Terms & Conditions

STANDARD TERMS AND CONDITIONS OF PURCHASE

Effective Date: July 15, 2014

  1. ACCEPTANCE
  2. DEFINITIONS
  3. SPECIFICATIONS
  4. DELIVERY
  5. PAYMENT
  6. INSPECTION AND TEST
  7. WARRANTY
  8. INDEMNIFICATION
  9. RECIPROCAL WAIVER OF CLAIMS
  10. INTELLECTUAL PROPERTY RIGHTS
  11. PROPRIETARY INFORMATION
  12. BUYER-FURNISHED AND BUYER-FUNDED ITEMS
  13. TAXES
  14. INSPECTION AND AUDIT RIGHTS
  15. CHANGES
  16. STOP WORK ORDER
  17. DELAYS
  18. FORCE MAJEURE
  19. SUBCONTRACTING
  20. TERMINATION FOR DEFAULT
  21. TERMINATION FOR CONVENIENCE
  22. COMPLIANCE WITH LAWS
  23. EXPORT COMPLIANCE
  24. INSURANCE
  25. GOVERNING LAW
  26. TOXIC, HAZARDOUS, CARCINOGENIC SUBSTANCES AND MATERIALS OF CONCERN
  27. NEWS RELEASES/PUBLICITY
  28. ASSIGNMENT
  29. CHANGE IN CONTROL
  30. PARTIAL INVALIDITY/UNENFORCEABILITY
  31. SURVIVAL
  32. REMEDIES
  33. ORDER OF PRECEDENCE
  34. DISPUTE RESOLUTION
  1. ACCEPTANCE
    1. Supplier’s (i) full or partial performance under, or indication thereof, or (ii)
      acknowledgement of the Order, is acceptance of the Order and all terms and conditions contained in the Order, including these Terms and Conditions. Any terms and conditions proposed in Supplier’s acceptance or in any acknowledgment, invoice, or other form of Supplier that add to, vary from, or conflict with the terms herein are hereby rejected. If the Order is an acceptance of Supplier’s prior offer, such acceptance is limited to the express terms set forth in the Order and Supplier shall be deemed to have so assented and acknowledged that this Agreement constitutes the entire agreement between Buyer and Supplier with respect to the subject matter hereof unless Supplier notifies Buyer to the contrary in writing within ten (10) calendar days of receipt the Order.
  2. DEFINITIONS
    1. “Affiliate” means any entity other than the Parties that directly or indirectly controls, is controlled by or under common control with such entity.
    2. “Agreement” means the long term agreement, engineering services agreement or other agreement that references these terms and conditions, and pursuant to which Orders are issued to Supplier.
    3. “Background Intellectual Property” shall mean all Intellectual Property other than Foreground Intellectual Property.
    4. “Bodily injury” means physical injury, sickness, disease, disability, shock, mental anguish, or mental injury sustained by any person, including death.
    5. “Buyer” means TSC, LLC (“TSC”) or TSC’s Affiliate that issues an Order referencing these terms and conditions, and any successor or assignee of Buyer.
    6. “Contractor and subcontractors” means those entities that are involved at any level, directly or indirectly, in licensed or permitted activities, and includes suppliers of property and services, and the component manufacturers of a launch vehicle, re-entry vehicle or payload.
    7. “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 Order.
    8. “Delivery Date” means the date of delivery for Goods and/or Services as specified in an Order.
    9. “FAA” means the U.S. Federal Aviation Administration.
    10. “Foreground Intellectual Property” shall mean all Intellectual Property and tangible work product conceived, created, acquired, or first reduced to practice in connection with the Order.
    11. “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, an Order. Where the context permits, the use of the term Goods shall include Services.
    12. “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 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.
    13. “Licensed activity” means the launch of a launch vehicle or the re-entry of a re-entry vehicle conducted under a license the FAA issues.
    14. “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 a purchase order or other authorization of Order, and including change notices, supplements or modifications thereto. Where the context permits, the term Order includes the Agreement.
    15. “Party” or “Parties” shall mean Buyer and/or Supplier, individually or collectively, as the context requires.
    16. “Property damage” means partial or total destruction, impairment, or loss of tangible property, real or personal.
    17. “Regulations” means the Commercial Space Transportation Regulations, 14 C.F.R. Parts 400-460 issued pursuant to the Commercial Space Launch Act, as amended, 51 U.S.C. § 50901 et seq.
    18. “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 involved in Licensed activities; and (d) any party with a financial interest in that Party. The Parties shall not be considered Related Third Parties to each other.
    19. “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 an Order.
    20. “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 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.
    21. “Supplier” means the legal entity providing Goods and/or Services or otherwise performing work pursuant to an Order.
    22. “Terms and Conditions” means this document, the TSC, LLC Standard Terms and Conditions of Purchase, regardless of whether modified or unmodified by the Parties.
  3. SPECIFICATIONS
    1. Supplier shall comply with all Specifications.
  4. DELIVERY
    1. Supplier shall deliver Goods and/or perform Services both in quantity and at the Delivery
      Date as specified in the Order. Time is of the essence in Supplier’s performance.
    2. Supplier shall perform to Buyer’s instructions related to packaging, billing and invoicing,
      which instructions shall be provided to Supplier through an attachment or printing on the face of the Order. If required under this Order, Supplier shall arrange shipment of Goods at its own costs and provide all relevant information and documents, including but not limited to any freight measurement, required for such shipment, including but not limited to quota/visa documents, certificate of origin and declaration. Supplier shall be responsible for all shipping, freight and insurance charges as well as all export and import tax, custom, duties and similar liabilities. Supplier shall bear full risk of loss and damage of the Goods until actually delivered to such destination.
    3. In the absence of such instructions on the Order, all shipments that originate in the United States shall be delivered to Buyer FOB Destination as defined by the Uniform Commercial Code. For all shipments that originate outside the United States shall be delivered to Buyer DDU, (named place); named place to be designated in the Order (i.e., FOB Buyer’s facility or third party drop shipment point). The term DDU as defined by INCOTERMS 2010.
    4. If Supplier is unable to deliver Goods by the Delivery Date, Buyer may, without liability: (i) reduce or cancel its requirements for any part of the quantity of the Goods that cannot be delivered by Delivery Date, (ii) reallocate to another Order, or reschedule, any portion of the Goods that cannot be delivered by Delivery Date, or (iii) waive the Delivery Date and accept Goods on the Delivery Date.
  5. PAYMENT
    1. Unless otherwise specified in the Order, Payment terms shall be net 45 from date of receipt of invoice from Supplier.
    2. The prices listed in this Order are in United States (U.S.) Dollars. Prices, regardless of the currency in which denominated, shall not be subject to economic price adjustment.
  6. INSPECTION AND TEST
    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 an Order and test all Goods under an Order to the extent practicable at all time and place, including during the period of manufacture of the Goods. Supplier shall provide all information, facilities and assistance necessary for safe and convenient inspection without
      additional charge to Buyer.
    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 sixty (60) days following Buyer’s receipt of Goods (“Inspection Period”). Transfer of title to Buyer shall not constitute acceptance.
    3. During the Inspection Period, Buyer shall, with respect to any Goods that do not conform in any respect to the 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 and shall promptly reimburse 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.
    4. Within ten (10) business days of Supplier’s receipt of Buyer’s notification of a nonconformity,
      Supplier shall investigate the non-conformity, deliver to Buyer a written report of its investigation and conclusions and formulate a corrective action plan acceptable to Buyer.
    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 Order shall be complete and available to Buyer and Customer upon request.
  7. WARRANTY
    1. Supplier warrants to Buyer, its successors, assigns and Customer, that all Goods provided under the Order shall be and continue to be: (i) merchantable and fit for the purpose intended to the extent the Goods are not of a detailed design furnished by Buyer and operate as intended; (ii) new upon receipt unless approved in writing by Buyer in advance of shipment; (iii) free from defects in material and workmanship; (iv) free from defects in design if the design is not provided by Buyer; (v) conform to applicable drawings, designs, quality control plans, Specifications and samples and other descriptions furnished or specified by Buyer; (vi) free from liens or encumbrances on title and (vii) not infringe any patent, published patent application, or other intellectual property rights of any third party existing as of the date of delivery.
    2. Supplier warrants to Buyer, its successors, assigns and Customer that any Services or technical data provided by Supplier under the Order: (i) have been performed or prepared in a professional and workmanlike manner by personnel who are adequately, trained, supervised and experienced according to best industry standards and practices, (ii) are suitable for the purposes intended whether expressed or implied and (iii) are in compliance with all applicable Specifications and performance requirements.
    3. All other warranties: express or implied, shall survive delivery, inspection, test, acceptance, payment and use.
    4. Buyer shall notify Supplier in a commercially reasonable time of a breach of Warranty (“Notice”), and may return ship the Goods on the fastest available commercial carrier and Supplier shall bear the risk of loss and pay all freight costs.
    5. Upon receipt of Notice from Buyer that Goods and/or Services failed within the warranty timeframe, Supplier shall replace and/or re-perform such defective Goods and/Services at no cost to Buyer. In addition to any rights or remedies Buyer may have under the Agreement or at law, Supplier shall reimburse Buyer for all actual direct costs incurred by Buyer as result of such failure including all repair, replacement and/or reperformance costs including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection and retrofit of the nonconforming Goods. 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
      Order or the Agreement.
  8. INDEMNIFICATION
    1. Supplier shall defend, indemnify, release and hold harmless Buyer, its officers, directors, employees, affiliates and agents (each an “Indemnified Person”), whether acting in the course of their employment or otherwise, from any and every liability, claim of liability, allegation, judgment, cost, expense, reasonable attorneys’ fees, cause of action, loss, or damage whatsoever, including, without limitation, death or injury to any person or damage to any property, resulting from or arising out of Supplier’s performance under this Order, howsoever arising, unless caused by the sole negligence of an Indemnified Person. In the event Buyer should bring an action for enforcement of this indemnification provision, Supplier agrees that Buyer shall be entitled to be awarded its reasonable
      attorneys’ fees and costs if Buyer prevails in such proceeding.
    2. For Goods and/or Services provided under the Order, Supplier will, at its expense, defend and indemnify an Indemnified Person from and against any and all loss, cost, expense, damage, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from an Indemnified Person arising out of, resulting from, or occurring in
      connection with any alleged: (a) patent, copyright, or trademark infringement; (b) unlawful disclosure, use, or misappropriation of a trade secret; or (c) violation of any other third party intellectual property right, and from expenses incurred by an Indemnified Person in defense of such suit, claim, or proceeding if Supplier does not
      undertake the defense thereof. Supplier will have the right to conduct the defense of any such claim or action and, consistent with an Indemnified Person’s right hereunder, all negotiations for its settlement. But in no event will Supplier enter into any settlement without Buyer’s prior written consent, which will not be unreasonably withheld. An
      Indemnified Person may, with the permission of the court, intervene in any such action and/or supersede Supplier in a defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at its expense, obtain for an Indemnified Person either the right to continue using and selling the Goods or replace
      or modify the Goods to make them non-infringing.
    3. Supplier shall notify Buyer in a timely manner (not to exceed five (5) business days) after learning of any actual or threatened claims, suits, actions or legal proceedings that may any way affect Buyer’s interests under this Order, and shall not at any time consummate any settlement without Buyer’s prior written consent.
    4. 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.
  9. RECIPROCAL WAIVER OF CLAIMS
    1. This Order is subject to the Regulations. In the event of a conflict between a provision in this Agreement and the Regulations, the provisions of this Agreement shall control to the extent permitted by law. Terms not defined herein shall have the meaning ascribed to them in the Regulations.
    2. Pursuant to § 440.17 of the Regulations, and except in cases of willful misconduct by Supplier, Buyer agrees to waive and release claims it may have against Supplier, each Customer and the United States and against their respective Contractors and subcontractors, for (i) Property damage it sustains, and (ii) Bodily injury or Property
      damage sustained by its own employees, resulting in either the case of (i) or (ii) from Licensed activities, regardless of fault.
    3. Pursuant to § 440.17 of the Regulations, and except in cases of willful misconduct by Buyer, Supplier agrees to waive and release claims it may have against Buyer, each Customer and the United States and their respective Contractors and subcontractors, for (i) Property damage it sustains, and (ii) Bodily injury or Property damage sustained by its own employees, resulting in either the case of (i) or (ii) from Licensed activities, regardless of fault.
    4. Each Party shall be responsible for Property damage it sustains and for Bodily injury or Property damage sustained by its own employees, resulting from Licensed activities. Each Party, except as otherwise provided herein, further agrees to hold harmless and indemnify the other Party for bodily injury or property damage sustained by its employees when resulting from licensed launch activities, regardless of fault.
    5. Buyer and Supplier shall extend the waiver and release of claims terms herein to their respective Contractors and subcontractors involved in Licensed activities requiring them to waive in writing the right to sue or otherwise bring claims against the other party or its Related Third Parties for any Property damage or Bodily injury sustained by them or any of their employees, officers, directors or agents arising out of Licensed activities. Each
      Party agrees to indemnify the other, each Customer, and the United States and their respective Contractors and subcontractors from any and every liability, claim of liability, allegation, judgment, cost, expense, reasonable attorneys’ fee, loss or damage raised by the Party’s Contractors and subcontractors for failure to implement the waivers and releases of claims herein.
    6. The foregoing waiver, release of claims and indemnification terms are limited to the causes of action enumerated in this Section. They are not intended, and shall not be construed, to include any other acts or events giving rise to a waiver, release or an indemnification claim. Without limiting the preceding sentence, neither Party shall be liable to the other Party for any partial or total destruction, loss or impairment of intangible property, including any patent, copyright, trademark, trade secret, trade dress, industrial design right, brand equity, data, information, cash, stock, bond, promissory note, or debt instrument.
    7. Supplier shall incorporate this Section in each lower-tier subcontract placed in support of this Order.
    8. Supplier shall execute any agreement advised or required by applicable U.S. regulatory authorities, including, without limitation, the FAA, memorializing the rights, responsibilities and obligations contained in this Section 8.
  10. INTELLECTUAL PROPERTY RIGHTS
    1. Each Party retains its existing rights in Background Intellectual Property.
    2. Buyer shall own all Foreground Intellectual Property. Supplier shall disclose to Buyer all Foreground Intellectual Property. If not expressly required to be delivered in the Order, Supplier shall deliver to Buyer all Foreground Intellectual Property upon written request from Buyer. Supplier hereby irrevocably assigns to Buyer all of Supplier’s right, title and interest to all Foreground Intellectual Property. Supplier agrees to do all things
      reasonably necessary to enable Buyer to secure and to perfect Buyer’s Foreground Intellectual Property rights, including, without limitation, executing specific assignments of title in Foreground Intellectual Property by Supplier to Buyer and cooperating with Buyer at Buyer’s expense to defend and enforce Buyer’s rights in any such Foreground
      Intellectual Property. All Foreground Intellectual Property assigned to Buyer pursuant to the Order shall be considered Buyer’s Proprietary Information (defined hereinafter). Supplier agrees that, for any works of authorship created by Supplier or any employees or any others used by Supplier in the course of performing any Services, those works that come under one of the categories of “Works Made for Hire” in 17 U.S.C. §101 shall be considered “Works Made for Hire”. For any works of authorship created in the course of Supplier or any employee or agents Supplier performing any Services that do not come under such categories, Supplier, warranting that it has the right to do so, hereby assigns all of its right, title, and interest to any copyright in such works to Buyer and will execute, or cause to be executed at Buyer’s expense, any documents required to establish Buyer’s ownership of such copyright.
    3. Supplier represents and warrants that Supplier has sufficient rights in all Goods, Services, and Intellectual Property and other items that Supplier uses or transfers to Buyer in connection with the Order to allow Supplier to lawfully comply with the Order.
    4. Supplier hereby grants to Buyer and Buyer’s Affiliates a worldwide, non-exclusive, perpetual, fully-paid, irrevocable, transferable license to Background Intellectual Property (i) to use, sell, offer for sale, import, export, copy, adapt, embed, modify, make derivative works, make and have made Goods and Services for the purposes of the Order and (ii) to enable Buyer to practice the Foreground Intellectual Property.
    5. Supplier hereby irrevocably waives all moral rights to the extent permissible by law, all rights of privacy and publicity, and the like, in all Goods provided to Buyer and in all activities in connection with the Order.
    6. Supplier represents and warrants that Supplier shall not provide, in the performance of the Order, any software, (including free software, open source software, freeware, General Public License-governed software, or the like), in any form that is subject to any obligations or conditions that could reasonably or arguably could provide a legal right to any third party to access such software and/or source code, or that could otherwise impose any limitation or condition on Buyer’s use, reproduction, modification, distribution or conveyance of such software.
    7. Except as expressly authorized herein, nothing in the Order shall be construed as Buyer granting Supplier a license in or any right to use any of Buyer’s Intellectual Property other than in the performance of work under the Order.
  11. PROPRIETARY INFORMATION
    1. “Proprietary Information” shall mean all information, knowledge or data (including without limitation financial, business, and product strategy information; product specifications; product designs; procedures; studies; tests; and reports) in written, electronic, tangible, oral, visual or other form, (i) disclosed by, related to, or obtained from, Buyer or its affiliates or (ii) conceived, created, acquired, or first reduced to practice in connection with the 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 Order.
    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 the 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, disassemble, or decompile
      the Proprietary Information.
    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 the 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.
    4. The Order shall not restrict the Supplier from using or disclosing any information that, as proven by written contemporaneous records kept in the ordinary course of business: (i) is or may hereafter be in the public domain through no improper act or omission of the Supplier or a third party; (ii) is received by the 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 who did not have access to any of Buyer’s Proprietary Information.
    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 Order.
    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.
    7. Unless required otherwise by law or the 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 Order and provide written acknowledgement to Buyer of such destruction.
    8. Supplier agrees to cause all information created by Supplier regardless of form (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 TSC, LLC and/or a TSC, LLC 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 TSC, LLC. 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 TSC, LLC and/or the TSC, LLC Affiliate issuing the Order is not authorized and may result in criminal and/or civil liability.
    9. Notwithstanding any proprietary or confidential labels or markings, all information of Supplier disclosed to Buyer relating to the Order will be deemed non-confidential and the content of the 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.
    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 Order.
    11. For proprietary information exchanged in connection with the Order, the terms of this Section shall supersede any provisions regarding the protection of proprietary information in any other agreement between the Parties.
  12. BUYER-FURNISHED AND BUYER-FUNDED ITEMS
    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 Order.
    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.
  13. TAXES
    1. Unless otherwise stated in the Agreement, all payments, prices, fixed or otherwise, sums mentioned in the 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 Order.
    2. When invoicing, Supplier shall: a) include amounts of taxes, or specific fees Supplier as 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.
    3. Supplier is solely responsible for collecting and remitting taxes collected from Buyer under the 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 Order and under circumstances where the transaction is not subject to taxes.
  14. INSPECTION AND AUDIT RIGHTS
    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 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.
    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 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.
    3. Supplier shall maintain complete inspection records for all Goods which shall be available to Buyer during performance of an 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 an Order and (iv) the latest time required by applicable laws and regulations.
    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.
  15. CHANGES
    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 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,
      facilities, equipment, or materials, (vii) Customer flowdown requirements and/or (vii) quality requirements (“Change(s)”). Supplier shall perform such Changes.
    2. If any Change causes an increase or decrease in the cost of, or the time required for, performing the Order, an equitable adjustment may be made and the 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
      (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 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 Order pending resolution of the disagreement.
    3. Design and Process Changes: Supplier will make no changes to the design, materials, manufacturing location, or processes specified in the Order or documents referenced in it, or if none, those in place when the 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.
  16. STOP WORK ORDER
    1. Buyer may, from time to time, require Supplier to stop all or any portion of the work called for by the 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.
  17. DELAYS
    1. Whenever there is an actual delay or threat to delay the timely performance of the 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.
  18. FORCE MAJEURE
    1. Neither Party shall be responsible to the other for any delay in performing its obligations under this Order due to any events of force majeure, except as otherwise provided for within this clause. Force majeure means any act of God, war, act or failure to act of any government in its sovereign capacity, fire, flood, earthquake, strike, epidemic, quarantine, embargo, nuclear incident, or any other act beyond reasonable control and without the
      fault of either Party or its subcontractors. The Party whose performance of obligations hereunder has been affected by any events of force majeure shall notify the other within five (5) calendar days thereafter by sending a detailed statement and sufficient evidence with respect thereto, and shall likewise notify promptly of any subsequent change in the circumstances. If a failure or delay in performance is caused by an event affecting any of Supplier’s suppliers, such failure or delay shall not be excusable unless such event is an Excusable Delay as defined above and the Good and/or Service to be provided by such supplier is not obtainable by Supplier from other sources in time for timely delivery of the Goods and/or Services to Buyer.
  19. SUBCONTRACTING
    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 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.
  20. TERMINATION FOR DEFAULT
    1. Buyer may, by written notice to Supplier, cancel all or part of the Order, which, for the avoidance of doubt, includes the Agreement, if (i) Supplier fails to deliver the Goods within the time specified by this contract or any written extension; (ii) Supplier fails to perform any other provision of this contract or fails to make progress, so as to endanger performance of this Agreement, and, in either of these two circumstances, does not cure
      the failure within ten (10) days after receipt of notice from Buyer specifying the failure; or (iii) in the event of Supplier’s suspension of business, insolvency, appointment of a receiver for Supplier’s property or business, or any assignment, reorganization or arrangement by Supplier for the benefit of its creditors.
    2. Supplier shall continue work not cancelled, if any. If Buyer terminates under this Section, Buyer will receive a refund of all fees, expenses and costs paid by Buyer that are attributable to the breach or default, including all fees paid for Goods and Services the utility of which is impaired by Supplier’s breach and Supplier will be liable to Buyer for any and all excess re-procurement costs, re-qualification costs, and other non-recurring costs.
    3. Buyer may require Supplier to transfer title and to deliver to Buyer, as directed by Buyer, any (i) completed Goods, and (ii) any partially completed Goods and materials, parts, tooling and test equipment, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively, “Manufacturing Materials”) (iii) all information, data, know-how and other Intellectual Property, including proprietary and manufacturing information, utilized by Supplier in performing the Order; (iv) provide technical and transition assistance; and (v) provide to Buyer a worldwide, non-exclusive, paid-up, irrevocable, license, with the right to grant sublicenses, to Supplier’s information, data, know-how, and other Intellectual Property, including proprietary and manufacturing information, to the extent necessary, to enable Buyer to make, have made, use, sell and license the Goods.
    4. 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 Order had been terminated according to the “Termination for Convenience” Section herein.
  21. TERMINATION FOR CONVENIENCE
    1. For performed work in support of “build to print” Orders:
      1. Buyer may terminate part or all of the Order, which, for the avoidance of doubt,
        includes the Agreement, for its convenience by giving written notice to Supplier.
      2. Upon termination, in accordance with Buyer’s written direction, Supplier will immediately: (i) cease work and place no further subcontracts or orders for materials, services, or facilities, except as necessary to complete the continued portion of the Order; (ii) prepare and submit to Buyer an itemization of all completed and partially completed Goods and/or Services; (iii) deliver to Buyer any and all Goods completed up to the date of termination at the pre-termination Order price; and (iv) if requested by Buyer, deliver any work-in-process.
      3. In the event Buyer terminates for its convenience after performance has commenced, Buyer will compensate Supplier for the actual, allowable, and reasonable expenses incurred by Supplier for work in process up to and including the date of termination provided Supplier uses reasonable efforts to mitigate Buyer’s liability under this Section.
      4. Buyer shall not be liable to Supplier for costs or damages other than as described above, and in no event for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the price allocated to the portion of the Order terminated. Supplier’s termination claim shall be submitted to Buyer within ninety (90) days from the effective date of the termination.
    2. For other than performed work in support of “build to print” Orders:
      1. Buyer may terminate part or all of the 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.
    3. If Buyer terminates only part of the Order, Supplier shall continue all work not terminated.
  22. COMPLIANCE WITH LAWS
    1. Supplier shall comply with all applicable national, state, provincial, and local laws, ordinances, rules, and regulations applicable to the performance of the 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.
    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 Order under the Section entitled “Termination for Default”.
  23. EXPORT COMPLIANCE
    1. Supplier shall comply with all applicable national, state, provincial, and local laws, ordinances, rules, and regulations applicable to the performance of the 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.
    2. Unless the Order is for Goods to be supplied on a “build to print” basis by Supplier, Supplier shall provide Buyer with either (i) the United States Munitions List (“USML”) category of such Goods, Software, Technology or Services that are controlled by the ITAR, or (ii) the Export Control Classification Number (“ECCN”) of such Goods,
      Software or Technology that are controlled by the EAR, to include the ECCN of parts and components if such classification differs from the ECCN of the Goods or Software. If Supplier is in the business of manufacturing, exporting or brokering USML items, Supplier represents that it maintains registration with the Directorate of Defense Trade Controls as may be required by 22 C.F.R. §§ 122.1 and/or 129.3 of the ITAR.
    3. Supplier shall not export, re-export, transfer, disclose or otherwise provide Buyer’s technical data controlled by Export Control Laws (“Technical Data”) to any foreign persons or foreign commercial entities unless Supplier receives advance, written authorization from Buyer. Any subcontracts between foreign persons in the approved
      country for manufacture of Goods or provision of Services shall contain all the limitations of this paragraph and shall comply with all applicable export licenses or authorizations. Upon completion of its performance under the Order, Supplier and its subcontractors shall destroy or return to the Buyer all Technical Data.
    4. Unless otherwise permitted under U.S. export regulations, only U.S. Persons as defined herein shall be permitted to work on Buyer’s Orders. The term “U.S. Person” means any natural person who is a lawful permanent resident as defined by 8 U.S.C. 1 101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, trust, society or any other entity or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity.
  24. INSURANCE
    1. Without limiting Supplier’s duty to hold harmless and indemnify hereunder, Supplier agrees to secure and to carry, as a minimum, the following insurance with respect to all work to be performed under the Order for the duration of the Agreement: (i) Workers’ Compensation Insurance in an amount sufficient by virtue of the laws of the U.S., foreign country or state in which the work or any portion of the work is performed and Employer’s Liability Insurance in the minimum amount of $1,000,000 for any one occurrence; (ii) Commercial General Liability Insurance including Premises Liability and contractual Liability, in which the limit of liability for property damage and bodily
      injuries, including accidental death, shall be at a minimum, a Combined Single Limit of $5,000,000 for any one occurrence; (iii) if Supplier vehicles are used on Buyer’s premises and/or used to accomplish work under the Order or otherwise on behalf of Buyer, Automobile Liability Insurance in which the limit of liability for property damage and
      bodily injuries, including accidental death, shall be a combined single limit of $1,000,000 for any one occurrence; (iv) if Supplier or its subcontractors have Buyer’s materials or equipment in its care, custody or control, Supplier shall have and maintain All-Risk Property Insurance in an amount sufficient to meet or exceed the value of such material; (v) if Supplier is performing Professional Services on behalf of Buyer, Supplier shall maintain Professional Liability Insurance with a limit of no less than $5,000,000.
    2. Supplier shall maintain Aircraft Product Liability, Completed Operations Liability and, if applicable to the Goods or Services, Hangarkeepers Liability Insurance coverage in a minimum amount of Combined Single Limit of $25,000,000 for any one occurrence. In the event Supplier carries higher limits of liability, the higher limits of liability must be certified to Buyer. Such insurance shall remain in effect for two (2) years after the expiration or termination of the Order.
    3. If required by the FAA by virtue of the Regulations, Buyer agrees to secure and to carry liability insurance in an amount required. Buyer agrees to add Supplier and its Contractors and subcontractors involved in Licensed activities as named insureds to this coverage herein.
    4. All such insurance shall be issued by companies that have an AM Best financial rating of A- or better or an equivalent rating as produced by another rating agency acceptable to Buyer. Supplier shall provide Buyer and any requesting government authority with a certificate of insurance evidencing that the required minimum coverage are in effect and that Buyer, its directors, officers, employees, agents and representatives are named as additional insureds, provide a waiver of subrogation clause in favor of the additional insureds, and provide that all coverage provided by the Supplier shall be primary. If Supplier fails to procure or maintain in force the insurance specified herein, Buyer may secure such insurance and the cost thereof shall be borne by Supplier. Supplier’s insurance hereunder shall operate independently and apart from any obligations imposed upon Supplier under the indemnity provisions herein.
  25. GOVERNING LAW
    1. The 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 ORDER EXCLUDES THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO ALL TRANSACTIONS RELATING TO THE ORDER.
    2. Any action or claim by Supplier with respect hereto shall also be brought in the appropriate court in the jurisdiction described above, if Buyer so elects. Accordingly, Supplier shall give written notice to Buyer of any such intended action or claim, including the intended venue thereof.
  26. TOXIC, HAZARDOUS, CARCINOGENIC SUBSTANCES AND MATERIALS OF CONCERN
    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.
    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:
      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.
  27. NEWS RELEASES/PUBLICITY
    1. Supplier shall not make or authorize any news release, advertisement, or other disclosure that relates to the Order or the relationship between Buyer and Supplier or makes use of Buyer’s name or logo, without the prior written consent of Buyer.
  28. ASSIGNMENT
    1. Any assignment by Supplier of the 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 Order.
  29. CHANGE IN CONTROL
    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 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.
  30. PARTIAL INVALIDITY/UNENFORCEABILITY
    1. If in any instance any provision of this Order shall be determined to be invalid or unenforceable under any applicable law, such provision shall be ineffective only to the extent of such prohibition or unenforceability. The remaining provisions shall be given effect in accordance with their terms.
  31. SURVIVAL
    1. All obligations, and duties hereunder, which by their nature or by their express terms extend beyond the expiration or termination of the Order, including but not limited to warranties, indemnifications and intellectual property (including rights to and protection of intellectual property and proprietary information) shall survive the expiration or termination of the Order.
  32. REMEDIES
    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 Order, or knowledge of past performance at variance with the Order, shall constitute a waiver by such Party of its rights hereunder.
  33. ORDER OF PRECEDENCE
    1. The order of precedence provision of an Agreement, if any, shall prevail over this Section.
    2. If there are any inconsistencies or conflicts in the provisions applicable to the Order, precedence shall be given in the following descending order: (i) the face sheets of the 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 Order is issued; and (iii) these Terms and Conditions.
  34. DISPUTE RESOLUTION
    1. Any dispute that arises under or is related to this Agreement that cannot be settled by mutual agreement of the Parties may be decided by a court of competent jurisdiction. Pending final resolution of any dispute, Suppliers shall proceed with performance of the Order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute.