ACCEPTANCE:
Unless seller notifies buyer in writing within ten (10) days of receipt of this purchase order, receipt by seller of signed purchase order or performance under the order shall constitute acceptance of the order by seller, including all terms and conditions herein. This order expressly limits acceptance to the terms stated herein. Any additional or different proposals by seller are rejected, unless expressly agreed to in writing by an authorized representative of DRS Tactical Systems, in the event this order does not state price and delivery. Buyer will not be bound to any price or delivery to which it has not specifically agreed in writing.
WARRANTIES:
Seller expressly warrants that all articles, materials, parts and work covered by this order will conform to the specifications, drawings, samples or other description furnished or adopted by buyer or otherwise referenced in this order and shall be merchantable, of good workmanship and material and free of defects. These warranties are in addition to any other warranties specified herein or implied by law and shall survive acceptance or payment in case of ambiguity in specifications, drawings or other requirements of this order. Seller, before proceeding, must consult buyer, whose written interpretation shall be final. This warranty covers both buyer and buyer's customers.
INSPECTION:
All material and workmanship shall be subject to inspection by buyer before, during performance and after delivery. Buyer may require seller to repair or replace rejected material or buyer may accept any materials and, upon discovery of nonconformance, may reject or keep and rework any such materials not so conforming. Cost of repair, re-work, replacement, inspection, transportation, repacking and/or re-inspection shall be at seller's expense. Seller agrees to furnish all reasonable facilities and assistance for tests and inspections to be made on its premises by or on behalf of buyer or the government. Buyer's failure to inspect does not relieve seller of any responsibility to perform according to the terms of the purchase order.
DELIVERY:
Time is of the essence in this purchase order, and no acts of the buyer, including without limitation modifications of this order or acceptance of late deliveries, shall constitute waiver of this provision. Buyer also reserves the right to refuse or return at seller's risk and expense shipments made in excess of buyer's orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates. Seller shall immediately notify buyer in writing of any actual or potential delay to this order.
TERMINATION FOR CONVENIENCE:
Buyer may, by written notice, direct seller to terminate in whole or in part at any time, and such termination shall not constitute a default, in such event, unless seller is defaulted or has been in default in performance hereof. Buyer and seller shall have all rights and obligations accruing to it both at law or in equity, including buyer's rights to title and possession of goods paid for. Seller shall be reimbursed for actual, reasonable and substantiated costs, plus a reasonable profit for work performed to date of termination. Buyer may take immediate possession of all work so performed upon notice of termination. Seller's obligations under the warranty or other such clauses contained in the purchase order shall survive such termination.
TERMINATION FOR DEFAULT:
Buyer may by written notice direct seller to terminate this order or work under this order in whole or in part at any time for breach of any one or more of its terms. Further, the insolvency of the seller of adjudication of bankruptcy of the seller or the filing of a voluntary petition of bankruptcy by the seller or the making of an assignment for the benefit of creditors shall also be a breach hereof. In the event of seller's default hereunder, the buyer may exercise any or all of its accruing to it, both at law, including those set forth in Article 2 of the Uniform Commercial Code, or in equity. Seller's obligations under the warranty, patents and confidentiality provisions of this purchase order shall survive such termination.
CONFIDENTIALITY:
All specifications, drawings, data, information, software and other items which are (1) supplied to seller by buyer, or (2) obtained or developed by seller and paid for by buyer in the performance of this purchase order shall be held as confidential by seller, shall be used only for the purpose of providing goods or services to buyer pursuant to this purchase order and shall not be disclosed to any third party without the written consent of the buyer. Seller shall, upon written demand, provide all specifications, drawings, data, information, software and other items to buyer.
DISPUTES:
Any controversy or claim arising out of or relating to this purchase order or the breach thereof may be settled at buyer's sole discretion either by submitting the claim to: (1) a court of competent jurisdiction, or (2) binding arbitration, before a single arbitrator, in and under the laws of the state in which the purchase order is issued, in accordance with the commercial arbitration rules of the American Arbitration Association; and judgment upon the arbitrator's award may be entered in any court having jurisdiction thereof. Pending resolution or settlement of any dispute arising under this purchase order, seller shall proceed diligently as directed by buyer with the performance of this purchase order.
REMEDIES:
The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of buyer to enforce any of its rights shall not constitute a waiver of such rights or any other rights. In no event shall seller be entitled to anticipatory profits or to special (including multiple or punitive), incidental or consequential damages.
CHANGES:
Buyer shall have the right by written order to suspend work or make changes from time to time in the services to be rendered or the materials to be furnished by seller hereunder on the delivery date. If such suspension or change causes an increase or decrease in cost of the performance or time of performance under this purchase order, an equitable adjustment shall be promptly negotiated and the purchase order modified accordingly. Any claim by seller for adjustment under this clause must be asserted in writing within twenty (20) days from the date of receipt by the seller of notification of change or suspension and shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures. However, nothing herein shall excuse the seller from proceeding with the purchase order as changed pending resolution of the claim.
RELEASE OF INFORMATION:
Seller shall not publish any information developed under this purchase order nor distribute it nor make any news release about the subject matter of this purchase order without the prior written consent of the buyer.
PATENTS:
Seller warrants that the sale, use or incorporation into manufactured products of all machines, parts, components, services, devices, materials and rights furnished or licensed hereunder which are not of buyer's design, composition or manufacture shall be free and clear of infringement of any valid patent, copyright, trademark or other proprietary rights. Seller shall save buyer and its customers harmless from all and any expenses, liability and loss of any kind (including all costs and expenses, to include attorney fees) growing out of claims, suits or actions alleging such infringement, which claims, suits or actions the seller hereby agrees to defend. Seller may replace or modify infringing goods with comparable or substantially same form, fit and function so as to remove the source of infringement.
TAXES:
Seller agrees to pay all local, state and federal excise, state and use tax, where applicable (unless otherwise agreed in writing).
ASSIGNMENTS:
Seller may not assign any rights or obligations due or to become due under this purchase order without the prior written consent of buyer. Buyer shall have the right at any time to set off any amount owing from seller to buyer or buyer's subsidiaries and/or affiliates against any amount due and owing to seller or any of its subsidiaries and/or affiliates pursuant to this purchase order or any other contractual agreement between buyer and seller or their respective subsidiaries and/or affiliates.
INDEMNITY AGAINST CLAIMS:
Seller shall defend, indemnify and hold harmless buyer and buyer's directors, officers, employees and agents from any liability, claim of liability, expenses, cause of action, loss or damage whatsoever (including attorneys' fees) arising out of or in any way connected with seller's performance or failure to perform this purchase order or that of seller's agents, employees or subcontractors. Seller shall be responsible for the actions and failure to act of all parties retained through or under seller in connection with the performance of this purchase order. Seller shall also maintain such public liability, property damage, Employers Liability Compensation Insurance and Motor Vehicle Liability Insurance (personal injury and property damage), as are specified in this purchase order or, if none specified, such amounts that will protect seller (or its subcontractors) and buyer from risks and from claims under any applicable workers' compensation, occupational disease and occupational safety and health statutes, including the Occupational Safety and Health Act. Seller shall, without limitation as to time, indemnify and save buyer harmless from all claims which may be asserted against property covered hereunder, including without limitation mechanic's liens or claims arising under the Workers' Compensation or Occupational Disease Laws and from all claims for injury to persons or property arising out of or related to such property, unless the same are cause solely and directly by buyer's negligence.
SUBCONTRACTING:
No lower-tier subcontract or purchase order valued at either $100,000 or more or 10% or more of the indicated value of this purchase order, whichever is less, for completed or substantially completed supplies or other work shall be let without the written consent of buyer.
COMPLIANCE WITH LAW:
Seller warrants that all work performed under this purchase order shall comply with all applicable federal, state, and local laws and regulations, such as but not limited to: Fair Labor Standards Act; all regulations and orders of the U.S. Department of Labor, all applicable OSHA requirements; Department of Transportation regulations regarding movement of hazardous materials; and the Anti-Kickback Act of 1986. Any breach of this warranty shall be a material breach of each and every contract between buyer and seller. For all government-related purchase orders the following FAR and DFAR Clauses are listed by reference: Anti-Kickback 52-203-7; Certification/Disclosure Payments to Influence 52-203-11; Security Requirements 52-204-2; Protecting Governments Interest/Subcontracting with Debarred, Suspended Proposed for Debarment Contractors 52-209-6; New Material 52-211-5; Government Surplus 52-211-6/7; Defense Priority & Allocation 52-211-15; Stop Work 52-246-15; Equal Opportunity 52-222-26; Disputes 52-233-1; Changes 52-245-2; Alt 1 Government Property 52-245-17; Termination Convenience 52-249-1; and Audit & Records FAR 52-215-2.
EQUAL OPPORTUNITY CLAUSE:
The Equal Opportunity Clause in Section 202 of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and Section 4212 Of the Vietnam Era Veterans Readjustment Assistant Act of 1974, as amended, and the implementing rules and regulations of the Office of Federal Contract Compliance Programs are incorporated herein by specific reference.
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