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Terms & Conditions
1. ACCEPTANCE OF PURCHASER ORDER
This Purchase Order, including these terms and conditions, any referenced exhibits, attachments or other documents, is the entire agreement between the Buyer and Seller in respect of the subject matter of this Purchase Order and is subject to the terms and conditions herein. This Purchase Order supersedes all communications, representations or agreements, oral or written, between Buyer and Seller with respect to the subject matter of this Purchase Order.
Seller’s (a) acknowledgment of this Purchase Order, (b) agreement to furnish the Items (as defined below), (c) commencement of performance, (d) furnishing of items under this Purchase Order, or (e) acceptance of any payment, shall constitute Seller’s unqualified acceptance by Seller of this Purchase Order subject to these terms and conditions. Additional or differing terms or conditions proposed by Seller or included in Seller's acknowledgment hereof shall be void and have no effect unless accepted in writing by Buyer. Should this Purchase Order not state the price or time of delivery, Buyer will not be bound to any prices or time of delivery to which it has not specifically agreed in writing. Any modification, amendment or addition to this Purchase Order to be effective must be made in writing and be signed by Buyer's Authorized Representative.
As used herein “Buyer” means Orbit/ FR, Inc. Seller means the party identified on the face of this Purchase Order. “Items” means all required articles, materials, goods, supplies and services, whether Item is in its singular or plural form. Purchase Order means this Purchase Order, contract or subcontract. “Buyer’s Authorized Representative” means the person or persons from Orbit/FR authorized by Buyer to alter, modify or change the provisions of this Purchase Order.
3. SHIPPING INSTRUCTIONS
(a) Unless otherwise specified, Seller shall assure that all packing and packaging comply with good commercial practices and applicable carrier tariffs. The use of good commercial practices shall not relieve the Seller of responsibility for packaging in a manner that will insure the receipt of the Items in an acceptable condition at the destination specified in this Purchase Order.
(b) Ship all Items via United Parcel Service (UPS) unless otherwise directed. When Items are ready for delivery and the weight exceeds 100 lbs, call Obit/FR at (215) 674-5100 for shipping instructions.
(c) Seller shall at all times comply with Buyer's written shipping instructions. Unless otherwise directed, all items shipped on the same day from and to a single location must be consolidated on one bill of lading or airbill, as appropriate. Seller shall submit all required shipping documents to Buyer prior to final payment. An itemized packing list, placed on the outside of each package, must accompany each shipment.
(d) Partial shipments are not allowed, unless authorized in writing by Buyer’s Authorized Representative.
(e) Seller shall assure that the packaging, labeling and shipping of all HAZARDOUS SUBSTANCES including DANGEROUS MATERIALS, conforms to all applicable international, federal, state and local laws and regulations.
(f) Purchase Order number (s) must appear on all correspondence, shipping labels, and shipping documents, including all packing lists, bills of lading, airbills and invoices.
(g) Seller shall be responsible to Buyer for any increased costs to Buyer which result from Seller's failure to follow Buyer's routing instructions.
4. DELIVERY, NOTICE OF DELAY, RISK OF LOSS
(a) Time is of the essence and failure to deliver in accordance with the delivery schedule under this Purchase Order, if unexcused, shall be a material breach of this Purchase Order. No acts of Buyer, including without limitation modifications of this Purchase Order or acceptance of late deliveries shall constitute waiver or this provision. Buyer also reserves the right to refuse or return at Seller’s expense shipments made in advance of required schedules, or to defer payment on advance deliveries until the scheduled delivery dates.
(b) Seller shall notify Buyer in writing immediately of any actual or potential delay to the performance of this Purchase Order. Such notice shall include a proposed revised schedule and the steps being taken to recover to the maximum extent possible the delay, but such notice and proposal or Buyer's receipt or acceptance thereof shall not constitute a waiver of Buyer's rights and remedies hereunder. (c) Seller assumes all risks regarding the Items ordered until delivery to Buyer as specified.
(a) Buyer and Buyer's customer may inspect the Items supplied hereunder before, during or after the manufacture, fabrication or performance thereof at facilities which will or may be used in the performance of this Purchase Order and, at any time and place before, during, or after manufacture or completion, may inspect and test all material and workmanship entering into the performance of this Purchase Order. No such inspection or test shall in any way relieve Seller of its obligations to furnish all Items in strict accordance with the requirements of this Purchase Order. If inspection and test is made on the premises of Seller or any of its suppliers, Seller shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance for safety and convenience of the inspectors in the performance of their duties. All inspections and tests shall be performed in such a manner as not to unduly delay the work. All Items are subject to final inspection and acceptance at Buyer's facility (or at any other location specified in writing by Buyer) notwithstanding any payments or prior inspections. Such final inspection shall be made within a reasonable time after delivery.
(b) Seller shall provide and maintain an inspection and process control system acceptable to Buyer covering the Items hereunder. Records of all inspection work by Seller shall be kept complete and available to Buyer and its customers during the performance of this Purchase Order and for such longer periods as may be specified in this Purchase Order.
(c) Buyer shall have the right to reject and hold at Seller's expense subject to Seller's reasonable disposal instructions, Supplies which do not conform to applicable specifications, drawings, samples or descriptions or which are defective in material, workmanship or design (unless such design is Buyer's detailed design). Without limiting any other rights Buyer may have, Buyer, at its option, shall have the right to require Seller to (i) repair or replace at Seller's expense any Items which fail to meet the requirements of applicable design, specifications, drawings, samples, descriptions or other requirements of this PO, or (ii) to refund the price of any such Item. Previously rejected Items reworked to specification or replaced shall not be returned to Buyer by Seller unless Buyer’s Authorized Representative has consented to such return, in writing. Seller shall notify Buyer of past rejections of all returned Items.
(d) Buyer’s failure to inspect does not relieve Seller of any responsibility to perform in accordance with the terms of the Purchase Order.
6. VARIATION IN QUANTITY
Items shall not be supplied in excess of quantities specified herein, except for allowed shipping tolerances, if any. Seller shall be liable for handling charges and return shipment costs for any excess quantities; and, unless Seller agrees to pay such costs, the overshipped material will be retained by Buyer at no cost.
Unless otherwise specified, prices include all applicable federal, state and local taxes, duties, tariffs, and similar fees imposed by any government. Prices shall not include any taxes for which Buyer has furnished a valid exemption certificate or other evidence of exemption. The Shipping point is as specified on the face of this PO. The price includes all charges for boxing, packing, crating, drayage, storage, dunnage, bundling, freight, local cartage. and/or any other services unless otherwise specified in this Purchase Order.
8. INVOICES, PAYMENTS AND DISCOUNTS
Unless otherwise provided, terms of payment shall be net 30 days from the latest of the following:
(a) Buyer's receipt of the Seller's correct invoice:
(b) Scheduled delivery date of the Items; or
(c) Actual delivery or completion of performance of the Items.
(d) In the case of a partial delivery that was not authorized in accordance with clause 3(d), then upon completion of all deliveries.
Buyer shall have a right of setoff against payments due under this Purchase Order for any amounts at issue under this Purchase Order or other purchase orders between Buyer and Seller.
(a) Seller warrants for a period of one year from the date of delivery; under this Purchase Order that all Items furnished pursuant to this Purchase Order shall be free from defects in material and workmanship, conform to applicable specifications, drawings, samples, and descriptions, and other requirements of this Purchase Order and, unless of Buyer's detailed design, shall be free from design defects. Seller shall be liable for and save Buyer harmless from any loss, damage, or expense whatsoever that Buyer may suffer from breach of any these warranties. Remedies shall be at Buyers election including repair, replacement or reimbursement of the purchase price of nonconforming Items and, in the case of services either correction of the defective services at no cost or reimbursement of the amounts paid for such services. Items required to be corrected or replaced shall be subject to the provisions of this Article and the Article herein entitled "Inspection" to the same extent as Supplies initially delivered. All warranties shall run to Buyer and its customers.
(b) If the Items delivered under this Purchase Order are, or are to be, incorporated in an end item(s) to be delivered to any of Buyer's customer(s), Seller's obligation under this clause shall be extended to one year after delivery of such end item(s) to such customer(s).
(c) The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided at law, in equity, or under this Purchase Order.
10. TERMINATION FOR BUYER’S CONVENIENCE
(a) Buyer may, by notice in writing, terminate this Purchase Order or work under this Purchase Order for convenience and without cause, in whole or in part, at any time, and such termination shall not constitute a breach or default hereunder. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order.
(b) In the event of termination for convenience by Buyer, Seller shall be reimbursed for actual reasonable, substantiated and allowable costs, plus a reasonable profit for work performed to date of termination. Buyer may, at its option, immediate possession of all work so performed upon written notice of termination to Seller.
(c) Seller's obligations, including but not limited to obligations under the warranty, proprietary rights, infringement and indemnity against claims provisions of this Purchase Order shall survive such termination.
11. TERMINATION FOR DEFAULT
(a) Buyer may by notice in writing, Terminate this Purchase Order in whole or in part at any time for breach of any one or more of its terms, for failure lo make progress so as to endanger performance of this Purchase Order or failure to provide reasonable adequate assurance of future performance. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order.
(b) In the event of Seller's default hereunder, the Buyer may exercise any or all rights accruing to it both at law, including without limitation, those set forth in Article 2 of the Uniform Commercial Code, or in equity.
(c) Buyer shall pay the Purchase Order price for completed Items delivered and accepted. Seller and Buyer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the "Disputes" clause of this Purchase Order. Buyer shall have the right to withhold from these amounts any sum Buyer determines to be necessary to protect Buyer against loss because of outstanding liens or claims of former lienholders.
(d) After termination, if it is determined that Seller was not in default, or that the default was excusable, as set forth in the "Force Majeure" clause of this Purchase Order, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of Buyer.
(e) Seller’s obligations, including but not limited to obligations under the warranty, proprietary rights, infringement and indemnity against claims Articles of this Purchase Order, shall survive such termination.
12. FORCE MAJEURE
Except for defaults of Seller's subcontractor(s) or supplier(s), at any tier, neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence. Such causes include, but are not limited to acts of God or of the public enemy, acts of the U.S. Government in either its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes and unusually severe weather. In the event that performance of this Purchase Order is hindered, delayed or adversely affected by causes of the type described above (“Force Majeure"), then the party whose performance is so affected shall so notify the other party's authorized representative in writing and, at Buyer's option, this Purchase Order shall be completed with such adjustments as are reasonably required by the existence of Force Majeure or this Purchase Order may be terminated for convenience.
(a) Any controversy or claim that may arise out of or in connection with this Purchase Order that after good faith negotiations cannot be resolved to both parties mutual satisfaction may be resolved by submitting the matter to a court of competent jurisdiction.
(b) Pending resolution or settlement of any dispute arising under this Purchase Order, Seller will proceed diligently as directed by Buyer with the performance of this Purchase Order. Irrespective of the place of performance, this Purchase Order will be construed and interpreted according to the laws of the Commonwealth of Pennsylvania, excluding its Conflicts of Law Rules. Buyer and Seller consent to the exclusive jurisdiction of the Courts of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania in any and all actions, disputes, or controversies relating to this Purchase Order. Buyer and Seller waives the right to jury trial and irrevocably consent to service of process by certified or registered mail, return receipt requested, mailed to their respective address set forth herein.
Except as otherwise provided herein, the rights and remedies of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure or either party to enforce any of its rights shall not constitute a waiver of such rights or of any other rights and shall not be construed as a waiver or relinquishment of any such provisions, rights or remedies; rather the same shall remain in full force and effect.
15. PROPRIETARY RIGHTS
(a) Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other Items supplied to Buyer by Seller shall be disclosed to Buyer on a nonproprietary basis and may be used and/or disclosed by Buyer without restriction, unless (i) otherwise required by U.S. Government Regulations specifically incorporated into this Purchase Order, or (ii) the Buyer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like.
(b) Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other Items which are (i) supplied to Seller by Buyer, or (ii) obtained or developed by Seller in the performance of this Purchase Order or paid for by Buyer shall be proprietary to Buyer, shall be used only for the purpose of providing the Items to Buyer pursuant to this Purchase Order, and shall not be disclosed to any third party without Buyer’s express written consent. All such items supplied by Buyer or obtained by Seller in performance of this Purchase Order or paid for by Buyer shall be promptly provided to Buyer on request or upon completion of this Purchase Order.
(c) Unless otherwise expressly agreed in writing to the contrary and subject to any invention or intellectual property first made or conceived by Seller in the performance of this Purchase Order or which is derived from or based on information supplied by Buyer shall be deemed to be the property of Buyer, and Seller shall execute such documents necessary to perfect Buyer’s title thereto. Unless otherwise expressly agreed in writing to the contrary, any work performed pursuant to this Purchase Order, which includes any patent and copyright interest, shall be considered a “work made for hire.”
16. BUYER’S PROPERTY
(a) All drawings, tools, jigs, dies, fixtures, materials and other items supplied or paid for by Buyer or its customer shall be and remain the property of Buyer, and Buyer shall have the right to enter Seller’s premises and remove such property at any time without being liable for trespass or damages of any sort.
(b) All such items shall be used only in performance of work under this Purchase Order unless Seller obtains Buyer’s written consent.
(c) Material made in accordance with Buyer’s specifications and drawings shall not be furnished or quoted to any other person or entity without Buyer’s prior written consent.
(d) Seller shall maintain any and all property furnished by Buyer to Seller and shall be responsible for all loss or damage to said property, except for normal wear and tear.
17. ORDER OF PRECEDENCE
(a) In the event of any inconsistency or conflict between or among the provisions of this Purchase Order. such inconsistency or conflict shall be resolved by the following descending order of preference (i) Order specific provisions which are typed or handwritten on the Purchase Order as additions to the preprinted terms; (ii) Documents incorporated by reference on the face page(s) of this Purchase Order; (iii) These Terms and Conditions of Purchase and Supplements thereto; (iv) Statement of Work; and, (v) Specifications attached hereto or incorporated by reference. Buyer’s specifications shall prevail over specifications of Seller.
(b) In the event of conflict between specifications, drawings, samples, designated type, part number, or catalog description, the specifications shall govern over drawings, drawings over samples, whether or not approved by Buyer, and samples over designated type, part number or catalog description. In cases of ambiguity in the specifications, drawings, or other requirements of this Purchase Order, Seller must, before proceeding, consult Buyer, whose written interpretation shall be final.
(a) Buyer’s Authorized Representative shall have the right by written order to suspend work or to make changes from time to time within the general scope of this Purchase Order in any one or more of the following: (i) statement of work, drawings, design or specifications; (ii) method of shipping or packing; (iii) place of inspection; (iv) delivery schedule. If such suspension(s) or change(s) cause an increase or decrease in the cost or time of performance of this Purchase Order, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this Article 18 must be asserted in writing to Buyer’s Authorized Representative with in twenty (20) days from the date of receipt by Seller of notification of the change or suspension and shall be followed as soon as practicable with in writing specifying the amount claimed and supporting cost documentation. Should the parties be unable to negotiate the equitable adjustment, it shall be resolved under the Disputes Article of this Purchase Order. Nothing herein shall excuse the Seller from proceeding with this Purchase Order as changed pending resolution of the claim.
(b) Only Buyer’s Authorized Representative may make changes to this Purchase Order or suspend its performance. Information, advice, approvals or instructions given by Buyer’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect Buyers and Sellers rights and obligations hereunder unless set forth in a writing which is signed by Buyer's Authorized Representative and which states that it is a suspension, amendment or change to this Purchase Order.
Seller warrants that all work, Items, materials, services, equipment, plans, software, plans and other items provided by Seller pursuant to this Purchase Order, which are not of Buyer’s design, shall be free from claims of infringement (including misappropriation) of third party intellectual property rights and that any use or sale of such items by Buyer or any of Buyer's customers shall be free from any claims of infringement. Seller shall indemnify and save Buyer, and its customer, harmless from any and all costs, expenses, liability, and loss of any kind (including all costs and expenses, including attorneys' fee) arising out of claims, suits, or actions alleging such infringement, which claims, suits, or actions Seller, hereby, agrees to defend, at Sellers expense, if requested to do so by Buyer. Seller may replace or modify infringing items with comparable goods acceptable to Buyer of substantially the same form, fit and function so as to remove the source of infringement and Seller’s obligations under this Purchase Order including those contained in the Warranty Article and this Article shall apply to the replacement and modified items. If the use or sale of any of the above items is enjoined as a result of such claim, suit or action, Seller, at no expense to Buyer shall obtain for Buyer and its customer the right to use and sell said item.
(a) Seller may not assign any rights or delegate any of its obligations due or to become due under this Purchase Order without the prior written consent of Buyer. Any purported assignment or delegation by Seller without such consent shall be void. Buyer may assign this Purchase Order to (i) any affiliated company, (ii) any successor in interest, or (iii) Buyer's customer. Buyer shall have the right to set off any amount owing from Seller to Buyer or Buyer’s subsidiaries and/or affiliates against any amount due and owing to Seller pursuant to this Purchase Order or any other contractual agreement.
(b) Seller shall promptly notify the Buyer in writing in advance of any organizational changes planned by Seller, including changes of name, ownership, mergers or acquisitions.
21. COMPLIANCE WITH LAWS
(a) Seller shall comply with the applicable provisions of all federal, state, and local laws and ordinances and all lawful orders, rules and regulations thereunder. Seller agrees to indemnify Buyer against any loss, cost, damage or liability by reason of Seller's violation of this Article.
(b) Seller warrants that each chemical substance constituting or contained in Items sold or otherwise transferred to Buyer hereunder is not on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) as amended.
(c) Seller warrants that all equipment and materials delivered under this Purchase Order are in conformance with the latest OSHA requirements.
22. RESPONSIBILITY AND INSURANCE
Seller shall be responsible for the actions and failure to act of all parties retained by, through, or under Seller in connection with the performance of this Purchase Order. Seller shall also maintain and cause its subcontractors to maintain such General Liability, Property Damage, Employer’s Liability and Workers' Compensation Insurance, Professional Error, and Omissions Insurance, and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance as are specified in this Purchase Order or, if none are specified, such amount as will protect Seller (and its subcontractors and Buyer from said risks and any claims under any applicable Workers' Compensation, Occupational Disease, and Occupational Safety and Health statutes. Seller shall provide Buyer with certificates evidencing required insurance, upon Buyer's request.
Seller shall, without limitation, indemnify and save Buyer and its customers and their respective officers, directors, employees and agents harmless from and against (i) all claims, including claims under Workers· Compensation or Occupational Disease laws, and resulting costs, expenses (including reasonable attorney fees)and liability which arise from personal injury, death, or property loss or damage attributed to, or caused by, the Items supplied by Seller pursuant to this Purchase Order, except to the extent such injury, death, loss or damage is caused solely and directly by the negligence or Buyer and (ii) all claims, including resulting costs (including reasonable attorney fees), expenses and liability, by the employees of Seller or any of its subcontractors.
24. EXPORT/ IMPORT CONTROL
(a) If Seller is a US company that engages in the business of either manufacturing or exporting defense articles or furnishing defense services, the Seller hereby certifies that it has registered with the U.S. Department of State Directorate of Defense Trade Controls and understands Its obligations to comply with International Traffic in Arms Regulations (“ITAR") and the Export Administration Regulations ("EAR”).
(b) Seller shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with U.S. export control laws and regulations, including but not limited to the ITAR. Seller agrees that no technical data, information or other items provided by the Buyer in connection with this Purchase Order shall be provided to any foreign persons or to a foreign entity, including without limitation, a foreign subsidiary of Seller, without the express written authorization of the Buyer and the Seller's obtaining of the appropriate export license, technical assistance agreement or other requisite documentation for ITAR controlled technical data or items. Seller shall indemnify Buyer from all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller.
(c) Seller shall immediately notify Buyer if it is or becomes listed on any Excluded or Denied Party List of an agency of the U.S. Government or its expert privileges are denied, suspended or revoked.
It any provision of this Purchase Order or application thereof is found invalid, illegal or unenforceable by law, the remainder of this Purchase Order will remain valid, enforceable and in full force and effect and the parties shall negotiate in good faith to substitute a provision of like economic intent and effect.
26. GOVERNMENT CONTRACTS AND SUBCONTRACTS
If the face of the Purchase Order provides that it has been placed pursuant to a U.S. Government contract or a subcontract issued thereunder, Seller agrees to comply with all governmental laws and regulations (including by way of illustration but not limitation, the Federal Acquisition Regulations and Agency Supplements thereto) which are by virtue of law, regulation or Buyer’s US Government prime contract or higher tier subcontract required to apply to Buyer’s subcontractors.
(a) Headings are inserted for convenience only and do not form a part of this Purchase Order and shall not be used in construing or interpreting this Purchase order.
(b) These Terms and Conditions shall apply to and bind the respective heirs, successors, executors, administrators and assigns of Seller and Buyer. Nothing contained herein shall be construed to imply a joint venture, partnership, or employer and employee relationship between the parties.
(c) This Purchase Order shall not be interpreted or construed more favorably to or more strongly against either party.