Supplier Resources

TIME IS OF THE ESSENCE for all schedules or delivery dates that appear in this Order. Except in instances of delay which are due to causes beyond the reasonable control and without the fault or negligence of Seller and all of its suppliers, direct and indirect at every tier, Buyer may, by written notice of default to Seller,

(a) terminate without liability the whole or any part of this Order in any of the following circumstances:

(i) if Seller fails to perform within the time specified herein or any extension thereof; or,

(ii) if Seller fails to perform any of the other provisions of this Order, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and in either of the circumstances in this paragraph 2(a)(ii), does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing after receipt of notice from Buyer specifying such failure: and

(b) procure, upon such terms as it shall deem appropriate, supplies or services similar to those so terminated, in which case Seller shall continue performance of this Order to the extent not terminated and shall be liable to Buyer for any excess costs for such replacement supplies or services. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect to

(i) extend the delivery schedule and/or

(ii) waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Purchase Order price shall be granted by Seller. In the event that Seller, for any reason, anticipates difficulty in complying with the required date, or in meeting any of the other requirements of this Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with the Buyer’s delivery schedule, Buyer may demand shipment by the fastest way. Charges resulting from the premium transportation must be fully prepaid and absorbed by the Seller. The rights and remedies of the Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Purchase Order.

(a) All goods (which Term throughout this Order includes, without limitation, raw materials, components, intermediate assemblies, tools, end products and consumable supplies) shall be subject to inspection and test by Buyer and its Customer (which Term throughout this Order shall include, without limitation, the U.S. Government including its audit or inspection services) to the extent practicable at all times and places including the period and place of manufacture and, in any event, prior to final acceptance by Buyer and its Customer.

(b) If any inspection or test is made on the Seller’s premises or at such other location specified by Seller, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and tests on the premises of Seller or Seller’s supplier(s) shall be performed in such a manner as not to unduly delay acceptance.

(c) Final acceptance or rejection of the goods shall be made as promptly as practical after delivery, except as otherwise provided in this Order. Notwithstanding acceptance and payment by Buyer, Seller remains responsible for Latent Defects throughout the service life of the goods.

(a) Seller warrants that all goods and services sold hereunder or pursuant hereto shall be free of any claim of any nature by any third party and that Seller is able to and shall convey clear title thereto to Buyer.

(b) Seller warrants and represents that all goods and services sold hereunder or pursuant hereto will be of merchantable quality, free from defect in design, workmanship and materials, and will be fit for the particular purposes for which they have been purchased and that the goods are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer, that are included in and made a part of this Order.

(c) Seller warrants to Buyer that the services performed pursuant to this Order shall be performed by well-qualified personnel in accordance with the standard of care usually and reasonably expected in the performance of such services.

(d) Seller warrants that it has fulfilled all requirements of manufacturers to ensure that Buyer receives the full benefit of any available warranties on goods delivered hereunder and on materials or equip- ment installed pursuant to performance of services hereunder.

(e) Any attempt by Seller to limit, disclaim or restrict any such warranties, or remedies of Buyer, by acknowledgement or otherwise, in accepting this Order, or performing under this Order shall be null, void and of no effect absent Buyer’s written consent.

If any goods ordered hereunder are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings, specifications and standards, Buyer, in addition to such other rights, remedies and choices as Buyer may have by contract or at Law, at Buyer’s option and sole discretion may:

(a) reject and return such goods at Seller’s expense;

(b) require Seller to inspect the shipment(s), remove and replace nonconforming goods with goods that conform to this Order. Should Buyer elect option (ii) above, and Seller fails to promptly make the necessary inspection, removal and replacement, Buyer may, at Buyer’s option, inspect and sort the goods; Seller shall reimburse Buyer for costs incurred.

Buyer may, at any time, make changes within the general scope of this Order, in any one or more of the following:

(a) Drawings, designs or specifications, where the goods to be furnished are to be specially manufactured for Buyer in accordance therewith;

(b) Method of shipping or packing:

(c) Place of delivery:

(d) the amount and kind of Buyer-furnished property. If any such change causes any increase or decrease in the cost of or the time required for the performance of any work under this Order, whether changed or not changed, an equitable adjustment shall be made in the price or delivery schedule or both and this Order shall be modified accordingly. Any claim by Seller for adjustment under this clause must be asserted within thirty (30) calendar days from the date of receipt by Seller of the Change Order provided, however, that the Buyer, if it so chooses, may receive and act upon any such claim asserted at any time prior to final payment under this Order. Any change to this Order shall be made only by a duly authorized Purchase Order amendment.

NON-ASSIGNMENT: Assignment of this Order or any interest herein or of any payment due or to become due hereunder, without the consent of Buyer shall not be binding on Buyer.

SET-OFF: Buyer shall be entitled at all times to set off any amount owing from Seller or any of seller’s affiliates against any amount payable at any time by Buyer to Seller in connection with this Order.

COMPLIANCE WITH LAWS: Seller agrees to comply with the applicable provisions of any U.S. Government, State or local Law, or Ordinance and all lawful Orders, Rules and Regulations issued thereunder; and any provisions, representations or agreements, or contractual Clauses required thereby to be included or incorporated by reference or operation of law in the contract resulting from acceptance of this Order and including, but not limited to:

Equal opportunity:
Executive Order 11246 as amended by E.O. 11375 and 12086. Employment of Veterans: Executive Order 11701
Employment of the Handicapped:
Executive Order 11758 as amended by E.O. 11867.
Employment discrimination because of age.
Executive Order 11141.
Utilization of disadvantaged business enterprises
P.L. 95-507 and Executive Order 11625.

Seller Certifies that, with respect to Orders which exceed $10,000, Seller is in compliance with the requirements for non-segregated facilities as set forth in 41 CFR 60-1.8. Further, in accepting this Order, Seller represents that the goods to be furnished hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including Section 12(a), and Seller agrees to insert a certificate to that effect on all invoices submitted in connection with this Order. Further, Seller acknowledges that Attachment B, Anti-kickback Procedures, is included into and made a part of this Order. Seller further acknowledges that Public Law 100-679, PROCUREMENT INTEGRITY, is incorporated into and made a part of this Order. In addition to any other remedy that Buyer may have, Seller indemnifies and holds BUYER harmless from and against any loss or damage resulting from a violation of P. L. 100-679 by Seller or by any of Seller’s suppliers at any tier.

CONFIDENTIAL OR PROPRIETARY INFORMATION: Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer, and which in any way relates to the goods or services covered by this Order, shall not, unless otherwise specifically agreed-to in writing by Buyer, be deemed to be confidential or proprietary information and shall be acquired by Buyer free from any restrictions as part of the consideration for this Order.

INSOLVENCY: Should Seller cease to conduct its operations in the normal course of business, including but not limited to the inability to meet its obligations as they mature, or if any proceeding under the bankruptcy laws is brought by or against Seller, or a Receiver for Seller be appointment or applied for, or an assignment for the benefit of creditors is made by Seller, Buyer may, in Buyer’s sole discretion, terminate this Order, in whole or in part, without liability, except for deliveries previously made or for goods covered by this Order that are then completed and, under Buyer’s instructions, subsequently delivered in accordance with the terms of this Order.

TERMINATION AND STOP WORK ORDERS: Buyer may terminate all or any part of this Order at any time by providing written Notice to Seller. Upon termination, Buyer and Seller shall negotiate reasonable termination charges which will be identified by Seller within thirty (30) days of termination, but which charges shall not include any allowance for anticipated profits. If this Order has been issued by Buyer in the performance of a Government Contract, FAR Clause 52.212-13, “STOP WORK ORDER” is incorporated into and made a part of this order with the same force and effect as if it had been written in full.

FAILURE TO ENFORCE, NOT A WAIVER: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is evidenced by a writing executed by the aggrieved party. Failure of Buyer to enforce, at any time, any of the provisions hereof shall not be construed as a waiver of such, or any other provisions, nor a waiver of Buyer’s right to enforce each and every provision of this Order, at any time.

PATENTS AND PATENT INFRINGEMENT: Seller shall defend any suit or proceeding brought against Buyer or Buyer’s customers when said action is based upon claim that any article or apparatus, or any part thereof, constituting goods necessarily resulting from the use thereof, constitutes an infringement of any Patent, ii Seller be notified promptly and in writing and be given authority, information and assistance, at Seller’s expense, for the defense of the same, and Seller shall pay all damages and costs assessed against Buyer as the direct or indirect result of the claimed infringement. In the event that use of said article or apparatus, part or device been enjoined, Seller shall, at Seller’s expense and Seller’s option, either acquire for Buyer the right to continue using said article or apparatus, part or device, or replace same with the non-infringing equivalent, or remove said article or apparatus and refund the Purchase price, including transportation and installation costs, to Buyer. In the event that Seller elects to remove the infringing or claimed infringing element, Buyer may elect, in its sole judgment, to return all or a portion of the items that had been purchased from Seller and recover or be relieved from paying any cost associated with the returned items, including but not limited to installation cost, item-specific training and freight.

LIMITATION ON PUBLICITY: Seller agrees that no information regarding this Order will be made public by Seller without the prior agreement of Buyer.

EXTRA CHARGES: No extras charges of any kind will be honored unless expressly authorized by the terms of this Order. No industry practice may be asserted as the basis for an unauthorized change in any of the terms of this Order:

TRANSPORTATION; FREIGHT: Unless specific instructions to the contrary are provided on the face of this Order, all shipments shall be released at No Declared Value and shipment shall be made at the lowest available cost. If Seller, for its own convenience, ships by a method or on a schedule that increases cost over that which it would have been had Seller adhered to Buyer’s schedule and instructions, Buyer is entitled to a refund, reduction or set-off of the excess freight costs thus incurred, whichever is deemed by Buyer to be appropriate.

ENTIRE AGREEMENT: This Purchase Order, together with such documents as are expressly incorporated herein by reference, is intended by the parties as the final expression of their agreement with respect to such terms as are included herein, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of this agreement.

APPLICABLE LAW: This Order shall be governed and construed in accordance with the substantive laws of the State of North Carolina and Seller consents to jurisdiction therein.