TERMS & CONDITIONS
CONTENTS
1.0 OFFER, ACCEPTANCE, AND MODIFICATION
1.1 Unless otherwise stated on the face of the Purchase Order, and subject to Buyer’s termination rights, this Purchase Order is a firm-fixed-price contract under which Buyer will purchase and Supplier will provide the number of units or complete the entirety of the service(s) specified within this Purchase Order. Written acceptance of this Purchase Order, or commencement of performance of any work or services pursuant to this Purchase Order, will constitute acceptance of this Purchase Order. Such acceptance is limited to and constitutes Supplier’s acceptance of these terms and conditions exclusively. All terms and conditions proposed by Supplier that are different from or in addition to this Purchase Order are hereby expressly rejected by Buyer. No claimed oral agreement or other understanding that attempts in any way to modify the conditions of the agreement resulting from this Purchase Order will be binding upon Buyer. Any reference on the face of the Purchase Order to Supplier’s quote or other prior communication does not imply acceptance of any term, condition or instruction therein, but exists solely to incorporate the description or specifications of the goods or services to be supplied to Buyer, and only then to the extent that such description or specifications are not in conflict with the description or specifications on the face of the Purchase Order.
1.2 DEFINITIONS
1.2.1 “Affiliate” means any entity other than the Parties that directly or indirectly controls, is controlled by, or is under common control with the Parties.
1.2.2 “Agreement” means the long-term agreement, engineering services agreement or other agreement that references these terms and conditions, and pursuant to which Purchase Orders are issued to Supplier.
1.2.3 “Bodily injury” means any physical injury, sickness, disease, disability, shock, mental anguish, mental injury, or lethal injury sustained by any person.
1.2.4 “Buyer” means AERO DESIGN, LLC (“Aero Design”) or Aero Design’s Affiliate that issues a Purchase Order referencing these terms and conditions, and any successor or assignee of Buyer.
1.2.5 “Contractor and subcontractors” references those entities that are involved at any level, directly or indirectly, in the overall project represented by this Purchase Order, and includes suppliers of property, manufactured components, and services.
1.2.6 “Customer” means the ultimate owner or operator of the Goods and/or Services and includes the purchaser of an end product incorporating the Goods and/or Services provided by the Supplier under the Purchase Order.
1.2.7 “Delivery Date” means the date of delivery for Goods and/or Services as specified in a Purchase Order.
1.2.8 “Goods” means goods, supplies, software, drawings, data, reports, manuals, other specified documentation, or items that are required to be delivered to Buyer pursuant to, or in connection with, a given Purchase Order. Where the context permits, the use of the term Goods shall include Services.
1.2.9 “Intellectual Property” means all patents, copyrights, mask works, industrial property rights, trademarks, trade secrets and other rights and information of a similar nature worldwide to the extent that such rights or information are created or made possible by Supplier (alone or acting with Buyer or others) and result from the Supplier’s performance under the Purchase Order or any Goods and/or Services provided to Buyer. Such information includes, without limitation, designs, unique processes, drawings, prints, unique specifications, reports, data, and other technical information, regardless of form, and all unique equipment, tools, gauges, patterns, process sheets or work instructions related to such Goods or Services.
1.2.10 “Party” or “Parties” shall mean Buyer and/or Supplier, individually or collectively, as the context requires.
1.2.11 “Property damage” means partial or total destruction, impairment, or loss of tangible property, real or personal.
1.2.12 “Purchase Order” means a paper or electronic document sent by Buyer to Supplier, or where provided for in an Agreement, to initiate the order of Goods and/or Services, such as this Purchase Order or other authorization whether written or verbal, and includes change notices, supplements or any modifications. Where the context permits, the term Purchase Order includes the Agreement.
1.2.13 “Regulations” means the cumulative body of Federal, State, and local laws and codified rules in place at the time that the Purchase Order is effective.
1.2.14 “Related Third Parties” means: (a) such Party’s directors, officers, employees and agents; (b) such Party’s Affiliates and their directors, officers, employees and agents; (c) such Party’s Contractors and subcontractors and customers and their Contractors and subcontractors; and (d) any party with a financial interest in that Party. The Parties shall not be considered Related Third Parties to each other.
1.2.15 “Services” means any effort performed by Supplier necessary or incidental to the delivery of Goods, including but not limited to, design, engineering, installation, repair and maintenance. The term “Services” shall also include any effort required by a Purchase Order.
1.2.16 “Specifications” means all requirements with which Goods and/or Services and performance hereunder must comply, including, without limitation, drawings, instructions and standards, descriptions and specifications contained in Supplier’s literature or proposal to the extent consistent with this Purchase Order and beneficial to Buyer, which may include Buyer’s modified requirements from time to time and applicable drawings, designs, Supply Chain Quality Clauses, samples and other descriptions furnished or specified by Buyer.
1.2.17 “Supplier” means the legal entity providing Goods and/or Services or otherwise performing work pursuant to a Purchase Order.
1.2.18 “Terms and Conditions” means this document, the Aero Design Standard Terms and Conditions of Purchase, regardless of whether modified or unmodified by the Parties.
2.0 SPECIFICATIONS
2.1 Supplier shall adhere to all relevant specifications.
3.0 DELIVERY
3.1 Supplier shall fulfill Purchase Order by delivering Goods and/or performing Services in the designated quantity, in compliance with specifications, and at or before the delivery
date as specified in the Purchase Order. Time is of the essence in Supplier’s performance.
3.2 Supplier shall perform to Buyer’s instructions, if such exist, related to packaging, billing and invoicing. Such instructions shall be provided to Supplier through an attachment to or printing directly on the Purchase Order. Supplier shall be responsible for all shipping, freight, and insurance charges as well as all export and import tax, custom, duties and similar liabilities unless stated otherwise in this Purchase Order. Supplier shall also provide all relevant information required for such shipment, including but not limited to any freight measurements, and documents, including but not limited to quota/visa documents, certificate of origin, and declaration. Supplier shall bear full risk of loss and damage of the Goods until they are actually delivered to Buyer’s designated destination.
3.3 In the absence of explicit instructions on the Purchase Order, all shipments that originate in the United States shall be delivered to Buyer FOB Destination as defined by the Uniform Commercial Code. Shipments that originate outside the United States shall be delivered to Buyer DAP, named place to be designated in the Purchase Order if other than Buyer’s primary place of business. The term DAP is defined by INCOTERMS 2010.
3.4 If Supplier is unable to deliver Goods by the Delivery Date, Buyer may, without liability: (i) cancel any, or all, of the quantity of parts that cannot be delivered by the Delivery Date, (ii) reallocate and reschedule to a new Purchase Order any portion of the Goods that cannot be delivered by Delivery Date, or (iii) accept Goods on the modified Delivery Date proposed by Supplier.
4.0 PAYMENT
4.1 Unless otherwise specified in the Purchase Order, payment terms shall be Net 30 from date of receipt of invoice from Supplier.
4.2 The prices listed in this Purchase Order are in United States (U.S.) Dollars. Prices, regardless of the currency in which denominated, shall not be subject to economic price adjustment.
5.0 INSPECTION AND TEST
5.1 Supplier shall only tender Goods to Buyer that have passed inspection in accordance with the applicable inspection system and that otherwise conform to all requirements of the Purchase Order. Supplier shall test all Goods of a given Purchase Order to the extent feasible. These quality inspections should occur throughout the period of manufacture of the Goods. Supplier shall provide to Buyer all information, facilities, and assistance necessary for safe and convenient inspection without additional charge.
5.2 Buyer may provide written notice of acceptance of the Goods to Supplier. However, in the absence of Buyer’s written acceptance and notwithstanding (i) prior inspection of, (ii) payment for, (iii) use of or (iv) delivery of the Goods, acceptance shall not be deemed to occur until thirty (30) days following Buyer’s receipt of Goods (“Inspection Period”). Transfer of title to Buyer shall not constitute acceptance.
5.3 During the Inspection Period, Buyer shall, with respect to any Goods that do not conform in any respect to the Purchase Order, have the right to reject such Goods that have been delivered and Supplier shall assume title and risk of loss of all non-conforming Goods. Prompt reimbursement shall be made to Buyer for all costs incurred by Buyer as a result of such rejection of non-conforming Goods. Payment for Goods delivered or inspection by Buyer shall not constitute acceptance of the Goods and shall not relieve Supplier of its warranty or other obligations hereunder. Upon non-acceptance, repudiation or rejection of any Good, Buyer shall not be liable for any profit Supplier would have made, nor for incidental damages.
5.4 Within ten (10) business days of Supplier’s receipt of Buyer’s notification of a nonconformity, Supplier shall investigate the non-conformity, and deliver to Buyer a written report of its investigation that shows conclusions and formulates a corrective action plan acceptable to Buyer.
5.5 If the Goods are specifically manufactured for Buyer in accordance with drawings, designs, or Specifications furnished by Buyer: (1) Supplier shall provide and maintain an inspection and quality control system acceptable to Buyer; and (2) records of all inspection, certificates and test documents that relate to work performed under this Purchase Order shall be complete and available to Buyer and Customer upon request.
6.0 WARRANTY
6.1 Supplier expressly warrants Buyer, its successors, assigns and Customer, that all goods or services covered by this Purchase Order (i) conform to the Purchase Order, specifications, drawings, samples, and descriptions furnished to or by the Buyer, (ii) are of good material and workmanship, and free from defect, and (iii) are fit and sufficient for the particular purpose intended by Buyer. If Supplier has participated in the design of the item or approved the design, Supplier also warrants that the items are free from defects in design. Buyer is relying upon the expertise of Supplier in the selection, manufacture and integration of the goods or services. If Supplier is aware, is made aware or becomes aware that the goods or services are not appropriate for the use intended by Buyer or that the specifications given to Supplier by Buyer or Buyer’s Customer will result in less than optimal performance of the goods or services, Supplier shall immediately notify Buyer. All goods and services are subject to Buyer's inspection. Payment for, inspection of, or receipt of, goods or services will not constitute acceptance of the goods or services or a waiver of any breach of warranty.
6.2 All other warranties: express or implied, shall survive delivery, inspection, test, acceptance, payment and use.
6.3 Buyer shall notify Supplier in a commercially reasonable time of a breach of Warranty (“Notice”). Nonconforming or defective goods may then be returned to the Supplier for, at the Buyer's discretion, full credit or replacement with new goods at the Supplier's risk and expense, including all expenses for labor and materials in dealing with or removing the defective parts, all charges for handling, sorting, packaging and transportation both ways. No replacement of nonconforming goods may be made except as authorized by a replacement Purchase Order signed by Buyer. Any replacement Goods and/or Services are warranted for the same period as the original Goods and/or Services. This provision shall survive termination or expiration of any Purchase Order or the Agreement.
7.0 INDEMNIFICATION AND INSURANCE
7.1 Supplier shall indemnify, defend, and hold harmless Buyer, its agents, employees, customers, and users of its and their products against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorneys' fees, resulting from the death or injury to any person or damage to any property arising out of or in any way connected with the performance of this Purchase Order by Supplier or the goods and/or services provided hereunder, or with respect to matters and allegations that the goods and/or services are defective, unfit or unsafe, or that the goods do not meet applicable laws or regulations, even if the loss results from the concurrent or partial negligence of Buyer. At Buyer's request, Supplier shall defend such claims or suits at Supplier's expense by reputable counsel satisfactory to Buyer. Without limiting Supplier’s duty to hold harmless and indemnify hereunder, Supplier shall, at its expense, maintain insurance coverage in amounts satisfactory to Buyer for Workers' Compensation, Employer's Liability and Comprehensive General Bodily Injury and Property Damage. Supplier shall furnish Buyer with certificates setting forth the amounts of coverage, policy number(s) and expiration date(s).
7.2 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER SHALL NOT BE LIABLE TO SUPPLIER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, BUSINESS INTERRUPTION, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT AND LOSS OF REVENUE.
8.0 INTELLECTUAL PROPERTY RIGHTS
8.1 Each Party retains its existing rights in Intellectual Property.
8.2 Supplier warrants that any materials, supplies or other goods furnished by Supplier or its affiliates to Buyer will not infringe any United States or foreign patent, trademark, or copyright by reason of their manufacture, use or sale, and will not misuse or misappropriate any trade secret. Supplier shall (i) indemnify, defend, and hold harmless Buyer, its agents, employees, successors and customers against all such claims, demands, losses, suits, damages, liabilities and expenses (including reasonable attorneys' fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright by reason of the manufacture, use, or sale of the goods or services under the Purchase Order, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Supplier's actions; (ii) waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any copyright infringement or the like, including claims arising out of compliance with specifications furnished by Buyer; and (iii) grant to Buyer a worldwide, non-exclusive, royalty-free, irrevocable license to repair and have repaired, to reconstruct and have reconstructed, the goods ordered by this Purchase Order. In the event work performed by Supplier under this Purchase Order results in any invention or work of authorship, whether patentable, copyrightable or not, regarding any specific part, component, assembly, or the manufacture or use thereof, Supplier hereby assigns and shall assign to Buyer all right, title and interest to such invention or work of authorship and to any patents, copyrights or other intellectual property which Supplier may obtain thereon. Supplier will then assist Buyer, at the request and expense of Buyer, in the completion and execution of all documents necessary to obtain such patents, copyrights or other intellectual property and to perfect and record Buyer’s ownership thereof. Supplier agrees that any such work of authorship which can be construed to be a “work for hire” under the provisions of the United States Copyright Act shall be considered a “work for hire”.
9.0 PROPRIETARY INFORMATION
9.1 “Proprietary Information” shall mean all confidential or proprietary information, knowledge or data that concerns Aero Design’s businesses, strategies, operations, financial affairs, organizational matters, personnel matters, budgets, business plans, marketing plans, studies, policies, procedures, products, ideas, processes, software systems, trade secrets and technical know-how, and other information regarding the business of Buyer and any matter relating to Customers of Buyer or other third parties having relationships with Buyer. Proprietary Information may include information provided to Supplier orally or in writing (regardless of the form or storage media) or collected visually through inspection, in each case before or after the date of this Purchase Order. If Buyer furnishes sample products, equipment, or other objects or material to Supplier, the items so received shall be used and the information obtained from said items shall be treated as if they were Proprietary Information disclosed in connection with the Purchase Order.
9.2 Unless the Supplier has received the Buyer’s express written consent to the contrary, Supplier shall (i) use the Proprietary Information solely for the purposes of fulfilling the Purchase Order (it being understood and agreed that Supplier may not use Proprietary Information for other purposes including, without limitation, designing, manufacturing, selling, servicing or repairing equipment for entities other than Buyer or its Affiliates; providing services to entities other than Buyer and its Affiliates; or obtaining any government or third party approvals to do any of the foregoing); (ii) safeguard the Proprietary Information to prevent its disclosure to or use by third parties; (iii) not disclose the Proprietary Information to any third party and (iv) not reverse engineer, or disassemble the Proprietary Information.
9.3 Supplier may disclose the Proprietary Information to officers, directors, employees, contract workers, consultants, agents, affiliates or subcontractors of the Supplier who have a need to know such Proprietary Information for the purposes of fulfilling the Purchase Order and who have executed a written agreement with the Supplier obligating such entity or person to treat such information in a manner consistent with the terms of this Section.
9.4 The Purchase Order shall not restrict the Supplier from using or disclosing any information that, as evidenced by written contemporaneous records kept in the ordinary course of business: (i) was or will be in the public domain through no improper act or omission of the Supplier or a third party; (ii) that was or becomes available to Supplier without restriction as to disclosure by the Supplier from a third party having a right to disclose it; (iii) was known to Supplier on a non-confidential basis prior to the disclosure by the Buyer; or (iv) was independently developed by employees of the Supplier without reference to any of Buyer’s Proprietary Information.
9.5 If Proprietary Information is required to be disclosed pursuant to judicial process, Supplier shall promptly provide notice of such process to Buyer and, upon request, shall fully cooperate with Buyer in seeking a protective order or otherwise contesting such a disclosure. Disclosure of such requested Proprietary Information shall not be deemed a breach of the Purchase Order and nothing in this Agreement prohibits Supplier from providing truthful testimony to appropriate authorities.
9.6 Obligations in this Section regarding Proprietary Information shall continue until such time as all Proprietary Information is publicly known and generally available through no improper act or omission of the Supplier or any third party.
9.7 Unless required otherwise by law or the Purchase Order, the Supplier shall promptly return, or otherwise dispose of Proprietary Information as the Buyer may direct. Absent contrary instructions, Supplier shall destroy all Proprietary Information one (1) year after termination or completion of the Purchase Order and provide written acknowledgement to Buyer of such destruction.
9.8 Supplier agrees to cause all information created by Supplier regardless of form or storage media (including, for example, electronic, magnetic and optical media, software, and compilations), containing or derived in whole or in part from Proprietary Information to bear the following legend:
This document contains the property of Aero Design and/or an Aero Design Affiliate. You may not possess, use, copy or disclose this document or any information in it for any purpose, including without limitation to design, manufacture, or repair parts, or obtain any other government approval to do so, without express written permission from Aero Design. Neither receipt, from any source, nor possession of this document, constitutes such permission. Possession, use, copying or disclosure by anyone without express written permission of Aero Design and/or the Aero Design Affiliate issuing the Purchase Order is not authorized and may result in criminal and/or civil liability.
9.9 Notwithstanding any proprietary or confidential labels or markings, all information of Supplier disclosed to Buyer relating to the Purchase Order will be deemed non-confidential and the content of the Purchase Order may be disclosed by Buyer to any of its Affiliates. Moreover, Buyer may disclose all Supplier information, in accordance with applicable governmental regulations including, without limitation, for the purpose of obtaining necessary government approvals.
9.10 Without obtaining Buyer’s written consent, Supplier shall make no further use, either directly or indirectly for any third parties, of any data or any information derived from any Proprietary Information. The obligations of this clause shall survive the completion, cancellation, or termination of the Purchase Order.
9.11 For proprietary information exchanged in connection with the Purchase Order, the terms of this Section shall supersede any provisions regarding the protection of proprietary information in any other agreement between the Parties.
10.0 BUYER-FURNISHED AND BUYER-FUNDED ITEMS
10.1 All tangible and intangible property, including but not limited to tools, tool drawings, materials, processes, procedures, process parameters, drawings, computer software, documents, information or data of every description furnished to Supplier by Buyer, subsidiaries or contractors, or paid for in whole or in part by Buyer, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the personal property of Buyer, and, unless otherwise agreed to in writing by Buyer shall be used by Supplier solely to render Goods and/or Services to Buyer. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Supplier as being the property of Buyer or Buyer’s designee, and shall be safely stored separate from Supplier’s property. Supplier shall not substitute any property for Buyer’s property and shall not use such property except in filling the Purchase Order.
10.2 Such property while in Supplier’s custody or control shall be held at Supplier’s risk and shall be insured by Supplier for replacement cost with loss payable to Buyer. At its expense, Supplier shall store, protect, preserve, repair, and maintain such property in accordance with sound industrial practice. Such property shall be subject to removal at Buyer’s written request, in which event Supplier shall prepare such property for shipment and shall deliver it as directed by Buyer in the same condition as originally received by Supplier, excluding reasonable wear and tear, all at Supplier’s expense.
11.0 TAXES
11.1 Unless otherwise stated in the Agreement, all payments, prices, fixed or otherwise, sums mentioned in the Purchase Order are exclusive of any and all sales and use taxes, value added taxes, goods and services taxes, taxes levied upon importation, such as customs duties, excises, or any other taxes (“Taxes”) levied in regard of any of the transactions covered by the Purchase Order.
11.2 When invoicing, Supplier shall: a) include amounts of taxes, or specific fees Supplier is required by applicable law to add-on to the sales price and collect from Buyer or otherwise is legally due from Buyer and b) separately state each of the taxes.
11.3 Supplier is solely responsible for collecting and remitting taxes collected from Buyer under the Purchase Order to the proper tax authority. Any penalties, fees or interest charges imposed by a tax authority or other authority as the result of non-payment of Taxes collected by Supplier from Buyer will be borne by Supplier. Buyer is not responsible for any tax based on Supplier’s income, payroll or gross receipts. Supplier shall not collect taxes on the supply of Goods and/or Services under the Purchase Order and under circumstances where the transaction is not subject to taxes.
12.0 INSPECTION AND AUDIT RIGHTS
12.1 Supplier (which, for the purposes of this Section, includes Supplier’s suppliers) shall at any time, and after reasonable notice by Buyer, (i) grant to Buyer, Customer and/or to any competent regulatory authority, unrestricted access to Supplier’s books and records (including, without limitation, agreements and technical inspection and quality records, but excluding financial books and records), wherever such books and records may be
located (including third party repositories), and (ii) provide Buyer, Customer and/or any such authority the right to access, and to perform any type of inspection, test, audit or investigation at Supplier’s premises, including manufacturing and test locations for the purpose of enabling Buyer to verify compliance with the requirements set forth in the Purchase Order or for any other purpose indicated by Customer and/or said authority in connection with the design, development, certification, manufacture, sale, use and/or support of the Goods. Supplier and its subcontractors shall furnish all reasonable facilities and assistance for the safe performance of the inspection, test, audit and/or investigation.
12.2 In addition to any other inspection or audit rights granted to Buyer hereunder, Buyer may inspect and audit, on reasonable notice, Supplier’s financial books and records if the Purchase Order: (i) is a time and material order, (ii) is a cost-based order, or (iii) provides for advance or progress payments based on costs incurred by Supplier.
12.3 Supplier shall maintain complete inspection records for all Goods which shall be available to Buyer during performance of an Purchase Order and until the later of: (i) four (4) years after final payment, (ii) final resolution of any dispute involving the Goods delivered hereunder, (iii) the latest time required by a Purchase Order and (iv) the latest time required by applicable laws and regulations.
12.4 Any corrective action requested by Buyer, Customer and/or any said authority following any such inspection, test, audit or investigation shall be implemented by Supplier at no
cost.
13.0 CHANGES
13.1 Buyer’s authorized procurement representative, which does not include Buyer’s engineering and technical personnel, may unilaterally make changes within the general scope of the Purchase Order, including changes in whole or part to: (i) shipping, waste reduction or packing instructions, (ii) place of delivery, (iii) any designs, Specifications and drawings, (iv) the statement of work, (v) the method or manner of performance, (vi) Buyer’s requirement of facilities, equipment, or materials, (vii) Customer flowdown requirements and/or (vii) quality requirements (“Change(s)”). Supplier shall perform such Changes.
13.2 If any Change causes an increase or decrease in the cost of, or the time required for, performing the Purchase Order, an equitable adjustment may be made and the Purchase Order may be modified in writing or electronically accordingly. Any claim for adjustment under this provision may, at Buyer’s option, be deemed to be waived unless asserted in writing by the Supplier (including the amount of the claim) and delivered to Buyer within twenty (20) days from the date of the receipt by Supplier of the Change to the Purchase Order. If the cost of property made obsolete or excess as a result of a Change is paid by Buyer, Buyer may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the Parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement.
13.3 Design and Process Changes: Supplier will make no changes to the design, materials, manufacturing location, or processes specified in the Purchase Order or documents referenced in it, or if none, those in place when the Purchase Order is issued, without the advance written approval of Buyer’s procurement representative. Changes to a process include, but are not limited to, changes to the production process, changes in manufacturing equipment, or changes between a manual and automated process. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
14.0 STOP WORK ORDER
14.1 Buyer may, from time to time, require Supplier to stop all or any portion of the work called for by the Purchase Order for a period of up to ninety (90) days (“Stop Work Period”) at each such time. Upon receipt of written notice detailing the length and scope of the Stop Work Period, Supplier shall immediately comply with its terms at no charge. Within the Stop Work Period, Buyer shall either: (i) cancel the stop-work order and Supplier shall resume work; or (ii) terminate the work covered by the stop-work order, for default or convenience, as the context requires, in accordance with the provisions of the Agreement.
15.0 DELAYS
15.1 Whenever there is an actual delay or threat to delay the timely performance of the Purchase Order, Supplier shall immediately notify Buyer in writing of the probable length of any anticipated delay and take, and pay for, all activity to mitigate the potential impact of any such delay.
16.0 EXCUSABLE DELAYS
16.1 Neither party will be liable for a failure to perform that arises from causes or events beyond its reasonable control and without its fault or negligence, except as otherwise provided for within this clause. Such events include but are not limited to acts of God or the public enemy, actions by any domestic or foreign governmental authority (whether valid or invalid), fires, riots, wars, sabotage, acts of terrorism, labor problems (including lockout strikes and slowdowns), or an inability to obtain materials. The affected party shall give written notice of such delay, including the anticipated duration thereof, to the other party within three (3) calendar days of the beginning of the delay. If Supplier is the affected party, Supplier shall take all reasonable action to ensure that the supply of goods and/or services meets the requirements of this Purchase Order.
17.0 SUBCONTRACTING
17.1 Any subcontracting by Supplier of all or substantially all of its responsibilities or obligations hereunder, without Buyer’s prior written consent, shall be wholly void, invalid and totally ineffective for all purposes. In the case of any subcontracting or approved delegation of any of its responsibilities or obligations hereunder, Supplier shall perform all supply management activities that are necessary for the on-time delivery of
Goods conforming to the requirements set forth herein. Supplier shall be solely and fully responsible for monitoring said suppliers under all provisions of the applicable subcontracts, and for ensuring that each of its suppliers comply with the requirements set forth herein. Supplier shall remain fully liable to Buyer for, and shall be Buyer’s sole
point of contact for, all aspects of proper performance of the Purchase Order, regardless of (i) any subcontracting, (ii) Buyer approval of the subcontractors, or (iii) Supplier’s failure to provide for provisions in the relevant subcontracts that comply in substance with the requirements set forth herein.
18.0 TERMINATION FOR DEFAULT
18.1 Along with any other remedies or rights afforded by law, Buyer reserves the right to cancel all or any part of this Purchase Order, for default of Supplier, if Supplier: (i) repudiates or breaches any of the terms of this Purchase Order, including Supplier's warranties; (ii) fails to complete services or deliver product as specified by Buyer; or (iii) fails to make progress so as to endanger timely and proper completion of services or delivery of manufactured goods, and does not correct such failure or breach within a reasonable timeframe after receipt of written notice from Buyer specifying such failure or breach. If Buyer terminates its purchase obligations pursuant to this paragraph, Buyer will have no obligations to Supplier in respect to the terminated portion of this Purchase Order and Buyer's liability will be limited to the delivered portion of this Purchase Order at the rate specified in writing thereon. Buyer will be entitled to recover all damages or losses attributable to such repudiation, breach, or failure to perform by Supplier. Supplier shall continue other work that is not cancelled, if such exists.
18.2 If it is determined that Supplier was not in default after such a cancellation occurs, the rights and remedies of the Parties shall be as if the Purchase Order had been terminated according to the “Termination for Convenience” section herein.
18.3 If, after cancellation by Buyer, it is determined that Supplier was not in default, the rights and remedies of the Parties shall be as if the Purchase Order had been terminated according to the “Termination for Convenience” Section herein.
19.0 TERMINATION FOR BANKRUPTCY
19.1 Buyer may immediately terminate this Purchase Order without liability upon the happening of any of the following or any other comparable event: (i) insolvency of the Supplier; (ii) filing of a voluntary or involuntary petition in bankruptcy by or against Supplier; (iii) appointment of a receiver or trustee for Supplier; (iv) any accommodation by Buyer, financial or otherwise, not contemplated by this Purchase Order, that is necessary for Supplier to meet its obligations under this Purchase Order; or (v) execution of an assignment for the benefit of creditors by Supplier, provided that such petition, appointment, or assignment is not vacated or nullified within fifteen (15) days after such event. Supplier shall reimburse Buyer for all costs Buyer incurs in connection with any of the foregoing whether or not this Purchase Order is terminated, including, but not limited to, all attorneys' or other professional fees.
20.0 TERMINATION FOR CONVENIENCE
20.1 For performed work in support of “build to print” Purchase Orders:
20.1.1 In addition to any other rights of Buyer to cancel or terminate this Purchase Order, Buyer may terminate all or any part of this Purchase Order at any time and for any reason by giving written notice to Supplier. Upon receipt of such notice, Supplier shall immediately stop work on this Purchase Order or the terminated portion thereof, and notify any subcontractors to do likewise. Buyer shall pay to Supplier the Purchase Order price for all goods or services that have been completed in accordance with this Purchase Order and not previously remitted to Supplier. Where articles or materials are to be specifically manufactured for Buyer hereunder and where Supplier is not in default, an equitable adjustment shall be made to cover Supplier's actual cost, excluding profit, for work-in-process and raw materials as of the date of termination, to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this Purchase Order. Buyer will not be liable for any charges or expenses incurred by Supplier in advance of the normal lead time necessary to meet scheduled delivery dates nor for any expenses, charges or liability incurred subsequent to the giving of notice of cancellation. Buyer will make no payments for finished goods, work-in-process, or raw materials in amounts in excess of those authorized by Buyer or for any undelivered goods which are in Supplier’s standard stock or which are readily marketable. Supplier must submit any claim to Buyer within thirty (30) days after the date of termination or that claim will be waived. Payments made to Supplier under this section represent the sole responsibility of Buyer in case of cancellation of the Purchase Order and Supplier agrees not to charge any other costs, expenses or fees to Buyer nor will Buyer be liable for any other costs, expenses, losses, or fees arising out of the cancellation or termination of the Purchase Order under this section. Buyer has relied upon Supplier's agreement to manufacture the goods or provide the services at the price and on the terms stated in the Purchase Order to allow Buyer to fulfill its contract to sell to Buyer’s Customer the products that incorporate the goods or services. Consequently, Supplier may not terminate this Purchase Order before expiration.
20.2 For other than performed work in support of “build to print” Purchase Orders:
20.2.1 Buyer may terminate part or all of the Purchase Order, which, for the avoidance of doubt, includes the Agreement, for its convenience by giving written notice to Supplier and Buyer’s only obligation to Supplier shall be payment of a mutually agreed-upon restocking or service charge.
20.3 If Buyer terminates only part of the Purchase Order, Supplier shall continue to fulfill the portions not terminated.
21.0 COMPLIANCE WITH LAWS
21.1 Supplier shall comply with all applicable Federal, state, and local laws, ordinances, rules, and regulations applicable to the performance of the Purchase Order, including but not limited to, those pertaining to U.S. Export Controls related to: (i) the manufacture or provisioning of Goods, (ii) the shipping of Goods and (iii) the configuration or content of Goods for the use intended by Buyer.
21.2 Supplier shall, at the earliest practicable time, notify in writing to Buyer if Supplier is suspended, debarred, or proposed for suspension or debarment from doing business with the U.S. Government. Any such suspension or debarment shall act as a cause for the Buyer to terminate the Purchase Order under the Section entitled “Termination for Default”.
22.0 GOVERNING LAW
22.1 The Purchase Order shall be interpreted in accordance with the plain English meaning of its terms and the construction thereof shall be governed by the laws in force in the State of California, U.S. without regard to any conflicts of law or choice of law principles of any jurisdiction. Services shall be deemed to be Goods for the purposes of this paragraph (i.e., the application of governing law). THE PURCHASE ORDER EXCLUDES THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO ALL TRANSACTIONS RELATING TO THE PURCHASE ORDER.
22.2 Any action or claim by Supplier with respect hereto shall also be brought in the appropriate court in the State of California, if Buyer so elects. Accordingly, Supplier shall give written notice to Buyer of any such intended action or claim, including the intended venue thereof.
23.0 TOXIC, HAZARDOUS, CARCINOGENIC SUBSTANCES AND MATERIALS OF CONCERN
23.1 Supplier represents and warrants that the Goods and any substances contained therein are not prohibited or restricted by, and are supplied in compliance with, any laws or regulations of the U.S., and that nothing prevents the sale or transport of the Goods or substances in Goods in the U.S. and that all such Goods and substances are appropriately labeled, if labeling is required.
23.2 The following provision is applicable when (i) Supplier is designing new parts for Buyer, (ii) Supplier is developing new specifications for Buyer, or (iii) Supplier is creating new work instructions, assembly instructions, repair instructions or required processes for Buyer:
23.2.1 Supplier shall submit to Buyer’s procurement representative a written report of Materials of Concern (“MOC”) (as defined by Buyer’s design requirements, Specifications, or similar requirements supplied by Buyer) that are used in the production of, or are in, products that are the subject of the design, development or processing efforts. The MOC Report shall be submitted in the format specified by Buyer prior to Buyer’s Preliminary Design Review and again prior to Buyer’s Critical Design Review (or, if there are no such Reviews, concurrent with Supplier’s submission of the applicable drawings, specifications and/or instructions). The MOC Report shall give full details regarding the intended use of any MOC. Supplier shall cooperate with Buyer to consider other alternative materials as discussed at design reviews.
24.0 NEWS RELEASES/PUBLICITY
24.1 Supplier shall not make or authorize any news release, advertisement, or other disclosure that relates to the Purchase Order or the relationship between Buyer and Supplier or makes use of Buyer’s name or logo, without the prior written consent of Buyer.
25.0 ASSIGNMENT
25.1 Any assignment by Supplier of the Purchase Order, in whole or in part, without Buyer’s prior written consent shall be null and void, and shall constitute a material breach of the Purchase Order.
26.0 CHANGE IN CONTROL
26.1 In the event there is a change in control with respect to Supplier, if a Buyer competitor or other Buyer supplier of similar Goods, gains control of Supplier or, in Buyer’s sole judgment, Buyer is insecure about future performance or Buyer’s commercial position as a result of a change in control, Buyer shall have the right to terminate the Purchase Order in whole or part upon thirty (30) days written notice with Buyer’s only obligation to pay for those conforming Goods and Services actually received prior to the expiry of such thirty (30) day period. A change in control of Supplier is deemed to have occurred if there is a change in the beneficial ownership, directly or indirectly, of twenty-five (25%) or more of the ownership interests in Supplier.
27.0 PARTIAL INVALIDITY/UNENFORCEABILITY
27.1 If any term of this Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive Purchase Order, or other rule of law, that term will be deemed reformed or deleted as reasonably determined by Buyer, but only to the extent necessary to comply with such statute, regulation, ordinance, Purchase Order or rule, and the remaining provisions of this Purchase Order will remain fully in effect. If this Purchase Order covers goods or services to be exported into or imported from a country other than the United States whose laws, rules or regulations affect the composition or quality of the goods or services, or any other material term hereof, Supplier shall so inform Buyer and Buyer may, at its option, attach to this Purchase Order a supplement reasonably addressing such laws, rules or regulations, or may direct Supplier to those terms and conditions of sale that govern Buyer’s purchases in such other country and, upon such direction by Buyer, such alternate terms and conditions shall then govern the Purchase Order.
28.0 SURVIVAL
28.1 All obligations, and duties hereunder, which by their nature or by their express terms extend beyond the expiration or termination of the Purchase Order, including but not limited to the whole of Supplier’s covenants, representations and warranties under this Purchase Order will survive any delivery, inspection, payment or acceptance and any completion, termination or cancellation of this Purchase Order.
29.0 REMEDIES
29.1 The rights and remedies set forth herein are cumulative and in addition to any other rights or remedies that the Parties may have at law or in equity. No failure of any Party to exercise any right under, or to require compliance with, the Purchase Order, or knowledge of past performance at variance with the Purchase Order, shall constitute a waiver by such Party of its rights hereunder.
30.0 ORDER OF PRECEDENCE
30.1 The order of precedence provision of an Agreement, if any, shall prevail over this Section.
30.2 If there are any inconsistencies or conflicts in the provisions applicable to the Purchase Order, precedence shall be given in the following descending order: (i) the face sheets of the Purchase Order including the price, price adjustment terms, specifications, shipping, quality requirements, drawings, work statements, and modifications to the Agreement and/or these Terms and Conditions that specifically reference the Section being modified; (ii) terms of any Agreement under which the Purchase Order is issued; and (iii) these Terms and Conditions.
31.0 DISPUTE RESOLUTION
31.1 This Purchase Order is to be construed according to the law of the State of California, without regard to its conflicts of law principles. Supplier agrees that the forum and venue for any legal action or proceeding concerning this Purchase Order will lie in the appropriate federal or state courts in the State of California and specifically waives any and all objections to such jurisdiction and venue.
32.0 AS9100 FLOW DOWNS
32.1 Aero Design produces flight parts that are essential to human safety. To whomever these terms and conditions apply the importance of ethical behavior to produce products that conform to standards outlined in any documentation is essential to human safety. Any deviations of product conformity are expected to be communicated and documented clearly to Aero Design.
32.2 Suppliers of Aero design are expected to complete OPS-002-F Vendor Evaluation Survey to ensure they have a reason documented within Aero Design for exemption or have the following.
32.2.1 the processes, products, and services to be provided including the identification of relevant technical data (e.g., specifications, drawings, process requirements, work instructions);
32.2.2 the approval of:
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products and services;
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methods, processes, and equipment;
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the release of products and services;
32.2.3 competence, including any required qualification of persons;
32.2.4 the external providers’ interactions with the organization;
32.2.5 control and monitoring of the external providers’ performance to be applied by the organization;
32.2.6 verification or validation activities that the organization, or its customer, intends to perform at the external providers’ premises;
32.2.7 design and development control;
32.2.8 special requirements, critical items, or key characteristics;
32.2.9 test, inspection, and verification (including production process verification);
32.2.10 the use of statistical techniques for product acceptance and related instructions for acceptance by the organization;
32.2.11 the need to:
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implement a quality management system;
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use customer-designated or approved external providers, including process sources (e.g., special processes);
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notify the organization of nonconforming processes, products, or services and obtain approval for their disposition;
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prevent the use of counterfeit parts (see AS9100D 8.1.4);
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notify the organization of changes to processes, products, or services, including changes of their external providers or location of manufacture, and obtain the organization’s approval;
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flow down to external providers applicable requirements including customer requirements;
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provide test specimens for design approval, inspection/verification, investigation, or auditing;
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retain documented information, including retention periods and disposition requirements;
32.2.12 the right of access by the organization, their customer, and regulatory authorities to the applicable areas of facilities and to applicable documented information, at any level of the supply chain;
32.2.13 ensuring that persons are aware of:
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their contribution to product or service conformity;
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their contribution to product safety;
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the importance of ethical behavior.
33.2.14 Counterfeit parts prevention policy. If the vendor is not the original manufacture of the product the traceability back to the original manufacture needs to be provided.