Terms and Conditions
Purchase Order Terms and Conditions
KENTCO Corporation, a Virginia corporation doing business as PROTEQ Purchase Order Terms and Conditions (hereinafter “Order T&Cs” or “Agreement”) is binding between ProteQ, a Commonwealth of Virginia company (referred to herein as “ProteQ” or “Buyer”) and the person or entity identified on a Purchase Order (“Order”) as the Seller. These Order T&Cs are incorporated into and made a part of any Order between Buyer and Seller.
REGARDLESS OF ANY TERMS AND CONDITIONS INCLUDED ON ANY QUOTE, SELLER PROVIDES THE PRODUCTS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS ORDER T&CS. UPON THE ISSUANCE OF PURCHASE ORDER FOR PRODUCT OR SERVICES, SELLER (A) ACCEPTS THE TERMS AND CONDITIONS OF THESE ORDER T&CS AND AGREES THAT THEY ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT SELLER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE ORDER T&CS AND BE BOUND BY THE TERMS OF THESE ORDER T&CS.
ALL ORDERS MUST BE IN WRITING AND ARE ACCEPTED SUBJECT TO THESE ORDER T&CS. NO TERMS OR CONDITIONS PUT FORWARD BY SELLER’S QUOTE OR OTHERWISE, WHICH ARE INCONSISTENT WITH THIS ORDER T&CS, SHALL BE BINDING ON BUYER UNLESS EXPRESSLY AGREED IN SEPARATE WRITING BY BUYER (A SIGNATURE ON A QUOTE AS ACCEPTING THE QUOTE SHALL ONLY REPRESENT BUYER’S ACCEPTANCE OF THE PRICE AND NOT AN ACCEPTANCE OF TERMS AND CONDITIONS INCLUDED WITH THE QUOTE). ACCEPTANCE OF ANY PURCHASE ORDER FOR PRODUCT OR SERVICES IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND, THE PURCHASE ORDER, AND ANY ADDITIONAL OR DIFFERENT TERMS ARE OBJECTED TO WITHOUT FURTHER NOTIFICATION BY BUYER AND SHALL NOT BE CONSIDERED AS PART OF THIS AGREEMENT.
NOTE THAT ANY OTHER TERMS ON A QUOTE WILL NOT BE ACCEPTED BY PROTEQ, NOR WILL THE INCLUSION OF THOSE TERMS CONTROL THE ORDER UNLESS PROTEQ HAS AGREED TO THOSE TERMS IN WRITING. THE MERE EXECUTION OF A PURCHASE ORDER DOES NOT REPRESENT SUCH A WRITING.
1. Definitions: For purposes of these Order T&Cs, the following terms have the following meanings:
“Affiliates” means, with respect to a Party, any other entity which directly or indirectly controls, is controlled by, or is under common control with such Party. For this purpose, “control” means the possession, directly or indirectly (through one or more intermediaries), of the power to direct or cause the direction of management and policies of any entity through ownership of voting securities, contract, voting trust or otherwise.
“Contract” means the full contract between the Parties to include an Order and these Order T&Cs, including any documents incorporated by express reference.
“Goods” means Seller Hardware, products, equipment, tooling, parts, supplies and other items supplied by Seller to Buyer as described in the Order.
“Order Term” shall mean the term that is on an Order.
“Party” or “Parties” refers to individually the Buyer or Seller, or collectively both of the Parties to these Order T&Cs as appropriate.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Seller” means the Person identified as the seller in the Order.
“Service(s)” means Seller’s time and effort, including any items, articles, data, or similar materials provided to Buyer which are incidental to the performance of the Service.
“Third Party Materials” means any hardware, equipment, components, accessories, software, content, data, or other materials, including related documentation, which are manufactured, produced, licensed, branded and/or provided by third parties and supplied by Seller to Buyer under an Order.
“Work” means all required labor, articles, materials, supplies, goods, and services constituting the subject matter of this Contract.
2. Prime Contract: This Order is Buyer’s offer to Seller and acceptance by Seller is expressly limited to the terms of these Order T&Cs T&Cs. Seller’s acceptance of Buyer’s offer must be by written acknowledgement. Any different or additional terms of Seller are hereby objected to and rejected by Buyer. In the event that an Order is for Software Product, Buyer must review and agree to the terms and conditions of the software end user agreement, if applicable, and the end user license will be added to the Order.
3. Payment: (a) Seller shall not charge Buyer more for the Goods and Services than Seller charges other customers for the same or similar goods or services. Unless otherwise agreed to in writing by Buyer, Buyer is not required to pay, and Seller shall not invoice Buyer, for any Goods until after they are received and accepted by Buyer or any Services until after they are completed by Seller and accepted by Buyer.
(b) Invoices: Seller shall submit an electronic invoice to email@example.com, with a copy to the Order Technical Point of Contact (if applicable) that includes, at a minimum: (a) name and address of the Seller; (b) invoice date and number; (c) Buyer Order (Task Order or Purchase Order) number; (d) description of Goods delivered and/or Services rendered, including amount and extended quantities. Buyer shall make payment after receipt of Seller’s proper invoice within sixty (60) days after Buyer’s receipt of Seller’s proper invoice. Buyer may withhold payment, in whole or in part, if any Goods or Services are non-conforming or incomplete. The invoices shall also contain the following statement dated and signed by an authorized company representative:
“This is to certify that to the best of my knowledge the above invoice is accurate, the goods were delivered or the services set forth herein were performed during the period stated and is in accordance with the specifications and all of the Order’s terms and conditions, that payment therefore has not been received, and that this invoice is presented with the knowledge that the amount paid hereunder may become submitted to a U.S. Government Customer.”
(c) Payment by Buyer shall not constitute any agreement by Buyer that Goods or Services are conforming to the requirements of the Order or waive any rights or claims of Buyer with respect to non-conforming or incomplete Goods or Services. Unless otherwise specified on the face hereof, the price of the Goods and Services includes all shipping charges and packaging. Unless otherwise specified, prices include all applicable federal, state and local taxes, duties, tariffs, and similar fees imposed by any government. Prices shall not include any taxes, impositions, charges or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption. Payment will be in United States dollars unless otherwise agreed to by specific reference in these Order T&Cs. Personal property taxes assessable upon the Goods prior to the receipt by Buyer shall be borne by Seller. 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. Payment shall be deemed to have been made as of the date of mailing Buyer’s payment or electronic funds transfer.
(d) Set-Off. Buyer may set-off against amounts payable to Seller under these Order T&Cs any amounts arising out of or related to a claim or charge Buyer may have against Seller.
(e) Final Payment. Seller shall submit a final invoice after all goods and/or services are complete for an Order. The invoice will state that it is a “Final Payment” and include the following statement:
“Upon receipt of the payment for this invoice, Buyer shall have no more obligation to pay any sums to Seller and the payment represents a full release for all of Buyer’s obligations to Seller for Order number ___.”
Notwithstanding the foregoing, Seller agrees to provide any documentation required by Buyer to its Customer to close out its Prime Contract task order/subcontract.
4. Delivery. All deliveries are to be made in quantities and at times specified in the Order. Delivery shall occur at the place and in the manner indicated on the face of these Order T&Cs. If, at any time, Seller believes it may be unable to meet the delivery schedule, Seller shall immediately notify Buyer in writing of the anticipated delay and the reasons for it. In the event of such notification or of an actual failure by Seller to comply with the delivery or completion schedules, Buyer may, in addition to all the other remedies, require Seller, at Seller’s expense, to ship Goods via air freight or expedited routing to avoid or minimize delay or cancel the Order with no penalties or costs to Buyer. If Seller delivers the Goods late, then Buyer reserves the right to charge Seller damages that result from the late delivery, including, but not limited to, any costs Buyer incurs as a result of any late delivery to its customers.
5. Inspection, Acceptance and Rejection.
(a) All Goods to be delivered and Services to be performed hereunder shall be subject to Buyer’s inspection, surveillance and test at all times and places, including the period and place of manufacture or performance.
(b) All Goods to be delivered shall be subject to final inspection, test and acceptance by Buyer at destination, notwithstanding any payment or inspection or source. Buyer shall accept or give notice of rejection of Goods delivered and Services performed within ninety (90) days after receipt of such Goods or completion of such Services. No inspection of Goods or Work by Buyer prior to acceptance shall release Seller of its responsibility for any nonconformity. Acceptance by Buyer shall not waive any rights that Buyer might otherwise have at law or by express reservation in this contract with respect to any nonconformity.
(c) Any tender of Goods or Services which is nonconforming shall be deemed to impair substantially the value of an Order as a whole to Buyer. In the event of a nonconforming tender, Buyer shall be entitled to all remedies as provided by law, and in addition thereto shall have the right to do any or all of the following: hold nonconforming Goods for a reasonable period pending a determination to accept or reject any or all thereof, return nonconforming Goods to Seller for replacement or correction as Buyer may elect, accept nonconforming Goods and Services subject to an equitable price reduction, replace or correct nonconforming Goods and Services and charge to Seller the cost occasioned to Buyer, require Seller to correct nonconforming Services at no increase in the price of an Order, recover by offset or otherwise any and all expenses, costs, price reductions and damages paid, incurred, or suffered by Buyer as a result of such holding, return, replacement, correction, reductions, or rejections of nonconforming Goods and Services, and/or terminate an Order as provided in Article 9 hereof. The rights and remedies of Buyer herein are cumulative and are in addition to any other rights or remedies that Buyer may have at law or in equity.
6. Changes: (a) Unilateral: The Buyer may unilaterally change by a written modification (“Change Order”) to an Order (i) shipment or packing methods or (ii) place of delivery, inspection or acceptance.
(b) Bilateral: The Parties may by a written Change Order to an Order change: (i) technical requirements; (ii) reasonable adjustments in quantities, delivery schedules or both; (iii) amount of Buyer–furnished property (if any); (iv) time of performance; (v) place of performance; or (vi) terms and conditions of these Order T&Cs required to meet Buyer’s obligations under Buyer’s Prime Contract.
(c) Out of Scope: When in the opinion of the Seller, direction is provided that is outside the scope of a particular Order, the Seller shall notify Buyer in writing within 5 days, and no action shall be taken by Seller until directed to do so by a written Change Order from Buyer.
(d) Changed conditions/Force Majeure Events: In the event that Seller experiences changed conditions or a Force Majeure event, as defined in Article 23, Seller shall notify Buyer of any delay in performance or an increase in cost/price within 15 days of such changed conditions or force majeure event. So long as Seller provides such notice within the prescribed period, Seller shall also be entitled to submit a Request for Equitable Adjustment in accordance with paragraph (e), below.
(e) Request for Equitable Adjustment: If any such Change Order or Changed Condition/Force Majeure Event causes an increase or decrease in the price or in the time required for its performance, Seller shall promptly notify Buyer thereof within 15 days of any such change and assert its claim for equitable adjustment within thirty (30) days after a change occurs/is ordered, and an equitable adjustment shall be negotiated. 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 Change Order.
7. Confidentiality. (a) In the event that the Parties have signed a Non-Disclosure Agreement, the Non-Disclosure Agreement shall be incorporated herein by reference.
(b) If there is no Non-Disclosure Agreement executed between the Parties, then the following shall apply:
(i) Definition. Proprietary Information is defined as any information disclosed by one Party (the “Disclosing Party”) under these Order T&Cs, whether in writing, orally, in the form of samples, equipment, models, visually or otherwise to the other Party (the “Receiving Party”), provided that such written information is clearly and conspicuously marked as proprietary or commercially sensitive and that such oral, visual or other non-written information is designated proprietary or commercially sensitive at the time of disclosure. Any information that is marked “Limited Rights,” “Restricted Rights,” “Government Purpose Rights,” or with any Controlled Unclassified Information (“CUI”) marking, shall also be considered to be Proprietary Information. Proprietary Information includes, but is not limited to, performance, sales, financial, contractual, and special marketing information, ideas, technical data, trade secrets, software, source code, specifications, and concepts not previously published or otherwise disclosed to the general public, not previously available to the Receiving Party or others without restriction, not normally furnished to others without compensation, and which the Disclosing Party desires to protect against unrestricted disclosure or competitive use, and which is furnished pursuant to these Order T&Cs.
(ii.) Both Parties agree to maintain in confidence those materials and information either Party has designated as being confidential or proprietary information in accordance with the above definition.
(iii) In addition to the foregoing definition of Proprietary Information, it is hereby expressly agreed that any and all information which can be obtained by examination (other than simple visual inspection), testing or analysis of any samples, hardware or component parts thereof provided solely for evaluation or testing purposes by the Disclosing Party to the other, shall be regarded and treated by that Receiving Party as Proprietary Information and the requirements of this Article shall apply.
8. Counterfeit Parts.
(a) The following definitions apply to this clause: “Counterfeit Work” means Work that is or contains unlawful or unauthorized reproductions, substitutions, or alterations that have been knowingly mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified part from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitution includes used Work represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics. “Suspect Counterfeit Work” means Work for which credible evidence (including, but not limited to, visual inspection or testing) provides reasonable doubt that the Work part is authentic.
(b) SELLER shall not deliver Counterfeit Work or Suspect Counterfeit Work to Buyer under these Order T&Cs T&CS.
(c) SELLER shall only purchase products to be delivered or incorporated as Work to Buyer directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. SELLER may use another source only if:
(i) the foregoing sources are unavailable,
(ii) SELLER’s inspection and other counterfeit risk mitigation processes will be employed to ensure the authenticity of the Work, and
(iii) SELLER obtains the advance written approval of Buyer.
(d) SELLER shall maintain counterfeit risk mitigation processes in accordance with industry recognized standards and with any other specific requirements identified in these Order T&Cs T&CS.
(e) SELLER shall immediately notify Buyer with the pertinent facts if SELLER becomes aware that it has delivered Counterfeit Work or Suspect Counterfeit Work. When requested by Buyer, SELLER shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM. SELLER, at its expense, shall provide reasonable cooperation to Buyer in conducting any investigation regarding the delivery of Counterfeit Work or Suspect Counterfeit Work under these Order T&Cs T&CS.
(f) This clause applies in addition to and is not altered, changed, or superseded by any quality provision, specification, statement of work, regulatory flow down, or other provision included in these Order T&Cs T&CS addressing the authenticity of Work.
(g) In the event that Work delivered under these Order T&Cs T&CS constitutes or includes Counterfeit Work, SELLER shall, at its expense, promptly replace such Counterfeit Work with genuine OCM/OEM Work conforming to the requirements of these Order T&Cs T&CS. Notwithstanding any other provision in these Order T&Cs T&CS, SELLER shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation Buyer’s costs of removing Counterfeit Work, of installing replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged. The remedies contained in this paragraph are in addition to any remedies Buyer may have at law, equity or under other provisions of these Order T&Cs T&CS.
(h) SELLER shall include paragraphs (A) through (F) and this paragraph (H) of this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to Buyer
(a) Seller warrants that all Goods and Services furnished will conform to the requirements of an Order, to be fit for their intended purposes, and free from all defects in materials and workmanship.
(b) In addition to its other remedies, Buyer may, at Seller’s expense, require prompt correction or replacement of any Goods and Services failing to meet Seller’s warranties herein. Should Seller fail to provide prompt correction or replacement, Buyer may, upon notice to Seller, undertake either correction or replacement, as Buyer determines, and offset the costs of said work against monies owed Seller under this or any other contract with Seller.
10. Termination for Default. Buyer may, by written Notice of default to Seller, terminate an Order in whole or in part if the Seller fails to: (i) deliver the Goods or to perform the Services within the time specified in an Order or any extension; (ii) make progress, so as to endanger performance of any Order hereunder; or, (iii) perform any of the other material provisions of these Order T&Cs.
(a) 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 (the “Materials”) as Seller has produced or acquired for the performance of these Order T&Cs, including the assignment to Buyer of Seller’s subcontracts. 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 Order price. Payment for unfinished Goods, which have been delivered to and accepted by Buyer and for the protection 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 or Materials.
(b) 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 these Order T&Cs. The rights and remedies of Buyer in this clause are in addition to any other rights and remedies provided by law or under these Order T&Cs.
(c) 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 permitted by these Order T&Cs or law, whether or not repurchase is affected.
11. Termination for Convenience. (a) Buyer reserves the right to terminate these Order T&Cs, or any part hereof, for its sole convenience. Buyer may, by Notice in writing, direct Seller to terminate Work under these Order T&Cs in whole or in part, at any time, and such termination shall not constitute a breach of the Order. 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.
(b) Buyer may take immediate possession of all Work so performed upon Notice of termination. In the event of such termination, Seller shall immediately stop all Work hereunder and shall immediately cause any and all of its lower-tier sellers to cease Work and take commercially reasonable steps to mitigate costs. Seller shall not be paid for any Work performed or costs incurred which reasonably could have been avoided after Notice of termination.
(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 Order.
12. Indemnity. (a) Seller agrees to indemnify, defend and hold Buyer (and its officers, employees, and agents) and its Customers harmless from and against any and all claims, demands, suits, actions, damages, judgments, penalties, fines, liabilities, settlements, losses, costs and expenses (including reasonable legal and professional fees and expenses), arising from any actual, alleged or threatened third-party claims relating to (i) any infringement, misappropriation or violation on the part of Seller’s Goods or Services of any third party’s patent, copyright, trade secret, mask work, trademark, trademark rights or any other intellectual property right; (ii) personal injury or property damage caused by the Goods or Services; (iii) defects in the Goods or Services which amount to a breach of Seller’s warranties in the applicable Attachment 1; (iv) breach of any material clause herein; or (v) as a result of any negligent or reckless act or willful misconduct of the Seller.
(b) Seller agrees to indemnify and hold Buyer harmless to the full extent of any price or cost reduction effected by Customer, which may result from (i) the cost or pricing data submitted by Seller or its lower-tier sellers, which is not accurate, current, or complete as of the date submitted or certified by Seller; or (ii) the failure by Seller or its lower-tier sellers to disclose and consistently follow applicable cost accounting practices and standards or otherwise comply with pertinent sections of the FAR, the applicable agency supplements thereto, if any, and regulations promulgated by the Cost Accounting Standards Board. Sellers’ liability to Buyer under these Order T&Cs shall be limited to the amount Customer determines Seller’s price to have been increased because of such defective cost or pricing data.
(c) Buyer agrees to indemnify, defend and hold Seller (and its officers, employees, and agents) harmless from and against any and all claims, demands, suits, actions, damages, judgments, penalties, fines, liabilities, settlements, losses, costs and expenses (including reasonable legal and professional fees and expenses), arising from any actual, alleged or threatened third-party claims relating to (i) breach of any material clause herein; or (ii) as a result of any negligent or reckless act or willful misconduct of the Buyer.
(d) The indemnifying Party shall promptly notify the indemnified Party of any claim, demand or action that is covered by this indemnification provision and shall authorize representatives of the indemnifying Party, at the indemnifying Party’s sole cost and expense, to settle or defend any such claim, demand or action and to represent the indemnified Party in, or to take charge of, any litigation in connection therewith. Notwithstanding the foregoing, the indemnified Party will not settle any claims in which any liability or fault is attributed to the indemnified Party without the indemnified Party’s express written consent, which shall not be unreasonably withheld.
13. Limitation of Liability. (a) IN NO EVENT SHALL EITHER PARTY 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 THE PERFORMANCE UNDER THIS SUBCONTRACT, 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 SUBCONTRACT, SAID PROVISION(S) SHALL BE REGARDED AS AMENDED TO WHATEVER EXTENT REQUIRED TO MAKE SUCH PROVISION(S) CONSISTENT WITH THIS PROVISION.
(b) IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR THE PERFORMANCE OR BREACH OF THE CONTRACT OR ANYTHING DONE IN CONNECTION THEREWITH EXCEED THE TOTAL VALUE OF THIS SUBCONTRACT. NOTWITHSTANDING ANYTHING ELSE IN THE SUBCONTRACT TO THE CONTRARY, THE STATED MONETARY LIMITATION HEREINABOVE IS THE MAXIMUM LIABILITY BUYER HAS TO THE SELLER.
(c) The foregoing limitations do not apply to any indemnification obligations of a Party pursuant to paragraph 14. Indemnity and Insurance. Nor do the foregoing limitations act as a limitation in the event that a particular cause of action is covered by the insurance provisions.
14. Indemnity And Insurance.
(a) Seller shall indemnify, defend and save harmless Buyer from any and all claims, losses, damages, expenses, suits or actions whatsoever brought by any person or persons for, or as the result of, any personal injury, including accidental and wrongful death, suffered by any employee of Seller, or any employee of any of Seller’s subcontractors, agents or suppliers, while the said employee was in, or within the vicinity of, a Buyer facility or which may arise or result from Seller’s operations or work performed at a Buyer facility.
(b) Seller agrees to indemnify and hold harmless Buyer against any expense, loss, or liability for any actual or alleged infringement of any patent, trademark or copyright arising from or related to the use, sale, manufacture or disposal of Goods provided hereunder, except to the extent they are manufactured in accordance with designs or drawings provided by Buyer hereunder.
(c) If the Order is over $25,000, then the following shall apply:
(1) Seller shall maintain the following insurance in at least the minimum amounts stated herein. Seller shall also maintain, and Seller shall cause its lower tier sellers 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 or as required by law in the state where performance occurs. Upon request by Buyer, Seller shall provide certificates of insurance evidencing limits of not less than the following:
(i) Commercial General Liability: $3,000,000 combined single limit per occurrence (including products/completed operations and contractual liability coverage).
(ii) Employer’s Liability: Coverage for injuries to employees not covered by workers’ compensation with limits of at least $1,000,000 each accident, $1,000,000 each employee by disease, and $1,000,000 policy limit by disease.
(iii) Workers Compensation: Seller shall obtain and maintain Workers’ Compensation Insurance (including Employer’s Liability Insurance in amounts of no less than $1,000,000 per occurrence, $1,000,000 aggregate minimum) so as to provide statutory benefits as required by the laws of the state in which the work is performed. 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 for 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 statute. In addition, the policy shall be endorsed to waive the insurer’s rights of subrogation in favor of Buyer.
(iv) Automobile Liability: $3,000,000 combined single limit per accident.
(v) All-Risk Property Insurance: Coverage to repair or replace property, including supplies covered by this Subcontract, of Buyer and/or Customer, which may be in the possession or control of Seller. Buyer shall be named as a Loss Payee with respect to loss or damage to said property and/or supplies furnished by Buyer. Further, Seller assumes the risk of loss or destruction of or damage to any of its property and its employees’ property, whether owned, hired, rented, borrowed, or otherwise.
(2) The required insurance coverages above, except for Workers Compensation shall name Buyer as an Additional Insured and shall also be primary and non-contributing with respect to any other insurance that may be maintained by Buyer and notwithstanding any provision contained herein, Seller, and its employees, agents, representatives, consultants, lower-tier sellers/suppliers, are not insured by Buyer, and are not covered under any policy of insurance that Buyer has obtained or has in place. Seller shall, upon request, provide a Certificate of Insurance showing that Buyer is named as an Additional Insured.
(3) Any self-insured retentions, deductibles and exclusions in coverage in the policies required under this Article shall be assumed by, for the account of, and at the sole risk of Seller or the lower-tier seller, which provides the insurance and to the extent applicable shall be paid by Seller or such lower-tier seller. In no event shall the liability of Seller or any lower-tier seller be limited to the extent of any of insurance or the minimum limits required herein.
15. Compliance with Laws. (a) Seller shall comply with all applicable laws concerning the materials content and the manufacture and distribution of Goods and performance of Services, and shall ensure that its activities in performance of these Order T&Cs shall not cause Buyer to be in violation of any laws, including without limitation applicable import or export laws, packaging regulations, social responsibility code of conduct requirements, and any applicable supply chain security guidelines of the countries in which Buyer conducts business. Seller agrees to not discriminate in any manner against employees or applicants for employment on the basis of race, color, religion, creed, age, sex, handicap, or national origin, and will take affirmative action to prevent such discrimination.
(b) Seller, its employees, agents, and lower-tier sellers (when permitted) shall not (i) disclose any information or technology, (ii) provide any goods, or (iii) provide any services, where such information, technology, goods, or services were created or received under, or otherwise related to, these Order T&Cs, in any manner contrary to the laws and regulations of any country with jurisdiction or of the United States of America or any agency thereof, including but not limited to, the Export Administration Regulations (“EAR”) of the United States Department of Commerce, the International Traffic in Arms Regulations (“ITAR”) of the United States Department of State, the trade embargos regulated by the United States Department of the Treasury Office of Foreign Assets Control, and the National Industrial Security Program Operating Manual (“NISPOM”) of the Department of Defense (DoD 5220.22-M). Seller further agrees that any person performing work on behalf of Seller under these Order T&Cs shall be a United States citizen or lawful permanent resident (i.e., Green Card holder). Seller also agrees that any exception to this provision will require the prior written consent of Buyer.
(c) Seller shall ensure that none of its officers, directors, employees, agents, contractors, lower-tier sellers, or other related entities provide to Buyer any information that the disclosure or receipt of which would violate the Procurement Integrity Act, 41 U.S.C. § 423, as amended from time to time. This includes third-party contractor bid or proposal information and source selection information, as those terms are defined in the Procurement Integrity Act and the Federal Acquisition Regulations.
(d) Seller agrees to indemnify and hold Buyer harmless for any damages, losses, obligations, liabilities, claims, deficiencies, costs, and expenses that may result from the Seller’s failure to comply with the requirements of this Article 17.
16. Standards of Business Ethics and Conduct. Buyer and Seller each agree to conduct its business fairly, impartially, and in an ethical and proper manner. See Federal Acquisition Regulation (“FAR”) Parts 3 and 9 for reference and applicability.
17. Export Control and Compliance. (a) Seller shall control the dissemination of and access to technical data, information and other items received under these Order T&Cs in accordance with U.S. export control laws and regulations. If an Order under these Order T&Cs involves the delivery of products, software, technical data or services subject to United States export control laws and regulations, Seller shall comply with all applicable U.S. export and re-export control laws and regulations and any local government export regulations.
(b) Where Seller holds an export license or export agreement (e.g. TAA, MLA), Seller shall provide prompt notification to the Buyer in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect the Seller’s performance under these Order T&Cs.
18. Suspended or Debarred. No Goods or Services shall be eligible for payment under these Order T&Cs if provided by an entity included on any list of suspended, debarred, or ineligible bidders as maintained by agencies of the United States Government.
19. Foreign Corrupt Practices Act. Seller shall: (i) comply with the requirements of the Foreign Corrupt Practices Act, as amended, (“FCPA”) (15 U.S.C. §§78dd-1, et. seq.), regardless of whether Seller is within the jurisdiction of the United States; (ii) neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value to a non-U.S. public official or any person in violation of the FCPA and/or 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 Buyer. Seller’s failure to comply with the entirety of this Article shall be immediate cause for default. Seller further agrees to indemnify and defend Buyer for any penalties, fines, or other regulatory action taken against Buyer as a result of the Seller’s non-compliance with this provision.
20. Conflict of Interest. It is understood and agreed that the Seller, under the terms of these Order T&Cs, or through the performance of these Order T&Cs, is neither obligated nor expected to deliver or provide Goods or perform Services, which will place the Seller or Buyer in an Organizational Conflict of Interest (“OCI”), which could serve as a basis for excluding the Buyer from supplying Goods or Services to the Buyer’s U.S. 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 these Order T&Cs.
21. Governing Law and Dispute Resolution. (a) Governing Law: Except for FAR or other Agency flowdown provisions incorporated herein, these Order T&Cs, including any disputes related thereto, shall be interpreted and enforced pursuant to the laws of the Commonwealth of Virginia, without regard to conflicts of laws principles thereof. Any provision of the FAR or DFARS (or other Agency regulation) that is included in full text or expressly incorporated herein by reference shall be governed by and construed in accordance with the federal common law of government contracts as enunciated and applied by federal judicial bodies, Boards of Contract Appeals, and quasi-judicial agencies of the federal Government and not any state law or the Convention on Contracts for the International Sale of Goods.
(b) Dispute Resolution: Any dispute arising under these Order T&Cs which is not settled by agreement of the Parties following a good faith effort to resolve such dispute by negotiations or discussions between managers at the appropriate level of either side, and after exploring various alternate dispute resolution options, shall be resolved by appropriate legal proceedings brought in a Federal or State court of competent jurisdiction. Notwithstanding the Parties’ desire to resolve disputes through negotiation or other form of alternate dispute resolution, in the event that immediate action is required to protect a Party’s rights under the Order, the aggrieved Party may take whatever immediate action is appropriate to protect its rights, to include, but not be limited to injunctive relief. Nothing contained in these Order T&Cs or in any other document related hereto is intended to or shall have the effect of requiring either Party hereto to consider, resort to, participate in, or abide by any binding arbitration process or mechanism, or any device or arrangement of a nature or intent similar to binding arbitration.
(c) Service of Process may be made by “in-Person,” by Registered Mail or by any other commercial mail service such as Fed Ex or UPS that provides proof of receipt by a Person to the address on the Order.
(d) If the dispute or cause of action arises as a result of Customer action or inaction, the following provisions, both (i) and (ii), shall apply:
(1) Notwithstanding any provision herein to the contrary, if a decision relating to the Contract made by Customer’s Contracting Officer is also related to an Order issued under these Order T&Cs, then said decision, if binding upon Buyer under Buyer’s Prime Contract, shall in turn be binding upon Buyer and Seller with respect to these Order T&Cs and such Order. However, if Seller disagrees with any such decision made by the Contracting Officer, and if Buyer elects not to appeal such decision or to bring suit in a Court or Board of competent jurisdiction in accordance with the Contract Disputes Act of 1978 (“CDA”), then Seller shall have the right reserved to Buyer (or Buyer’s Prime Contractor) under the Prime Contract to prosecute an appeal or bring suit in the name of Buyer. If Buyer elects not to appeal or bring suit, then Buyer agrees to notify Seller within twenty (20) days after receipt of such decision and to assist Seller in its prosecution of the appeal or suit in a commercially reasonable manner at Seller’s expense. If Buyer elects to appeal or bring suit, then Seller agrees to assist Buyer in a commercially reasonable manner, and Buyer agrees to permit Seller to fully participate in that portion of the appeal or suit relating solely to Seller’s interests and to promptly furnish Seller with a copy of any decision. Any decision upon an appeal to the Court or Board, if binding upon Buyer, shall in turn be binding upon Buyer and Seller, except that, if Seller disagrees with the decision of a Court or Board, then Seller shall have the right to further appeal in the name of Buyer to the appropriate tribunal, as provided in the CDA.
(2) Seller agrees to indemnify and hold Buyer harmless for all amounts relating solely to Seller’s interest finally determined to be due to Customer arising out of any claim made by Seller under the CDA.
(e) Miscellaneous: Pending final resolution of a dispute hereunder, Seller shall proceed diligently with the performance of these Order T&Cs 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. In no event shall the Seller acquire any direct claim or direct course of action against the United States Government.
22. Force Majeure. The following events, and only the following events, shall constitute force majeure under these Order T&Cs: (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.
23. Notice of Delay. Whenever Seller has knowledge that any actual or potential problem or other cause is delaying or threatens to delay the timely performance of an Order, Seller shall immediately give notice thereof to Buyer and shall notify Buyer of any material changes in the information required hereunder.
24. Property. (a) All Seller-acquired or Buyer-provided Government property associated with work conducted under these Order T&Cs or Orders issued hereunder shall be received, inspected, identified, held, inventoried, processed, and reported as required by FAR Part 45, Government Property.
(b) If Buyer is providing Seller with Government property, it shall be listed in the associated Order.
(c) If any property or information the title to which is with ProteQ, ProteQ’s Prime Contractor or the Government, is furnished to the Seller at any time during the term of these Order T&Cs, the Seller assumes the risk of and shall be responsible for any loss thereof or damage thereto. Seller, in accordance with the provisions of these Order T&Cs, but in any event upon completion thereof, shall return such property/ information to ProteQ or the Government in the condition in which it was received except for reasonable wear and tear and except to the extent that such property/information has been incorporated into items delivered under these Order T&Cs, or has been consumed in performance of work under these Order T&Cs.
25. Audit Rights. Buyer reserves the right for itself, and its Customer(s), to audit Seller’s records to assure compliance with the terms of these Order T&Cs. Seller shall make available all data reasonably requested by Buyer and/or Buyer’s agents or representatives.
26. Flowdown Of Federal Acquisition Regulation And Defense Acquisition Regulation Supplement Clauses.
(a) In the event that this is an Order for a U.S. Government contract (which will be so noted on the Order), and the Goods are Commercial Off the Shelf (“COTS”), then the following Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”) shall apply.
The FAR and DFARS clauses are incorporated by reference into these Order T&Cs, with the same force and effect as if they were given in full text, and are applicable, including any notes following the clause citation, during the performance of an Order between Buyer and Seller unless made inapplicable by their respective notes, if any.
Where necessary to make the context of these clauses applicable to an Order, the term “Contractor” shall mean “Seller”, the term “Contract” shall mean the “Order”, and the terms “Government”, “Contracting Officer”, and equivalent phrases shall include “Buyer”.
All referenced FAR and DFARS paragraph numbers refer to current paragraphs and revisions in effect as of the date of the Government prime contract referenced in this Purchase Contract, or are revised versions published by the U.S. Government. Copies of FAR and DFARS may be obtained on the internet at https://www.acquisition.gov/.
(1) FAR Clauses
Prohibition on Contracting for Hardware, Software, and Services Developed orProvided by Kaspersky Lab and Other Covered Entities
Prohibition on Contracting for Certain Telecommunications and VideoSurveillance Services or Equipment.
Prohibition on a ByteDance Covered Application
Prohibition of Segregated Facilities.
Equal Opportunity for Veterans (over $150,000).
Equal Opportunity for Workers with Disabilities (over $15,000).
Employment Reports on Veterans (over $150,000).
Notification of Employee Rights Under the National Labor Relations Act (over$10,000).
Combating Trafficking in Persons.
(2) DFARS Clauses
Requirement to Inform Employees of Whistleblower Rights.
Safeguarding Covered Defense Information and Cyber Incident Reporting (onlyif Seller will have access to CUI).
Prohibition on the Acquisition of Covered Defense TelecommunicationsEquipment or Services.
Prohibition on Acquisition of Certain Items from Communist Chinese MilitaryCompanies (applicable if the item is on the U.S. Munitions List or the 600 seriesof the Commerce Control List
Restriction on Acquisition of Specialty Metals (as modified in para. (e)).
Utilization of Indian Organizations, Indian-Owned Economic Enterprises, andNative Hawaiian Small Business Concerns (over $500,000).
(b) If the Order is a “rated order” as the term is defined in FAR 11.602, then the rating shall be noted on the Order and FAR 52.211-15 Defense Priority and Allocation Requirements will apply.
(c) In the event that this is an Order for a U.S. Government contract (which will be so noted on the Purchase Order) and the Goods or Services are other than COTS Goods, then a separate attachment will be included with the Purchase Order that will list the applicable FAR, DFARS or other Agency clauses. The title of the attachment will be “Attachment A, FAR and DFARS or Other Agency/Contract Flowdowns.”
27. Changes To Seller’s Products Or Processes. In the event that Seller changes any products or processes to manufacture products delivered pursuant to an Order, Seller shall notify Buyer within fifteen (15) days of such change. In the event that Seller fails to make such notification and it is subsequently determined that such change caused Buyer to experience failures or to incur additional costs, then Seller shall be liable to Buyer for all additional costs. This limitation shall not apply to Seller’s ordinary purchases of standard commercial supplies of raw materials actually retained by Buyer, less the amount of any diminution of value due to the change.
(a) Survival: All of the provisions of these Order T&Cs shall survive the termination (whether for convenience or default), suspension or completion of these Order T&Cs unless they are clearly intended to apply only during the term of these Order T&Cs.
(b) Assignment: Seller shall not assign its rights or obligations under these Order T&Cs without the advance written consent of Buyer. Buyer may assign its rights under these Order T&Cs to a subsidiary or Affiliate upon written notice to Seller. Notwithstanding the above, Seller may, without Buyer’s consent, assign moneys due or to become due hereunder provided Buyer continues to have the right to exercise any and all of its rights hereunder, settle any and all claims arising out of, and enter into amendments to the Order without notice to or consent of the assignee. Buyer shall be given prompt notice of any assignment. Amounts so assigned shall continue to be subject to any of Buyer’s rights to set-off or recoupment under these Order T&Cs or at law.
(c) Severability. Each Article, paragraph and subparagraph of these Order T&Cs is severable, and if one or more of them are declared invalid, the remaining provisions of these Order T&Cs will remain in full force and effect.
(d) Waiver: Buyer’s failure to insist on the performance of any term, condition or instruction, or failure to exercise any right or privilege or its waiver of any breach, will not thereafter waive any such term, condition, instruction, right or privilege.
(e) Headings: All headings in these Order T&Cs are for the convenience of reference only and shall not be used in the interpretation of any of the provisions of these Order T&Cs.
(f) Order Closeout: Closeout documentation shall be submitted to Buyer at the completion of the period of performance or upon the termination of an Order.
(g) Ambiguities: Trade custom and trade usage are superseded by these Order T&Cs and shall not be applicable in the interpretation of these Order T&Cs. In the event of any ambiguities, express conflicts or discrepancies in the specifications, drawings or other documents and any supplemental terms which are a part of these Order T&Cs, Seller shall immediately submit the matter to Buyer for its determination and shall comply with the determination of Buyer in such matter.
(h) Entire Agreement: These Order T&Cs are the terms and conditions that shall govern any and all Orders issued by ProteQ to Seller. With the exception of any Non-Disclosure Agreement that may be signed between ProteQ and Seller, these Order T&Cs, and subsequently issued Orders, including any documents incorporated by reference, are intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the Order. Upon Seller’s acceptance, the Order, including these Order T&Cs and the Orders issued hereunder, shall be the complete and exclusive statement of the terms of the resulting Contract. Any different or additional terms of Seller are hereby objected to and rejected by ProteQ.
(i) Additional Warranty: Seller warrants that, Seller, its affiliates and agents have not and will not pay, offer or promise to pay, or authorize the payment, directly or indirectly, of any money or anything of value to any government official, government employee, political party or candidate for political office for the purpose of influencing any act or decision of such person or of the government to obtain or retain business, or direct business to any person or business. Seller further warrants it, its affiliates and its agents have not and will not pay, offer or promise to pay, or authorize the payment directly or indirectly, of any money or anything of value to any employee of Buyer to obtain or retain business.
An Order may be executed in one or more counterparts and may be signed electronically (including via PDF or electronic signature), each of which shall be deemed an original, but all of which together shall constitute one and the same document.