General Terms and Conditions 

Oct 2020

TERMS AND CONDITIONS OF SALE

Except as otherwise agreed in writing (other than by a routine acknowledgment) by Top Aces Corp. (TAC), a Mesa Arizona corporation (hereinafter called “Buyer”), these Terms and Conditions, together with any additional or different conditions of sale set forth in Seller’s proposal shall be the only and entire terms and conditions for the sale to which the Agreement relates.

ARTICLE 1 - PRODUCTS AND SERVICES TO BE SUPPLIED

Seller shall sell and deliver to Buyer, and Buyer shall purchase and accept delivery of and pay for, subject to the terms and conditions hereinafter specified: Products and Services related to F16 aircraft, the engine, all components and accessories, or products manufactured and supplied by Seller as may be from time to time ordered by Buyer. For Services, Buyer and Seller shall ensure a Purchase Agreement (PA) and/or Export License (if outside USA) are in place for such activities, if appropriate. Such Products and Services are not necessarily limited to the following:

1. Aircraft, Engine Components and Gears: Aircraft and Engine Components and gears (other than those installed at the time of power system delivery).
    
2. Spare Parts: Spare parts for maintenance and overhaul of aircraft, engines, engine accessories, and gears. Consumables such as special greases, coatings, cleaning materials, etc.
    
3. Support Equipment: Special and standard tools for maintenance and overhaul of engines, engine accessories and gears. Special test equipment required by Buyer for engines and engine accessories.
    
4. Services: Those services to overhaul Aircraft, engines, gears, parts, and support equipment. Those services related to the design and construction of aircraft and engine test facilities. Those services related to technical orders and training.

ARTICLE 2 - QUOTING AND ORDERING PROCEDURES

1. Seller may issue Spare Parts Price Catalogs periodically for certain engine models (the Catalog). The following ordering procedures shall apply unless otherwise stated in the Catalog. Procurement of Products listed in the Catalog shall be initiated by Buyer by issuing a purchase order at the price listed. Within thirty (30) days after receipt of each such purchase order, Seller shall acknowledge receipt of the order and state the delivery date(s).
    
2. For parts not priced by the Catalog, and upon request by Buyer, Seller may issue a proposal covering the Products which Buyer desires to procure. Each such proposal shall show the price and estimated delivery date for each Product, and the validity period of the proposal.
    
3. Buyer shall issue a purchase order for Products proposed by Seller that Buyer decides to procure. Each definitive purchase order issued by Buyer shall (i) list the Products to be supplied thereunder, (ii) show the applicable prices and estimated delivery date(s) in accordance with Seller’s proposal, (iii) state complete shipping and marking instructions and (iv) be subject to written acknowledgment by Seller.
    
4. All proposals to Buyer are subject to change at any time prior to acceptance by Buyer of an order and expire at the end of the validity period stipulated in such proposals. In the event that a validity period is not stipulated in a proposal issued by Seller, the applicable validity period shall be ninety (90) days.

For repair, replacement, and/or overhaul efforts, see Article 26.

ARTICLE 3 - PRICES

1. The prices set forth in Seller’s Catalog and proposals are in United States dollars and include the cost of Seller’s usual factory tests, inspection, and commercial packing and, if applicable, commercial export packing for air shipment. All transportation costs, as well as costs resulting from any additional factory testing and/or inspection and packaging requirements of Buyer, shall be paid by Seller.
    
2. The prices shall be subject to Economic Price Adjustment (if applicable) as described in Seller’s proposal or accepted Agreement.

ARTICLE 4 - DELIVERY

1. Delivery dates are based upon (1) prompt receipt by Seller of all information necessary to permit Seller to proceed with work immediately and without interruption, (2) Buyer’s compliance with the payment terms, (3) such evidence as Seller may request that any required Export or Import License when applicable has been issued, and is in effect and (4) continued availability of U.S. Government facilities and special tooling and special test equipment to Seller and its sub-contractors for use hereunder.
    
2. For deliveries outside the United States, Seller shall deliver the Products to Buyer “Ex Works” (EXW) (Seller’s facility). For deliveries within the United States, Seller shall deliver the Products to Buyer Free on Board (FOB), Seller’s facility. Partial deliveries are permitted. Seller shall submit invoices at time of delivery, unless as otherwise stated in the Agreement.
    
3. Seller may deliver when approved by the Buyer and shall receive payment for all or any part of the Products in advance of the delivery schedule agreed upon in the Agreement.
    
4. If for any reason Buyer cannot accept delivery of the Products, Seller may make delivery by placing such items in storage, whereupon title shall transfer to Buyer and Buyer shall assume risk of loss or damage to such Products. In such event, Buyer shall bear all storage and storage related expenses, such as handling, inspection, preservation, insurance and warehouse expenses. Seller shall assist and cooperate with Buyer in any reasonable manner with respect to the removal of any items which have been placed in storage.
    
5. Title and risk of loss to the Products shall pass to Buyer upon delivery in accordance with Article 4B. above, or upon delivery into storage in accordance with Article 4D. above.
    
6. For support equipment items delivered to Buyer prior to final installation by Seller (as provided in the Agreement as applicable), storage of such items in conditions adequate to protect same from damage shall be the responsibility of Buyer once the items are so delivered.

ARTICLE 5 - PAYMENT

1. Payment shall be made in U.S. dollars to the applicable financial institutions stated in Seller’s invoice. All payments will be due and payable net 30 days from date of invoice, unless as otherwise stated in the Agreement. These terms may provide for advance, partial payments, or milestone payments, with the balance payable upon delivery. At Seller’s request, payment shall be made through the medium of a letter of credit to be established by Buyer within fifteen (15) days after Seller’s acceptance of an order. Such letter of credit shall be in favor of and in a form acceptable to Seller, shall be maintained in sufficient amounts and for the period necessary to meet all payment obligations, shall be irrevocable and issued, or confirmed by a U.S. bank acceptable to Seller. The letter of credit shall provide for pro rata payments on partial delivery EXW (Seller’s facility) or for delivery into storage and for the payment of any termination charges, or other charges, or interim amounts due under the provisions of the Agreement. Payment for Products delivered to Buyer shall be made at sight against Seller’s invoice and copy of inland Bill of Lading or Trucker’s receipt. Payment for Services shall be made at sight against Seller’s invoice.
    
2. If Seller is ready to make delivery but Buyer cannot accept delivery as scheduled due to any cause, any amounts otherwise payable to Seller upon delivery shall be payable upon delivery into storage against submission of Seller’s Invoice.
    
3. If Buyer fails to fulfill any condition of these terms of payment for any reason other than those outlined in Article 13, Excusable Delays, Seller may, after notification to Buyer, (i) withhold deliveries and suspend performance, or (ii) continue performance if Seller deems it reasonable to do so, or (iii) place the Products into storage pursuant to the provisions of Article 4, Delivery. In any event, the costs incurred by Seller as a result of Buyer’s non-fulfillment shall be payable by Buyer upon submission of Seller’s invoices therefor. Seller shall be entitled to an extension of time for performance of its obligations equaling the period of Buyer’s non-fulfillment whether or not Seller elects to suspend performance. If such non-fulfillment is not rectified by Buyer promptly upon notice thereof, Seller may cancel this Agreement and Buyer shall pay Seller its charge for cancellation upon submission of Seller’s invoices thereof. If Seller elects to continue performance, this shall not constitute a waiver of any rights Seller may have under this Agreement or under the law.

ARTICLE 6 - ENGINEERING CHANGES

1. Seller may make engineering or specification or process changes (including U.S. Government-approved ECP’s, CID’s, waivers, deviations, and acquisition streamlining initiatives) with respect to the Products or Services without prior Buyer approval, provided that the change does not adversely affect the interfaces of such Products with Buyer’s associated equipment, the interchangeability of components within such Products, or any performance specifications of the Products. The delivery schedule and the price of the Products or Services shall be adjusted by mutual agreement if Seller’s cost or performance, or both are affected by such change. Seller shall promptly advise Buyer of any such adjustment(s) in price or delivery schedule.
    
2. Either of the parties hereto may propose changes in the Products and any such proposed changes shall be incorporated provided the change is technically feasible and provided further that both parties have agreed to the change in writing, including any resulting adjustment in price, delivery schedule or other pertinent provisions.
    
3. All Products delivered under this Agreement shall conform to the part number specified in the Agreement or its equivalent or the superseding part number subsequently assigned by Seller. If such equivalent or superseding part number is to be delivered, Seller will suspend performance, notify Buyer of any changes in scope, and request Buyer direction. Such Buyer direction shall be provided in writing within thirty (30) days of Seller’s notification. If written Buyer direction is not received within 30 days, the provisions of Article 13 shall apply. In the event an equivalent or superseding part number is to be used for the repair or overhaul of any products, and such equivalent or superseding part number does not result in change in form, fit, function, or price, Seller is authorized to deliver the repaired or overhauled product incorporating such equivalent or superseded part number without Buyer’s direction or Agreement modification predicated on Seller providing Buyer written notification of alternative use on product delivery.

ARTICLE 7 - USE OF U.S. GOVERNMENT-OWNED PROPERTY

In the event that permission for Seller to use U.S. Government-owned facilities, special tooling and/or special test equipment is denied, modified or withdrawn by the cognizant representatives of the U.S. Government, or use of the U.S. Government-owned facilities, special tooling and/or special test equipment is denied or withdrawn, the price and delivery schedule set forth in the Catalogs and/or the Agreement shall be appropriately adjusted, or alternatively, Seller, may either (i) withdraw the Catalog or proposal, or (ii) terminate the Agreement without penalty or further obligation to perform. Buyer will reimburse Seller for all costs incurred by Seller in performance under any Agreement, plus a fair and reasonable profit.

ARTICLE 8 - VARIATIONS IN QUANTITY

With respect to any Product which has a unit selling price of $200 or less, Buyer agrees to accept delivery of quantities greater or smaller than the quantity specified in the purchase order provided that any such variation shall not exceed ten percent (10%) of the quantity originally specified. Seller shall not be required to give notice of any such variations other than in the applicable shipping notice and invoice.

ARTICLE 9 - INSPECTION AND ACCEPTANCE

1. All quality control exercised in the manufacture of the Products shall be in accordance with Seller’s normal quality control policies, procedures, and practices. Seller shall deliver the Products with evidence of inspection by Seller’s quality control representative. The Memorandum of Shipment signed by Seller’s quality control representative shall constitute final acceptance of the Products and acknowledgment that the Products comply with applicable requirements of the Agreement and shall be conclusive.
    
2. Seller’s obligations for failures of the Products to conform to an Agreement’s requirements discovered subsequent to final acceptance shall be limited to those stated in the warranty contained in the Agreement.
    
3. For Support Equipment and Services requiring in-country, on site installation, upon completion of the installation of Equipment, Seller shall notify Buyer in writing and Buyer shall provide, within five (5) working days, an authorized representative to witness performance demonstration of such Equipment. The performance demonstration shall consist of a demonstration of the Equipment in accordance with Manufacturer’s approved instructions. Satisfactory completion of this demonstration shall constitute final acceptance by Buyer of the Equipment and Services provided by Seller. All Equipment provided pursuant to the Agreement shall be designed, manufactured, and inspected in accordance with Seller’s standard commercial practices.

ARTICLE 10 - TAXES

1. The selling prices include, and Seller shall be responsible for, the payment of any taxes measured by the income of Seller and imposed or levied by a taxing authority located in the United States in connection with Products or Services prior to or as a result of their sale and delivery other than taxes from which exemptions may ordinarily be secured by reason of export. Unless Seller arranges for export shipment, Buyer agrees to furnish (without charge) evidence of exportation or other evidence of tax or duty exemption acceptable to the taxing or customs authorities when requested by Seller, failing which, the amount of any U.S.A. taxes imposed on Seller in connection with the transaction shall be promptly reimbursed in U.S. Dollars by Buyer to Seller upon submission of Seller’s invoices therefor.
    
2. Any other taxes levied in connection with the sale and/or delivery of products or services under this agreement, other than taxes measured by the income of Seller, whether levied against Buyer, against Seller or its employees or against any of Seller’s subcontractors or their employees, shall be the responsibility of Buyer and shall be paid directly by Buyer to the governmental authority concerned. If Seller or its subcontractors, or the employees of either, are required to pay any such taxes in the first instance, or as a result of Buyer’s failure to comply with any applicable laws or regulation governing the payment of such levies by Buyer, the amount of any payments so made, plus the expense of currency conversion, shall be promptly reimbursed in U.S. dollars by Buyer upon submission of Seller’s invoices therefor.
    
3. For the purposes of this Article 10, “Taxes” means all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, excise, franchise, gross receipts, import, income, license, property, sales, stamp, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest or assessment related thereto).
    
4. All payments by Buyer pursuant to this Agreement shall be free of all withholdings of any nature whatsoever except to the extent otherwise required by Law, and if any such withholding is so required, Buyer shall pay an additional amount such that after the deduction of all amounts required to be withheld, the net amount actually received by Seller shall equal the amount that Seller would have received if such withholding had not been required. 

ARTICLE 11 - PACKING AND MARKING

Products shall be prepared and packed in accordance with Seller’s standard commercial practice unless otherwise provided in the accepted purchase order. Seller agrees to comply with all reasonable instructions of Buyer as to the grouping for packing purposes and as to markings to be placed on the exterior containers

ARTICLE 12 - GOVERNMENTAL AUTHORIZATIONS

1. Except as otherwise agreed in writing between the parties, Buyer shall be responsible for obtaining and maintaining any required authorization such as Export License, Import License, Exchange Permit or any other required government authorization. Buyer and Seller shall assist each other in every manner reasonably possible in securing and complying with such authorizations as may be required. Buyer agrees to comply with U.S. Laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations (ITAR), and the import certification and export notification requirements under the Toxic Substance Control Act.
    
2. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed and Buyer shall not thereby be relieved of its obligation to pay Seller.
    
3. Seller shall comply with all applicable U.S. export control laws and economic sanctions laws and regulations, specifically including but not limited to the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; the Export Control Reform Act of 2018; the Export Administration Regulations, 15 C.F.R. 730-774; and the Foreign Assets Control Regulations, 31 C.F.R. 500-598 (collectively, "Trade Control Laws").
    
4. Seller shall notify Buyer if any deliverable under this Contract is restricted by applicable Trade Control Laws. Before providing TOP ACES CORP. any item or data controlled under any of the Trade Control Laws, Seller shall provide in writing to the Buyer Procurement Representative the export classification of any such item or controlled data (i.e. the export classification under the EAR, ITAR, EU List of Dual Use Items and Technology, Wassenaar Arrangement's List of Dual-Use Goods and Technologies or other applicable export control list) and shall notify the Buyer. Procurement Representative in writing of any changes to the export classification information of the item or controlled data. Seller represents that an official authorized to bind the Seller has determined that the Seller or the designer, manufacturer, supplier or other source of the Work has properly determined their export classification.
    
5. Seller shall not export, re-export, transfer, disclose or otherwise provide or make accessible Buyer’s technical data and/or hardware controlled by Trade Control Laws ("Export Controlled Information") to any persons, or entities not authorized to receive or have access to the data, services and/or hardware, including third country/dual national employees, lower-tier subcontractors and sub-licensees, or modify or divert such Export Controlled Information to any military application unless Seller receives advance, written authorization from Buyer and verification of any required export authorization is in place. Seller shall not provide a defense service as defined by the Trade Control Laws using any or all of Buyer’s technical data and/or hardware. Upon Buyer’s request, Seller shall demonstrate to Buyer 's reasonable satisfaction, Seller and Seller’s lower-tier subcontractors’ compliance with this clause and all Trade Control Laws. To the extent Seller Work provided under this Contract include packing, labeling, processing, and/or handling exports for Buyer, Seller shall maintain an auditable process that assures accurate packing, labeling, processing, and handling of such exports. Seller shall also promptly notify Buyer if it becomes aware of any failure by Seller or Seller’s lower-tier subcontractors to comply with this clause and shall cooperate with Buyer in any investigation of such failure to comply.
    
6. Seller hereby represents that neither Seller nor any parent, subsidiary, affiliate or sublicensee or sub-tier supplier of Seller is included on any of the restricted party lists maintained by the U.S. Government, including the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control ("OFAC"), Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security ("BIS"), or the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls, listed, the ITAR §126.1 Restricted Parties List, or the consolidated list of asset freeze targets designated by the United Nations, European Union, and United Kingdom (collectively, "Restricted Party Lists"). Seller will provide prompt notice to Buyer, in adherence with applicable laws, the confidentiality restriction of the change of control agreement from the acquiring party of a change of control of Seller, or any parent, subsidiary or affiliate of Seller, or any sublicensee or sub-tier supplier of Seller, which becomes listed or their ownership is listed on any Restricted Party List, within or by an ITAR § 126.1 listed country, or if Seller 's export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency. To ensure compliance with the requirements of the applicable agency’s regulations, if the intended sale or transfer of ownership is to a non-U.S. person or entity, Seller shall provide Buyer with notice at least 90 days prior to the effectiveness of such change of control.
    
7. If Seller is engaged in the business of exporting manufacturing (whether exporting or not) or brokering defense articles or furnishing defense services, Seller represents that it is and will continue to be registered with the Directorate of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.
    
8. Where Seller is a party to or signatory under a Buyer. Technical Assistance Agreement (TAA) or Manufacturing License Agreement (MLA), license exception or license exemption, collectively, "Export Authorization," Seller shall provide prompt notification to the Buyer. Procurement Representative in the event of (1) changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR or other applicable governmental restrictions, and the initiation or existence of a U.S. Government investigation, that could affect Seller 's performance under this Contract, or (2) any change by Seller that might require Buyer to submit an amendment to an existing Export Authorization or request a new or replacement Export Authorization. Seller shall provide to Buyer all information and documentation as may reasonably be required for Buyer to prepare and submit any required export license applications. Delays on Seller 's part to submit the relevant information for export licenses shall not constitute an excusable delay under this Contract.
    
9. Upon completion of performance of this Contract, Seller and its lower-tier subcontractors shall as directed by Buyer, return or destroy all export controlled technical data, technology, hardware or other items. Seller shall provide a certificate of destruction for all destroyed items.
    
10. Seller shall include paragraphs (1) through (9) and this paragraph (10) of this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or delivered as Work to Buyer. Seller shall immediately notify Buyer upon learning that any lower-tier subcontractor with which it engages has become listed on the Restricted Parties List.

ARTICLE 13 - EXCUSABLE DELAYS

1. Seller shall not be liable for delays in performing its obligations and the date on which Seller’s obligations are to be fulfilled shall be extended for a period equal to the time lost by reason of any delay arising directly or indirectly from (i) act of God, unforeseeable circumstances, act (including delay or failure to act) of any government authority (dejure or defacto, including political subdivisions thereof), war (declared or undeclared), riot, revolution, priorities, fires, strikes or other labor disputes, sabotage or epidemics, or (ii) inability due to causes beyond Seller’s reasonable control to timely obtain necessary and proper labor, materials, components, facilities, transportation, or instructions from Buyer, or (iii) any other cause beyond Seller’s reasonable control. The foregoing extension shall apply even though such cause may occur after Seller’s performance of its obligations has been delayed for other causes.
    
2. If delays resulting from any foregoing causes extends for more than one hundred and eighty (180) days and the parties have not agreed upon a revised basis for continuing the work at the end of the delay, including adjustment for price, then either party, upon thirty (30) days written notice, may terminate the Agreement with respect to the unexecuted portions of work, whereupon Buyer shall pay Seller’s charge in accordance with Article 18.

ARTICLE 14 - WARRANTY

Seller’s warranty shall be as stated in Seller’s proposal, Catalog or as a special provision in the applicable Agreement.

ARTICLE 15 - PATENTS

1. If Buyer receives a claim that any Product or part thereof manufactured by Seller, without further combination, infringes a United States patent, Buyer shall notify Seller promptly in writing and give Seller all available information, assistance and exclusive authority to evaluate, defend and settle such claim. Seller shall then at its own expense and option (i) settle such claim, or (ii) procure for Buyer the right to use such Product, or (iii) replace or modify the Product to avoid infringement, or (iv) remove it and refund the purchase price (including transportation and installation costs) less a reasonable amount of depreciation, or (v) defend against such claims. If any court of competent jurisdiction holds such Product to constitute infringement, and if the use of such Product is enjoined, Seller shall take at its option one or more of the actions under (ii), (iii) or (iv) above. With respect to any Product not manufactured by Seller, the patent indemnity, if any, given by the manufacturer thereof shall apply.
    
2. The rights and obligations of the parties with respect to patents are solely and exclusively as stated herein.
    
3. The obligations of Seller set forth herein above shall not apply to products or parts manufactured by Seller to Buyer’s direction.
    
4. THE PATENT OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL OTHER PATENT OBLIGATIONS WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESS OR IMPLIED.

ARTICLE 16 - LIMITATION OF LIABILITY

1. The liability of Seller, including its subcontractors, suppliers or co-producers, to Buyer arising out of, connected with, or resulting from the design, manufacture, sale, delivery, repair, replacement, support, operation, use or handling of the Product (including engines installed as original equipment on aircraft owned, leased or operated by Buyer), whether in contract, warranty, tort (including negligence of any degree) or otherwise, shall be as set forth in the applicable warranty contained in Article 14 (for Products) or Article 30(F) (for Services). The foregoing shall constitute the sole and exclusive remedy of Buyer and the sole and exclusive liability of Seller. Buyer hereby waives, releases, and renounces all other rights, claims, and remedies against Seller. In no event shall Seller be liable for any special, incidental, consequential or punitive damages.
    
2. In no event shall the liability of Seller, however founded, exceed the price allocable to the Product or Service (as applicable to the Agreement) that initially gives rise to the claim.
    
3. If Seller furnishes or transfers any Product to any third party (“Transferee”) by contract or otherwise, Seller shall obtain from any such Transferee a provision affording Buyer the protection of this Article 16. If Seller fails to obtain such an agreement from Transferee, Seller shall indemnify Buyer from all claims made by such Transferee.
    
4. Seller shall release Buyer from, and shall indemnify and hold Buyer harmless from and against any and all claims, liabilities and losses whatsoever of any nature or kind, including, but not limited to injury to or death of any employee or representative of Buyer or third party, or loss of or damage to the property of Buyer, its employees, representatives or any third party, arising out of, in connection with or resulting from performance hereunder, whether in contract, warranty, tort (including negligence of any degree), patent infringement or otherwise.
    
5. If Seller furnishes Buyer with advice or other assistance which concerns any Product supplied hereunder or any equipment in which any such Product may be installed and which is not required by the terms of the accepted purchase order or any other agreement to which these terms and conditions apply, the furnishing of such advice or assistance shall not subject Seller to any liability, whether in contract, warranty, tort (including negligence of any degree), strict liability patent infringement, or otherwise.

ARTICLE 17 - COUNTERFEIT PRODUCTS

In addition to Seller’s other warranties, Seller warrants the Goods delivered pursuant to this Order shall: (i) only contain materials obtained directly from an Original Material Manufacturer (OMM), Original Component Manufacturer (OCM) or Original Equipment Manufacturer  (OEM),  (collectively,  hereinafter,  the  Original Manufacturer (OM)) or a source with the express written authority of the OM or current design activity, including an authorized aftermarket manufacturer or distributer; and (iii) not contain Counterfeit Items.

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

1. 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.
    
2. 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.
    
3. 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

1. 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.
    
2. 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.
    
3. 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.
    
4. 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.
    
5. 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.
    
6. 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.
    
7. 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.
    
8. 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.
    
9. 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

1. Buyer shall, when requested by Seller, at no cost to Seller:
   1. 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.
       
   2. 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.
       
   3. 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.
       
   4. 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.
       
   5. Provide Seller with a property survey of the site which depicts all applicable boundaries, topography, all existing easements and utility locations.
       
2. The above responsibilities, listed in Paragraphs 1 through 5 above, are not meant to imply special privileges beyond that of Buyer’s staff.
    
3. 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.
    
4. 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.
    
5. 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

1. This Article is only applicable if Seller is not a Government or Government entity.
    
2. 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

1. 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.
    
2. 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.
    
3. 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.
    
4. 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:
    
   1. 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.
       
   2. 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.
       
5. 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.
    
6. 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.
    
7. 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.

1. 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.
    
2. 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.
    
3. 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.
    
4. 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.

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