Terms And Conditions Of Purchase

1. Definitions:

“Buyer” – means any of the following entities that issues an Order to Seller or enters into a contract with Seller: Gwynedd Manufacturing, Inc., Geissele Automatics, Inc., Geissele Automatics, LLC, WHG Equipment LLC, or ALG Defense, Inc.
“Terms” – these Terms and Conditions of Purchase.
“Seller” – the legal entity that accepts an Order from Buyer or enters into a contract with Buyer.
“Parties” – shall refer to Buyer and Seller collectively.
“Government” – the Government of the United States or its federal agencies.
“Order” – a purchase order or similar document issued by Buyer to Seller or any other contract between Buyer and Seller for the purchase by Buyer and sale by Seller of goods and services, including changes thereto, together with these Terms and the terms and conditions on the face of a purchase order from Buyer to Seller (collectively referred to herein as the “express terms of the Order”). Every Order is subject to these Terms.
“Goods” – the products, materials, goods and services to be provided by Seller to Buyer under any Order.

2. Applicability and Acceptance:

Seller’s acknowledgment of an Order, commencement of work on the Goods ordered, or shipment of such Goods, whichever occurs first, shall be deemed Seller’s acceptance of the Order. Any acceptance of the Order is limited to acceptance of the express terms of the Order, including these Terms. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of the Order in Seller’s acceptance is rejected and shall be null and void, but such additional terms shall not operate as a rejection of the Order unless such variances are in the terms of the description, quantity, price, or delivery schedule of the Goods. Instead, any such additional terms shall be deemed a material alteration thereof, and the Order shall be deemed accepted by Seller without said additional or different terms. The express terms of the Order supersede any terms and conditions submitted by Seller in or with any proposal, quotation, bid, estimate, confirmation, acknowledgment, invoice, or similar document.

3. Price:

Buyer shall not be required to pay for the goods at prices higher than those specified in the Order or in Buyer’s written price confirmation. Unless otherwise indicated on the face of the Order, the prices specified in the Order or in Buyer’s written price confirmation include all applicable taxes. No charges by Seller shall be allowed for extras of any kind including, but not limited to, escalation, charges for engineering, design, tooling, dies, jigs, installation of equipment at Seller’s plant, or additional costs caused by overtime work will be allowed unless specifically agreed to by Buyer in writing. No charges by Seller shall be allowed for transportation, freight, import and export duties, storage, drayage, insurance, labeling, packing, boxing, crating, carting or any other services will be allowed unless specified in the Order or agreed to by Buyer in writing. Further, Seller warrants that the prices for the Goods sold to Buyer under the Order are no less favorable than those currently extended to any other customer for comparable or like goods in equal or lesser quantities. In the event Seller reduces its price for such goods during the term of the Order, Seller agrees to reduce the prices under any Order accordingly.

4. Invoices and Payment:

No payments will be made by Buyer without an invoice containing supporting detail and a reference to the Order number. Upon delivery of the Goods or the performance of services ordered, Seller shall issue an invoice for each such Order containing such information as Buyer may reasonably request. Invoices shall be paid by Buyer net sixty (60) days from the date of receipt of the invoice or, at the option of Buyer, subject to a five percent (5%) discount if paid within ten (10) days of the date of receipt of the invoice. Payment by Buyer shall be deemed to have occurred when Buyer deposits a check in the United States mail, or when Buyer receives confirmation of a successful electronic transmission of funds to Seller. All payments required under an Order will be in U.S. dollars and made by company check or as may otherwise be agreed between Buyer and Seller. In the event of a payment dispute, Buyer shall deliver a written notice to Seller reasonably describing each disputed item. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under an Order notwithstanding any such dispute.

5. Modifications of Order: 

No change in the express terms of the Order shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representative. Buyer reserves the right to change or modify the Order at any time by submitting a written change order or a new Order to Seller. Buyer may make any changes it desires to an Order (including, but not limited to, with respect to quantities and delivery dates), at no cost or liability to Buyer, to the extent the Order provides for delivery of Goods on a date that is outside of Seller’s Lead Time as defined in this paragraph. Seller’s “Lead Time” as used herein, means the lead-time for such Goods as communicated to Buyer by Seller at the time the Order was placed, or ten (10) days if no such Lead Time was communicated by Seller to Buyer at the time the Order was placed. For any change to an Order covered by this paragraph, if any such modification affects the cost or time of performance, Seller must submit a written claim for an equitable adjustment within ten (10) days after receipt of notification of change, and Seller shall continue its performance under the Order while the Parties negotiate an equitable adjustment.

6. Packing, Marking, and Shipping:

Seller must package all Goods shipped in accordance with the requirements in the Order, or, if requirements are not specified, in accordance with standard commercial practices. Seller shall be responsible for insuring the proper packaging of all Goods shipped. Each container in which Goods are shipped must contain a packing list indicating the Order number, description, quantity, item numbers, and other identifying information corresponding to the information in the Order. All packages must be clearly marked in accordance with all applicable laws, conventions, or standards. Buyer’s Order number(s) must appear on all correspondence, shipping labels and shipping documents, including all packing sheets, bills of lading, air bills, and invoices.

7. Delivery:

The terms of delivery are as stated in the Order. Time is of the essence and the obligation of Seller to meet the delivery dates, specifications and quantities set forth in the Order is of the essence. All Goods shall be delivered to the address specified on the Order or as otherwise instructed by Buyer. Deliveries are to be made both in quantities and at times specified in the Order or, if not so specified, such quantities and times are as specified pursuant to Buyer’s written instruction. Shipments in greater or lesser quantities than ordered may be returned at Seller’s expense unless written authorization is issued by Buyer and are subject to Section 11 below. If Seller’s deliveries fail to meet schedule, Buyer, without limiting its other rights or remedies, may either direct expedited routing and charge excess cost incurred thereby to Seller, or cancel all or part of the Order without liability to Buyer. Buyer shall be entitled to deduct from Seller’s invoice any charges or expenses Buyer incurs as a result of Seller’s delivery delays.

8. Delay:

Time is of the essence in performing the Order. Should Seller experience or anticipate any delay in performing the Order, Seller shall immediately notify Buyer of such delay, its expected duration and the reasons thereof. Neither such notification nor an acknowledgement by Buyer shall constitute a waiver of the Order’s delivery schedule. The delivery schedule shall not be modified, except for as provided for herein, unless the Parties otherwise agree in writing. Seller shall be liable for any direct or consequential damages resulting from any delay, including but not limited to, the costs incurred by Buyer in purchasing substitution goods as “cover”.

9. Specifications:

Unless otherwise directed in an Order, Seller shall manufacture the Goods in accordance with the current specifications, drawings, and designs for the Goods. Seller is responsible for verifying that the Order’s specifications, drawings, and designs are the current revisions. If Seller determines that any of the specifications, drawings, or designs are not the most current revision, Seller shall so notify Buyer immediately. In case of ambiguity in the specifications, drawings, designs, or other requirements in the Order, Seller, before proceeding, shall consult Buyer, whose written interpretations shall be final.

10. Inspections and Rejections:

Buyer shall have the right to inspect and test the Goods ordered at any time, including during the manufacture and construction or preparation, notwithstanding any prior payment or inspection. Goods which are in Buyers judgment defective or not in compliance with Buyer’s drawings, specifications, designs, or standards or Seller’s warranties (as defined herein or those provided by Seller in excess of those provided herein) may at any time be rejected even though such Goods may have been previously inspected and accepted. Without limiting any rights it may have, Buyer, at its sole option, may require Seller, at Seller’s expense to: (i) promptly repair or replace any or all rejected Goods, or (ii) refund the fees paid for any or all rejected Goods. All such rejected Goods will be held for Seller’s prompt instruction and at Seller’s risk. Rejected Goods will be transported for return to Seller or destroyed at Seller’s cost. In addition, and without limiting its remedies, after notice to Seller, Buyer may also either (i) replace or correct any nonconforming Goods and charge Seller the cost of such replacement or correction, or (ii) cancel the Order, or any part thereof, for default. Nothing contained herein shall relieve in any way Seller from the obligation of testing, inspection, and quality control. Seller, at its expense, shall provide and maintain an inspection system that complies with all specifications stated in the Order or, in the absence of such specifications, an inspection system that is acceptable to Buyer. Seller shall maintain complete inspection records for all Goods including, without limitation, the results of such inspections and the disposition of nonconforming or rejected Goods. Seller shall retain such records for a period no less than as required by applicable law. Payment for Goods prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims Buyer may have against Seller or any other party. Buyer may charge Seller all expenses of unpacking, inspecting, repacking, and reshipping such Goods. In the event Buyer receives defective Goods, Buyer reserves the right to require replacement Goods, as well as payment of Buyer’s damages.

11. Overshipments:

Subject to inspection and acceptance, Buyer will be liable for payment only for quantities ordered and delivered unless otherwise specified. Overshipments must have prior written approval from Buyer. Overshipments not authorized shall be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Shipping charges for return shall be at Seller’s expense. Buyer also reserves the right to refuse or return, at Seller’s risk and expense, late shipments, or shipments made in excess of Buyer’s orders, or in advance of required schedules, or (if such shipments are not refused or returned) to defer payment on such deliveries until scheduled the delivery dates.

12. Warranties: 

Whether or not Seller is a merchant of goods and services provided by it, Seller warrants that any representation made in a quote or similar document or otherwise regarding its production capacity shall be considered a warranty that Seller can manufacture or produce the stated quantity of the Goods without the imposition of any surcharges. Seller also acknowledges for purposes of these warranties that it knows the particular purpose for which Buyer intends to use the Goods provided by Seller.
Seller expressly warrants that all Goods delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of the Goods, and any other performance pursuant to an Order shall: (a) be free of infringement of any property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriation of any trade secret or violation of any license or any other rights; (b) be new and of first quality and only contain materials obtained directly from the original equipment manufacturer (OEM) or an authorized OEM reseller or distributor; (c) not be or contain counterfeit items; (d) be of good quality and free from defects, latent or patent, in workmanship, materials, and design, even if the design has been approved by Buyer; (e) conform in all respects to the design, specifications, descriptions, and other conditions of the Order provided to Seller by Buyer or samples or representations provided by Seller to Buyer; (f) be merchantable and suitable and sufficient for their intended purpose; (g) comply with all applicable laws, regulations, rules, codes and standards of the jurisdictions in which the Goods, and the products containing the Goods, are to be sold; and (h) be substantially the same as such goods manufactured, constructed, produced and/or sold by Seller during the 12 months preceding the date of the Order (including but not limited to the same raw material specifications and/or formulations, testing parameters, major manufacturing processes, and manufacturing sites) unless Seller has provided Buyer with prior written notice of any changes to same.
With respect to any Goods designed by Seller or any of Seller’s subcontractors or suppliers, Seller assumes full responsibility for the suitability, adequacy and safety of the design of such Goods. Seller also warrants that it shall obtain and assign or otherwise provide to Buyer the benefits of and warranties and/or guarantees provided by manufacturers or suppliers of material or equipment incorporated into the Goods, and shall perform its responsibilities so that such warranties or guarantees remain in full effect. The warranties set forth herein shall inure to the benefit of both Buyer and Buyer’s customers, and shall run through any expiration date stated on the Goods; provided, however, that in no event shall the expiration date be less than one (1) year from the date of delivery, or, if no expiration date is stated, then for a period of two (2) years after delivery. As used herein, “Buyer’s customers” shall include its direct and indirect customers, such as direct sale end-users, higher-tier subcontractors, prime contractors and the ultimate user under any contract. If Buyer discovers that any Goods fail to conform to the above warranties, then promptly after Buyer gives Seller notice of the nonconformity, Seller must, at Buyer’s option, promptly repair, replace, or modify any nonconforming Goods or re-perform the services so that they conform, at no cost to Buyer. Seller must provide all labor, engineering, supervision, equipment, tools, and materials necessary to affect the remedy, and Seller must bear all expenses in connection with the remedy, including, but not limited to, costs of unpacking, examining, repacking, and reshipping Goods. If a recall of the Goods or products incorporating the Goods is necessitated by nonconformity of the Goods, then Seller shall bear all costs and expenses of such recall, including costs incurred to meet any obligations to third parties. If Seller is unable to remedy such nonconformity during a time period consistent with Buyer’s reasonable requirements, Buyer may at Buyer’s option remedy the nonconformity and Seller shall compensate Buyer for any reasonable costs incurred to remedy the nonconformity.
The foregoing warranties and remedies shall be in addition to any warranties or remedies provided by law and shall survive inspection, testing, acceptance, and payment. Seller warrants that title to all Goods will be good, and its transfer rightful, and that the Goods will be free from all security interests, claims, demands, liens, or other encumbrances. If any Goods fail to conform to the above warranty, Seller must defend the title and must, at Buyer’s option and at no cost to Buyer, promptly remove any such encumbrance or replace the Goods with goods conforming to the above warranty. If Seller fails to do so, then Buyer, at Buyer’s option, may either remove such encumbrance or revoke acceptance of the Goods and deduct the costs from any amounts otherwise due Seller. Buyer shall have the right to inspect all Goods before and after delivery but no such inspection shall relieve Seller of any obligation pertaining to the Order.
Seller shall defend, indemnify, and hold harmless Buyer against all liabilities, claims, demands, losses, damages, liabilities, costs, fines, penalties, and expenses of any nature or kind (including consequential and special damages, personal injury, property damages, lost profits, as well as attorneys’ fees) that Buyer may suffer as a result of the breach of any of these warranties. Without limiting Buyer’s other remedies, Buyer may require, at its option, that Seller repair, replace, or reimburse the purchase price of any nonconforming Goods at no cost to Buyer.

13. Indemnification and Insurance: 

To the fullest extent permitted by law, Seller shall defend, indemnify, and hold harmless Buyer from and against any and all claims, suits, losses, damages, costs, expenses, fines, penalties, or liabilities of any kind, (including consequential and special damages, personal injury, property damages, lost profits, as well as attorneys’ fees and court costs) (collectively, “Losses”) that may be related to, may arise out of, or result, in whole or in part, from: (i) any breach of the warranties noted above or product liability claim by a third party with respect to Goods supplied to Buyer by Seller; (ii) Seller’s failure to comply with the representations, warranties, and covenants of any agreement or the requirements of any applicable law, rule, or regulation, or Order; (iii) any recall or mandatory repair or replacement program including Goods supplied to Buyer by Seller; (iv) any nonconformance with specifications or deficiencies in Goods supplied to Buyer by Seller; (v) any defect in the Goods provided according to any Order; (vi) any injury to Seller’s employees while in the course of providing Goods to Buyer in relation to any Order; (vii) the provision of Goods under an Order or Seller’s breach of any of the express terms of the Order; or (viii) any act or omission of Seller, its agents, employees, or subcontractors. Seller shall maintain such liability insurance, including products liability, completed operations, contractor’s liability, automobile liability insurance (including non-owned automobile liability), worker’s compensation, and employer’s liability insurance as will adequately protect Buyer against such Losses, provided that all such liability insurance policies shall be in an amount of not less than $1,000,000 per occurrence. Seller agrees to submit a certificate of insurance, evidencing its insurance coverage when requested by Buyer.

14. Intellectual Property Rights: 

All intellectual property rights arising out of any work performed in connection with any Order pursuant to Buyer’s instructions, drawings, or other Intellectual Property shall be and remain the sole and exclusive property of Buyer. If the Order provides for Seller to perform any design, engineering, analytical, or similar work for Buyer or provides for the delivery of any software, firmware, copyrightable materials or derivative works thereof, all right, title, and interest that Seller may have in and to any patentable invention, know-how and trade secrets, copyrightable materials, and derivative works thereof that Seller shall conceive, originate, or reduce to practice, either individually or jointly with others, in connection with its performance of an Order are hereby assigned to Buyer and shall be the sole and exclusive property of Buyer. Seller shall promptly execute any documents and perform any other tasks reasonably necessary to perfect Buyer’s ownership of any intellectual property rights therein.
Seller hereby grants to the Buyer a perpetual, nonexclusive, transferable, royalty free, worldwide right to use any of Seller’s intellectual property rights made a part of an Order for Buyer’s use of the Goods.
Seller shall defend any suit or action against Buyer, Buyer’s customers, or against those selling or using the Goods covered by the Order for alleged infringement of any patent, copyright, trademark, or other intellectual property rights arising from the sale or use of such Goods and indemnify, defend, and hold harmless Buyer and Buyer’s customers against all claims, losses, damages, liabilities, fines, penalties, and expenses (including attorneys’ fees) paid or incurred by Buyer and Buyer’s customers in connection with any such suit or action.

15. Proprietary and Confidential Information:

Seller agrees that all information (whether in tangible or intangible form) supplied by or at the request of Buyer or otherwise obtained in connection with its performance under an Order shall be deemed proprietary and confidential information of Buyer. Seller shall use such information solely for the purpose of performing its work under an Order and shall not disclose any such information to a third party. Seller shall not be bound by the obligations of confidentiality created hereunder with respect to any information which Seller can show through written evidence was already known to Seller at the time of disclosure, is or becomes publicly known through no wrongful act of Seller, or is rightfully received by Seller from a third party who has the right to disclose such information without restrictions as to confidentiality. Seller agrees that money damages would not be a sufficient remedy for any breach of its obligations of confidentiality hereunder and, in addition to all other remedies available under applicable law, that Buyer shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or threatened breach. Seller waives any requirement for the posting of any bond or other security in connection therewith. The obligations under this paragraph shall survive the expiration or termination of the Order or these Terms. In addition and unless otherwise expressly stated in the Order and except as may be agreed in a prior written agreement between Buyer and Seller, no commercial, financial or technical information furnished or disclosed in any manner or at any time by Seller to Buyer shall be deemed to be secret or confidential, and Seller shall have no rights against Buyer with respect to any use or disclosure of such information.

16. Buyer-Furnished Property:

Seller shall not use, reproduce, appropriate, or disclose to anyone other than Buyer any material, samples, tooling, dies, drawings, designs, specifications, software, technical information, and other property or data furnished by Buyer, nor shall Seller use the same to produce or manufacture articles other than those required under an Order without prior written authorization from Buyer. Goods made in accordance with Buyer’s specifications or drawings shall not be furnished or quoted to any other person or concern without the prior written consent of Buyer. Where the Government has received from Buyer the right to authorize such use by Seller, Seller may utilize Buyer’s data and information in the manufactured articles for direct sale to the Government provided, however, that Seller shall (i) give Buyer prior written notice of each such proposed use, (ii) prominently identify, to the extent possible, each item being provided by Seller for direct sale to the Government, (iii) make no claim against Buyer which arises out of use by Seller of such data and information, and (iv) sign a Non-Disclosure and Non-Use Agreement. Title to such Buyer-furnished property shall be and remain in Buyer at all times. Buyer does not guarantee the accuracy of any tooling or the quality or suitability of any material supplied by it. Seller shall bear the risk of loss, damage, or destruction of the property furnished by Buyer and shall promptly replace or repair without expense to Buyer any property that is lost, damaged, or destroyed, unless such loss, damage, or destruction is solely, directly and proximately caused by Buyer’s negligence. All Buyer-furnished property, together with spoiled and surplus materials shall be returned to Buyer, at no cost to Buyer, at termination or completion of the Order unless Buyer shall direct otherwise in writing. Where Buyer’s data, specifications, designs, or other information are furnished to Seller’s suppliers for procurement of supplies or services by Seller for use in the performance of Buyer’s Order, Seller shall insert the substance of this provision in its subcontracts. Seller acknowledges that any such data, designs or other information of Buyer are unique, and that Buyer may enforce its rights under this paragraph by specific performance.

17. Advertising and Announcements:

Seller shall not advertise or publicly announce the fact Seller has contracted to supply any Goods to Buyer without Buyer’s prior written consent.

18. Title and Risk of Loss:

Seller shall bear all risk of loss of all Goods until such Goods are delivered to Buyer’s facility. Title to all Goods shipped by Seller to Buyer shall pass to Buyer only after Buyer’s acceptance of such items at Buyer’s facility.

19. Order Inconsistencies and Conflict Resolution:

It is Seller’s responsibility to comply with an Order and any and all documents referenced therein and to clarify with Buyer any inconsistencies or conflicts in any parts of an order, such as any between these Terms, any additional terms and conditions on the face of an Order, any general specifications, detailed specifications, etc. Should Seller fail to contact Buyer to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.

20. Set-off and Withholding:

Buyer may set-off any amount due to Seller or any of its affiliated companies, whether or not under the Order, against any amount owed by Seller to Buyer or any of its affiliated companies. Buyer may withhold from payment to Seller an amount sufficient to reimburse Buyer for any and all liabilities, claims, demands, losses, damages, liabilities, costs, fines, penalties, and expenses of any nature or kind (including attorneys’ fees), relating to Seller’s alleged or actual failure to comply with any requirements of the Order, these Terms, or any other contract or agreement between the Parties.

21. Termination for Insolvency, Sale of Assets, or Change of Control:

Buyer may immediately cancel an Order, and the duties and obligations thereunder, without any liability to Buyer or monies owed to Seller, in the event of any of the following: (i) insolvency of Seller; (ii) filing of a voluntary petition in bankruptcy by Seller; (iii) filing of an involuntary petition in bankruptcy against Seller; (iv) appointment of a receiver or trustee for Seller; (v) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment, or assignment is not vacated or nullified within 30 days of such event; (vi) Seller sells, or offers to sell, a material portion of its assets; or (vii) Seller sells or exchanges, or offers to sell or exchange, or causes to be sold or exchanged, a sufficient amount of its equity that effects a change of control. Buyer’s rights and remedies regarding termination under this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Order.

22. Termination for Cause:

Buyer also may terminate an Order if Seller materially breaches any of the express terms of the Order or a related order and fails to cure such breach within 15 days after notice thereof is given by Buyer (to the extent curable). Furthermore, Buyer may terminate an Order immediately with respect to a particular Good if Seller fails to reasonably meet the performance requirements of Buyer with respect to such Good as determined in Buyer’s reasonable discretion, including, without limitation, the failure of Seller to remain competitive with respect to cost, quality, price, technology and/or value of the Good. Termination for cause shall be upon written notice and shall limit Buyer’s liability solely to payment for Goods delivered and formally accepted prior to termination; provided such Goods are in full conformance with the express terms of the Order. In no event shall Buyer be liable for payment for any Goods which are the basis for any termination for cause. As time is of the essence, Seller’s failure to meet a delivery deadline will provide Buyer with a basis to terminate an Order for cause and cancel the Order without any liability to Buyer. Buyer’s rights and remedies regarding termination under this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Order.

23. Termination for Convenience:

The performance of work under an Order may be terminated in whole or in part at any time, and from time to time, by Buyer at its sole discretion, and Buyer’s liability shall not exceed the actual cost of material or labor directly chargeable to the canceled portion of the Order. Notwithstanding the foregoing, in no event shall the cost to Buyer exceed the amount paid or payable by Buyer for the Goods under the applicable Order, and Buyer shall only have liability for Goods acquired in accordance with firm releases and the authorized production of Goods under the Order. Additionally, Buyer shall not be liable for Goods that are in not in full conformance with the express terms of the Order. Buyer’s rights and remedies regarding termination under this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Order.

24. Disputes:

In the event of any dispute between Buyer and Seller regarding an Order, Seller agrees to proceed with performance of the Order, including delivery of the Goods, in accordance with the express terms of the Order, pending resolution of the dispute. 

25. Entire Agreement and Amendment: 

The Order, which includes the purchase order, and the terms and conditions on the face thereof, these Terms, as well as any documents and agreements incorporated by reference (as noted in these Terms or on the face of the purchase order), constitute the entire agreement of sale and purchase of the Goods specified in the Order. The Order, these Terms, or any other document or terms referenced herein, may not be amended unless done so in a writing signed by the Parties.

26. Government Contracts:

If the Order is issued under any U.S. Government agency contract or subcontract, then Seller shall comply with all of the applicable provisions of Title 48 of the Code of Federal Regulations (“CFR”) relating to procurement by U.S. Governmental agencies, as the same may be amended, superseded or modified. Seller is charged with knowing and complying with any and all such provisions incorporated into the Order.

27. Assignments and Subcontracting:

Seller may not subcontract any part of an Order beyond that customary in the conduct of its business without Buyer’s prior written consent. Seller may not assign an Order or amounts due hereunder without Buyer’s written consent. Buyer’s consent to such assignment is (i) subject to setoff or recoupment for any present or future claim or claims which Buyer may have against Seller except to the extent that any such claims are expressly waived in writing by Buyer, and (ii) Buyer reserves the right to make direct settlements or adjustments in price with Seller notwithstanding any assignment of claims for monies due or to become due under an Order and without notice to the assignee.

28. Waiver: 

Buyer’s failure to insist on performance of any of the terms of an Order, including but not limited to, these Terms, failure to exercise any right or privilege, or its waiver of any breach hereunder shall not effect or constitute a waiver of any other right or privilege, whether of the same or similar type. In addition, no waiver of any provision or failure to perform any provision of the Order shall be effective unless consented to by Buyer in writing nor shall any such waiver constitute a waiver of any other provision or failure to perform.

29. No Third-Party Beneficiaries:

Unless otherwise stated herein, the Order is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

30. Independent Contractor: 

Seller, its subcontractors and other suppliers shall at all times be independent contractors and no express or implied representations to the contrary shall be made. Seller shall at all times retain exclusive liability for wages and all employment-related obligations due its employees and shall defend, indemnify, and hold harmless Buyer for any liability arising therefrom.

31. Compliance with Law, Gratuities:

Seller warrants that the Goods to be furnished and provided under the Order shall be manufactured, sold, used, and rendered in compliance with all relevant federal, state, and local laws, orders, rules, ordinances, and regulations and in compliance with applicable international prohibitions on child labor. Seller certifies that with respect to the production and performance of the Goods covered by the Order, it has fully complied with Sections 6, 7, 12, and 15 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the United States Department of Labor under Section 14 thereof, if applicable.
Seller warrants that all Goods delivered and services provided under the Order are in conformance with the latest OSHA requirements.
Seller warrants that in the performance of the Order, it will comply with all applicable U. S. Department of Transportation regulations on hazardous materials and any other pertinent federal, state, or local statutes, laws, rules, or regulations regarding same.
Seller warrants that it has complied with the Anti-Kickback Act of 1986 and has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity or any kickback within the meaning of the Anti-Kickback Act of 1986. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
Seller warrants that it is in compliance with and shall continue to comply with all applicable laws, regulations and ordinances, including but not limited to, all laws prohibiting engagement in corrupt practices, such as the U.S. Foreign Corrupt Practice Act and the U.K. Bribery Act (2010).
Seller warrants that it has, and shall maintain in effect, all licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order.
Seller shall defend, indemnify, and hold harmless Buyer against all claims, losses, damages, liabilities, fines, penalties, and expenses (including attorneys’ fees and costs) that Buyer may suffer as a result of Seller’s failure to comply with this paragraph. The foregoing is in addition to and not in mitigation of these Terms and any other requirements of the Order.

32. Import/Export Controls:

Seller acknowledges that any technical data furnished by Buyer in connection with an Order may be subject to U.S. export controls, including, but not limited to, the Arms Export Control Act, 22 USC § 2778, (“AECA”), and the International Traffic in Arms Regulations, 22 CFR 120-130, (“ITAR”) promulgated pursuant thereto, as well as the Export Administration Regulations, 15 CFR § 730 et seq. (“EAR”) Seller shall control the disclosure of and access to technical data, information, and other items received under an Order in accordance with U. S. export control laws and regulations, including, but not limited to, the ITAR and the EAR. In this regard, Seller agrees that unless it has obtained prior written consent from an authorized representative of Buyer, and unless prior written authorization is obtained from the U.S. Department of State or U.S. Department of Commerce, as applicable, it will not export, reexport, transfer, or transship, directly or indirectly, the Goods, documentation, technical data, or any media in which any of the foregoing is contained, or other technology provided hereunder or the direct product thereof, to any country or to any non-U.S. citizen without the proper license. As required by the AECA and the ITAR, all manufacturers, exporters, and brokers of defense articles, defense services or related technical data, as defined on the U.S. Munitions List, are required to register with the DDTC, and if Seller is engaged in the United States in such activities, Seller represents that it is registered with the DDTC, as may be required under 22 CFR 122.1 of the ITAR and that it maintains an effective import/export compliance program in accordance with DDTC guidelines. Seller also agrees to protect any U.S. classified information or material exchanged under an Order in accordance with the Department of Defense National Industrial Security Program Operating Manual (NISPOM), DOD 5220.22-M. In addition to the general restrictions described above, to the extent that any documents, information, or technical data provided to Seller includes U.S. export controlled information (as set forth in 22 CFR § 120.10, and 15 CFR § 772.1), Seller shall not authorize its further disclosure, nor its export, re-export, or retransfer (as set forth in 22 CFR§§120.17,123.9 and 15 CFR § 772.1), to any non-U.S. person (as set forth in 22 CFR §120.15 and 15 CFR § 734.2b) or to any person or entity listed on the “denied parties/persons” lists, in contravention of United States export laws or other applicable U.S. or foreign laws or regulations. Any approved subcontracts Seller enters into for the manufacture of goods or provision of services, relative to an Order, shall contain all the limitations of this paragraph. Upon Buyer’s request, Seller shall demonstrate to Buyer’s reasonable satisfaction Seller’s subcontractors’ compliance with this paragraph and all export control laws. Upon completion of its performance under an Order, Seller and its subcontractors shall destroy or return to Buyer all technical data provided to it. Seller shall defend, indemnify, and hold harmless Buyer from all claims, losses, damages, liabilities, fines, penalties and expenses (including attorneys’ fees and costs) that Buyer may suffer as a result of Seller’s or Seller’s subcontractor’s failure to comply with this paragraph. The foregoing is in addition to and not in mitigation of these Terms or any other requirements of the Order.

33. Sellers Entry Upon Buyer’s Premises or Property:

If Seller or any of its representatives, employees, agents, subcontractors, or suppliers (collectively, “Seller Parties”) enter upon any premises owned or controlled by Buyer or Buyer’s affiliates (“Buyer’s Premises”), in each case in connection with Seller’s performance of its obligations under an Order, Seller shall: (i) defend, indemnify, and hold harmless Buyer, and its representatives, employees, agents, customers, invitees, subsidiaries, affiliates, successors and assigns, from and against all liabilities, demands, claims, losses, costs, damages, and expenses of any kind or nature (including attorneys’ fees and costs) by reason or on account of property damage, death and/or personal injury, arising from or as a result of Seller’s performance of its obligations under an Order, which is or are occasioned by Seller Parties’ actions, omissions, or negligence; and (ii) ensure that Seller Parties are in compliance with all requirements of any workers’ compensation legislation of the jurisdictions in which Buyer’s Premises is located.

34. Suspension and Debarment:

Seller shall notify Buyer in writing at the earliest practicable time and, at Buyer’s request, shall promptly meet with Buyer, if Seller: (a) is suspended, debarred, or proposed for suspension or debarment from doing business with the U.S. Government, or (b) is listed or proposed to be listed by the U.S. Government for U.S. export administration purposes in any “denial orders,” as a “blocked person,” as a “specially designated national,” or as a “specially designated terrorist” by the U.S. Department of Commerce, Bureau of Industry and Security, (collectively, “Debarment”). Seller shall defend, indemnify, and hold harmless Buyer from and against any and all loss or damage suffered by Buyer as a result of Seller’s actual or prospective Debarment.

35. Statute of Limitations: 

All rights of Seller to commence any court action or proceeding with respect to or arising out of the Order shall terminate one (1) year after the cause of action has accrued.

36. Consequential Damages:

NOTWITHSTANDING ANY OTHER PROVISION HEREIN, BUYER SHALL UNDER NO CIRCUMSTANCES BE RESPONSIBLE FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECIAL DAMAGES. IN ADDITION, AND NOTWITHSTANDING ANY OTHER PROVISION HEREIN, THE TOTAL LIABILITY OF BUYER SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY BUYER FOR THE GOODS ON THE ORDER IN WHICH OR FROM WHICH THE LIABILITY AROSE.

37. Governing Law:

The subject Order, these Terms, and/or the express terms of the Order, and all claims or defenses based on, arising out of, or related thereto or the relationship of the Parties created thereby, including, without limitation those arising from or related to the negotiation, execution, performance, or breach of the Order, whether sounding in contract, tort, law, equity, or otherwise, shall be governed by, and enforced in accordance with, the internal laws of the Commonwealth of Pennsylvania, including its statute of limitations, without reference to its choice or conflict of law rules or any principle calling for application of the law of any other jurisdiction.

38. Venue/Forum Selection:

Any disputes arising out of or related to the subject Order, these Terms, and/or the express terms of the Order, or any other aspect of the Parties’ relationship shall be heard only in the U.S. District Court for the Eastern District of Pennsylvania, if federal subject matter jurisdiction exists, or, if not, then only in the state courts in Montgomery County, Pennsylvania, in each case to the exclusion of all other courts and fora. The Parties irrevocably consent to the jurisdiction of, and venue in, such courts and waive any objection that such courts are an inconvenient forum. Each Party further agrees that personal jurisdiction over him, her, or it may be effected by service of process by registered or certified mail addressed as provided on the Order documents, such as the purchase order, invoice, or similar document, and that when so made shall be as if served upon him, her, or it personally within the Commonwealth of Pennsylvania.

39. Remedies Cumulative:

Buyer’s rights and remedies under an Order shall be cumulative, non-exclusive, and in addition to any other rights and remedies available at law or in equity. Waiver of any breach by Buyer shall not constitute waiver of any other breach of the same or any other provision. Acceptance of any Goods or payment therefor by Buyer shall not waive any breach.

40. Affirmative Action and Equal Opportunity:

Seller shall comply with applicable federal regulations on affirmative action implementing Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. Buyer and Seller hereby incorporates into these Terms the requirements of 41 C.F.R. §§60-1.4(a)(7), 60-250.5(a) and 60-741.5(a), if applicable. Seller will also provide Goods to Buyer without discrimination on account of race, color, sex, sexual orientation, gender identity, national origin, religion, age, physical or mental disability, or protected veteran’s status.

41. Severability:

In the event that any provision of an Order, or the express terms of the Order, or any word, phrase, clause, sentence, or other portion thereof, is held to be unenforceable or invalid for any reason, in any jurisdiction, such provision or portion thereof shall be modified or deleted in such a manner so as to make the Order or Terms, as the case may be, as a whole, as modified, legal and enforceable to the fullest extent permitted under applicable law. In addition, if any provision of the Order or express terms of the Order is held to be excessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by law.

42. Interpretation:

The captions and headings used in these Terms are provided for convenience only and shall not be used to construe meaning or intent. In addition, each Party hereto acknowledges and agrees that: (a) it/their counsel reviewed and agreed to these Terms; (b) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of the Terms; (c) these Terms shall be construed fairly as to both parties hereto and not in favor of or against either party, regardless of which party was generally responsible for there preparation; and (d) the use of “include,” “includes,” or “including” herein shall not be limiting and “or” shall not be exclusive.

43. Force Majeure:

Failure of Buyer to take shipments of or receive Goods hereunder, or make payments due under any Order, if occasioned by an act of God, fire, storm, flood, earthquake, explosion, hostilities (whether war be declared or not), acts of a public enemy or terrorism, rebellion, insurrection, riot, sabotage, invasion, pandemic or epidemic, quarantine, transportation embargoes, civil disturbance, accident, interruption of or delay in transportation, computer virus, governmental action or regulation, or any other circumstances of like or different character beyond Buyer’s reasonable control, or if occasioned by partial or complete suspension of operations at any of Buyer’s offices or other business locations, lock-outs or labor trouble or disputes, shall not subject Buyer to any liability to Seller by reason thereof, but, at Buyer’s option, the total quantity covered by an Order may be reduced by the extent of omitted shipments or services, or the specified delivery period may be extended by a time equal to that during which shipments or services shall be so omitted and such shipments shall then be made or services performed during the period of extension.

44. Notices:

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to Buyer at the address set forth on the face of the Order, or to such other address that may be designated by Buyer in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), certified mail (return receipt requested, postage prepaid) or e-mail (read receipt requested). A Notice is effective only upon Buyer’s receipt and only if Seller has complied with the requirements of this paragraph.

45. Survival:

Provisions of the express terms of the order which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order including, but not limited to, the following provisions: Set-off, Warranties, Intellectual Property, Indemnification, Insurance, Compliance with Laws, Import/Export Controls, Confidentiality, Governing Law, Venue/Forum Selection and Survival. In addition, the obligations of Seller to Buyer shall survive termination of the Order.

46. DFARS Compliance:

All raw materials used must be sourced from a DFARS qualifying country. An updated list of qualifying countries can be found at Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7002.

Buyer is an equal opportunity employer. Buyer is also a federal contractor or subcontractor. Accordingly, the Parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated into the Order by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, ancestry, color, age, national origin, ethnicity, protected hair style and texture, religious creed or belief, physical or mental disability, marital or familial status, legally protected medical condition, genetic information, military or veteran status, sex (including pregnancy, childbirth, breastfeeding, or related medical condition), gender (including gender identity and gender expression), sexual orientation, citizenship status, protected activity (such as opposition to or reporting of prohibited discrimination or harassment), or any other status or classification protected by applicable federal, state, or local laws. In addition, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the required notice of employee rights under federal labor laws.