ARTICLE 18 - TERMINATION
Buyer may terminate the work under this order in whole or in part at any time by written notice to Seller, stating the extent and effective date of such termination. Upon such termination, Seller shall forthwith halt work under this order and discontinue the placement of further orders or subcontracts hereunder, terminate the work under orders or subcontracts outstanding hereunder. Further, Seller shall take any necessary precautions or actions to protect property in Seller’s possession in which Buyer and/or Buyer’s customer has or may acquire an interest. Both parties are under a duty to negotiate a fair amount of compensation for Seller in the event that the contract is terminated. Any termination settlement hereunder at the election of Buyer, shall be subject to prior audit by Buyer, and if this order is placed pursuant to a prime contract with the Government, or to a sub-contract therein, regardless of whether notice thereof has been given, Seller shall be subject to prior audit approval thereof by the Government or the Contractor pursuant to whose contract with Buyer this order has been placed. If the parties cannot negotiate fair compensation within a reasonable amount of time upon termination of the contract, Buyer will pay Seller the actual costs incurred by Seller which are properly allocated or apportionable under recognized commercial accounting practices to the terminated portion of this order. This amount, together with any payment previously made, or to be made under Buyer’s order, may not exceed the aggregate price specified in this order. Seller will transfer title and deliver on Buyer’s instructions, any property, the price of which has been paid or the cost of which is reimbursed, in accordance with the aforementioned negotiation settlement. However, with Buyer’s approval, Seller may retain the goods at an agreed price, or sell the goods at an approved price, in which case, Buyer is expressly under no obligation to negotiate a fair compensatory settlement to Seller. The provision of this paragraph shall not limit or affect the rights of Buyer to terminate this order on account of default of Seller, as provided in article 9 hereof captioned “Deliveries”.
ARTICLE 19 - PROPRIETARY INFORMATION
- All information and data (including but not limited to designs, drawings, blueprints, tracings, plans, models, layouts, specification and memoranda) whether pre-existing or generated as a result of this Agreement which may be furnished or made available to Buyer directly or indirectly as the result of the Agreement shall remain the property of Seller. All such information and data is proprietary to Seller and shall neither be used by Buyer, nor furnished by Buyer to any other person, firm or corporation, except as herein provided. Buyer may use or furnish to others information and data only as necessary to effect any contract or arrangement under which there is to be performed by Buyer, or by others, routine modification, overhaul, or maintenance work on the Product supplied to Buyer pursuant to the individual purchase order or their parts or accessories. The instrument by which Buyer transfers any such information and data may permit the use of same by its transferee, subject to the same limitations set forth above, and shall reserve to Seller the right to enforce such limitations. Nothing in these Terms and Conditions shall convey or license to Buyer the right to reproduce or cause the reproduction of any Product, information, data or design identical or similar to that provided pursuant to the above, or develop any repair for Product, or give to Buyer a license under any patents or rights owned or controlled by Seller or any affiliated company.
- Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer incident to the placing or filling of any order hereunder shall not, unless otherwise specifically agreed upon in writing to Buyer, be deemed to be confidential or proprietary information and accordingly shall be acquired free from any restriction.
- Except as explicitly set forth herein, as between Seller and Buyer, Buyer owns or has the right to license software products delivered hereunder. Seller shall have no rights in such software except where such rights are explicitly set forth in an agreement between Seller and Buyer. Seller shall provide all assistance necessary and shall execute any licenses necessary for the transfer of software products to Buyer hereunder.
ARTICLE 20 - WAIVER OF IMMUNITY
To the extent that Buyer or any of its property becomes entitled at any time to any immunity on the grounds of sovereignty or otherwise from any legal action (such as suits or proceedings, service of process, set- off or counterclaim, attachment prior to judgment, attachment in aid of execution, or execution prior to judgment), Buyer hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity in any and all jurisdictions, including, without limitation, under the Foreign Sovereign Immunities Act of 1976 of the United States of America.
ARTICLE 21 - DISPUTE RESOLUTION
- Except as specifically provided for in this Article, Buyer and Seller agree to forsake litigation and resolve with finality any and all disputes arising under or related to these Terms and Conditions of Sale and/or any Purchase Order or other agreement subject to these Terms and Conditions of Sale exclusively by the process identified in this Article.
- Any and all disputes, controversies or claims between Buyer and Seller arising under or related to these Terms and Conditions of Sale, any Purchase Order or other agreement subject to these Terms and Conditions of Sale, or the breach, termination or invalidation thereof, shall upon written notice be referred to a senior management representative from each of the parties who will confer in good faith to attempt to resolve the matter. The party sending the first written notice (the “Initial Notice”) shall: (i) set forth in detail all of its claims or issues in dispute and (ii) designate its representative. The other party shall have seven (7) days to designate its representative and add any other issues or claims for resolution not identified in the Initial Notice. The representatives shall have thirty (30) days from the date of the Initial Notice to resolve the issues identified in the notices. If the representatives are unable to resolve the matter, either party may refer the matter to Mediation, to be administered pursuant to the Commercial Mediation Rules of the American Arbitration Association (“AAA”). Such Mediation shall be started within thirty (30) days from the date of referral, and the Mediation process must be concluded within thirty (30) days from the start date.
- If the dispute or claim is not fully resolved pursuant to Paragraph B above, either party may after ninety (90) days, but not later than one hundred twenty (120) days from the date of the Initial Notice, make a written demand for binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the AAA and to be administered by the AAA. The arbitration shall take place in the City of Phoenix, State of Arizona, U.S.A.
- The arbitration shall be conducted in the English language. Relevant documents in other languages shall be translated into English if the arbitrators so direct. In the event of a conflict between the English version and the original version of any documents so translated, the English version shall control.
- In arriving at the decision, the arbitrator(s) shall consider the pertinent facts and circumstances and shall be guided and bound by the terms and conditions of the Agreement, including Article 16, Limitation of Liability, of these Terms and Conditions of Sale. If a solution is not found in the applicable terms and conditions, then the arbitrator(s) shall apply the provision of the laws of the State of Arizona (excluding its choice of laws rules and excluding the U.N. Convention on Contracts for the International Sale of Goods). The applicable procedural law shall be the law of the place of arbitration.
- The award of the arbitrator shall be paid in U.S. dollars, and shall not exceed actual compensatory damages and in no case shall include punitive, exemplary or other similar damages. Buyer and Seller agree that the 1958 U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards applies to any purchase orders incorporating these terms and conditions of sale and to any arbitral award resulting from any arbitration.
- The decision of the arbitrator(s) shall be final and binding upon the parties. Neither party shall apply or appeal to any court in connection with any question of law arising in the course of the reference or out of the award. Judgment on the award may be entered in any court having jurisdiction.
- Either party may at any time, without inconsistency with this Article, seek from a court of competent jurisdiction any equitable, interim, or provisional relief to avoid irreparable harm or injury. This Article shall not apply to and will not bar litigation regarding claims related to a party’s proprietary or intellectual property rights.
- All statements made and documents provided or exchanged in connection with the Dispute Resolution process described herein are confidential and neither party shall disclose the existence or content of the dispute or claim, or the results of any Dispute Resolution process, to third parties other than outside counsel, except with the prior written consent of the other party or pursuant to legal process.
ARTICLE 22 - BUYER’S SPECIAL RESPONSIBILITIES
- Buyer shall, when requested by Seller, at no cost to Seller:
- Assist assigned Seller personnel in arranging for any necessary entry and exit permits for personal belongings and tools which such personnel may elect to bring in furtherance of their assignment. All such belongings and tools shall remain the property of Seller’s or its assignee’s personnel and shall not be encumbered by Buyer.
- Assist Seller in obtaining any necessary labor permits, licenses, or other authorizations required by Seller’s personnel for the performance of Services rendered, including but not limited to, any interim arrangements until the foregoing authorizations are obtained, as well as vehicle operator permits, residence permits, and currency exchanges required hereunder.
- Obtain and grant to Seller rights of access to those portions of all sites and facilities necessary to carry out the requirements hereunder, including obtaining waivers of any restrictions which may normally be imposed by virtue of applicable laws, rules, or regulations governing non-citizens of Buyer’s country or the security of Buyer’s country.
- Provide: (i) all utilities and services as defined by the Agreement and its associated drawing package, including but not limited to electrical power, potable water, chilled water and fire water to the Facility, and, (ii) all items identified as Buyer’s responsibility in the Agreement.
- Provide Seller with a property survey of the site which depicts all applicable boundaries, topography, all existing easements and utility locations.
- The above responsibilities, listed in Paragraphs 1 through 5 above, are not meant to imply special privileges beyond that of Buyer’s staff.
- Seller shall, if specified in the Agreement, provide the equipment necessary for preliminary treatment of process discharge on-site, and shall provide designated Buyer personnel with training as specifically outlined in the Agreement. Connection of such equipment to appropriate local utilities (industrial waste or otherwise), the obtainment of any requisite permits from appropriate local or national regulatory agencies, as well as the operation of such equipment in accordance with applicable regulation and/or standards and the ultimate disposal of such treated material(s) are hereby specified as the direct responsibility of Buyer, and Seller’s only liability shall be as specified in Article 16, Limitation of Liability.
- Subject to all applicable Government security regulations, acceptance of this Order shall grant to authorized representatives of Buyer and its Customer right of access to facilities involved in performing work under this Order and to all applicable records in order to review progress, discuss problems or failures and witness testing pertaining to the requirements of this Order. Additionally, Buyer and its Customer shall have the right to examine, reproduce, and audit all Seller’s records related to pricing, incurred costs and proposed costs associated with any proposals (prior to or after contract award), invoices or claims. Seller shall provide adequate information on performance of this Order in response to any other reasonable request by Buyer and or its Customer.
- Failure by Buyer to fulfill responsibilities to Seller as set forth in Paragraphs A. through D. above, shall be deemed to be an excusable delay under Article 13, Excusable Delays, herein and any additional cost to Seller resulting there from shall be reimbursed to Seller by Buyer upon submission of Seller’s invoice for such costs.
ARTICLE 23 - CHANGE IN CONTROL OR OWNERSHIP
- This Article is only applicable if Seller is not a Government or Government entity.
- Each of the parties shall notify the other party as soon as it learns of any change in its ownership or control. If the party receiving such notice objects to the change in ownership or control, that party shall have the unilateral right to terminate this Agreement. In the event of any such termination, the party subject to the change in ownership or control agrees to render full cooperation to the other party in order to minimize disruption to that party’s contract effort. In lieu of termination, the party receiving the notice may require the party subject to the change in ownership or control to provide adequate assurance of performance of the Agreement, and institute special controls, including but not limited to, special controls regarding the protection of the proprietary information of the party receiving the notice.
ARTICLE 24 - APPLICABLE LAW
Seller warrants that it will comply with all federal, state, and local laws, including, but not limited to, any statute, rule, regulation, judgment, decree, order, or permit applicable to its performance under this Order including any employment, health, environmental, or safety agency regulations.
ARTICLE 25 - APPLICABLE LANGUAGE
The English language shall be used in the interpretation and performance of this Agreement.
ARTICLE 26 - ENTIRE AGREEMENT
This Agreement contains and constitutes the entire understanding and agreement between the parties respecting the subject matter hereof. No waiver or modification of this Agreement shall be binding upon the parties unless made in writing and signed by duly authorized representatives of both parties.
ARTICLE 27 - ASSIGNMENT
Any assignment of this agreement or any rights or obligations hereunder by either party without the prior written consent of the other party shall be void, except that Seller may assign any or all of its rights or obligations under this Agreement to a subsidiary or affiliated company of Seller, without Buyer’s written consent.
ARTICLE 28 - SPECIFICATIONS
The Specifications and standards explicitly cited in the statement of work, drawings, or elsewhere in the Agreement are first tier specification and standards and are applicable only to the extent specified in the Agreement. Second tier and lower documents referenced in those first-tier documents are for guidance only and are not contractually binding.
ARTICLE 29 - INVALIDITY
The invalidity, in whole or in part, of any provision hereof shall not affect the validity of the remainder of such provision or of any other provision hereof.
ARTICLE 30 - REPAIR AND OVERHAUL
- Upon receipt from Buyer of Buyer’s Products designated for repair, return and/or overhaul, Seller shall furnish hereunder, Services, as hereinafter described, required to repair and/or modify that product.
- Buyer’s Products processed in accordance with this Agreement will be repaired and/or overhauled and inspected in accordance with best commercial practice or the applicable Technical Order (T.O.) and, as applicable, Seller’s most current Time Compliance Technical Orders (TCTO’s) or Service Bulletins. All work will be in accordance with approved practices and procedures of Seller in effect during the time of work performance.
- Buyer shall provide shipping containers in suitable condition as may be required to return the Products to Seller for work under this Agreement. Seller shall, upon completion of work, reinstall Buyer’s Products into Buyer’s containers for reshipment. If Buyer’s containers require repair or replacement to achieve a condition and configuration compatible with Seller’s standards for packaging and preservation, Seller will furnish to Buyer a statement of work required and an estimated price for such work. Upon receipt from Buyer of a purchase order amendment, Seller will proceed with the work.
- A) Buyer shall provide to Seller a purchase order describing the work to be performed on each Product. Such purchase order shall identify, by part number, the Product to be repaired and/or overhauled.
B) Seller may issue Repair Price Catalogs periodically for certain Product repairs from which Buyer may issue Purchase Orders. Should Repair Price Catalogs not be available and upon request from Buyer, Seller shall submit quotes for repair and return order with rough-order- of-magnitude (ROM) prices. The ROM prices will be established at seventy-five percent (75%) of the list price of a new Product. Each purchase order issued shall contain the ROM price for repair. Accordingly, all repairs under this Agreement must follow the procedure that is described below:
- If repair of the part will be priced at less than the ROM price, Seller shall send Buyer written notification of the firm fixed price for the repair and commence repair of the Product. Buyer shall amend its purchase order to reflect the firm fixed price for the evaluation and repair.
- If repair of the part will be priced in excess of the ROM price, Seller shall notify Buyer of the firm fixed price of the repair. No repair shall commence on this part until Seller receives written authorization to proceed from Buyer in the form of a purchase order reflecting the firm fixed price of repair. If Buyer declines to authorize the repair, Buyer will reimburse Seller for teardown, inspection and scrap expenses. Alternatively, Buyer may request return of the Product, at its own expense.
- Parts removed from Buyer’s Products which cannot be reinstalled because of scrap or superseded condition, shall remain the property of Buyer, and, except with respect to parts with a replacement value of $200.00 or less, Seller shall ship these parts to Buyer, at Buyer’s expense. Buyer shall issue a “no cost” purchase order providing shipping instructions of such items within thirty (30) days of said notification.
- Seller warrants to Buyer that at the time of delivery of overhauled or repaired Products, the overhaul and repair Services performed by Seller will have been performed in a workmanlike manner. Seller’s sole liability and Buyer’s remedy under this warranty are limited to Seller’s correcting at Seller’s facility such Services shown to have been defective provided that written notice of the defect shall have been given by Buyer to Seller within thirty (30) days of the discovery of such defect and that the defect is discovered within twelve (12) months after date of delivery of such goods by Seller whichever shall first occur. Transportation charges for the return of defectively serviced Products to Seller and their reshipment to Buyer and risk of loss thereof will be borne by Buyer.
- Products for repair and/or overhaul shall be Delivered Duty Paid (“DDP”) Seller’s designated repair facility pursuant to Incoterms 2020, as directed by Seller.
ARTICLE 31 - CHANGES
Buyer may unilaterally and at any time by a written order issued by its Procurement Representative, suspend performance of this purchase agreement (PA) in whole or in part, or make changes within the general scope of this PA, including changes to the following: method of shipment and/or packing, delivery schedule, place of delivery, quantity of Work, drawings designs or specifications, and inspection and acceptance requirements. Seller shall proceed immediately to perform this purchase agreement as changed. If any such change causes an increase or decrease in the cost of, or the time required, for performance of this PA, or otherwise affects any other provisions of this PA, an equitable adjustment shall be made in the purchase price and/or delivery schedule as agreed to in writing by Buyer, and the PA modified in writing accordingly. Any claim by the Seller for adjustment under this Clause must be asserted in writing within twenty days from the date of the notification of change, and such request must include pertinent cost and/or pricing data sufficient to permit Buyer to evaluate any such claim; provided, however, that Buyer, if it decides that the facts justify such action, may receive and act upon a claim for adjustment asserted at any time prior to final payment under this PA. If Seller's proposed equitable adjustment includes the cost of property made obsolete or excess by the change, Buyer shall have the right to prescribe the manner of disposition of the property. Nothing in this Clause nor the failure of the parties to agree on an equitable adjustment, shall excuse the Seller from proceeding with the PA as changed. Failure to agree to any adjustment shall be resolved in accordance with the “Disputes” Clause of this PA. Only the Procurement Representative has authority on behalf of Buyer to make changes to this PA.
ARTICLE 32 - RECORDS
Unless a different period is set forth elsewhere in this PA, Seller shall retain all pertinent books, documents, papers, and records, including but not limited to inspection records, involving transactions related to this PA for a period of three (3) years after final payment on this PA. At the conclusion of this time period, Seller shall make written request to the Procurement Representative, for permission to (1) destroy such records; (2) package and ship same to Buyer; (3) maintain said records at Seller's facilities; or (4) any combination of the above.
ARTICLE 33 - STANDARDS OF BUSINESS CONDUCT
As Buyer is committed to conducting its business with the highest standards of ethics and in accordance with the laws of the United States and other countries in which it operates, all who conduct business with Buyer are expected to operate in the same manner and with the highest standards of integrity. Buyer’s further expectation is that Seller will have or will promptly develop and adhere to a code of business conduct. If Seller does not have a code of business conduct, Seller, for itself and on behalf of its employees, agents and representatives, agrees to become familiar with Buyer’s Standards of Business Conduct, which will be provided by agreed to media.
ARTICLE 34 - INSURANCES
Seller shall maintain, at its sole cost, and shall require any subcontractors it may engage to maintain at all times while transacting business with Buyer and for two (2) years following acceptance of goods and services hereunder, the insurance coverage set forth below, with one or more insurance companies licensed to do business in the state where the work is performed.
- Workers’ Compensation Insurance as required by laws and regulations applicable to and covering any subcontractor’s employees performing in connection with Seller’s obligations hereunder at any Buyer location, and all employees of Seller engaged in Seller’s performance of its obligations hereunder.
- Employers’ Liability Insurance protecting Seller against common law liability in the absence of statutory liability, for employee bodily injury arising out of the master-servant relationship with a limit of not less than $1,000,000.
- Commercial General Liability Insurance including coverages for premises/operations, products/completed operations, bodily injury, property damage, independent contractors and coverage for insured contracts specifically in support of the contractual obligations of Seller including, without limitation, any indemnity obligations hereunder, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 in the annual aggregate and naming Buyer and its Affiliates as an additional insured.
- Automobile Liability Insurance including non-owned and hired vehicle coverage with limits of liability of not less than $1,000,000 per occurrence combined single limit and naming Buyer and its Affiliates as an additional insured. Seller shall provide a certificate of insurance evidencing such insurance coverage that shall provide that the insurance carrier will give Buyer thirty (30) days’ prior written notice of any cancellation or non-renewal of any policy or policies identified in such certificate.
ARTICLE 35 - CUI MANAGEMENT
Seller is responsible for the proper management of Controlled Unclassified Information as distributed by the Buyer in accordance with Executive Order 13556 “Controlled Unclassified Information”. The Controlled Unclassified Information (CUI) program standardizes the way the entities handle unclassified information that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government-wide policies; specifically 32 C.F.R. Part 2002 and DFARS 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting.
Top Aces will not disclose, sell or lease to any third party either free of charge or for remuneration, any personal information provided on this site, unless required to do so by law.