STANDARD TERMS AND CONDITIONS PURCHASING (Excalibur Systems Inc. - USA)
1. ACCEPTANCE-This Purchase Order (PO) becomes a binding contract, subject to the terms and conditions hereof, when accepted by written or verbal acknowledgment or commencement of performance. Acceptance of this PO must be made on its exact terms and if the Seller proposes additional, or different terms such response will constitute a counter offer and no contract shall come into existence without the Buyer’s written assent to the counter offer. The Seller has satisfied himself as to the nature of the work, the character, quality and quantity of materials and equipment, which will be required, and all matters which can in any way affect performance hereunder.
2. PAYMENTS-(A) Forward separate invoices, in duplicate, for each delivery or service rendered. (B) Upon the submission of proper invoices, Seller shall be paid the prices stipulated in this PO for supplies delivered and accepted, or services rendered and accepted. (C) The time for payment shall not commence before actual or scheduled receipt; whichever is later, of items at their destination or before complete performance by Seller in accordance with the requirements of this PO. (D) If certification or test date are required but not delivered as agreed, Buyer may withhold remaining payment (or portions thereof) until such data is furnished. If Excalibur remits payment within 10 days after receipt of goods or scheduled receipt whichever is later, Excalibur shall receive a credit of 2% off the entire invoice. All billings and payments pursuant to this Order shall be in United States Dollars.
3. PACKAGING-All items shall be packaged for ease of handling and in such a manner as to assure their protection during shipment and storage and to conform to requirements of carrier’s tariffs unless otherwise specified in this PO. Dangerous materials shall be packaged and marked in accordance with current published issues of tariffs and regulations.
4. SHIPPING-(A) If not otherwise specified, ship to the address printed on the Purchase Order. (B) Seller shall provide a packing list with each shipment. (C) The Purchase Order number shall appear on all shipping labels. (D) Unless otherwise stated the terms of this Purchase Order require delivery FOB Destination, the Seller must, at his expense and risk, transport the goods to the destination and tender delivery to the Buyer.
5. CHANGES-By written order, Buyer may, from time to time, order work suspension or make changes in quantities, designs, drawings, specifications, place of delivery, delivery schedules, method of shipment and packaging, and services furnished by Seller. If any such change causes an increase or decrease in the price of this order or in the time required for its performance, Seller shall promptly notify Buyer thereof and assert its claim for equitable adjustment within five (5) days after the change is ordered. However, nothing in this clause shall excuse Seller from proceeding immediately with the order as changed. Whether made pursuant to this clause or by mutual agreement, changes shall not be binding upon Buyer except when specifically confirmed in writing by the Buyer. The issuance of information, advice, approvals, or instructions by Buyer’s technical personnel or other representatives shall be deemed expressions of personal options only and shall not affect Buyer’s or Seller’s rights and obligations hereunder unless same as in writing which expressly states that it constitutes an amendment to the order.
6. VARIATION IN QUANTITY-No variation in quantity of any item called for by this PO will be accepted unless such variation has been caused by conditions of loading, shipping, or packing, or allowance in manufacturing process; and then only to the extent specifically authorized in this PO or a change thereto.
7. QUALITY PROVISIONS –
(A) All work ordered hereunder will be subject to inspection and test at Seller’s plant, or lower tier suppliers. Final inspection and acceptance will be Buyer’s plant unless otherwise stated.
(B) All items shall be subject to inspection and/or test by Buyer or Buyer’s agent/representative of the United States
Government (the Government), or Government Prime Contractor (Prime) to the extent practical at all times and places
including the period of manufacture, and in any event prior to acceptance.
(C) In case any work is defective in material or workmanship or otherwise not in conformity with the requirements of this PO or good industry practice, whichever is the stronger standard, Buyer shall have the right either to reject such items (with or without instructions as to their disposition) or to require their correction. Items which have been rejected or required to be corrected shall be removed, or promptly to replace or correct such items, Buyer may consider this PO in default. Unless Seller corrects or replace such items as are rejected or required to be corrected within delivery schedule, Buyer may require the delivery of such items at a reduction in price which is equitable under the circumstances. Failure to agree to such reduction of price shall be a dispute concerning questions of fact within the meaning of the clause entitled “Disputes.”
(D) Buyer reserves the right to reject acceptable subassemblies where these are companion pieces to a rejected or unacceptable portion of the material covered by this PO would be of lessened value by the rejection of the unacceptable portion.
(E) If any inspection or test is made by Buyer, the Government, or Prime on the premises of the Seller, or a subcontractor, the Seller without additional charge shall provide reasonable facilities and assistance for the safety and convenience of Buyer’s, the Government’s, or Prime’s inspectors in the performance of their inspection. If Buyer’s inspection or test is made at a point other than premises of Seller, or a subcontractor, it shall be at Buyer’s expense.
(F) In case of rejection, Buyer shall not be liable for any reduction in value of samples used in connection with inspection and testing. In case of acceptance, Buyer shall take title to the test samples, if any, whether reduced in value or not, as deliverable items under the terms of this PO; such accepted test samples, however, will not be a deductable quantity from the total quantity ordered.
(G) All inspections and tests by Buyer shall be performed in such a manner as not to unduly delay the work.
(H) When Buyer’s, the Government’s, or Prime’s test and/or inspection is indicated, Buyer reserves the right to charge the Seller any additional cost to Buyer occasioned by material not being ready at the time such test and inspection is requested by Buyer or when re-inspection or retest is necessitated by prior rejection.
(I) Acceptance or rejection shall be made as promptly as practicable after delivery. Failure to inspect and accept or reject material shall neither relieve Seller from responsibility for such items as are not in accordance with the requirements of this PO nor impose liability on Buyer therefore.
(J) Acceptance shall be conclusive except as regards latent defects, fraud, or gross mistakes as amount of fraud, or failure of material to perform its intended function.
(K) Seller shall provide and maintain an inspection system acceptable to Buyer covering the items hereunder, but approval of this system does not relieve Seller of the obligation to make complete and adequate tests and inspections. Records of all activity related to fulfilling the purchase order by the Seller shall be kept complete and available to Buyer, the Government, and Prime during the performance of the work and for a period of not less than ten (10) years thereafter.
(L) Seller is to notify Buyer of nonconforming product being produced. In the instance of product nonconformance, the Seller is to seek the approval of the Buyer of the disposition of the nonconforming product.
(M) Seller shall notify Buyer and seek approval of:
-Changes in the product or processes used to produce the product
-Changes in suppliers used to produce the product
-Changes of manufacturing facility location
(N) Seller, as applicable, also shall
-ensure competence of personnel, including any required qualification of persons
-design & development control is claimed by buyer, where applicable
-use statistical techniques for product acceptance and related instructions for acceptance
-use buyer designated or approved external providers, including process sources (special processes) when applicable
-is to prevent the use of counterfeit parts
-provide test specimens for design approval, inspection/verification, investigation, or auditing when applicable
(O) These quality requirements are to be flowed down to all sub-tiers of the Seller in order to fulfill the purchase order.
8. CANCELLATION-Buyer, by written notice under the “Changes” clause, may cancel this contract or any part thereof at its convenience and, except for default as contemplated under the clause entitled “Default”, Buyer shall be liable for reasonable cancellation charges but in no event shall be liable for consequential or inconsequential damages.
9. DEFAULT-(A) The Buyer may, by written notice of default to the Seller, terminate this contract or any part thereof if the Seller fails: (1) to deliver the articles in accordance with the delivery schedule specified herein, or any extension thereof by Change Order or Amendment or (2) to replace or correct defective articles in accordance with the provisions of this clause hereof entitle “Quality Inspection and Acceptance”, or (3) to perform any of the other provisions of this contract in accordance with its terms and in either of the circumstances specified does not correct such failure within a period of ten (10) days (or such longer period as Buyer may authorize in writing) after receipt of notice from the Buyer specifying such failure. In the event that this PO provides for the furnishing of items in more than one lot, the entire PO, including all lots, may be terminated for default upon Seller’s failure as described above in connection with any one lot or part thereof. (B) In the event of termination pursuant to this clause, the Buyer may purchase similar articles elsewhere on such terms and in such manner as the Buyer may deem appropriate and the Seller shall be liable to the Buyer for any excess costs occasioned by the Buyer thereby, (C) Buyer may, by written notice, terminate this order in whole or in part for default if, in Buyer’s opinion, Seller appears to be insolvent or in any unsound financial condition so as to endanger performance. (D) Failure of the Buyer to enforce any right under this clause shall not be deemed a waiver of any right hereunder. “Upon any default under this contract, Seller agrees to pay all legal fees and costs incurred by Buyer, both at trial and appellate levels”. The rights and remedies of the Buyer under this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.
10. TOOLING-Title to, and the right to immediate possession of, all designs, tools, jigs, dies, fixtures, templates, patters, drawings and other information and things (hereby collectively called tools) paid for by the Buyer shall remain Buyer’s and shall not be encumbered or disposed of in any way by Seller. Seller shall maintain such tools in first class condition and shall use them exclusively for work under Buyer’s POs, this or others.
11. MATERIALS FURNISHED-Title and right of immediate possession of all property furnished by Buyer shall remain with Buyer. If Buyer furnishes any material for fabrication hereunder, Seller agrees not to use any materials in such fabrication without Buyer’s consent. All property furnished under this PO (except that which became normal industrial waste or was replaced at Seller’s expense) shall, upon completion of the PO, be returned in the form of parts, unused material and tooling. “Title to any and all property of whatever kind furnished to Buyer or Seller by the Government shall remain in the Government. Seller agrees to permit representatives of the Government such access to Seller’s facilities and assistance for the safety and convenience of Government personnel engaged in activities pertaining to the Government’s interest in such property at or in Seller’s facilities. Seller shall include in each subcontract that Seller might make hereunder provisions to the same effect concerning Government-furnished property and the Government’s right of access concerning such property.”
12. DISCLOSURE OF INFORMATION-Seller shall not, without prior written consent of Buyer, disclose information relative to this PO, except as that deemed essential to ensure performance.
13. WARRANTIES-Seller warrants to Buyer and its customers that all items delivered and all services rendered hereunder will conform with the requirements hereof and will be free from defects. In addition to other remedies which may be available at law or in equity, Buyer may, at its option, return any nonconforming or defective items to Seller or require correction or replacement at the location of the item at the time the defect is discovered, all at Seller’s risk and expense. If Buyer does not require correction or replacement of nonconforming or defective items, Seller shall repay such portion of the contract price or such additional amount as in equitable under the circumstances. Such warranties shall remain in effect for a period of one (1) year from the date of acceptance by Buyer and shall be in addition to any other warranty or service guarantee of Seller and shall be equally applicable to Buyer and its customer. Buyer’s release, approval, or reference to date, drawings, or specifications will not relieve Seller of any warranty hereunder.
14. INDEMNIFICATION/INSURANCE-(A) Seller agrees that it will have in effect at the time of its acceptance of this PO
property damage, accident, casualty, and public liability insurance in reasonable limits so as to indemnify and hold Buyer, its officers, and employees, harmless and free from liability from any loss, cost, damage, expense or liability by reason of property damage and personal injury of whatsoever nature or kind arising out of and as a result of performance under this PO. (B) Seller agrees to carry proper workman’s compensation insurance for all employees and to pass on these conditions to all lower tier supplier and subcontractors.
15. INDEMNIFICATION/PATENT-To the extent that performance under this PO is to designs not originated by Buyer, Seller guarantees that sale and/or use of such items delivered hereunder will not infringe any United States or foresight Letter of Patent, and agrees to indemnify and save Buyer and/or its customers harmless from any expense, loss, cost, damage, or liability which may be incurred on account of infringement or alleged infringement of patent rights with respect of such items and to defend, at its own expense, any action or claim in which such infringement is alleged, provided Seller is notified as to such actions or claims against Buyer.
16. LABOR DISPUTES-Seller agrees that whenever any actual or potential labor disputes delays or threatens to delay the timely performance of this PO, Seller shall immediately give notice thereof to Buyer with such detailed information as Buyer may specify.
17. ASSIGNMENT-No right or obligation under this PO, including the right to receive monies due and to become due hereunder, shall be assigned by Seller without prior written consent of Buyer, and any purported assignment without such consent shall be void.
18. NEW YORK LAW-This PO shall be governed by subject and construed according to, the laws of the State of New York. The parties agree that in the event a lawsuit should arise from this PO, said lawsuit must be adjudicated in New York.
19. FEDERAL, STATE AND LOCAL TAXES-Tax laws, regulations and rules in effect as of the date of this PO apply in their
entirety. Any taxes applicable under these conditions, not vouched or invoiced for payment, are the liability of Seller without limitation as to time.
20. DISPUTES-Any controversy or claim or question of fact arising out of or relating to the PO, or any breach thereof, which if not disposed of by negotiation, may be settled by appropriate legal action at law or in equity or by such other procedures as may be agreed to by the parties, except that in no event shall the Seller have any right of direct appeal or other action against the Government. Pending resolution of any such dispute by settlement or by final judgment, the parties shall proceed diligently with performance.