|ISO 9001:2008 Registered||AS 9100 Registered||UL Recognized||SAM Registered||ROHS Compliance|
All prices published by us or quoted by our representatives may be changed at any time without notice. Written quotations expire automatically sixty (60) days from the date issued and are subject to change or termination by notice during that period. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other governmental authority, all of which taxes shall be paid by the purchaser. The purchaser is responsible for obtaining and providing to us any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability. All prices shall be as specified by us or, if no price has been specified, shall be our price in effect at the time of delivery.
2. TERMS OF PAYMENT
Unless otherwise expressly agreed to by us in writing and signed by an authorized representative, terms are as set forth on the reverse side hereof. We reserve the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in our judgment, the purchaser's financial condition does not warrant proceeding on the terms specified. Overdue payments shall he subject to finance charges computed at a periodic rate (to the extent permitted by law) of 11/2% per month (18% per year), plus all costs and expenses, including reasonable attorneys' fees, incurred by us in collecting such overdue amounts. Amounts owed by the purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which the purchaser may claim are owed by us and regardless of any other controversies which may exist.
Unless otherwise specified, all sales are F.O.B. our premises in Ayer, Massachusetts, and the time of delivery shall be the time when the product is ready for pickup at that location by the purchaser or by a carrier for delivery to the purchaser. Without in any way limiting the generality of paragraph 10, we shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond our control, including, without limitations, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, floods, epidemics, lockouts, strikes and slowdowns, delays in delivery by our suppliers, or acts or omissions of the purchaser. In the event of delay due to any such cause, time for delivery shall be extended for a period equal to the duration of the delay and the purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of three (3) months, we may, at our option, by written notice to the purchaser, cancel that and all future deliveries without further liability or obligation of any kind. Products on which delivery is delayed due to any cause within the purchaser's control may be placed in storage by us at the purchaser's risk and for its account. The purchaser shall be liable for all costs and expenses incurred by us in holding or storing products for the purchaser or at the purchaser's request.
Unless specific instructions to the contrary are supplied by the purchaser, methods and routes of shipment will be selected by us but we will not assume any liability in connection with shipment nor constitute any carrier as our agent. All shipments will be insured at the purchaser's expense and made at the purchaser's risk, and the purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, non-delivery, loss, damage or delay.
5. TITLE AND RISK OF LOSS Subject to paragraph 6 and to our right to stop delivery of products in transit, title to and risk of loss for products shall pass to the purchaser upon the earlier of delivery to the purchaser or to a carrier for shipment to the purchaser.
6. SECURITY INTEREST
We reserve and the purchaser grants to us a security interest in all products sold and all proceeds to secure the full payment and performance by the purchaser of its liabilities and obligations to us. The purchaser acknowledges that this document or copies of this document or any other appropriate instrument may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as we may request in order to perfect our security interest.
7. CANCELLATIONS AND RETURNS
Orders which have been accepted may be cancelled only with our prior written and signed consent and upon terms that will fully indemnify us against loss. Products are not in any event to be returned to us without our prior written and signed authorization.
Unless otherwise specified, we assume no obligation to install any products sold or to place them in working order at the purchaser's premises.
All products are subject to our standard tolerances for specifications. We reserve the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the performance of the products or the purpose for which they can be used.
10. WARRANTY AND CLAIMS
We warrant solely to the purchaser that the products will be free from defects in materials and workmanship, when given normal, proper and intended usage, for a period of 30 days from the date of delivery. All claims for nonconforming or defective products must be made in writing within the 30-day warranty period and any claims not made within that period shall be deemed waived and released. Our sole responsibility with respect to such claims shall be, at our option, to repair or replace any product or component which we determine to be defective. IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER. OUR MAXIMUM LIABILITY ARISING OUT OF THE SALE OF THE PRODUCTS OR THEIR USE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY US IN CONNECTION WITH SUCH DEFECTIVE PRODUCTS. OUR MAXIMUM LIABILITY FOR ANY LOSS OF OR DAMAGE TO ANY CUSTOMER SUPPLIED MATERIALS SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY US IN CONNECTION WITH THE PRODUCTS INTENDED TO BE PRODUCED USING SUCH MATERIALS. No suit or action shall be brought against us more than one year after the related cause of action has accrued. THE FOREGOING CONSTITUTES OUR SOLE LIABILITY AND THE PURCHASER'S SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY US. EXCEPT AS THUS PROVIDED HEREIN, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
We assume no obligation or liability of any kind with respect to infringements or alleged infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising out of the purchaser's purchase, use, possession, sale or delivery of any products sold hereunder. The purchaser shall indemnify and hold us harmless from any and all claims, liabilities, damages or expenses resulting from infringements or alleged infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising from compliance by us with any designs or specifications provided by the purchaser. No sale of any product shall be construed as granting to the purchaser any license or other right in or to any patent, copyright, trademark or other proprietary right applicable to the product.
The purchaser shall not delegate any duties nor assign any rights or claims under this document without our prior written and signed consent, and any such attempted delegation or assignment shall be void.
13. EXPORT COMPLIANCE
The Purchaser understands that exports and re-exports of our products and any related software, technical data, service, or technical assistance (individually, a "Item" and, collectively, the "Items") are subject to U.S. and local export control, economic sanctions, and customs laws, regulations, rules, and orders (individually, a "Trade Control Law", and, collectively, "Trade Control Laws"). The Purchaser agrees to comply, and will ensure that its subsidiaries comply, with all applicable Trade Control Laws, and to obtain all required U.S. and local authorizations, permits, or licenses in connection with the purchase, installation, sale, shipment, export or use of any of the Items its expense. The Purchaser will give notice of the need to comply with the Trade Control Laws to any person or entity which it has reason to believe is obtaining a Item from the purchaser with the intention of exportation.
The Purchaser shall not use, export, re-export, import, or otherwise transfer or provide any Item, or any item incorporating the Item, in contravention of any Trade Control Law or any end-user certificate provided by the purchaser, including (a) to any destination embargoed or sanctioned by the U.S., including Iran, where that act would be in breach of the applicable embargo or sanction, (b) to anyone listed on the Specially Designated Nationals List, the Entity List, or on any other prohibited persons list published by the U.S. Departments of Commerce, Treasury, or State (a "Denied Person"), or (c) for a prohibited end-use (such as research on or development or fabrication of chemical, biological, or nuclear weapons, unmanned air vehicles or missiles; or nuclear explosive or fuel cycle activities or unsafeguarded nuclear activity) without prior authorization from the applicable U.S. export control agency. The Purchaser certifies that it is not a Denied Person and that it is not owned, directly or indirectly, 50% or more by one or more persons barred by the U.S. Department of the Treasury. The Purchaser further agrees that it will not import or otherwise transfer to the United States on our behalf or for our benefit any Items, directly or indirectly, from any embargoed country or from any Denied Person without prior authorization from the applicable U.S. export control agency.
The Purchaser agrees to provide to us in a timely manner such information and assistance, including end user certificates, as we may request in connection with securing any required licenses and authorizations. Any delivery schedules delineated in our offer and/or the purchaser’s order are calculated from the date of receipt of any requested export license(s). In addition to any other remedy we may have, we may suspend and/or cancel the export, delivery, installation, and/or any maintenance or repair service of any Item and otherwise be excused from performing any obligations we may have under this contract, if (a) we have not received all export-related documentation that we requested, including end-user certificates, (b) we have not received the governmental approvals that we deem to be required, (c) we believe that such activity may violate any Trade Control Laws or our own compliance policies, or (d) the purchaser violates any of its obligations and commitments hereunder or any Trade Control Law. The Purchaser must notify us in writing before providing to us any technical data that is controlled under any Trade Control Law ("Controlled Technical Data"). Such notification shall include the applicable Export Control Classification Number, U.S. Munitions List category and subcategory, or equivalent foreign export control classification of such Controlled Technical Data. Customer shall appropriately mark each page of Controlled Technical Data as export controlled before providing it to us.
We will not be liable to the purchaser for any loss or expense if the purchaser fails to comply with any Trade Control Law or with the provisions set forth herein. The Purchaser will fully indemnify us and our representatives against any damages, costs, losses, liabilities, and/or expenses (including attorneys’ fees and expenses) arising out of the purchaser’s non-compliance with Section 13, including the purchaser’s violation or alleged violation of any Trade Control Law. Section 13 will survive the expiration or termination of this contract.
14. LAW; CHOICE OF JURISDICTION
Any contract made shall be governed by and interpreted, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without taking into account any choice of law provisions. The U.N. Convention on Contracts for the International Sale of Goods does not apply. The purchaser hereby (a) irrevocably and unconditionally submits for itself and its property, in any legal action or proceeding relating to or arising out of this Purchase Order, to the exclusive jurisdiction and venue of the courts of the Commonwealth of Massachusetts, the courts of the United States of America in Massachusetts and the appellate courts from any thereof, and (b) agrees that any such action or proceeding may be brought in such courts.
15. FORCE MAJEURE
In the event that we are prevented from performing, or are unable to perform, any of our obligations hereunder due to any act of nature, act of God, fire, casualty, flood, war, strike, lockout, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction or production facilities, riot, insurrection, sabotage, inability to procure materials, labor, equipment, transportation or energy sufficient to meet our needs, delay in delivery, or any other cause beyond our reasonable control, our failure to perform shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
16. SEVERABILITY; REMEDIES AND WAIVER
In the event that any one or more provisions contained herein (other than the provisions obligating the purchaser to pay us for the products) shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Our failure to enforce, or waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
17. ADDITIONAL OR INCONSISTENT TERMS
Terms and conditions set forth in any document provided by the purchaser which differ from, conflict with or are not included in the terms and conditions set forth in this document shall not become a part of any agreement between us and the purchaser unless such terms and conditions are specifically accepted by us in writing and signed by an authorized representative. Our failure to object to terms contained in any communication from the purchaser will not be a waiver of the terms set forth herein. To the extent that this document may constitute an acceptance, such acceptance is expressly conditioned on the purchaser's assent to any additional or inconsistent terms and conditions set forth in this document.
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY ORION INDUSTRIES INCORPORATED AND SIGNED BY AN AUTHORIZED REPRESENTATIVE, ALL PURCHASES MADE BY ORION INDUSTRIES INCORPORATED ARE ACCEPTED WITH AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
A. "Buyer" means Orion Industries Incorporated as represented by an authorized representative.
B. "Seller" means the party identified on the face of this Purchase Order with whom Buyer is contracting, including any applicable Seller personnel.
2. ACCEPTANCE OF PURCHASE ORDER
The execution and return of the copy of this Purchase Order by Seller, or Seller’s commencement of delivery pursuant to this Purchase Order, constitutes acceptance of this Purchase Order by Seller. Acceptance of this Purchase Order is limited to and conditioned upon acceptance of the terms set forth below, which terms cannot be altered of amended without Buyer's express written and signed agreement. Acceptance shall be binding upon Seller and Seller's successors and assigns. These terms and conditions, together with such modifications and with such data relating to price and delivery as are accepted in writing by Buyer, constitute the entire agreement between the parties. The rights of both parties hereunder shall be in addition to their rights and remedies at law or equity. Failure or delay of Buyer to enforce any of its rights shall not constitute waiver of such rights or of any other rights.
3. ACCEPTANCE OF CONFORMING ITEMS
All items provided to Buyer by Seller pursuant to this Purchase Order shall be subject to inspection as outlined in Section 7 below and deemed accepted upon a determination that said items are conforming.
4. DELIVERY; NOTICE OF LABOR DISPUTES
Time is of the essence in the performance of this Purchase Order. If delivery schedule cannot be met, Seller shall promptly notify Buyer of the earliest possible date for delivery. Notwithstanding such notice, and unless a substitute delivery date has been expressly agreed to by Buyer in writing, Seller's failure to effect delivery in the date specified shall entitle Buyer (a) to cancel this order without any liability to Buyer or (b) to purchase substitute items elsewhere, and to hold Seller accountable for any loss or additional costs incurred by Buyer. Seller shall notify Buyer immediately of any actual or potential labor dispute which is delaying or threatens to delay the timely performance of this order.
All prices shall be stated in this Purchase Order. If no price is stated for any item, Buyer will not be bound to any prices or deliveries to which Buyer has not specifically agreed to in writing.
Unless Buyer has otherwise agreed in writing, Seller must deliver the exact quantities specified in this Purchase Order. Buyer also reserves the right to refuse or return, at Seller's risk and expense, shipment made in excess of Buyer’s orders or in advance of or after required schedules or to defer payments on advanced deliveries until scheduled delivery dates.
7. INSPECTION AND REJECTION
All material and workmanship shall be subject to inspection by Buyer, before and after delivery. Items rejected as not conforming to this Purchase Order shall be returned to Seller at Seller's risk and expense and shall not be replaced by Seller without Buyer's written and signed authorization. Buyer may require Seller to replace rejected material at Seller's expense; Buyer may accept any materials at Seller's expense; or Buyer may accept any materials that conform to Seller's warranties and, upon discovery of any materials not so conforming, may reject or keep and rework at Seller's expense any such materials not so conforming. Buyer may make 100% inspection at Seller's expense and reject an entire shipment if Buyer's sampling indicates rejection at the 1% acceptable quality level (or such greater or lesser percentage as Buyer and Seller may agree upon writing. )
8. TITLE AND RISK OF LOSS
Title to and risk of loss for items purchased which conform to this Purchase Order shall pass to Buyer upon receipt at Buyer's premises. Title to risk of loss for non-conforming items shall remain with Seller until final acceptance by Buyer.
A. Seller shall be solely responsible for any and all third-party liability incurred by it in connection with the performance of this Purchase Order.
B. Seller shall maintain the following types of insurance for the duration of this Purchase Order: (1) Workers’ Compensation and Employer’s Liability Insurance (in accordance with applicable Workers’ Compensation) with a limit of not less than $1,000,000; (2) Employer’s Liability Insurance coverage with limits of $1,000,000; and (3) Commercial General Liability Insurance with not less than the following limits: (A) Bodily Injury $3,000,000 per person, $3,000,000 per occurrence; (B) Property Damage $3,000,000 per occurrence; (C) Automotive $1,000,000 per occurrence; and (D) Products and Completed Operations $3,000,000 aggregate.
C. As evidence of Seller’s compliance with paragraph (b) of this clause, upon request, Seller shall furnish to Buyer "Certificates of Insurance" evidencing that Seller has met these requirements. Seller’s insurance maintained pursuant to this clause shall be considered primary with respect to the interest of Buyer and such insurance is not contributory with any insurance which Buyer may carry.
Seller represents and warrants that all products and materials delivered or service rendered on or pursuant to this Purchase Order shall be merchantable, fit for the particular uses intended, of the grade and quality specified, and free from all defects, and shall conform to all samples, drawings, descriptions and specifications furnished to Buyer in all respects. This warranty shall survive any delivery, inspection, acceptance or payment. Seller shall be liable for and hold Buyer and its employees, officers, directors and officers harmless from any loss, damage or expense whatsoever that Buyer may suffer from breach of any of these warranties.
11. QUALITY SYSTEM
Sellers whose products and services are subject to an approved Quality System shall meet AS9100 Quality Management Systems requirements including the requirements regarding the need for sellers to:
12. BUYER'S PROPERTY
All specifications, drawings, sketches, models, samples, tools, designs, dies, molds, patterns, jigs, fixtures, materials, technical information or data, written oral or otherwise, and other equipment and items furnished by Buyer or on Buyer's behalf ("Buyer’s Property"), shall be and remain Buyer's property and shall be returned promptly to Buyer (together with all copies) at Buyer's request. Such Buyer’s Property shall be treated as confidential and shall not be used or disclosed by Seller except as required in the course of performing this or other Purchase Orders for Buyer unless Buyer consents otherwise in signed writing. Seller shall prominently mark all such items as the property of Buyer and, if directed, the area in which they are located as containing the property of Buyer. No express or implied representation or warranty is made by Buyer with respect to any of the Buyer’s Property. No express or implied license is granted to Seller relating to any of the Buyer’s Property except for the use of the Buyer’s Property as required in the course of performing this or other Purchase Orders for Buyer unless Buyer otherwise consents in signed writing. All such Buyer’s Property shall be held at Seller's risk, shall be insured by Seller at its expense at an amount equal to its replacement cost and with loss payable to Buyer and shall be delivered promptly to Buyer’s designee on request. Seller shall not dispose of any such Property without Buyer's written and signed consent. The Buyer’s Property may contain information or products whose export is restricted by applicable laws, including, without limitation, the Export Control Act. Seller shall not disclose technical data in any form to a foreign person (including foreign persons employed by Seller), or export the technical data from the United States without the written and signed authorization of Buyer. The provisions of this Article 8 herein above set forth shall survive the delivery and payment and remain in full force until all said items are delivered to Buyer or otherwise disposed of with Buyer's written and signed consent. Seller shall, without any limitation as to time, indemnify and hold Buyer harmless from all claims which may be asserted against Buyer or said Property, including, without limitation, mechanic's liens or claims arising under workmen's compensation or occupational disease laws, and from all claims for injury to persons or property arising out of or related to such items unless the same are caused solely and directly by Buyer's gross negligence or willful misconduct. Unless Buyer has otherwise agreed in signed writing, information furnished or disclosed by Seller to Buyer shall not be considered to be confidential or proprietary and shall be acquired by Buyer free of restrictions of any kind.
Buyer may, at any time and from time to time by written notice to Seller, suspend work, make changes in specifications, designs, testing, packing and destinations and postponements in delivery schedules. If any suspension or change causes a material increase or decrease in the cost of or the time required for performance of this order, an equitable adjustment shall be negotiated promptly as to the price or delivery schedule or both. Any claims by Seller for adjustment under this clause shall be made within 10 days after receipt of written notice for the suspension or change, and any claim not made within the 10 day period shall be deemed waived. Such claim shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures in reasonable detail. No change orders and no increase in cost or time required for performance shall be binding upon Buyer unless they are made in writing and signed by Buyer's duly authorized representative.
14. PATENT AND OTHER IP RIGHTS
Seller represents and warrants that all products and materials delivered or services rendered pursuant to this Purchase Order do not violate or infringe, or will not violate or infringe, any license or intellectual property rights of any other person or entity. This warranty shall survive any delivery, inspection, acceptance or payment. Seller shall indemnify and hold Buyer and Buyer's employees, officers, directors and agents harmless from any and all claims, liabilities, damage, expenses or loss of any kind at Seller’s expense, resulting from infringements or alleged infringement by the sale, use or incorporation into manufactured products of all items furnished by Seller of any United States or foreign patents, trademarks, copyrights or other proprietary rights of another person or entity, except where such infringement or alleged infringement resulted exclusively from Seller's compliance with Buyer's written instructions.
Seller shall not delegate any duties nor assign any rights or claims under this Purchase Order without Buyer's prior written and signed consent, and such attempted delegation or assignment shall be void. In any case, assigned accounts shall be subject to set-off, recoupment or other claim of Buyer against Seller.
16. BANKRUPTCY AND OTHER MATERIAL TRANSACTIONS
Buyer shall be entitled to cancel, without any liability to Buyer, any unfilled part of this Purchase Order in the event that (i) Seller ceases operations; (ii) Seller dissolves or liquidates; (iii) a proceeding, voluntary or involuntary, in bankruptcy or insolvency, is brought, commenced or filed by or against Seller; or (iv) with or without Seller's consent, any trustee or receiver for any substantial portion of Seller’s assets or any assignee for the benefit of its creditors is appointed. In any such event, all deposits or prepayments shall be deemed to have been held in trust for Buyer's benefit and shall be returned to Buyer promptly upon request.
17. COUNTERFEIT WORK
Seller agrees that it shall not use Counterfeit Work in fulfilling the requirements of this Purchase order.
A. For purposes of this clause, Work consists of those parts delivered under this Purchase Order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). "Counterfeit Work" means Work that: (1) is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method; (2) is not genuine and authentic; or (3) has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
B. Seller agrees and shall ensure that Counterfeit Work is not delivered to Buyer under this Purchase Order.
C. Seller shall only purchase products to be delivered or incorporated as Work to Buyer directly from the Original Component Manufacturer ("OCM")/Original Equipment Manufacturer ("OEM"), or through an OCM/OEM authorized distributor chain. Such products shall not be acquired from independent distributors or brokers unless approved in advance in writing by Buyer.
D. If Seller becomes aware or suspects that it has furnished any Counterfeit Work to Buyer, Seller shall immediately notify Buyer. When requested by Buyer, Seller shall provide Buyer with OCM/OEM documentation that authenticates traceability of the parts, components, or equipment to the applicable OCM/OEM.
E. In the event Work delivered under this Purchase Order constitutes or includes Counterfeit Work, Seller shall, at its sole cost and expense, promptly replace such Counterfeit Work with genuine and authentic Work conforming to all requirements of this Purchase Order. Buyer shall be under no obligation to return suspect or confirmed Counterfeit Work. Notwithstanding any clause or provision in this Purchase Order to the contrary, Seller shall be liable, without limitation, to Buyer for all costs and expenses relating to the investigation, analysis, and disposition (including removal and replacement) of Counterfeit Work. The remedies contained in this paragraph are in addition to any other remedies Buyer may have at law, equity, or under other provisions of this Purchase Order.
F. This clause applies in addition to any quality provision, specification, statement of work, or other provision included in this Purchase Order addressing the authenticity of Work. To the extent such provisions conflict with this clause, this clause prevails.
G. In accordance with AS5553, "Counterfeit Electronic Parts: Avoidance, Detection, Mitigation, and Disposition," Seller shall be aware of penalties associated with fraud and falsification, and shall comply with all applicable standards and laws regarding Counterfeit Work.
H. Seller shall include this clause or an equivalent provision in all lower-tier subcontracts for the delivery of items that will be furnished to, or included in Work furnished to, Buyer under this Purchase Order.
18. INTELLECTUAL PROPERTY
A. Seller warrants that Work performed or delivered under this Purchase Order shall not infringe or otherwise violate the intellectual property rights of any third-party in the U.S. or any foreign country. Except to the extent that the Government assumes liability therefore, Seller agrees to defend, indemnify, and hold harmless Buyer (and Buyer’s affiliates and their respective directors, officers, employees, and agents) and Buyer’s customer from and against any claims, damages, losses, costs, and expenses, including attorneys fees, arising out of any action by a third-party that is based upon a claim that Work performed or delivered under this Purchase Order infringes or otherwise violates the intellectual property rights of any third-party.
B. In addition to the Government’s rights in data and inventions, Seller agrees that Buyer, in the performance of any prime contract obligations, shall have an unlimited, irrevocable, paid-up, royalty-free right to make, have made, sell, offer for sale, use, execute, reproduce, display, perform, distribute (internally or externally) copies of, and prepare derivative works based upon, and authorize others to do any, some, or all of the foregoing, any and all inventions, discoveries, improvements, mask works, and patents as well as any and all data, copyrights, reports, and works of authorship conceived, developed, generated, or delivered in performance of this Purchase Order.
C. All reports, memoranda, or other materials in written form, including machine readable form, prepared by Seller pursuant to this Purchase Order and furnished to Buyer by Seller hereunder shall become the sole property of Buyer.
19. COMPLIANCE WITH LAWS
Seller warrants that the materials to be furnished and the services to be rendered under this order, and the classes of property described in Article 8 shall be manufactured, sold and used in compliance with all applicable federal, state and local laws, ordinances, codes, rules and regulations, including, without limitation, the Occupational Safety and Health Act and the fair Labor Standards Act of 1938.
20. GOVERNING LAW; CHOICE OF JURISDICTION
This Purchase Order and rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without taking into account any choice of law provisions. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Buyer and Seller each hereby (a) irrevocably and unconditionally submits for itself and its property, in any legal action or proceeding relating to or arising out of this Purchase Order, to the exclusive jurisdiction and venue of the courts of the Commonwealth of Massachusetts, the courts of the United States of America in Massachusetts and the appellate courts from any thereof, and (b) agrees that any such action or proceeding may be brought in such courts. To the extent Seller, pursuant to this Purchase Order, provides items to support Buyer’s obligation to fulfill requirements pursuant to a federal Government contract, applicable provisions of the Federal Acquisition Regulations and its appropriate supplements shall be construed and interpreted in accordance with the federal common law of government contracts as enunciated by federal judicial bodies, boards of contracts appeals, and quasi-judicial agencies of the Government.
21. GOVERNING CONTRACT PROVISIONS
Purchase Orders which specify a government contract number or otherwise indicate that the materials purchased are intended for use under government contracts or subcontracts shall be subject to and deemed to incorporate all clauses and provisions of the Federal Acquisition Regulations and its appropriate supplements which are required to be included in such contracts and subcontracts. The materials purchased from Seller shall include information regarding country of origin.
22. ADDITIONAL OR INCONSISTENT TERMS
This Purchase Order is intended by the parties hereto as a final and complete expression of their agreement with respect to the matters set forth herein, and shall supersede all prior understandings, writings, negotiations and agreements with respect thereto. Terms and conditions set forth in any document provided by Seller to Buyer which differ from, conflict with or are not included in this Purchase Order shall not become part of any agreement between Buyer and Seller unless such terms and conditions are specifically accepted by Buyer in writing and signed by an authorized representative.
23. TERMINATION: BREACH OF CONTRACT
Buyer may, by notice in writing and without any liability to Buyer, direct Seller to terminate this order or work under this order in whole or in part at any time and such termination shall not constitute a default. In no event shall Seller be entitled to anticipatory profits or to special, punitive or consequential damages. In the event of Seller's default or potential failure to perform this order, Buyer may terminate this Agreement, without any liability to Buyer, or Seller agrees, upon demand by Buyer, to deliver to Buyer the raw materials and work in progress acquired in order to perform under this Purchase Order, and Buyer may then complete the work deducting the cost of such completion from the price, or, in the alternative at Buyer’s discretion, pay to Seller the cost of such raw materials and work in progress.
Material made in accordance with Buyer's specification and drawings shall not be furnished, disclosed, sold or quoted to any person, entity or concern without Buyer's written and signed consent. In the event of a conflict between specifications, drawings, samples, designated, type, part number or catalog description or in cases of ambiguity in the specifications, drawings, or other requirements of the Purchase Order, Seller must, before proceeding, consult Buyer, whose written interpretation shall be final.
The price stated on the face hereof includes all taxes. All local, state and federal excise, sales and use taxes, where applicable, shall be stated separately on Seller's invoices.
A. Seller warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Buyer any gratuity with a view toward securing any business from Buyer or influencing such person with respect to the terms, conditions or performance of any contract with or order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
B. Seller represents and warrants that: (1) it and all of its employees, agents, or representatives, and any other person or entity working for or on behalf of any of the foregoing (collectively, "Seller Parties"), are familiar with and understand the provisions and requirements of the U.S. Foreign Corrupt Practices Act of 1977 as amended and all other anti-corruption and/or anti-bribery laws, regulations, and requirements of any jurisdiction applicable to Seller Parties (collectively, "Applicable Anti-Corruption Laws"); and (2) Seller Parties, at all times and in all actions relating to this Purchase Order, shall be in compliance with Applicable Anti-Corruption Laws.
C. By accepting this Purchase Order, Seller certifies and represents that it has not made or solicited and will not make or solicit kickbacks in violation of FAR 52.203-7 or the Anti-Kickback Act of 1986 (41 U.S.C. 51-58) as amended, both of which are incorporated herein by reference.
D. Seller shall comply, to the extent applicable, with U.S. laws regarding boycotts, embargoes, and economic sanctions against certain countries, entities, and individuals.
27. RELATIONSHIP OF THE PARTIES
Seller’s relationship to Buyer shall be that of an independent contractor and this Purchase Order does not create an agency, partnership, or joint venture relationship between Buyer and Seller or Buyer and Seller personnel. Seller is not granted and shall not exercise the right or authority to assume or create any obligation or responsibility including, without limitation, contractual obligations and obligations based on warranties or guarantees, on behalf of or in the name of Buyer. Seller shall not misrepresent its authority to any third-party. Personnel supplied by Seller hereunder shall be deemed employees of Seller and shall not for any purposes be considered employees or agents of Buyer. Seller assumes full responsibility for the actions and supervision of such personnel while performing Work under this Purchase Order. Buyer assumes no liability for Seller personnel.
28. SEVERABILITY; REMEDIES.
In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Buyer’s failure to enforce, or waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
Seller shall indemnify and hold Buyer and Buyer's employees, officers, directors and agents harmless from any and all claims, liabilities, damage, expenses or loss of any kind at Seller’s expense, resulting from any injury to persons (including death) or damage or loss to property which may result or may have resulted in any way from the products produced by Seller or any act or omission of Seller, or of its agents, employees or subcontractors. Seller shall also maintain such public liability, property damage, employers liability and compensation insurance and motor vehicle liability insurance (personal injury and property damage) which will protect Seller, its subcontractors and Buyer and Buyer's employees, officers, directors and agents from said risk and from any claims under any applicable workmen's compensation or occupational diseases statutes.