Terms & Conditions
ACCEPTANCE OF PURCHASE ORDER:
Agreement by Vendor to furnish the materials or services hereby ordered, Vendor’s commencement of such performance, or Vendor’s acceptance of any payment, whichever occurs first, shall constitute acceptance by Vendor of this Purchase Order subject to these terms and conditions. In the event that this Purchase Order does not state price or delivery, Buyer will not be bound to any prices or delivery to which it has not specifically agreed in writing. These terms and conditions, together with any referenced exhibits, attachments or other documents, constitute the entire agreement between the parties with respect to the subject matter of this Purchase Order and supersede any prior or contemporaneous written or oral agreements pertaining thereto. No modifications permitted unless in writing signed by both parties.
TERMINATION FOR CONVENIENCE:
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 default. In the event of partial termination, Vendor is not excused from performance of the non-terminated balance of work under this Purchase Order. In the event of termination for convenience by Buyer, Vendor shall be reimbursed for actual, reasonable, substantiated and allowable costs, plus a reasonable profit for work performed to date of termination. Buyer may take immediate possession of all work so performed upon written notice of termination to Vendor. Vendor’s obligations, including, without limitation, obligations under the warranty, proprietary rights, infringement, and indemnity against claims provisions of this Purchase Order, shall survive such termination.
TERMINATION FOR DEFAULT:
In addition to any other remedies available to Buyer under applicable law, 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 to make progress so as to endanger performance of this Purchase Order, or failure to provide adequate assurance of future performance. In the event of partial termination, Vendor is not excused from performance of the non-terminated balance of work under this Purchase Order. Vendor’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
Except for defaults of Vendor’s subcontractors at any tier, neither Buyer nor Vendor 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 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.
Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other items supplied to Buyer by Vendor shall be disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without restriction, unless: (i) otherwise required by the U.S. Government Regulations referred to below; or (ii) the Buyer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like. Unless otherwise expressly agreed in writing to the contrary and subject to Section 7 (d) below, all specifications, information, data, drawings, software and other items which are: (i) supplied to Vendor by Buyer; or (ii) obtained or developed by Vendor in the performance of this Purchase Order or paid for by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing goods or services 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 Vendor in performance of this Purchase Order or paid for by Buyer shall be promptly delivered to Buyer on the written request of Buyer or upon completion of this Purchase Order. Unless otherwise expressly agreed in writing to the contrary and subject to this section, any invention or intellectual property first made or conceived by Vendor in the performance of this Purchase Order or which is derived from or based on the use of information supplied by Buyer shall be considered to be the property of Buyer, and Vendor shall execute such documents necessary to perfect Buyer’s title thereto. Unless otherwise expressly agreed in writing to the contrary and subject to this section, Buyer alone shall be entitled to all benefits, profits and results arising from or incidental to any work performed (“Work Product”) pursuant to this Purchase Order. Because the parties hereto intend for all Work Product to be owned exclusively and perpetually by Buyer, Vendor hereby unconditionally and irrevocably transfers and assigns to Buyer, as the sole and exclusive property of Buyer (and of Buyer’s assigns, nominees, and successors), any and all intellectual property or other rights, title and interest Vendor may currently have (or in the future may have) by operation of law or otherwise in or to any and all Work Product. Vendor agrees to execute and deliver to Buyer any transfers, assignments, documents or other instruments necessary (collectively, “necessary instruments”) to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection, whether in the United States or in any foreign nation, or to otherwise vest complete and perpetual title and ownership of any Work Product and all associated rights exclusively in Buyer. Applicable Government Procurement Regulations incorporated into this Purchase Order shall, when applicable, take precedence over any conflicting provision of this section to the extent that such Regulations so require. The incorporation by reference of such U.S. Government Regulations dealing with subcontractors rights in technical data, subject inventions, copyrights, software and similar intellectual property are not intended to, and shall not, unless otherwise required by applicable law, obviate or modify any greater rights which Vendor may have previously granted to Buyer pursuant to prior agreements between the parties.
All drawings, tools, jigs, dies, fixtures, materials, and other items supplied or paid for by Buyer shall be and remain the property of Buyer; and Buyer shall have the right to enter Vendor’s premises and remove any such property at any time without being liable for trespass or damages of any sort. All such items shall be used only in the performance of work under this Purchase Order unless Buyer consents otherwise in writing. Material made in accordance with Buyer’s specifications and drawings shall not be furnished or quoted by Vendor to any other person or concern without Buyer’s prior written consent. Vendor shall have the obligation to maintain any and all property furnished by Buyer to Vendor and shall be responsible for all loss or damage to said property except for normal wear and tear.
RELEASE OF INFORMATION:
Vendor shall not publish, distribute, nor use any information developed under or about the existence of this Purchase Order, nor use the Buyer’s name, logo, trademark, service mark, or trade dress, or that of an any product or product line, division, affiliate or subsidiary thereof, for any purpose, including, without limitation, advertising, news release, business reference, website content, or products or service endorsement without prior written approval of Buyer.
Vendor warrants that all equipment and materials delivered under this Purchase Order are in conformance with the latest OSHA requirements The Vendor warrants that in the performance of this Purchase Order, it will comply with all applicable U.S. Department of Transportation regulations on hazardous materials and any other applicable international, federal, state, or local statutes, laws, rules, or regulations. Vendor warrants that it has complied with the Anti-Kickback Act of 1986 and has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity or any kickback within the meaning of the Anti-Kickback Act of 1986. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Vendor. Vendor shall indemnify and save Buyer harmless from and against any loss, damage, fine, penalty, or expense whatsoever that Buyer may suffer (collectively “damages”) as a result of (i) Vendor’s failure to comply with any and all obligations and warranties set forth in this section; or (ii) any indemnification obligation of Buyer owed to its distributors or customers to the extent only such damages are caused by Vendor’s failure to comply with any and all obligations and warranties set forth in this section. The foregoing is in addition to and not in mitigation of any other requirements of this Purchase Order.
Unless this Purchase Order specifies otherwise, the price of this Purchase Order includes, and Vendor is liable for and shall pay, all taxes, imposts, charges and exactions imposed on or measured by this Purchase Order except for applicable sales and use taxes that are separately stated on Vendor’s invoice. Prices shall not include any taxes, imposts, charges or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption. To the extent that Buyer is required to do so under applicable United States law or tax regulations, Buyer may deduct from any payments due to Vendor pursuant to this Purchase Order such taxes as Buyer is required to withhold from such payments and pay such taxes to the relevant tax authorities; provided, however, that Buyer provides Vendor with relevant tax receipts or other suitable documentation evidencing the payment of such taxes promptly after such taxes are paid.
Vendor 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 Vendor 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 at any time to set off any amount owing from Vendor to Buyer or Buyer’s subsidiaries and/or affiliates against any amount due and owing to Vendor or any of its subsidiaries and/or affiliates pursuant to this Purchase Order or any other contractual agreement between Buyer and Vendor or their respective subsidiaries and/or affiliates. Vendor shall promptly notify the Buyer in writing in advance of any organizational changes planned by Vendor, including name or ownership changes, mergers or acquisitions.