Purchase Order Terms and Conditions,

September 1, 2015

 

 

1. OFFER, ACCEPTANCE, MODIFICATION

 

This purchase order (which term shall be deemed to include plans, specifications, and other documents to the extent that any of the same are referred to herein (the “Order”)), is the entire agreement between Fastbolt Corporation (“Buyer”) and the party with which Buyer places the Order (“Seller”) for the goods or services identified in this Order (collectively, the “Goods”), and, subject to the terms and conditions herein, shall control all purchases of the Goods by Buyer from Seller. All terms and conditions proposed by Seller that are different from or in addition to this Purchase Order are expressly rejected by Buyer. No purported verbal agreement or other understanding that attempts in any way to modify the conditions of the agreement resulting from this Purchase Order will be binding upon Buyer.  Any modification to this Purchase Order shall be made only in writing signed by both parties to this Purchase Order. The placement of this Purchase Order by Buyer is specifically conditioned upon the terms and conditions stated herein and entirely excludes any terms and conditions that Seller may seek to impose in its invoice or any other communication, except to the extent that such terms and conditions have been expressly agreed in writing by Buyer.

 

2. CHANGES

 

Buyer may at any time, by written order, make changes in, or additions to, the work to be performed or the Goods to be furnished hereunder in any one or more of the following: (a) drawing, designs, statement of work or specifications; (b) method of shipment or packing; (c) place  of  inspection,  delivery,  or  acceptance;  (d)  quantities,  where  reasonable;  (e)  delivery schedule, where reasonable, and (f) the amount of Buyer furnished property.  If any such changes causes an increase or decrease in the cost of, or the time required for, performance of this Order, then Seller shall notify Buyer in writing promptly and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of this Order.  Any claim by Seller for such adjustment must be asserted by Seller in writing within fourteen (14) days from the receipt date of the order change.  Nothing contained in this paragraph shall excuse Seller from proceeding with this Order as changed.  Notwithstanding anything else stated herein, Seller shall not make any changes to the form, fit or function of any Goods, any drawings, designs, specifications, manufacturing process, processing facility, source of components, organization, origination   ownership, materials,   packaging, time or place of delivery or, method of transportation or to the price of any of the Goods, in each case, without obtaining Buyer's prior written consent.

 

3. PRICE

 

This Purchase Order shall not be executed at prices higher than those specified on the Purchase Order unless otherwise agreed to in writing by the Buyer. The price specified on the Purchase Order includes all subcontracting costs associated with this Purchase Order.   Buyer shall have no responsibility for any increased costs incurred by Seller in connection with any material procured, labor or subcontractors, unless such additional costs shall have been negotiated and agreed to in writing by Buyer.

 

Seller warrants that the prices specified herein are no less favorable than prices given by Seller to any other customer for like merchandise (after consideration of all discounts, rebates and allowances) as defined under the Robinson-Patman Act of 1936.  If Seller quotes a lower price to anyone or accepts payment of a lower price from anyone during the life of this contract, Seller shall so notify Buyer and such lower price is to prevail in respect to any quantity undelivered hereunder. If Buyer is quoted a lower price by someone other than Seller, and Seller does not wish to meet the lower price, Buyer may purchase any undelivered quantity hereunder at the lower price from such third party, thereby canceling this Purchase Order with no further liability to Seller for such undelivered quantity.

 

The prices specified on this Purchase Order include all federal, state and local taxes, domestic or foreign, that Seller is required by law to collect from Buyer and from which Seller cannot obtain an exemption. Such taxes shall be separately stated on Seller’s invoices and shall be paid by Buyer, unless an exemption is available. Seller shall provide Buyer with appropriate evidence of the payment thereof to the Governmental/ regulatory authority, if so requested by the Buyer.

 

Unless otherwise agreed to in writing by the Buyer, the price specified on this Purchase Order includes all charges for packing, cartage, storage, drayage, and transportation to the destination. Seller shall pay all delivery charges in excess of that Buyer has agreed to pay.

 

Seller warrants that the prices will comply with applicable government law and regulations. Buyer shall, in no event, be responsible for any liability that may become due on account of any alleged non-payment of any or all taxes, levies, duties, assessments, deductions, penalties or interest thereon.

 

4. DELIVERY

 

Seller shall deliver the Goods to the Buyer (or its designee) in accordance with the delivery schedule specified by Buyer herein. Any expedited shipping charges resulting from Seller delays shall be the responsibility of the Seller. Seller acknowledges that time is of the essence in this Order. Any deliveries received after the due date will be subject to late fees along with any costs passed down from the ultimate end user or customer. In addition, should the supplier’s late delivery of Goods result in cancellation of the related customer order or any portion thereof, such goods will be returned for credit regardless of any  non- cancellable provisions applicable to the supplier’s order acknowledgment. Unless otherwise provided in writing by Buyer, no partial or complete delivery will be made prior to the required delivery date(s).  Seller shall comply with the delivery schedule but shall not make material or production commitments in advance of such time as Seller reasonably believes necessary to meet the schedule without the prior written approval of Buyer.  Representatives of Buyer shall have access to Seller’s plant, during Seller’s regular working day, for the purpose of assuring delivery in accordance with the schedule.  Unless otherwise provided in the Purchase Order, the Goods shall be delivered on an F.O.B. destination basis.  If the Goods ordered herein require any installation, Seller, at its own cost and expense, shall install such Goods at Buyer's designated site upon request of the Buyer. Notwithstanding anything else stated herein, Buyer may direct temporary suspension of scheduled shipments for up to ninety (90) days at no cost, after providing fourteen (14) days’ notice of such suspension.

 

5. PACKING, MARKING AND SHIPPING

 

No charges will be charged to the Buyer for packing, handling, transportation, containers, crating, boxing, handling, storage or other packing expenses, unless stated in the Purchase Order. All such expenses shall be paid solely by Seller. Without limiting the generality of the foregoing, in the event the price of any Goods are based on the weight of such Goods, then such price shall only include the net weight of such Goods and shall not include the weight of any materials used for shipping or packaging. Any expense incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Seller upon demand by Buyer.  Unless otherwise specified in the Purchase Order, Seller will pack, mark and ship all Goods in a manner which is (i) in accordance  with  good  commercial  practice  for  protection  and  shipment,  (ii)  acceptable  to common carriers for shipment at the lowest rate for the Goods, (iii) in accordance with all transportation and I.C.C. regulations, and (iv) adequate to ensure safe arrival of the Goods at the destination specified herein.  Seller shall mark all containers with necessary lifting, handling, and shipping information, Order number, the date of shipment, Country of Origin, and the names of Seller, Buyer and the party to whom the Goods shall be delivered (if different then the Buyer). An itemized packing list showing this Order number, Bill of Lading, and applicable Certificates of Conformance must accompany each shipment.

 

6. RISK OF LOSS

 

Unless otherwise provided in this Order, Seller shall bear all risk of loss, damage or destruction for all goods covered by this order until final inspection and acceptance of the goods by the buyer.  In addition, Seller shall bear all risk of loss related to rejected goods, or goods requiring correction, after notice of rejection or the need for correction has been given by Buyer to Seller.

 

7. QUANTITY

 

Buyer need not accept any variation in quantity of Goods shipped except as specified in this Order. Over shipments (i) may be held by Buyer at Seller’s risk and returned to Seller at Seller’s expense (which shall include, but not be limited to, a reasonable cost for Buyer’s handling) or (ii) may be retained by Buyer at no increase in price.

 

8. QUALITY AND INSPECTION/REJECTION PROCESS

 

Seller will ensure it maintains a documented quality system and maintain all quality documents for a minimum of seven years, to include but not limited to, Manufacturer Certificate of Conformance, material chemical and physical certifications, all processing certifications, and any associated prints for the product being supplied.  Buyer  and  or  their customer, may at any time, including, but not limited to, the period of manufacture, enter Seller’s facilities and inspect and test the Goods, including, but not limited to, material, work in process, supplies and the manufacturing process.  Buyer shall have the right to reject any Goods (or portions thereof) or lots of Goods which are defective in material or workmanship or otherwise not in conformity with the requirements of this Order. Materials that have a manufacturers recommended shelf life: condition as received by the Buyer, if determined to have less than 80% of the shelf-life remaining (unless a higher shelf life % has been established for such purchase order) will be subject to rejection, this disposition will be at sole discretion of Buyer, which shall be final, conclusive and binding, and may include their correction or replacement.   Rejected Goods shall be removed or, if permitted or required by Buyer, corrected in place by and at the expense of Seller promptly after notice, and shall not thereafter be tendered for acceptance unless the former rejection or requirement of correction is disclosed by Seller to Buyer in advance in writing. If Seller fails to promptly replace, correct, or remove such Goods or lots of Goods which are required to be removed, Buyer may: (1) replace or rework such Goods and charge to Seller the cost occasioned Buyer thereby; (2) pay for such Goods at a reduced price which is equitable under the circumstances; or (3) cancel this Order for default as provided in Section 16.”  If any inspection or test is made by Buyer and/or its customer on the premises of Seller or a lower tier subcontractor, Seller without charge shall provide all reasonable facilities and assistance for the safety and convenience of Buyer and/or customer inspectors in the performance of their duties.   In the case of rejection, Buyer shall not be liable for any reduction in value of samples used in connection with such inspection or test.  Buyer reserves the right to charge to Seller any cost of inspection and test when Goods are not ready at the time such inspection and test was requested by Buyer or when re-inspection or retest is necessitated by prior rejection.  Notwithstanding anything else stated herein, all Goods shall be subject to final inspection by Buyer after delivery to Buyer’s facility, irrespective of any previous source inspections.   Buyer’s failure to inspect or accept or reject Goods in a timely manner shall neither relieve Seller from full compliance with all requirements of this Order, nor impose responsibility on Buyer therefor.  Inspection and test by Buyer or its customer of any Goods or lots thereof does not relieve Seller from any responsibility regarding defects or other failures to meet Order requirements which may be discovered prior to acceptance or during any warranty period. Any costs passed down from the ultimate end user or customer as a result of Seller quality issues will be the Seller’s responsibility. If, prior to or at the time of final acceptance or within any warranty period, it was known or should be known by Seller that the Goods would not or did not conform to the requirements of this Order, final acceptance shall not be construed as a waiver of any rights Buyer may have with respect to the Goods purchased under this Order, notwithstanding the failure of Buyer to timely inform Seller of such nonconformance.  If, at any time, the Seller discovers the goods do not conform to the requirements of this order, the Seller is obligated to immediately notify the Buyer of the lot supplied and the defect discovered.

 

9. SUBCONTRACTING

 

Seller shall not subcontract any of the work to be performed on any of the Goods to be supplied hereunder without the prior written approval of Buyer.

 

10. TOOLS, DIES AND EQUIPMENT

 

Buyer shall have title to and the right of immediate possession of any mold, tools, dies, equipment or materials furnished or paid for by Buyer, and Seller shall not use such tooling while in its possession for any work other than that of Buyer.  In the event Seller purchases such tooling with Buyer’s funds or is reimbursed by Buyer, Seller shall execute a Bill of Sale and any and all other documents necessary to transfer title free and clear of any liens to Buyer.  While in Seller’s possession, such property shall be held by Seller as a bailee and shall be maintained in good and usable condition at no further cost to Buyer. Seller shall maintain and administer a program for the maintenance, repair and preservation of such property, and appropriate identification of its ownership in accordance with sound industrial practice. When requested, Seller shall furnish inventory schedules on the property, or return the property to Buyer in the condition in which it was received, except for reasonable wear and tear and consumption in the normal performance of work for Buyer.

 

Any material furnished by Seller and paid for by or charged to Buyer shall be owned by Buyer and held by Seller as a bailee and Seller shall assume the risk for any damage or loss thereto.  Seller shall indemnify and hold Buyer, its agents and employees, harmless against all claims, demands, liabilities, costs and expenses, based upon or arising out of the use, storage or handling of the equipment and/or tooling until returned to Buyer’s possession.  Seller shall sign, or hereby authorizes Buyer to sign on its behalf, any documents deemed reasonably necessary by Buyer, to be filed with Federal, State or local officials to record Buyer’s title and interest in any molds, tools, dies, equipment or materials furnished or paid for by Buyer.

 

11. WARRANTY

 

Seller warrants that the Goods covered by this Order will conform to the designs, specifications, drawings, samples or other descriptions referred to in this Order, will be free from defects in material, workmanship, and design (provided that the design is Seller’s responsibility), and will be fit and sufficient for the purpose for which the Goods are intended.  Seller further warrants that in the event any Goods are installed by Seller, such Goods shall be installed properly and, upon such installation, shall be in good working order.  The warranties contained in this section shall run to Buyer and its customers.  In addition, the warranties set forth in this section shall survive any inspection, delivery, acceptance or payment by Buyer.   Buyer may, at its sole discretion, which shall be final, conclusive and binding, (i) require Seller to rework or replace any defective or nonconforming Goods, at Seller’s sole cost and expense, (ii) return such defective or nonconforming Goods to Seller, at Seller’s sole cost and expense, and recover from Seller any amounts paid by Buyer to Seller for such Goods, or (iii) correct the defective or nonconforming Goods and be reimbursed by Seller for such correction.

 

 

12. INVOICE

 

Seller shall submit invoices for each shipment of Goods and each invoice shall include the following information: Order number, item number, description of item, size of item, quantity of item, unit prices, applicable taxes, extended totals, and any other information required by the terms hereof. Unless otherwise specified in this Order, no invoice shall be issued prior to the shipment of Goods and no payment will be made prior to the receipt of Goods and a correct invoice.

 

13. PAYMENT

 

Unless otherwise specified in this Order, the payment terms shall be net sixty (60) days and all payment due dates, including, but not limited to discount periods, will be computed from the scheduled delivery date, the date of receipt of Goods or the date of receipt of a correct invoice (whichever is latest) to the date Buyer’s check is issued.  Unless freight and other charges are itemized, any discount taken will be taken on the full amount of the invoice.  All prices are to be quoted and paid in United States Dollars. Unless otherwise specified in this Order, the prices set forth in this Order include all applicable foreign, federal, state, and local taxes and all shipping, freight, transportation, packing and handling charges.   The payment by Buyer of any invoice issued by Seller in connection with this Order shall not constitute the acceptance of any Goods by Buyer. The payment of any invoices by Buyer shall be subject to adjustment for errors, shortages, defects in any Goods or any other failure of Seller to meet any requirement of this Order.  Buyer may, in good faith, notify Seller that Buyer requires further clarification or documentation with respect to an invoice or that Buyer believes that an invoice is in error or otherwise not payable hereunder.   Buyer's delay in paying any disputed portion of any invoice in such circumstance shall not constitute a breach or default by Buyer of any of the terms hereof. Payments of all invoices due hereunder shall be deemed correct unless Seller notifies Buyer in writing of any payment discrepancies within thirty (30) days of its receipt of such payment.

 

14. ASSIGNMENT; SET-OFF

 

Neither this Order nor any payments hereunder are assignable or transferable without Buyer’s prior written approval, and any purported assignment without such consent shall be deemed void. Buyer shall be entitled to set-off against any amounts payable under this Order all amounts due from Seller, and/or any parent, subsidiary, division, affiliated or related entity of Seller, to Buyer.

 

15. TERMINATION FOR BANKRUPTCY

 

Buyer may immediately terminate this Purchase Order without liability upon the happening of any of the following or any other comparable event:  (i) insolvency of the Seller; (ii) filing of a voluntary or involuntary petition in bankruptcy by or against Seller; (iii) appointment of a receiver or trustee for Seller; (iv) any accommodation by Buyer, financial or otherwise, not contemplated by this Purchase Order, that are necessary for Seller to meet its obligations under this Purchase Order; or (v) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment, or assignment is not vacated or nullified within fifteen (15) days after such event. Seller will reimburse Buyer for all costs Buyer incurs in connection with any of the foregoing whether or not this Purchase Order is terminated, including, but not limited to, all attorneys’ or other professional fees.

 

16. TERMINATION FOR DEFAULT

 

In addition to any other remedies or rights afforded by law, Buyer reserves the right to cancel all or any part of this Purchase Order, for default of Seller, if Seller: (i) repudiates or breaches any of the terms of this Purchase Order, including Seller’s warranties; (ii) fails to perform services or deliver goods as specified by Buyer; or (iii) fails to make progress so as to endanger timely and proper completion of services or delivery of goods, and does not correct such failure or breach within ten (10) days after receipt of written notice from Buyer specifying such failure or breach.  If Buyer terminates its purchase obligations pursuant to this paragraph, Buyer shall have no obligations to Seller in respect of the terminated portion of this Purchase Order and Buyer’s liability shall be limited to the delivered portion of this Purchase Order at the rate specified on the face hereof.   Buyer shall be entitled to recover all damages or losses attributable to such repudiation, breach, or failure by Seller.

 

17. TERMINATION FOR CONVENIENCE

 

In addition to any other rights of Buyer to cancel or terminate this Purchase Order, Buyer may terminate all or any part of this Purchase Order at any time and for any reason by giving written notice to Seller.   Upon receipt of such notice, Seller will immediately stop work on the Purchase Order or the terminated portion thereof, and notify any subcontractors to do likewise.  Buyer shall pay to Seller the Purchase Order price for all goods or services that have been completed in accordance with this Purchase Order and not previously paid for.  Where articles or materials are to be specifically manufactured for Buyer hereunder (with no alternate use by the Seller) and where Seller is not in default, an equitable adjustment shall be made to cover Seller’s actual cost, excluding profit, for work-in-process and raw materials as of the date of termination to the extent such costs are reasonable in amount and are properly allocable under generally accepted accounting principles to the terminated portion of the Purchase Order. Buyer will not be liable for any charges or expenses incurred by Seller in advance of the normal lead time (not to exceed 90 days) necessary to meet scheduled delivery dates nor for any expenses, charges or liability incurred subsequent to the giving of notice of cancellation.  Buyer will make no payments for finished goods, work-in-process, or raw materials in amounts in excess of those authorized by Buyer or for any undelivered goods which are in Seller’s standard stock or which are readily marketable.  Seller shall submit any claim to Buyer within thirty (30) days after the date of termination or such claim shall be waived.  Payments made to Seller under this Section 17 represent the sole responsibility of Buyer in case of cancellation of the Purchase Order and Seller agrees not to charge any other costs, expenses or fees to Buyer nor shall Buyer be liable for any other costs, expenses or fees arising out of the cancellation or termination of the Purchase Order under this Section 17.

 

18. FORCE MAJEURE

 

If Buyer is temporarily unable to receive or utilize the Goods called for herein because of causes beyond  Buyer’s  control,  and  without  its  fault  or  negligence,  Buyer  may  suspend  Seller performance for the period of such disability by written notice to Seller, without liability to Seller for such uspension.

 

19. INDEMNIFICATION AND INSURANCE

 

In the event Seller, its employees, agents, subcontractors and/or lower-tier subcontractors enter premises occupied by or under the control of Buyer, or utilize property furnished by Buyer, whether on or off said premises, Seller shall indemnify and hold harmless Buyer, its officers and employees from any and all loss, cost, damage, expense and liability (including, attorneys’ fees) by reason of property damage, personal injury or death arising out of or in connection with the actions or omissions of Seller, its agents, servants or employees in the performance of this Order.

 

Without limiting the foregoing, Seller and its subcontractors at all tiers shall maintain liability  and  property  damage  insurance  covering  the  obligations  set  forth  above  and  shall maintain  proper  Worker’s  Compensation  Insurance  covering  all  employees  performing  this Order.   Said insurance shall be of the kinds and amounts either specified in this Order or otherwise acceptable to Buyer.  In addition, Seller shall, at Buyer’s option, defend, at its own cost and expense, and shall indemnify Buyer, its successors, assigns, distributors, dealers in and users of the Goods, and their agents and employees, and hold them harmless with respect to any and all claims arising out of any (i) use or disposal of the Goods by or for the account of Buyer or its customers (ii) defects in the Goods whether alleged and/or actual, including, but not limited to, improper construction and design, in each case, whether alleged and/or actual or (iii) failure of the Goods to comply with specifications.

 

20. INTELLECTUAL PROPERTY INDEMNITY

 

Seller shall indemnify and hold harmless Buyer, and/or Buyer’s customer(s), and their respective officers, agents and employees against all liabilities, losses, costs and expenses, including attorneys’ fees, for infringement of any patent, copyright, trademark or other intellectual property arising out of (i) the manufacture or delivery of the Goods, or performance of services, under this Order or (ii) the use or disposal by, or for the account of, Buyer, and/or Buyer’s customer(s), of such Goods. Buyer and/or its customer will duly notify Seller of any such claim, suit or action, and Seller will, at its own expense, fully defend such claim, suit or action on behalf of such indemnities. Seller shall not, without the prior written consent of Buyer, consent to the entry of any judgment against Buyer or enter into any settlement or compromise.  Without limiting the generality of the foregoing or any other rights, claims or remedies Buyer may have in equity or at law, if any injunction is issued as the result of any such infringement, Seller agrees, in Buyer’s sole discretion, which shall be final, conclusive and binding, to (i) refund to Buyer the aggregate amount paid to Seller for any Goods covered by the injunction, or (ii) furnish Buyer with acceptable Goods.

 

21. PROPERTY RIGHTS

 

Seller agrees to make prompt and complete disclosure to Buyer of all inventions and disclosures made or conceived as a result of work performed under this Order. Any invention, discovery, proprietary information, software, system, data, or report resulting from the work performed under this Order shall be the sole property of Buyer.  In addition, without limiting the generality  of  the  foregoing,  all  patents,  copyrights,  trade  secrets,  trademarks,  and  other intellectual property resulting from work under this Order shall be the sole property of Buyer. Seller agrees to assign to Buyer any patent or patent application and other intellectual property rights resulting from work performed under this Order, and to provide reasonable support for the Buyer’s prosecution of such patent application.   The parties agree that any original work of authorship  created  under  this  Order  is  a  “work  made  for  hire”  for  purposes  of  copyright ownership.  To the extent Seller has an interest in any original work of authorship created under this Order, Seller agrees to assign its entire interest in such work to Buyer, including any and all rights to derivative works.  This Order does not confer or grant, in any manner whatsoever, any license  or  right  under  any  patent,  trademark,  trade  secret, copyright  or  other intellectual property right held by Buyer.

 

22. CONFIDENTIALALITY

 

Seller shall treat as proprietary and confidential all specifications, drawings, blueprints, nomenclature, samples, models and other information supplied by Buyer in connection herewith (collectively, “Information”). Unless the written consent of Buyer is first obtained, Seller shall not in any manner advertise, publish or release for publication any statement mentioning Buyer or the fact that Seller has furnished or contracted to furnish to Buyer Goods and/or services required by this Order. Seller shall not disclose any information relating to this order to any person or entity not authorized by Buyer to receive it.  Seller shall use the Information supplied by Buyer only to accomplish work covered by this Order and for no other purpose.  Upon completion, all Information is to be returned to Buyer upon Buyer’s request.  Without limiting the generality of the foregoing, Seller hereby agrees not to quote for sale to any third parties, without Buyer’s prior written authorization, any goods purchased under Buyer’s specifications or drawings.

 

23. RIGHT TO AUDIT

 

Buyer shall have the right, at any reasonable time, to send its authorized representatives to examine all of the Seller’s documents and materials relating to Seller’s obligations hereunder or relating to Seller’s charges to Buyers.  Seller shall maintain all pertinent records relating to this purchase order consistent with section 8.

 

24. CONTROL OF MATERIALS

 

  1. DFARS 252.225-7009 (BERRY AMMENDMENT)

 

"Restriction on Acquisition of Certain Articles Containing Specialty Metals" (June 2012) When this clause is stated in a contract or purchase order the Buyer will require suppliers of the raw materials or finished parts to provide documented evidence all the materials used in the manufacture of the supplied parts were melted in the USA or a "Qualifying Country" Per 10 U.S.C. 2533(b) "Specialty Metals" are defined as:

 

Steel with a maximum alloy content exceeding one or more of the following limits: manganese 1.65 percent; silicon 0.60 percent; or  copper 0.60 percent; or containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, molybdenum, nickel, niobium (columbium), titanium, tungsten, or vanadium;

 

Metal alloys consisting of nickel or iron-nickel alloys that contain a total of alloying metals other than nickel and iron in excess of 10 percent; or cobalt alloys that contain a total of alloying metals other than cobalt and iron in excess of 10 percent;

 

Titanium and titanium alloys; or

 

Zirconium and zirconium alloys.

 

"Qualifying Country", as defined, by 225.003 means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country  or services  performed  by sources  of  the  other  country,  and  the memorandum of agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457.

 

Accordingly, the following are qualifying countries: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, The United Kingdom of Great Britain and Northern Ireland.

 

  1. ITAR "INTERNATIONAL TRAFFIC AND ARMS REGULATION"

 

In accordance with the Directorate of Defense Trade Controls parts 120 and 130. ITAR regulations dictate that information and material pertaining to defense and military related technologies (for items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used. When a customer drawing is stamped with, or a customer or supplier purchase order quality clause states: "ITAR Controlled" or "ITAR Controlled Technical Data" The Buyer will send to all perspective suppliers an ITAR Supplier Acknowledgement Letter which must be completed and returned prior to any further information being transferred between the parties.

 

  1. RoHS2

 

The Buyer will require suppliers and their downstream supply chain affiliates to comply with the rules and regulations as set forth in the European Union Directive 2011/65/EU EEE (Electrical and Electronic Equipment) parts or materials received after 1/2/13 will be subject to verification of conformance. Materials received shall be properly marked with a "CE" as described in Articles 14 and 15. The list of restricted substances and their maximum concentration levels are addressed in Article4 and Annex II of the directive. A signed "Declaration of Conformity" from the manufacturer shall accompany the materials delivered in accordance with Article 13 and Annex VI of the directive.

 

  1. REACH

 

(EC No. 1907/2006) This "European Chemicals Agency" regulation outlines the requirements for manufacturers or distributors of products that are shipping into and or from Europe which may contain Substances of Very High Concern (SVHC)   that have been defined to pose health and safety issues to: make available for those products specific material and chemical compositional data. List of the SVHC can be viewed with the following link: http://echa.europa.eu/web/guest/candidate-list-tableThe Buyer will require suppliers and their sub-tier suppliers to participate in the proper flow down and documentation of any and all materials that fall under this regulation.

 

  1. CONFLICT MINERALS

 

In accordance with Dodd Frank section 1502 and 13P the Buyer as a distributor of Military and commercial fasteners and electro mechanical components will maintain a strict "supplier chain of evidence" with respect to parts purchased, to ensure no parts or materials received will have been purchased from the Democratic Republic of the Congo (DRC) or any associated countries. To maintain this integrity any parts or materials purchased that may come under the Dodd Frank act and Conflict Minerals and Materials Rules will require full material traceability to "The smelter’s country of origin" Those minerals are (tantalum, tin, gold, tungsten) or their derivatives or any other derivatives determined by the US Secretary of State to be financing the conflict in the DRC countries regardless of their origin.

 

  1. COUNTERFEIT PARTS

 

SAE AS5553 Counterfeit Electronic Parts, Avoidance, Detection, Mitigation and Disposition Counterfeit Parts are defined as a suspect part that is a copy or substitute without legal right or authority to do so, or ones whose  material, performance or characteristic are knowingly misrepresented by a supplier in the supply chain. * Seller agrees and shall ensure that Counterfeit Parts are not delivered to Buyer.  Seller shall only purchase products to be delivered or incorporated directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain/Dealer. Parts shall not be acquired from unauthorized sources unless approved in advance in writing by Buyer. Seller shall immediately notify Buyer with the pertinent facts if Seller becomes aware or suspects that they have furnished Counterfeit Parts. When requested by Buyer, Seller shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM. In the event that parts delivered under this contract are determined to be Counterfeit Parts, Seller shall, at their expense, promptly replace such Counterfeit Parts with genuine Parts conforming to the requirements of this Contract. Notwithstanding any other provision in this Contract, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Parts, including without limitation Buyer's costs of removing Counterfeit Parts, of reinserting replacement parts and of any testing necessitated by the reinstallation of the parts after the Counterfeit Part has been exchanged. The remedies contained in this paragraph are in addition to any remedies Buyer may have at law, equity or under other provisions of this Contract. This clause applies in addition to any quality provision, specification, statement of work or other provision included in this Contract addressing the "Authenticity of Parts". To the extent such provisions conflict with this clause, this clause prevails Seller shall flow down all the requirements stated in this clause in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to Buyer.

 

  1. NAS  412  FOREIGN OBJECT DEBRIS (FOD) PREVENTION

 

AS9100 requires an organization to have provision for the removal and prevention of Foreign Objects. NAS 412 is a National Aerospace Standard (NAS) developed and published through the Aerospace Industries Association (AIA).

 

25. LAWS AND REGULATIONS

 

Irrespective of the place of performance, this Order will be construed and interpreted according to the laws of the State of New Jersey, excluding choice of law principles thereof. Seller agrees to complete this Order in strict compliance with all applicable laws, executive orders and regulations. Seller further agrees to indemnify Buyer against any loss, cost (including attorney’s fees and disbursements), liability, or damage by reason of Seller’s violation of such laws, executive orders or regulations.

 

26. MISCELLANEOUS

 

This Order contains the entire agreement of the parties  and  supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter of this Order.  No amendment, modification or waiver of this Order shall be binding on either party unless it is in writing and is signed by an authorized representative of Buyer and Seller. If any provision, or part thereof, of this Order shall be held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision or the part thereof and not in any way affect or render invalid or unenforceable any other provisions of this Order, and this Order shall be carried out as if such invalid or unenforceable provision, or part thereof, had been reformed, and any court of competent jurisdiction is authorized to so reform such invalid or unenforceable provision, or part thereof, so that it would be valid, legal and enforceable to the fullest extent permitted by applicable law.  Each party acknowledges that it has been represented by counsel, or has been afforded the opportunity to be represented by counsel, in connection with this Order and the transactions contemplated hereby. Accordingly, any rule or law or any legal decision that would require the interpretation of any claimed ambiguities in this Order against the party that drafted it has no application and is expressly waived by the parties. The provisions of this Order shall be interpreted in a reasonable manner to give effect to the intent of the parties hereto. All remedies stated herein are in addition to all other remedies at law or in equity.

 

English