Purchase Order Terms and Conditions of Use
This document, together with the attachments appended hereto constitutes the Terms and Conditions for the Purchase Order (“PO”) between the parties, and acceptance is strictly limited to the terms and conditions contained herein. Additional or differing terms, conditions or limitations of liability proposed by Seller, whether in a quote, acceptance or delivery document shall have no effect unless accepted in writing by Buyer. In particular, any limitation of liability or disclaimer of warranty is expressly rejected. Agreement by Seller to furnish the goods or services to these terms and conditions, or Seller’s commencement of such performance or the performance by Seller of work or services which are required under the PO (the “Services”) or of shipment or delivery of goods, materials or items ordered under the PO (individually and collectively, the “Goods”) or acceptance of payment shall constitute acceptance by Seller of these Terms and Conditions.
Words, as employed in this Agreement, shall have their normally accepted meanings. The following terms shall have the described meaning:
(a) “Authorized Distributor” shall mean a Distributor distributing product within the terms of an Original Component Manufacturer (OCM) or the Original Equipment Manufacturer (OEM) contractual agreement. Contractual Agreement terms include, but are not limited to, distribution region, distribution products or lines, and warranty flow down from the OCM/OEM. Under this distribution, the distributor would be known as an Authorized Distributor. The term Franchised Distributor is considered synonymous with Authorized Distributor. (b) “Buyer” shall mean L3 MAPPS Inc.. in this PO. (c) “Contract Manufacturer” shall mean a supplier who produces items in accordance with a specification or a Statement of Work. This includes building of assemblies to supplied Bills of Material (BOM) and/or assembly drawings. (d) “Confidential Information” shall mean information of a technical, scientific or commercial nature, including, without limitation, all specifications, data, documents, computer software, programs, technology, concepts, processes, methodologies, samples, products and accounting records, whether or not acquired through visits or discussions and whether or not covered by intellectual property rights, which is in the possession of or belonging to Buyer whether written or oral and whether or not explicitly designated as confidential. (e) “Goods” shall mean those Goods identified in this PO, which may be changed, from time to time by the mutual written agreement of the parties. (f) “Independent Distributor” (Broker) shall mean a Distributor that purchases parts with the intention to resell them back into the market. Purchased parts may be obtained from OCMs/OEMs or Contract Manufacturers (typically from excess inventories), or from other independent distributors. Re-sale of the purchased parts (re-distribution) may be to OCMs/OEMs, Contract Manufacturers, or other independent distributors. Independent Distributors do not have contractual agreements with the OCMs/OEMs. (g) “Original Component Manufacturer (OCM)” shall mean an entity that designs and/or engineers a part and is pursuing or has obtained the intellectual property rights to that part. Note: 1. The part and/or its packaging are typically identified with the OCM’s trademark. 2. OCMs may contract out manufacturing and/or distribution of their product. 3. Different OCMs may supply product for the same application or to a common specification. (h) “Original Equipment Manufacturer (OEM)” shall mean a company that manufactures products that it has designed from purchased components and sells those products under the company’s brand name. (i) “Seller” shall mean the party identified as the Seller in this PO, which may be identified as a Subcontractor, supplier, vendor, etc. (j) “Services” shall mean those Services identified in this PO, which may be changed, from time to time by the mutual written agreement of the parties (k) “Purchase Order” shall mean the Purchase Order, Purchase Order, or Contract, these General Terms and Conditions, and any special conditions appended hereto or documents incorporated herein. (l) “Subcontractors” shall mean a third party that delivers in accordance with a specification or a Statement of Work to include some or all of the following: design, development, assembly, test, services, and production. Deliverables may include software, hardware, and/or services. (m) “Counterfeit Parts” is defined to include, but is not limited to, (i) an item that is an illegal or unauthorized copy or substitute of an OEM item; (ii) an item that does not contain the proper external or internal materials or components required by the OEM or that is not constructed in accordance with OEM specification; (iii) an item or component thereof that is used, refurbished or reclaimed but the Seller represents as being a new item; (iv) an item that has not successfully passed all OEM required testing, verification, screening and quality control but that Seller represents as having met or passed such requirements; or (v) an item with a label or other marking intended, or reasonably likely, to mislead a reasonable person into believing a non-OEM item is a genuine OEM item when it is not.
2. Schedule and Delivery; Notice of Delay
Seller shall strictly adhere to all PO schedules. Time is and shall remain of the essence in the performance of this PO. Seller shall notify Buyer in writing immediately of any actual or potential delay to the performance of this PO. Such notice shall include a revised schedule and shall not constitute a waiver to Buyer’s rights and remedies hereunder. Unless otherwise stated in the PO, the Goods shall be delivered DDP (Incoterms 2010) at the place(s) and on the date(s) specified in the PO. The Goods shall be packaged and shipped as specified on the PO or, if the PO is silent, shall be suitably packaged and shipped in accordance with standard methods recognized in the industry for goods of similar nature in order to prevent damage. The Buyer will not accept delivery prior to the specified delivery date without prior written consent. Any excess quantity will be held at Seller's risk and expense for a reasonable time awaiting return shipping instructions from Buyer. Risk of loss and L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K return shipping charges for any excess quantity shall be borne by Seller. Buyer reserves the right to cancel all or return to seller any part of the Goods under the PO if Seller does not make deliveries as specified under the PO or if any Goods are rejected upon inspection. If any portion of the Goods is delivered after the date(s) set forth in the PO, or if the Services are not completed on or prior to the date specified on the PO, the Supplier shall pay, as liquidated damages and not as a penalty, 0.5% of the total PO price for each day of delay beyond the date(s) set for delivery, up to a maximum of 10% of the total PO price.
3. New Materials; Packaging, Shipping, Markings
(a) All Goods to be delivered hereunder shall consist of new materials; (b) Seller shall prepare and package the Goods to prevent damage or deterioration and shall use best commercial practice for packing and packaging of items to be delivered under this PO, unless otherwise specified in the PO; (c) Unless otherwise stated in the PO, F.O.B. point shall be Destination (Incoterms 2010 DDP for International transactions); d) For Contract Manufacturers, and Authorized Distributors - Only new and authentic materials are to be used in products delivered to Buyer. No Counterfeit or suspect Counterfeit Parts are to be contained within the delivered product. Parts shall be purchased directly from the OCMs/OEMs, or through the OCM/OEMs Authorized Distributor. Documentation must be available that authenticates traceability to the applicable OCM/OEM. Independent Distributors (Brokers) shall not be used without written consent from Buyer. e) For Independent Distributors - Independent Distributor's procedures shall meet the intent of the requirements of IDEA-STD-1010 & SAE AS6081 and have a Quality Management System certified to AS9100 and/or AS9120. When available, the original manufacturers Certificate of Conformance (C of C) and all traceability documentation shall be included with each shipment of parts. It shall include the manufacturer’s name, part number, date codes, lot codes, serializations, and / or any other batch identifications. Inspections and tests required are as noted in the PO. Recorded evidence of all testing performed shall be included with each shipment. If suspect/Counterfeit Parts are furnished under this PO and are found in any of the Goods delivered hereunder, such items will be impounded by Buyer. The Seller shall promptly replace such suspect/Counterfeit Parts with parts acceptable to the Buyer and the Seller shall be liable for all costs relating to the removal and replacement of said parts as specified in the PO requirements or Distributor’s insurance policies. Buyer reserves all contractual rights and remedies to address grievances and detrimental impacts caused by suspect/Counterfeit Parts. (f) Every article of foreign origin shall be marked in a conspicuous place as legible, indelibly, and permanently as the nature of the article will permit in such manner as to indicate to the ultimate purchaser the English name of the country or origin of the article.
(a) Seller shall design, manufacture and supply the Goods and perform the Services under the PO in accordance with any applicable drawings, designs, patterns, computer software, programs, modules, flow charts, models, data, specifications, samples or other description or instructions furnished or specified by Buyer (the “Specifications”). Any other special dies, tools, or equipment required for the manufacture of the Goods shall be furnished by Seller at no cost to Buyer. (b) Seller acknowledges that the Specifications are Buyer’s proprietary and/or confidential information, whether or not it bears any proprietary notices or markings. Seller shall only use the Specifications for the purpose specified in the PO and shall not copy, modify, reverse engineer, disassemble, network, distribute, such Specifications, or any part thereof. Without limiting the foregoing, the Specifications cannot be used, copied, reproduced or reduced to practice, in whole or in part, to manufacture goods or services for a third party, unless specifically authorized in writing by Buyer. Seller agrees to return to Buyer such Specifications after the Goods have been delivered and Services performed under the PO. No substitutions or redesign can be made without Buyer’s prior written approval, and subject to Seller demonstrating to Buyer’s satisfaction, by written documentation or Seller’s catalogue, the compatibility or interchangeability with the Goods and Services ordered on the PO. (c) “Repair” or “use as is” dispositions (as defined in the applicable IPC standards) of nonconforming products found prior to shipment to Buyer shall be submitted to Buyer for approval with technical justification using Buyer form QA0017 (Supplier Deviation/Waiver Request) available to Seller upon request. These dispositions must be approved by Buyer prior to product shipment.
5. Inspection and Acceptance
(a) Buyer’s final acceptance of Goods or Services is subject to Buyer’s inspection within sixty (60) days after receipt at Buyer’s facility or such other place as may be designated by Buyer, notwithstanding any payment or prior test or inspection. (b) At Buyer’s request, Seller shall provide evidence of compliance with a recognized international Quality Management System. Seller agrees to abide by any quality standards indicated on the PO. Buyer, its representative(s) or customer(s) may, upon reasonable notice, access Seller’s premises in order to confirm compliance with such quality standards. (c) In the event that the Buyer’s customer of the Goods rejects the Goods in writing because they do not comply with the relevant Specifications, Buyer and Seller will attempt to determine, in good faith whether such failure to meet such Specifications was due to any manufacturing defects or failure to meet Specifications of the Goods, and if so, Seller shall at no cost to Buyer promptly replace or correct the Goods. Acceptance shall not relieve Seller’s obligation to correct any latent defect in the Goods, even after the end of the warranty period. (d) Buyer and Buyer’s representatives shall have the right of access, on a non-interference basis, to any area of Seller or Seller’s supply chain sub-tier premises where any part of the work is being performed. Seller shall flow this requirement down to its sub tier supply chain suppliers as a condition of this PO. (e) Seller shall keep and maintain inspection, test and related records, which shall be available to Buyer or Buyer’s representative. Seller shall allow copies to be made and L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K shall furnish all information required by the Buyer or Buyer’s representative.
If Seller delivers non-conforming Goods or Services, Buyer may, at its option and Seller’s expense: (i) return the Goods for refund or credit; (ii) require Seller to promptly correct or replace the Goods or Services; (iii) correct the nonconformance; or, (iv) obtain conforming Goods or Services from another source. Buyer shall specify the reason for any return or rejection of nonconforming Goods or Services and/or shall describe the action taken. Seller shall be liable for any increase in costs, including procurement costs attributable to Buyer’s rejection of the non-conforming Goods or Services. If Buyer determines or has reason to believe that Goods provided contain suspect and/or counterfeit parts, Buyer shall provide Seller the appropriate notice; impound the suspect/counterfeit parts.
7. Payment, Taxes, and Duties
(a) Unless otherwise provided, terms of payment shall be net sixty days (60) days from actual delivery of Goods or Services and Buyer’s receipt of Seller’s proper invoice. (b) The prices established by this PO are firm fixed prices unless otherwise stated in the PO. Buyer shall not be invoiced at a price(s) higher than stated on the PO. (c) Each payment made shall be subject to reduction to the extent of amounts, which are found by Buyer or Seller not to have been properly payable, to include overpayments. Seller shall promptly notify Buyer of any such overpayments found by Seller. (d) Buyer shall have a right to recoup or setoff, as the case may be, against payments due or at issue under this Contract or any other contract between the parties. (e) Payment shall be deemed to have been made as of the date of mailing Buyer’s payment or electronic funds transfer. (f) If Seller is Canadian, the price shall exclude the Good & Services Tax, Quebec Sales Tax, and Harmonized Sales Tax. If Seller is from outside Canada, the price shall include all taxes, duties, and other like charges, imposed by any taxing authority or any other body having jurisdiction outside of Canada under any present or future law. (g) Seller warrants that any unit prices charged herein do not exceed the unit prices charged by Seller to other customers in substantially similar transactions.
(a) By written order, Buyer may from time to time direct changes for: (i) technical requirements (ii) shipment or packing methods (iii) place of delivery, inspection or acceptance (iv) reasonable adjustments in quantities, delivery schedules or both (v) amount of Buyer–furnished property (vi) time of performance; (vii) place of performance and (viii) terms and conditions of this contract required to meet Buyer’s obligations under Buyer’s prime contract or PO. (b) If any such change causes an increase or decrease in the price or in the time required for its performance, Seller shall promptly notify Buyer thereof and assert its claim for equitable adjustment within thirty (30) days after the change is ordered, and an equitable adjustment shall be made. However, nothing in this provision shall excuse Seller from proceeding immediately with the directed change(s). Changes shall not be binding upon Buyer except when specifically confirmed in a written PO or Change Order. While Buyer’s engineering and technical personnel may from time to time render assistance to Seller concerning the Goods and Services, only the Buyer Procurement Representative has authority on behalf of Buyer to make changes to this PO.
9. Force Majeure
The following events, and only the following events, shall constitute force majeure under this PO: (a) acts of God or of a public enemy; (b) acts of Government; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) freight embargoes; and, (i) unusually severe weather. In each case, the failure to perform must be entirely beyond the control and without the fault or negligence of the Seller. Each party shall give the other immediate notice of any event that such party claims is a Force Majeure condition that would prevent the party from performing its obligations hereunder, and of the cessation of the condition. A party’s notice under this Section shall include the party’s good faith estimate of the likely duration of the Force Majeure condition.
10. Termination for Convenience
(a) Buyer may, by notice in writing, direct Seller to terminate work under this PO completely or in part, at any time, and such termination shall not constitute default. In such event, Buyer shall have all rights and obligations accruing to it either at law or in equity, including Buyer’s rights to title and possession of the goods and materials paid for. Buyer may take immediate possession of all work so performed upon notice of termination. (b) Seller shall immediately stop work and limit costs incurred on the terminated work. (c) Upon termination for convenience, Buyer, after deducting any amount(s) previously paid, shall reimburse Seller for the actual, reasonable, substantiated and allowable costs with the total amount to be paid by the Buyer being determined by negotiation and shall not exceed the value of the PO. (d) All Specifications and Confidential Information (and any copies or summaries thereof) must be returned to Buyer immediately upon termination of the PO for any reason.
11. Termination for Default
(a) Buyer may, by written Notice of Default to Seller, terminate this PO in whole or in part if the Seller fails to: (i) deliver the Goods or to perform the Services within the time specified in this PO or any extension; (ii) make progress, so as to endanger performance of this PO; or, (iii) perform any of the other provisions of this PO. (b) Buyer may require Seller to transfer title and deliver to Buyer, in the manner and to the extent directed by Buyer, any partially completed Goods and raw material, parts, tools, dies, jigs, fixtures, plans, drawings, Services, information and contract rights (Materials) as Seller has produced or acquired for the performance of this PO, including the assignment to Buyer of Seller’s PO. Seller further agrees to protect and preserve property in the possession of Seller in which Buyer has an interest. Payment for completed Goods delivered to and accepted by Buyer shall be at the PO price. Payment for unfinished Goods or Services, which have been delivered to and accepted by Buyer and for the protection L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K and preservation of property, shall be at a price determined in the same manner as provided in the Termination for Convenience provision hereof except that Seller shall not be entitled to profit. Buyer may withhold from Seller monies otherwise due Seller for completed Goods and/or Materials in such amounts as Buyer determines necessary to protect Buyer against loss due to outstanding liens or claims against said Goods and Materials. (c) Seller shall promptly notify Buyer if Seller is the subject of any petition in bankruptcy. In the event of Seller’s bankruptcy, Buyer may require Seller to post such financial assurance, as Buyer, in its sole discretion, deems necessary. Failure to post such financial assurance upon ten (10) days written notice shall constitute a default under this PO. The rights and remedies of Buyer in this clause are in addition to any other rights and remedies provided by law or under this PO. (d) If Seller is terminated for default pursuant to this clause, Seller is liable to the Buyer for any excess repurchase costs incurred in acquiring goods and/or Services similar to those terminated for default, and for any other damages, whether or not repurchase is realized. e) All Specifications and Confidential Information (and any copies or summaries thereof) must be returned to Buyer immediately upon termination of the PO for any reason.
12. Compliance with Law
Seller shall be solely responsible for complying with all applicable laws regarding the supply of the Goods and Services, including for obtaining all required government approvals, licenses, or permits that might be necessary to either import or use the Goods in Buyer’s country. Should Seller access Buyer’s premises in the performance of the PO, Seller agrees to comply with any code of conduct, and policies adopted by Buyer including those related to security and health and safety. Seller hereby declares that the Goods and Services do not and will not include any item subject to export restrictions under the International Traffic in Arms Regulations (ITAR) and agrees to indemnify and hold Buyer, its affiliates and its customers harmless should any portions of the Goods and Services be or become subject to the application of such regulations.
13. Standards of Business Ethics and Conduct
Buyer will conduct its business fairly, impartially, and in an ethical and proper manner. Seller shall conduct its business fairly, impartially, and in an ethical and proper manner and in doing so Seller will adhere to Buyer’s published Code of Ethics, which is available at :www.l3t.com/suppliers/ethics-information if available Seller’s version which is consistent with the terms of Buyer’s Code of Ethics. Seller shall not engage in any personal, business or investment activity that may be defined as a conflict of interest, whether real or perceived. If Seller has cause to believe that Buyer or any employee or agent of Buyer has behaved improperly or unethically under this contract, Seller is encouraged to exert reasonable effort to report such behavior when warranted.
14. Intellectual Property
(a) Title. Seller hereby sells, transfers and assigns to Buyer, all right, title and interest in and to the Goods as well as in the discoveries, inventions, deliverables and other results and/or items, produced by the performance of Services under the PO, and intellectual property rights related thereto. The Goods shall be free and clear of all security interests, liens or other encumbrances of any kind. Buyer shall otherwise have all right to use, modify, further develop and create derivative works or otherwise alter, sell, distribute or otherwise transfer the Goods as part of products sold or services rendered by Buyer on a commercial basis. (b) Background (Preexisting) Intellectual Property. Seller grants to Buyer, and to Buyer’s Subcontractors, suppliers, and customers in connection with goods or work being performed by Buyer, an irrevocable, nonexclusive, paid-up, worldwide license under any information, know-how, inventions, patents, industrial designs, and mask works (whether domestic or foreign) owned or controlled by Seller at any time before or during the term of this contract, but only to the extent that the absence of such would otherwise interfere with Buyer’s or Buyer’s Subcontractors’, suppliers’, or customers; use or enjoyment of goods or the work product or foreground inventions belonging to Buyer under this PO. (c) Foreground Intellectual Property. All information, know-how, inventions, patents, industrial designs, and mask works (whether domestic or foreign) conceived, developed, or first reduced to practice by, for, or with Seller in the course of any work that is performed under this PO and any patents resulting from such inventions (both domestic and foreign) shall be the property of Buyer. Seller will (i) promptly disclose all such inventions to Buyer in written detail and (ii) execute all papers, cooperate with Buyer, and perform all acts necessary and appropriate in connection with the filing, prosecution, maintenance, or assignment of related patents or patent applications on behalf of Buyer. (d) Preexisting Works of Authorship and Copyright. Unless superseded by an attached Seller Software License Agreement agreed to in writing by both Buyer and Seller, Seller grants to Buyer, and to Buyer’s Subcontractors, suppliers, and customers in connection with goods or work being performed by Buyer, a perpetual, irrevocable, nonexclusive, paid-up, worldwide license in Seller’s copyrights to reproduce, distribute copies of, perform publicly, display publicly, and make derivative works from software included in or provided with or for Goods (software) and related information and materials (software documentation) that is owned or controlled by Seller at any time before or during the term of this PO, but only to the extent that such copyrights would otherwise interfere with Buyer’s or Buyer’s Subcontractors’, suppliers’, or customers’ use or enjoyment of Goods or the work products, inventions, or works of authorship belonging to Buyer and resulting from this PO. (e) Foreground Works of Authorship and Copyrights. All works of authorship (including, but not limited to, documents, data, drawings, software, software documentation, photographs, video tapes, sound recordings, and images) created by, for, or with Seller in the course of any work performed under this PO, together with all copyrights subsisting therein, shall be the sole proprietary property of Buyer. To the extent permitted under United States copyright law, all such works will be works made for hire, with the copyrights therein vesting in Buyer. The copyrights in all other such works, including all of the exclusive rights therein, will be promptly transferred and formally assigned free of any additional charges to Buyer. (f) Buyer Supplied Data. Any information supplied by the Buyer shall remain Buyer’s property, shall not be photo-stated or otherwise duplicated without Buyer’s written L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K consent and shall be returned to Buyer upon completion of PO or upon demand.
15. Confidential Information
(a) Subject to Article 14, Intellectual Property, the Parties shall only share Confidential Information under this PO pursuant to an existing Non-Disclosure Agreement (NDA) as incorporated into the PO; (b) Unless otherwise agreed to in a subsequent writing or expressly set forth in this PO, all Specifications, information, data, drawings, software and other items supplied to Buyer shall be disclosed to Buyer without any restrictive rights on a non-proprietary basis; (c) Unless otherwise agreed to in a subsequent writing or expressly set forth in this PO, all Specifications, information, data, drawings, software and other items which are: (i) supplied to Seller by Buyer; or, (ii) paid for by Buyer during the performance of this PO shall be treated as proprietary to Buyer and shall not be disclosed to any third party without Buyer’s express written consent. Seller agrees not to use any such furnished information except to perform this PO.
16. Goods Warranty
(a) Seller warrants the Goods delivered pursuant to this PO, unless specifically stated otherwise in this PO, shall (i) be new; (ii) be and only contain materials obtained directly from the OEM or an authorized OEM reseller or distributor (Note - Independent Distributors (Brokers) shall not be used by Seller without written consent from Buyer); (iii) not be or contain Counterfeit Items; (iv) contain only authentic, unaltered OEM labels and other markings; (v) have documentation made available upon request that authenticates traceability to the applicable OEM; and (vi) be free from defects in workmanship, materials, and design and conform to all the Specifications and requirements of this PO. These warranties shall survive inspection, test, final acceptance and payment of Goods and Services; (b) For purposes of this Article 16 Warranty, and Article 6 Rejection, a “Counterfeit Item” is defined to include, but is not limited to, (i) an item that is an illegal or unauthorized copy or substitute of an OEM item; (ii) an item that does not contain the proper external or internal materials or components required by the OEM or that is not constructed in accordance with OEM specification; (iii) an item or component thereof that is used, refurbished or reclaimed but the Seller represents as being a new item; (iv) an item that has not successfully passed all OEM required testing, verification, screening and quality control but that Seller represents as having met or passed such requirements; or (v) an item with a label or other marking intended, or reasonably likely, to mislead a reasonable person into believing a non-OEM item is a genuine OEM item when it is not; (c) Seller warrants that any hardware, software, and firmware Goods delivered under this PO to the extent reasonably possible: (i) do not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to (a) damage, destroy, or alter any software or hardware; (b) reveal, damage, destroy, or alter any data; (c) disable any computer program automatically; or (d) permit unauthorized access to any software or hardware; and (ii) do not contain any 3rd party software (including software that may be considered free software or open source software) that (a) may require any software to be published, accessed or otherwise made available without the consent of Buyer or (b) may require distribution, copying or modification of any software free of charge; (d) This warranty entitlement shall inure to the benefit of both Buyer and Buyer’s customer and shall cover a period of twelve (12) months following final acceptance; and, (e) Seller shall be liable for and save Buyer harmless from any loss, damage, or expense whatsoever that Buyer may suffer from the breach of any of these warranties.
17. Services Warranty
Unless stated otherwise in the documents accompanying these terms and conditions, Seller shall warrant all services against defects in performance for a period of one year following delivery. If this PO includes the provision of Services, Seller warrants that it has and will maintain sufficient trained personnel to promptly and efficiently execute the Services contemplated under this PO. Seller further warrants that the Services shall be performed to high professional standards reasonably expected of similar service providers in Buyer’s geographic region.
18. International Transactions
When Buyer has identified an offset obligation directly related to the performance of this PO in its solicitation or in relation to any properly enacted modification, and Seller's performance of this PO generates offset credits, which Buyer could use to satisfy that identified offset obligation, then Buyer shall have the right to such Seller offset credits. The Buyer shall have no rights to any other offset credits that may be generated by the Seller in connection with this PO. The Seller agrees to provide all reasonably necessary information in such form as may be required to enable Buyer to obtain the aforementioned offset credits.
(a) Seller shall indemnify, hold harmless, and at Buyer's request, defend Buyer, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this PO, including, without limitation: (i) the breach of any warranty contained herein; (ii) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs; (iii) any claim based on the negligence, omissions or willful misconduct of Seller or any of Seller's agents, Subcontractors, employees or anyone acting on behalf of Seller; and, (iv) any claim by a third party against Buyer alleging that the Goods or Services (including but not limited to software), the results of such Services, or any other products or processes provided under this PO, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without Buyer's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Buyer in enforcing this indemnity, including legal fees. (b) Should Buyer's use, or use by its distributors, Subcontractors or customers, of any Goods or Services purchased from Seller be enjoined, be threatened by L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either: (i) substitute fully equivalent non-infringing Goods or Services; (ii) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (iii) obtain for Buyer, its distributors, Subcontractors or customers the right to continue using the Goods or Services; or, (iv) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
20. Limitation of Liability
IN NO EVENT SHALL THE BUYER BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES, OR ANY DAMAGE DEEMED TO BE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THE CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. TO THE EXTENT THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISION(S) OF THIS CONTRACT, SAID PROVISION(S) SHALL BE REGARDED AS AMENDED TO WHATEVER EXTENT REQUIRED TO MAKE SUCH PROVISION(S) CONSISTENT WITH THIS PROVISION. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF BUYER WHETHER IN CONTRACT, WARRANTY, AND TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR THE PERFORMANCE OR BREACH OF THE CONTRACT OR ANYTHING DONE IN CONNECTION THEREWITH EXCEED THE PO PRICE. NOTWITHSTANDING ANYTHING ELSE IN THE PO TO THE CONTRARY, THE STATED MONETARY LIMITATION HEREINABOVE IS THE MAXIMUM LIABILITY BUYER HAS TO THE SELLER.
21. Furnished Property
(a) All drawings, tools jigs, dies, fixtures, materials, and other property supplied or paid for by Buyer shall be and remain the property of Buyer; and if Seller fails to return such property upon Buyer's demand, Buyer shall have the right, upon reasonable notice, to enter Seller's premises and remove any such property at any time without being liable for trespasses or damages of any sort. (b) All such items shall be used only in the performance of work under this PO unless Buyer consents otherwise in writing. (c) Seller shall have the obligation to maintain any and all property furnished by Buyer to Seller and all property to which Buyer acquires an interest by this PO and shall be responsible for all loss or damage to said property except for normal wear and tear. (d) Upon request, Seller shall provide Buyer with adequate proof of insurance against such risk of loss or damage. (e) Seller shall clearly mark, maintain an inventory, and keep segregated or identifiable all of Buyer's property. At Buyer’s request, and/or upon completion of this PO, Seller shall submit, in an acceptable form, inventory lists of Furnished Property and shall deliver or make such other disposal as may be directed by Buyer.
(a) Seller shall be responsible for maintaining, at Seller’s expense, at all times during the term of the PO, all insurance that a reasonable and prudent seller would carry for the performance of the Services performed under the PO, including without limitation any cargo insurance.
(b) If this PO is for the performance of Services on Buyer’s premises, or, Seller utilizes their own vehicles to deliver Goods to Buyer’s facility, Seller shall maintain the following insurance in at least the minimum amounts stated herein. Seller shall also maintain, and Seller shall cause its Subcontractors to maintain, such general liability, property damage, employers’ liability, and worker’s compensation insurance, professional errors and omissions insurance, motor vehicle liability (personal injury and property damage) insurance and aviation liability as are maintained in their normal and ordinary course of business. Upon request by the Buyer, Seller shall provide certificates of insurance evidencing limits of not less than the following:
1. Commercial General Liability $5,000,000 combined single limit per occurrence (including products/completed operations and contractual liability coverage)
2. Workers’ Compensation Statutory for the jurisdiction where the work is to be performed, including Federal Acts if applicable Employers’ Liability, $1,000,000 each person/accident. In states where Workers’ Compensation insurance is a monopolistic state-run system (e.g., Ohio, Washington, North Dakota, and Wyoming), Seller shall add Stop Gap Employers Liability with limits not less than $500,000 each accident or disease. To the extent that any work to be performed is subject to the Jones Act, the Longshore and Harbor Workers’ Compensation Act, or the Defense Base Act, the Workers’ Compensation policy must be endorsed to cover such liability under such Act...
3. Automobile Liability $5,000,000 combined single limit per accident
[Optional - Some or all of the following additional insurance coverages may be required, depending upon the nature of the work to be performed. These additional insurance requirements if any will be identified in the Buyer’s Purchase Order.
A. Professional Liability $5,000,000 per claim 1. Internet Liability and Network Protection (Cyber-risk) insurance with limits of at least $2,500,000 each claim or wrongful act. 2. Media Liability insurance with limits of at least $2,500,000 each claim or wrongful act. B. Aviation Liability including products $50,000,000 per occurrence (including aircraft products and completed operations and War, Hijacking and other perils (AVN 52D) C. Hangar keepers’ Liability $50,000,000 per occurrence D. All Risk Property Insurance Replacement Value (covering property of Buyer or Buyer’s customer in the care, custody or control of Seller and include Buyer as Loss Payee. E. Fidelity or Crime insurance covering employee dishonesty, including but not limited to dishonest acts of Seller , its employees, agents, Subcontractors and anyone under Seller’s supervision or control. The Seller shall be liable for money, securities or other property of Buyer. Seller shall include a client coverage endorsement written for limits of at least $1,000,000 and shall include Buyer as Loss Payee. F. Environmental Insurance (Contractor’s Pollution Liability) L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K with limits of at least $5,000,000 each occurrence, claim, or wrongful act and $10,000,000 aggregate. The policy must include Buyer, its Affiliates, and their directors, officers, and employees as Additional Named Insured’s. Seller shall provide a copy of the Additional Insured endorsement to Buyer. If required within the scope of Seller’s work to be performed, the insurance required herein cannot exclude coverage for bodily injury, property damage, pollution or environmental harm resulting from or arising out of the work to be performed, asbestos, lead or silica-related claims, claims arising out of microbial matter or bacteria, testing, monitoring, measuring operations or laboratory analyses, or liability arising out of the operation of a treatment facility. The policy must contain a separation of insured’s clause. If a motor vehicle is used in connection with the work to be performed, the Business Automobile Liability policy will include coverage at least as broad as Insurance Services Office (ISO) CA 99 48 and be endorsed to include Motor Carrier Act endorsement MCS 90. G. Pollution Legal Liability with limits of at least $3,000,000 each occurrence, claim, or wrongful act and $6,000,000 aggregate. The above limits may be satisfied by any combination of both primary and excess limits. Seller shall arrange a waiver of subrogation for the above and with the exception of 2.(Workmen’s Comp), B.(Aviation Liability), C (Hangar keeper’s Liability), D (All Risk Property), & E. (Fidelity or Crime) shall name Buyer as an additional insured under each of the above policies and shall provide to Buyer, within fifteen (15) days of Buyer issuance of this PO, a Certificate of Insurance evidencing compliance with this section The Seller shall notify Buyer when cancellation or any material change in the policies adversely affects the interests of the Buyer in such insurance and such changes shall not become effective until thirty (30) days after written notice is provided to the Buyer.]
23. Release of Information
Except as required by law, Seller shall not publish any information developed under this PO, nor disclose, confirm, or deny any details about the existence or subject matter of this PO, or use Buyer’s name in connection with Seller’s sales promotion or publicity without prior written approval of the Buyer.
24. Disputes and Governing Laws.
(a) All disputes under this PO that are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity. Pending final resolution of a dispute hereunder, Seller shall proceed diligently with the performance of this PO and in accordance with all the Terms and Conditions contained herein and with the Buyer’s direction thereof. Buyer and Seller shall each bear its own costs of processing any dispute hereunder. (b) The terms and conditions of the PO shall be governed and interpreted in accordance with the laws of the Province of Quebec and the Federal laws of Canada applicable therein, without reference to its conflict of law rules. The Parties also agree to specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. (c) The parties irrevocably submit any dispute related to the acceptance, interpretation or execution of the PO and these terms and conditions to the tribunals of the Province of Quebec, District of Montreal.
25. Assignments, Waivers
Neither this PO nor any interest herein nor claim hereunder may be transferred, novated, assigned or delegated by Seller; nor may all or substantially part of this PO be further subcontracted by Seller without the prior written consent of Buyer. Lack of consent shall not be deemed as a waiver or otherwise relieve Seller of its obligations to comply fully with the requirements hereof. The PO shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns. The failure of Buyer to enforce at any time any of the provisions of the PO or of these terms and conditions, shall in no way be construed to be a waiver of such provisions, nor in any way affect the right of Buyer thereafter to enforce each and every such provision.
26. Government Interaction
Seller shall: (i) comply with all applicable anti-bribery legislation including the Canadian Corruption of Foreign Public Officials Act and the US Foreign Corrupt Practices Act, regardless of whether Seller is within the jurisdiction of Canada; (ii) neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value to a public official or any person in violation of any applicable country laws relating to anti-corruption or anti-bribery; and, (iii) Seller hereby agrees not to interact with any government official, political party or public international organization on behalf of Buyer without the prior written permission of the Buyer’s Procurement Representative.
27. Order of Precedence
These terms and conditions shall prevail over the terms of any other Subcontractors, acknowledgments, instrument, quotation, sales confirmation, or other document issued by Seller, which shall be deemed to have been issued for Seller’s internal purposes only, and all other terms and conditions contained therein, whether pre-printed or written shall be of no force or effect except for the reference to this Agreement, unless such other terms are expressly agreed in writing by both Seller and Buyer.
28. Communication with Buyer’s Customer
Buyer shall be solely responsible for any and all communication with Buyer’s customer regarding this or any related PO.
29. Conflict of Interest
It is understood and agreed that the Seller, under the terms of this PO, or through the performance of this PO, is neither obligated nor expected to deliver or provide material or perform work, which will place the Seller in an Organizational Conflict of Interest (OCI), which could serve as a basis for excluding the Seller from supplying products or services to a Government customer. It will be the Seller’s responsibility to identify any situation in which the potential for an OCI exists. Failure to provide such notice will be considered a material breach of this PO.
30. Audit Rights
(a) Prior to the performance of the Services or the delivery of the Goods and thereafter for a period of ten (10) years, L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K the Seller shall permit Buyer to inspect and audit and carry out forensic reviews of its Information Systems and Technology (IT) security procedures, its internal policies protecting confidential information and in particular intellectual property (including but not limited to source codes, software, copyrights, neighboring rights, and derivative works thereof, trademarks and trade names, trade secrets, patents, technical information), copies of its books and records (including timesheets and invoices) and any other document, data or information of the Seller relating to the PO and any other contractual document, at any reasonable time during normal business hours and upon reasonable notice, as deemed necessary by Buyer. Seller shall advise Buyer of any substantial change to the IT questionnaire (form IT-F005 latest revision). (b) If requested by Buyer, an audit shall be conducted by a qualified independent third party or Buyer. The Subcontractor shall cooperate fully with any audit performed by or on behalf of Buyer. Failure of Seller to comply with Buyer’s directives shall be considered as a default and Buyer may terminate the Agreement according to Article 11 (Termination for Default).
31. Electronic Transmissions
(a) The parties agree that if this PO is transmitted electronically, neither party shall contest its validity, or any acknowledgment thereof, on the basis that this PO or acknowledgment contains an electronic signature. (b) Seller shall, at Buyer’s request and Seller’s expense, send and receive business transactions by electronic means using Web-based technologies. Such Web-based technologies for electronic transmissions may include a) email and (b) the Internet directly between Buyer and Seller.
32. Standards on Slavery and Human Trafficking in the Supply Chain
(a) Buyer supports the eradication of human trafficking and slavery in supply chains around the world, including in our own. Buyer sets forth the following Standards that its Sellers shall meet in order to do business with Buyer:
- Seller that provides goods or services to Buyer shall operate in full compliance with the laws of their respective countries and with all other applicable laws, rules and regulations.
- Seller shall employ only workers who meet the applicable minimum legal age requirement for employment in the country or countries in which they are doing business.
- Seller shall not employ any prison, indentured or forced labor.
- Seller shall comply with all applicable laws, regulations and industry standards on working hours and working conditions.
- Seller shall certify that materials incorporated into goods provided to Buyer comply with the laws regarding slavery and human trafficking of the country or countries in which Seller is doing business.
(b) If Buyer determines that supplier has violated these Standards, Buyer may, in its discretion, either terminate this PO and/or require the supplier to implement a corrective action plan as a condition of future business.
33. Conflict Minerals
By accepting these terms and conditions, Seller agrees to timely respond, to the best of its knowledge and belief following a reasonable country of origin due diligence inquiry in accordance with the framework in the Organization for Economic Cooperation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas or other prevailing industry standard, to any request by, or on behalf of, Buyer, for information on the origin, source and chain of custody information of 3TG (tin, tantalum, tungsten, and gold) minerals necessary to the functionality or production of a product manufactured by you or supplied by you to Buyer. Further, Seller agrees to provide Buyer timely notice when Seller becomes aware that any 3TG in a product or component it supplies to Buyer finances or benefits armed groups in the Democratic Republic of Congo or an adjoining country. In addition, you understand and acknowledge that any information you provide in this regard may be used by Buyer to comply with its reporting obligations under the Rule 13p-1 of the Securities and Exchange Act of 1934, as amended and the Dodd-Frank Wall Street Reform and Consumer Protection Act, including filing a Form SD and Conflict Minerals Report with the U.S. Securities and Exchange Commission.
34. Last Buy Notice
The Buyer may in the future wish to, but makes no commitment to, acquire additional items, parts, subcomponents, and/or components like those to be/being acquired under this PO. The Seller shall notify the Buyer in writing of any: (a) Items, parts, subcomponents, and/or components, and/or (b) electronics in equipment, assemblies, subassemblies, parts, components or items delivered or to be delivered under this PO, whether supplied by the Seller or by the Seller’s lower-tier Subcontractor(s), that are or are expected to be going out of production or will no longer be commercially available. To the extent practicable, Seller shall provide Buyer with a “last time buy” notice for such “end-of-life” items at least twelve (12) months prior to their anticipated date of discontinuance or unavailability. However, if twelve (12) months’ notice is not reasonable given the circumstances, then Seller shall provide Buyer with notice as soon as practicably possible. Seller is to specifically identify those items by name or title, part number(s), function and location in the item delivered and the name &address of the supplier.
Seller shall keep its work and all goods supplied by it hereunder and Buyer premises free and clear of all liens and encumbrances, including mechanic’s liens, in any way arising from performance of this PO by Seller or by any of its vendors of Subcontractors. Seller may be required by Buyer to provide a satisfactory release of liens as a condition of final payment.
Each clause, paragraph and subparagraph of this PO is severable, and if one or more of them are declared invalid, the remaining provisions of this PO will remain in full force and effect.
All of the provisions of this PO shall survive the termination (whether for convenience or default), suspension or completion of this PO unless they are clearly intended to L3 MAPPS Inc. – Purchase Order Terms and Conditions Document Number CD429998.01.8.300. Rev K apply only during the term of this PO.
(a) Only the Buyer’s Procurement Representative identified in this PO has authority on behalf of the Buyer to make changes to this PO. All amendments must be identified as such in writing and executed by the parties. (b) Seller shall promptly notify Buyer in writing of any organizational changes made by Seller, including name or ownership changes, mergers or acquisitions. (c) Except as otherwise provided herein, all notices to be furnished by Seller shall be in writing and sent to the Buyer Procurement Representative.
39. Independent Contractors
The parties hereto are independent contractors engaged in the operations of their respective businesses. Neither party is, or is to be considered, as the agent or employee of the other for any purpose whatsoever. Neither party has the authority to enter into contracts or assume any obligations for the other party or make any warranties or representations on behalf of the other party. Nothing in the PO shall be construed to establish a relationship of co-partners or joint venture between the parties.
40. Entire Agreement
The PO and these terms and conditions constitute the entire agreement between the parties and supersede and cancel all prior discussions, representations, understandings or agreements whether verbal or written, between the parties hereto or their agents, with respect to or in connection with the subject matter hereof, save and except for the provisions of any confidentiality agreements whether verbal or written, between the parties hereto or their agents, which, by their nature or wording, are intended to remain in full force and effect.