Buyer or its designee.
  14. GENERAL INDEMNITY AND INSURANCE: Notwithstanding anything to the contrary, Seller agrees to defend, protect, indemnify and hold Buyer, its affiliates, successors and assigns, officers, directors, employees, subcontractors, customers, agents and lessors (“Buyer Indemnities”) harmless against from and against any and all losses, claims, demands, fines, penalties, costs and expenses (including attorneys’ fees and court costs), causes of action, suits and liabilities of every kind and character (“Claims”) arising in favor of any entity, Buyer or person, including both Buyer’s and Seller’s employees or contractual indemnities of Buyer, on account of or relating to personal injuries or death, or damage to property occurring, growing out of, incident to or resulting directly or indirectly from the performance of this order or the products supplied hereunder, including but not limited to (i) materials, workmanship or design of the products, (ii) the work or (iii) any act or omission of Seller, its employees, agents, servants or subcontractors, whether such Claim arises from or is contributed to by the negligence of Buyer or its employees, whether insured against or not, and whether due to imperfection of any material furnished by Buyer, or the premises themselves or any equipment thereon, whether latent or patent, or for any other cause whatsoever. Both Buyer and Seller expressly intend that the indemnity provided for in this section indemnifies and protects Buyer from the consequences of its own negligence, where that negligence is a concurring or contributing cause of such Claim. Seller shall purchase and maintain in full force and effect at all times during the term of this purchase order, with insurance companies acceptable to Buyer, at a minimum, the following insurance policies, which shall be primary as to any other existing, valid, and collectible insurance:
    1. Workers’ Compensation and Employers’ Liability Insurance:
      • Coverage “A” – Statutory
      • Coverage “B” – Employers’ Liability – Limit $1,000,000 USD
    2. Comprehensive General Liability Insurance: Limit of Liability $2,000,000 USD
    3. Automobile Liability Insurance: Limit of Liability $2,000,000 USD
  15. NOTE: For any work to be performed at facilities of Buyer or its affiliates or contractors, Seller shall, before commencing such work, secure from its liability insurers an endorsement naming Buyer and its affiliates as additional insured and obtain Waivers of Subrogation against Buyer and its affiliates from such insurers. Certificates of Insurance as evidence of the required insurance and coverage shall be provided to Buyer prior to such work. If Seller employs subcontractors to perform any such work hereunder, Seller agrees to require such subcontractors to obtain, carry, maintain, and keep in force during the time in which they are engaged in performing any such work hereunder, policies of insurance which comply with the requirements as set forth above. Seller shall also secure from its subcontractors Waivers of Subrogation against Buyer and its affiliates.
  16. INTELLECTUAL PROPERTY INDEMNITY: Seller agrees to defend, protect, indemnify and hold the Buyer Indemnities (as defined in section 15 above) harmless from and against any Claims (as defined in section 15 above) for or by reason of any actual or alleged infringement of any patent, copyright, license or other intellectual property right arising out of the manufacture, use, sale, delivery, or disposal of the products furnished under this order and the  cost of replacing such products with non-infringing goods.
  17. ASSIGNMENT AND SUBCONTRACTING: Seller may not assign this order or any part hereof without Buyer’s prior written consent. Seller shall not subcontract for completed or substantiallycompleted material called for by this order or for services without the prior written consent of Buyer.
  18. NON WAIVER: Failure of the Buyer to insist upon strict performance of any terms and conditions herein shall not be deemed a waiver of any rights or remedies that the Buyer shall have and shall not be deemed a waiver of any subsequent default of terms and conditions hereof. Shipment or receipt of any article under this order shall not constitute a waiver of any right of the Buyer hereunder or any obligation of the Seller to comply with any of the provisions of this order.
  19. TAXES AND DUTIES: Unless otherwise specified elsewhere in this order, the prices for the products ordered include all federal, provincial, state, municipal and/or local taxes and duties (including without limitation the Goods and Services Tax). The amounts of any such taxes shall be separately identified and stated separately on Seller’s invoice. Seller shall cooperate with Buyer in obtaining any available remission or refund of duty paid by Seller or its subcontractors on any portion of the work. Seller shall require similar cooperation from its subcontractors. All amounts received in such remission or  refund shall be held in trust for Buyer and shall be forwarded to Buyer forthwith.
  20. SAFETY: Seller is responsible for the safe performance of any work (or part of the work) to be conducted at Buyer’s premises, including the safety of its employees, agents, subcontractors and employees of subcontractors, and further, in support thereof. Seller shall require all of its employees, agents, subcontractors and employees of subcontractors to observe all safety instructions or requirements provided by Buyer, all accepted safety standards of the applicable industry, and all pertinent laws, regulations, standards and ordinances and will defend, indemnify and save Buyer harmless with respect to the consequences of Seller’s failure to do so.
  21. COMPLIANCE WITH LAWS: Seller represents and warrants that all products supplied hereunder are produced and priced in compliance with, that all work shall comply with, and that Seller shall comply with and observe, all federal, provincial, state, municipal and local laws, rules, regulations orders, codes and standards applicable in respect of this order and further that Seller shall notify Buyer promptly of any failure to comply with this requirement. Notwithstanding anything to the contrary, Seller or its subcontractors shall not export, directly or indirectly, any U.S. source technical data acquired from  Buyer in connection with this order, or any products utilizing any such data to any country to which direct or indirect export is prohibited or restricted by U.S. law, regulation or decree or for which the United States Government requires an export license (other than a self-executing general export license) or other governmental approval without first obtaining the written consent to do so from the Department of Homeland Security or other agency of the United States Government when required by an applicable statute or regulation. This section survives any expiration or other termination of this Agreement. Seller agrees and hereby certifies and agrees to certify, if requested by Buyer, in a separate certification: (a) that all products covered hereby have been produced in compliance with the U.S. Fair Labor Standards Act of 1938, as amended, and all regulations and orders thereunder; (b) that such products are priced in accordance with the regulations and procedures of any applicable price or similar commission (and its successors); (c) that the products and all work performed are in accordance with all requirements of the U.S. Federal Occupational Safety and Health Act of 1970 and all regulations and rules thereunder; (d) when work or other products under this order are for use on a United States Government contract or subcontract, this order shall be subject to all applicable provisions of, and will contain all clauses and agreements required by the terms of any United States Government contract under which or for which this order is issued, and federal laws and regulations; and (e) such other compliance as Buyer may reasonably request. Seller shall supply material safety data sheets or similar material relating to the products, including without limitation any pertinent toxicity data in its possession or of which it is aware relative to human and environmental health concerning the products and offer recommendations for the safe storage and lawful disposal of the products. Seller warrants that any chemical substance, as defined in the U.S. Toxic Substances Control Act (as amended from time to time), sold or otherwise furnished by Seller or its contractors to Buyer is or will be on the list of chemical substances compiled and published by the U.S. Environmental Protection Agency (“US EPA”) pursuant to such act on the date as of which the substance is sold or otherwise furnished to Buyer. Seller warrants that any facility to be utilized in the performance of this order has not been listed on the EPA List of Violating Facilities and that it will promptly so inform Buyer of this fact in writing.
  22. INSOLVENCY: Buyer may forthwith cancel the contract resulting from the acceptance of this order in the event of the happening of any of the following,   or of any other comparable event: (i) insolvency of Seller, (ii) the filing of a voluntary petition in bankruptcy, (iii) the filing of an involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing, (iv) the appointment of a Receiver or Trustee for Seller provided such appointment is not vacated within thirty (30) days from the date of such appointment, or (v) the execution by Seller of an assignment for the benefit of creditors.
  23. APPLICABLE LAW: THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF GEORGIA, including the Uniform Commercial Code as enacted in Georgia but explicitly excluding the United Nations Convention on Contracts for the International Sale of Goods.
  24. EQUAL EMPLOYMENT OPPORTUNITY: THE PROVISIONS OF U.S. EXECUTIVE ORDER 11246, AS AMENDED, THE U.S. REHABILITATION ACT OF 1973, THE U.S. VIETNAM ERA VETERANS READJUSTMENT ACT OF 1974, AND ALL AMENDMENTS THERETO, AND ALL IMPLEMENTING REGULATIONS FOR THESE ORDERS AND LAWS ARE HEREBY INCORPORATED BY REFERENCE AND SELLER REPRESENTS AND WARRANTS THAT IT SHALL COMPLY WITH THE FOREGOING TO THE EXTENT THE SAME ARE APPLICABLE. In particular, by the submission of its bid or the acceptance of this order, Seller certifies that, pursuant to the provisions of Section 60-1.40 and Part 60-2 of Title 41 of the Code of Federal Regulations, if Seller has been awarded a covered subcontract of $50,000 or more and has 50 or more employees, Seller has developed and has on file at each of its establishments a written affirmative action compliance program or will, within 120 days after receipt of such subcontract, develop and maintain a written affirmative action compliance program for each of its facilities unless exempted by law or regulation from the development of such a program. Seller further certifies that it has filed with the appropriate government agency all reports due, including the SF-100, under the applicable filing requirements. (Note: The penalty for making false statements in offers is prescribed in 18 U.S.C. 101.