PCA AEROSPACE, INC.
GENERAL TERMS AND CONDITIONS
FOR PURCHASE ORDERS
This Purchase Order constitutes the entire contract between the vendor or seller named on the face hereof (“Supplier”) and PCA Aerospace, Inc., (“Buyer”) covering the goods described in this Purchase Order (the “goods”). Supplier’s acceptance of this Purchase Order shall constitute Supplier’s agreement to the terms and conditions stated herein, without any modification, addition or alteration. Commencement of performance by Supplier or acknowledgement by Supplier of this Purchase Order shall constitute Supplier’s acceptance of these terms and conditions notwithstanding any contrary provisions appearing on any forms of Supplier. In the event of any inconsistency between the terms of Supplier’s form and the terms and conditions set forth below, the terms and conditions of this Purchase Order shall govern.
- PRICE: This Purchase Order shall not be filled at prices higher than specified herein. If price terms are omitted from the face hereof, the price of the goods shall be the lower of
(i) the price last quoted or paid (whichever is later), or (ii) the prevailing market price at the time of shipment, or time and material as expressly defined by the terms of the Purchase Order. Unless otherwise provided herein, prices set forth in this Purchase Order include all applicable federal, state and local taxes and duties or other charges. Buyer shall not be responsible for charges for packing, boxing, storage or cartage, unless expressly included on the face of this Purchase Order.
- TIME OF ESSENCE: Time is of the essence in the delivery by Supplier of goods specified in this Purchase Order. Failure of the Supplier to make delivery of goods or to provide services within the time specified on the face of the Purchase Order, or within any extension specified by written change Purchase Order, shall be a breach hereof.
- SHIPMENT: The terms and routing of the shipment of goods shall be as provided on the face hereof, or as Buyer otherwise directs. Buyer may revise shipping instructions as to any goods not then shipped.
- PAYMENT: The time period allowed for payment, as indicated on the face hereof, shall commence upon the latter of (i) receipt of Supplier’s invoice or (ii) upon receipt of the goods.
- TAX INSTRUCTIONS: The amount of present or future sales, revenue, excise or other taxes applicable to the products or services furnished hereunder shall be added to the purchase price and shall be paid by Buyer to Supplier, or in lieu thereof, Buyer shall provide Supplier with a tax exemption certificate applicable to the taxing authorities.
6. TERMINATION FOR CONVENIENCE: Whether or not the General Terms Agreement relates to a Government contract, Buyer may terminate the General Terms Agreement in whole or in part in accordance with the Termination Clause set forth in Federal Acquisition Regulation (FAR) 52.249-2 and the policies and principles set forth in Part 49 of the FAR, as in effect on the date of the General Terms Agreement, which are hereby incorporated herein by this reference, except that in FAR52.249-2: (1) the term “Contractor’’ shall mean “Seller’’, (2) the terms “Contracting Officer’’ and “Government’’ shall mean “Buyer’’, (3) the one-year period in Paragraph (e) is reduced to 60 days, and (4) the 90-day period in Paragraph (l) is reduced to 30 days. Failure of Seller to file such claim within such period shall constitute a waiver of such claim and will be the basis for a complete denial of the claim by Buyer. The provisions of this clause shall not limit or affect the rights or remedies of Buyer stated in other clauses of the General Terms Agreement, the Purchase Agreement or any Order or provided by law in the event of default or breach by Seller. The time frame for requesting an equitable adjustment is forty five (45) days.
7. SPECIFICATIONS: Supplier shall comply with any specifications stated on the face of this Purchase Order and with any applicable United States Government specifications. Upon request, Supplier shall provide Buyer with a certificate executed by an authorized representative of Supplier setting forth Supplier’s agreement to comply with all such applicable specifications.
8. INSPECTIONS: Supplier shall grant to Buyer (or customers of Buyer or any governmental regulatory agencies) quality control access to Supplier’s plant or manufacturing facilities, including the freedom to witness and audit all phases of fabrication, testing, and storage of the goods sold to the Buyer. Notwithstanding payment, passage of title or prior inspection, all products are subject to final acceptance or rejection by Buyer at the specified destination herein. If any goods are found to be defective or otherwise not in conformity with the requirements of this Purchase Order, Buyer may, in addition to its other rights and remedies, reject such goods and require their prompt correction or their replacement at Supplier’s expense, including shipping and packaging charges. Alternatively, Buyer may repair or replace such non-conforming goods at Supplier’s expense.
9. INSPECTION OF RECORDS AND PLANT: If this Purchase Order is a subcontract under a government prime contract, Supplier agrees that its books, records, and its plant, or other such parts of its plant as may be engaged in the performance of this Purchase Order, shall at all times be subject to inspection and audit by any authorized representative of any Department of the United States Government.
10. QUALITY SYSTEM: Seller shall establish and maintain a quality control system that ensures that the goods or services sold hereunder (i) are identifiable and traceable to the Order, (ii) conform to the specifications and requirements hereof, (iii) conform or meet applicable ISO-9000 or other like standards as specified by this Order, and (iv) comply with Buyer’s on-time delivery requirements.
11. AUDIT: Seller shall maintain, in accurate and complete order, all books and records (whether printed, electronic or other format) associated with work performed and charges invoiced to and paid by Buyer pursuant to this Order, and shall make such books and records available for inspection and audit by representatives of Buyer during reasonable business hours during the life of this order and for a period of three (3) years thereafter.
12. NON-ASSIGNMENT: Seller may not assign or delegate its own rights or obligations under this order without Buyer’s prior written consent, which consent may be refused at Buyer’s convenience.
13. INTELLECTUAL PROPERTY: Seller is solely responsible for the selection of the methods and process by which it carries out the work covered by this order. Seller will defend, indemnify and hold harmless Buyer against any claims, legal actions, demands, damages, expenses, costs or attorney’s fees incident to any infringement or claimed infringement of any patent, trademark, copyright or other intellectual property right in the manufacture, sale or sue of the products or services, as well as any components of the products or services, covered by this order or connected with the use thereof by Buyer. Notwithstanding the above, Buyer may be represented in any such legal actions or settlements of such claims by attorneys of its own selection at its own expense.
14. WARRANTY: Seller expressly warrants to Buyer and its customers (and their respective successors and assigns) that all products and services covered by this Order will strictly conform to the specifications, drawings, samples or descriptions furnished to or by Buyer, and will be merchantable, of good material and workmanship and free from defect. In addition, Seller acknowledges that Seller knows of the Buyer’s intended use and expressly warrants that all products covered by this Order which have been selected, designed, manufactured or assembled by or for Seller will be fit for the particular purposes intended by Buyer. If the foregoing warranty is breached, Purchaser may, at its election and in addition to any other rights or remedies it may have: (1) return such products to Seller, at Seller’s risk and expense, (ii) require Seller, at Seller’s expense, to promptly replace or correct such products, (iii) pending redelivery, require repayment of any amounts paid for returned products, (iv) effect cover by purchase or manufacture of similar products or repair such products at Seller’s expense or (v) accept or retain non-conforming products and equitably reduce their price.
15. REMEDIES: Seller shall defend, indemnify and hold harmless Buyer and its agents, employees and representatives (and their respective successors and assigns) from and against any and all claims, demands, actions, damages or causes of action, at law or in equity, together with any and all losses, costs, expenses or attorney’s fees arising in connection therewith or related thereto: (1) that are asserted by any party for damages to property, bodily injuries, diseases or death (including any workers’ compensation claims) arising or in any manner growing out of the use of the products or services covered by this Order by Buyer or its customers (and their respective successors and assigns) or (iii) any breach by Seller of its warranties, covenants, terms or conditions of this order. In addition to other remedies of Buyer, it may withhold amounts otherwise due to Seller, in such sums sufficient to compensate itself for any amount at any time that may be owed from Seller to Buyer in connection with this Order.
16. FORCE MAJEURE: In the event either parties performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facility, material or labor, delay in or lack of transportation, temporary or permanent plant shutdown, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirements of any governmental authority, or any cause beyond that party’s reasonable control, that party shall have such additional time within which to perform this order as may be reasonably necessary under the circumstances.
17. COMPLIANCE WITH LAWS: (a) Seller warrants that in the performance of work under the Order, it has complied with or will comply with all federal, state and local laws and ordinances and all lawful orders, rules and regulations thereunder, including, as applicable, all environmental laws and regulations, the Fair Labor Standards Act of 1938 as amended (29 U.S.C. Sec. 201-219), the Walsh-Healey Public Contracts Act as amended (41 U.S.C. Sec. 35-45) , Copeland Anti kickback Act (41 U.S.C. Sec. 51-54), Service Contracts Act of 1965 (41 U.S.C. Sec. 351), Davis-Bacon Act (40 U.S.C. Sec. 276(a)), Contract Work Hours and Safety Standards Act of 1962 (40 U.S.C. Sec. 3701-3708) as amended, Rehabilitation Act of 1973; the Vietnam Era Veterans Readjustment Assistant Act of 1974;Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651-678), Executive Orders 11246, 13201 and the regulations, orders, and rules issued thereunder; Equal Employment Opportunity Clause (41 C.F.R. Sec. 60-1.4); Equal Employment Opportunity Clause for Special Disabled Veterans and Veterans of the Vietnam Era (41 C.F.R. Sec. 60-250.4); and Equal Employment Opportunity Clause for Workers with Disabilities (60 C.F.R. 60-741.5). Seller shall indemnify and hold harmless Buyer from and against all losses, costs, fees and damages arising, directly or indirectly, from any actual or alleged failure by Seller to comply with any federal, state or local statutes or other legal obligations.
18. REMEDIES NOT EXCLUSIVE: In addition to all of its remedies provided herein, Buyer hereby reserves all additional rights and remedies provided by law or equity.
19. DEFAULT: (a) Buyer may terminate the General Terms Agreement, the Purchase Agreement or any Order in whole or from time to time in part in any of the following circumstances: (i) if Seller refuses or fails to deliver the items or any installment thereof or perform any service required by the General Terms Agreement, the Purchase Agreement or any Order strictly within the time specified herein or any extension thereof granted by Buyer in writing; (ii) the Seller fails to strictly comply with any other provision of the General Terms Agreement, the Purchase Agreement, or any Order, so fails to make progress as to endanger performance of the General Terms Agreement, the Purchase Agreement, or any Order in accordance with its terms, or repudiates the General Terms Agreement, the Purchase Agreement, or any Order; or (iii) if Seller suspends its business or becomes insolvent or subject to any law relating to bankruptcy, insolvency or relief of debtors. If Buyer requests assurance of performance, Seller shall provide same within seven (7) working days.
(b) In the event of such termination, Buyer may purchase or manufacture similar items without further payment and/or require Seller to transfer title and deliver to Buyer in the manner and to the extent directed by Buyer: (i) any completed items and (ii) such partially completed items and materials, parts, tools, dies, plans, drawings, contract rights and other property and technical data as Seller has produced, acquired or used in performance of the General Terms Agreement, the Purchase Agreement, or any Order. Buyer’s liability to Seller shall be limited to payment to Seller at the contract price for items delivered pursuant to (i) above (equitably reduced if they are nonconforming), and for items delivered pursuant to (ii) above, the smallest of: (a) its fair market value, (b) its cost to Seller, or (3) the appropriate amount the settlement would have been, had the cancellation been pursuant to Clause 6 hereof.
(c) Seller shall continue performance of any Order to the extent not terminated. Buyer’s rights as set forth herein are in addition to all other remedies provided in law or equity. If after notice of termination of the General Terms Agreement, the Purchase Agreement, or any Order under the provisions of this clause, it is determined that for any reason Seller was not in default, the rights and obligations of the Parties shall be the same as if the notice of termination had been issued pursuant to the convenience termination Clause 6 hereof.
20. CANCELLATION: Buyer may cancel this order, without liability to Seller, if any of the following event(s) occur; (i) insolvency of Seller; (ii) filing of a voluntary petition in bankruptcy by Seller; (iii) filing of any involuntary petition in bankruptcy against Seller; (iv) appointment of a receiver or trustee for Seller; (v) execution of an assignment for the benefit of creditors by Seller. Buyer reserves the right to cancel all or any part of this order, without liability to Seller, if Seller; (a) repudiates or breaches any terms of this order, including, but not limited to, Seller’s warranties; (b) fails to perform services or deliver products as specified by Buyer, or (c) fails to make progress so as to endanger timely and proper completion of services or delivery of products and Seller does not correct such failure or breach within three (3) days (or shorter period is commercially reasonable for the benefit of Buyer under the circumstances) after receipt of written notice from Buyer specifying such failure or breach. Notwithstanding the above, Purchaser may also terminate all or any part of this order for its own convenience as explained herein, in which case Seller shall be entitled to, an equitable amount not in excess of its verified direct costs reasonably expended or committed to third parties prior to the notice of termination (less salvage value and any other amounts recoverable by Seller). The payment required by the foregoing sentence shall constitute Buyer’s sole liability in the event of termination for Buyer’s convenience. Seller shall use best efforts to minimize any such costs. In no event shall Buyer be liable for lost or anticipated profits, unabsorbed indirect costs or overhead, or for any sum in excess of the total Order price.
21. BUYER SUPPLIED PROPERTY: Buyer makes no warranties of any nature with respect to any property it may furnish to Supplier hereunder.
22. APPLICABLE LAWS: This Purchase order (Order) and all terms and conditions thereof shall be deemed to be made in the State of California and shall in all respects be construed and governed by the laws of that State.
23. INSURED GOODS: Supplier (Seller) shall not insure the goods for Buyer’s account unless the terms of this Order so require.
24. Miscellaneous: Seller and Buyer are independent contracting parties and nothing in this order shall make either party the agent, partner, joint venturer or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. If any provision of this order shall be held illegal, invalid or unenforceable by any competent court in any relevant jurisdiction, such illegality or unenforceability shall not affect or impair or render illegal, invalid or unenforceable such provision in any other jurisdiction or any other provision of this order in any jurisdiction.