TC-Services: Terms and Conditions of Purchase for Domestic Purchase Orders for Commercial Services When Seller is Not Providing Goods

TC-Services: Terms and Conditions of Purchase for Domestic Purchase Orders for Commercial Services When Seller is Not Providing Goods
SERVICE TERMS AND CONDITIONS OF PURCHASE
TC-SERVICES (08/14)
1. Acceptance of Purchase Order
Agreement by Seller to furnish the services, or its commencement of such performance, or
acceptance of any payment, shall constitute Seller’s unqualified acceptance of this Purchase Order
subject to these terms and conditions. In the event that this Purchase Order does not state price or
delivery, Buyer will not be bound to any prices or delivery to which it has not specifically agreed in
writing. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and
conditions herein contained shall be void and of no effect unless specifically agreed to by Buyer in
writing. Modifications hereof or additions hereto, to be effective, must be made in writing and be
signed by Buyer’s Purchasing Representative. These terms and conditions, together with any
referenced exhibits, attachments or other documents, constitute the entire agreement between the
Parties with respect to the subject matter of this Purchase Order; and supersede any prior or
contemporaneous written or oral agreements pertaining thereto.
2. Deliverable Work Product
“Deliverable Work Product” shall mean a document, report, or similar work (including rights therein)
created or produced by Seller in connection with the performance of services pursuant to this
Purchase Order. In no event will Deliverable Work Product be construed as goods, which are
expressly excluded from these Service Terms and Conditions of Purchase.
3. Timely Performance; Notice of Delay;
(a) Time is of the essence and failure to perform in accordance with the schedule under this
Purchase Order, if unexcused, shall be considered a material breach of this Purchase Order. No
acts of Buyer, including without limitation modifications of this Purchase Order or acceptance of
late performance, shall constitute waiver of this provision. Buyer also reserves the right to refuse
to make payment on work performed in advance of required schedules until scheduled
performance dates.
(b) Seller shall notify Buyer in writing immediately of any actual or potential delay to the performance
of this Purchase Order. Such notice shall include a proposed revised schedule but such notice
and proposal or Buyer’s receipt or acceptance thereof shall not constitute a waiver to Buyer’s
rights and remedies hereunder.
4. Termination for Convenience
(a) Buyer may, by written notice, terminate this Purchase Order for convenience and without cause,
in whole or in part, at any time, and such termination shall not constitute default. In the event of
partial termination, Seller is not excused from performance of the non-terminated balance of work
under the Purchase Order.
(b) In the event of termination for convenience by Buyer, Seller shall be reimbursed for actual,
reasonable, substantiated and allocable costs, plus a reasonable profit for work performed to date
of termination. Any termination settlement proposal shall be submitted to Buyer promptly, but no
later than ninety (90) days from the effective date of the termination. In no event shall the amount of
any settlement be in excess of the Purchase Order value. Buyer may take immediate possession
of all Deliverable Work Product resulting from services upon written notice of termination to Seller.
5. Termination for Default
(a) Buyer may, by notice in writing, terminate this Purchase Order in whole or in part at any time for
(i) breach of any one or more of its terms, (ii) failure to perform the services within the time
specified by this Purchase Order or any written extension, (iii) failure to make progress so as to
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TC-SERVICES (08/14) (continued)
endanger performance of this Purchase Order, or (iv) failure to provide adequate assurance of
future performance. Buyer may also terminate this Purchase Order in whole or in part in the event
of Seller’s suspension of business, insolvency, appointment of a receiver for Seller’s property or
business, or any assignment, reorganization or arrangement by Seller for the benefit of its
creditors. In the event of partial termination, Seller is not excused from performance of the nonterminated balance of work under the Purchase Order.
(b) In the event of Seller’s default hereunder, Buyer may exercise any or all rights and remedies
accruing to it, both at law or in equity, including but not limited to, Seller’s liability for Buyer’s
excess re-procurement costs for services.
(c) If this Purchase Order is terminated for default, Buyer may require Seller to transfer title to, and
deliver to Buyer, as directed by Buyer, any completed or partially completed Deliverable Work
Product. Upon direction of Buyer, Seller shall also protect and preserve property in its possession
in which Buyer has an interest.
6. Force Majeure
Except for a default of Seller’s subcontractor at any tier, neither Buyer nor Seller shall be liable for
any failure to perform due to any cause beyond their reasonable control and without their fault or
negligence. Such causes include, but are not limited to, acts of God or of the public enemy, acts of
the government in its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine
restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance
of this Purchase Order is hindered, delayed or adversely affected by causes of the type described
above (“Force Majeure”), then the Party whose performance is so affected shall so notify the other
Party’s authorized representative in writing and, at Buyer’s option, this Purchase Order shall be
completed with such adjustments to delivery schedule as are reasonably required by the existence of
Force Majeure or this Purchase Order may be terminated for convenience pursuant to Section 4.
7. Disputes and Governing Law
(a) Any controversy or claim that may arise out of or in connection with this Purchase Order shall be
submitted in writing to senior management representatives of the Parties for resolution. If the
Parties senior management representatives are unable after good faith efforts to settle the
dispute to the mutual satisfaction of the Parties within ten (10) business days after the dispute is
submitted in writing to the senior management representatives, or such later date as may be
agreed in writing by the Parties, either Party may submit the dispute to a court of competent
jurisdiction. To the extent permitted by applicable law, the parties waive any right they may have
to a trial by jury. Notwithstanding the above, either Party may seek injunctive or other equitable
relief in any court of competent jurisdiction at any time.
(b) Pending resolution or settlement of any dispute arising under this Purchase Order, Seller will
proceed diligently as directed by Buyer with the performance of this Purchase Order. Irrespective
of the place of performance, this Purchase Order shall be governed and construed in accordance
with the laws of the State within the United States from which this Purchase Order is issued by
Buyer, without regard to its conflicts of laws provisions, except that any provision in this Purchase
Order that is: (i) incorporated in full text or by reference from the Federal Acquisition Regulation
(FAR) or; (ii) incorporated in full text or by reference from any agency regulation that implements
or supplements the FAR or; (iii) that is substantially based on any such agency regulation or FAR
provision, shall be construed and interpreted according to the federal common law of government
contracts as enunciated and applied by federal judicial bodies, boards of contracts appeals, and
quasi-judicial agencies of the United States Government. The provisions of the “United Nations
Convention on Contracts for International Sale of Goods” shall not apply to this Purchase Order,
including any amendments or changes to this Purchase Order.
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TC-SERVICES (08/14) (continued)
8. Remedies
(a) Except as otherwise provided herein, the rights and remedies of both Parties hereunder shall be
in addition to their rights and remedies at law or in equity. Failure of either Party to enforce any of its
rights shall not constitute a waiver of such rights or of any other rights and shall not be construed
as a waiver or relinquishment of any such provisions, rights or remedies; rather, the same shall
remain in full force and effect.
(b) Buyer shall be entitled at all times to set off any amount owing at any time from Seller or any of its
affiliated companies to Buyer, against any amount payable at any time by Buyer or any of its
affiliated companies to Seller.
9. Proprietary Rights
(a) Unless otherwise expressly agreed in a contemporaneous or subsequent writing to the contrary
or otherwise expressly set forth in this Purchase Order and subject to Paragraph 9(d) below, all
specifications, information, data, drawings and other items supplied to Buyer by Seller shall be
disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without
restriction.
(b) Unless otherwise expressly agreed in a contemporaneous or subsequent writing to the contrary
or otherwise expressly set forth in this Purchase Order and subject to Paragraph 9(d) below, all
specifications, information, data, drawings, and other items which are (i) supplied to Seller by
Buyer or (ii) obtained or developed by Seller in the performance of this Purchase Order or paid for
by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing services to
Buyer pursuant to this Purchase Order, and shall not be disclosed to any third party without
Buyer’s express written consent. All such items supplied by Buyer or obtained by Seller in
performance of this Purchase Order or paid for by Buyer shall be promptly provided to Buyer on
request or upon completion of this Purchase Order.
(c) Unless otherwise expressly agreed in a contemporaneous or subsequent writing to the contrary
or otherwise expressly set forth in this Purchase Order and subject to Paragraph 9(d) below, any
invention or intellectual property first made or conceived by Seller in the performance of this
Purchase Order or which is derived from or based on the use of information supplied by Buyer
shall be considered to be the property of Buyer; and Seller shall execute such documents
necessary to perfect Buyer’s title thereto. Unless otherwise expressly agreed in a
contemporaneous or subsequent writing to the contrary or otherwise expressly set forth in this
Purchase Order and subject to Paragraph 9(d) below, any work performed pursuant to this
Purchase Order which includes any copyright interest shall be considered a “work made for hire”.
Subject to Paragraph 9(d) below, to the extent any of such works do not qualify as a “work made
for hire”, Seller hereby assigns to Buyer all its intellectual property rights, including its copyright
rights, in such works effective immediately upon creation of such works, including when they are
first fixed in a tangible medium.
(d) Applicable U.S. Government Procurement Regulations incorporated into this Purchase Order
shall, when applicable, take precedence over any conflicting provision of this Section 9 to the
extent that such Regulations so require. The incorporation by reference of such U.S. Government
Regulations dealing with subcontractors rights in Technical Data, subject inventions, copyrights,
and similar intellectual property are not intended to, and shall not, unless otherwise required by
applicable law, obviate or modify any greater rights which Seller may have previously granted to
Buyer pursuant to prior agreements between the Parties.
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TC-SERVICES (08/14) (continued)
10. Buyer’s Property
(a) All drawings, tools, jigs, dies, fixtures, materials, and other property supplied by Buyer shall be
and remain the property of Buyer; and if Seller fails to return such property upon Buyer’s demand,
Buyer shall have the right, upon reasonable notice, to enter Seller’s premises and remove any such
property at any time without being liable for trespass or damages of any sort.
(b) All such items shall be used only in the performance of work under this Purchase Order unless
Buyer consents otherwise in writing.
(c) Seller shall have the obligation to maintain any and all property furnished by Buyer to Seller shall
be responsible for all loss or damage to said property except for normal wear and tear.
(d) Upon request, Seller shall provide Buyer with adequate proof of insurance against such risk of
loss or damage.
(e) Seller shall clearly mark, maintain in inventory, and keep segregated or identifiable all of Buyer’s
property.
11. Release of Information
Seller shall not publish, distribute, or use any information developed under or about the existence of this
Purchase Order, or use the Raytheon Company name (or the name of any division, affiliate or
subsidiary thereof), logo, trademark, service mark, or trade dress for the purpose of advertising,
making a news release, creating a business reference, creating a website content or for goods or
service endorsement without prior written approval of Buyer.
12. Order of Precedence
(a) In the event of any inconsistency or conflict between or among the provisions of this Purchase
Order, such inconsistency or conflict shall, subject to Section 9(d) above, be resolved by the
following descending order of preference: 1. Order-specific provisions provided in full text on the
Purchase Order; 2. Documents incorporated by reference on the Purchase Order which apply to
the Purchase Order as a whole and not to a specific line item therein; 3. These Service Terms
and Conditions of Purchase and Supplements thereto; 4. Statement of Work; and 5.
Specifications attached hereto or incorporated by reference (see Paragraph 12(b) below).
(b) Buyer’s specifications, including but not limited to Raytheon Quality Notes (see
http://qnotes.raytheon.com/ ), shall prevail over those of the United States Government, and both
of the foregoing shall prevail over specifications of Seller. In the event of conflict between
specifications, drawings, samples, designated type, part number, or catalog description, the
specifications shall govern over drawings, drawings over samples, whether or not approved by
Buyer, and samples over designated type, part number, or catalog description. In cases of
ambiguity in the specifications, drawings, or other requirements of this Purchase Order, Seller
must, before proceeding, consult Buyer, whose written interpretation shall be final.
13. Warranty
(a) Seller warrants that no goods will be delivered pursuant to this Purchase Order. Seller further
warrants that the performance of work and services shall conform with the requirements of this
Purchase Order and to high professional standards. All warranties in this Purchase Order shall
survive inspection, test, final acceptance and payment.
(b) These warranty entitlements shall inure to the benefit of both Buyer and Buyer’s customers. As
used in this Purchase Order, Buyer’s customer(s) shall include its direct and indirect customers
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TC-SERVICES (08/14) (continued)
such as direct sale end-users, higher-tier subcontractors, prime contractors and the ultimate user
under relevant prime contract(s).
(c) Seller shall be liable for and save Buyer harmless from any loss, damage, or expense whatsoever
that Buyer may suffer from breach of any of these warranties. Remedies shall be at Buyer’s
election, including, but not limited to, either the prompt correction of the defective services at no
cost or reimbursement of the amounts paid for such services. Services required to be corrected,
repaired or replaced shall be subject to this Section and the Inspection Section of this Purchase
Order in the same manner and to the same extent as services originally performed under this
Purchase Order, but only as to the corrected service thereof. Seller shall promptly comply with
Buyer’s direction to successfully correct the defective or nonconforming service.
14. Inspection
(a) All services or Deliverable Work Product shall be subject to inspection and test at all reasonable
times and places by Buyer or Buyer’s customer before, during and after performance. Buyer may
require Seller to promptly (i) correct the defective services or Deliverable Work Product at no cost
or (ii) reimburse the amounts paid for such services. Buyer’s acceptance of services or
Deliverable Work Product shall not be deemed to diminish Buyer’s rights or be final or binding on
Buyer if latent defects, fraud, or misrepresentation on the part of Seller exists.
(b) If inspection and test are made on the premises of Seller or Seller’s lower-tier subcontractors,
Seller shall furnish without additional charge all reasonable facilities, information and assistance
necessary for the safe and convenient inspection and tests required by the inspectors in the
performance of their duty. The foregoing provisions of this Section are supplementary to and not
in lieu of the provisions of Paragraph 14 (a) above.
(c) Neither Buyer’s inspection nor Buyer’s failure to inspect shall relieve Seller of any responsibility to
perform according to the terms of this Purchase Order.
15. Changes
(a) Buyer shall have the right by written notice to suspend or stop work or to make changes from time
to time in the services to be rendered by Seller hereunder or the schedule. If such suspension,
stoppage or changes cause an increase or decrease in the cost of performance of this Purchase
Order or in the time required for its performance, an equitable adjustment shall be negotiated
promptly and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for
adjustment under this Paragraph 15(a) must be asserted in writing within twenty (20) days from
the date of receipt by Seller of notification of the change or suspension and shall be followed as
soon as practicable with specification of the amount claimed and supporting cost figures.
However, nothing herein shall excuse Seller from proceeding with this Purchase Order as
changed pending resolution of the claim.
(b) Information, advice, approvals or instructions given by Buyer’s technical personnel or other
representatives shall be deemed expressions of personal opinion only and shall not affect Buyer’s
and Seller’s rights and obligations hereunder unless set forth in a writing which is signed by Buyer’s
Purchasing Representative and which states it constitutes an amendment or change to this
Purchase Order.
16. Infringement
Seller warrants that all services and Deliverable Work Product provided by Seller pursuant to this
Purchase Order, which are not of Buyer’s design, shall be free from claims of infringement (including
misappropriation) of third party intellectual property rights and that any use or sale of such
Deliverable Work Product by Buyer or any of Buyer’s customers shall be free from any claims of
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TC-SERVICES (08/14) (continued)
infringement. Seller shall indemnify and save Buyer, and its customers harmless from any and all
expenses, liability, and loss of any kind (including all costs and expenses including attorneys’ fees)
arising out of claims, suits, or actions alleging such infringement, which claims, suits, or actions
Seller, hereby, agrees to defend, at Seller’s expense, if requested to do so by Buyer. Seller may
replace or modify infringing Deliverable Work Product with comparable Deliverable Work Product
acceptable to Buyer of substantially the same form, fit, and function so as to remove the source of
infringement, and Seller’s obligations under this Purchase Order including those contained in Section
13 and in this Section 16 shall apply to the replacement and modified Deliverable Work Product. If the
use or sale of any of the above Deliverable Work Product is enjoined as a result of such claim, suit or
action, Seller, at no expense to Buyer, shall obtain for Buyer and its customers the right to use and
sell said Deliverable Work Product.
17. Taxes
Unless this Purchase Order specifies otherwise, the price of this Purchase Order includes, and
Seller is liable for and shall pay, all taxes, impositions, charges, customs duties or tariffs and
exactions imposed on or measured by this Purchase Order except for applicable sales and use
taxes that are separately stated on Seller’s invoice. Prices shall not include any taxes, impositions,
charges or exactions for which Buyer has furnished a valid exemption certificate or other evidence of
exemption. To the extent that Buyer is required to do so under applicable law or tax regulations,
Buyer may deduct from any payments due to Seller pursuant to this Purchase Order such taxes as
Buyer is required to withhold from such payments and pay such taxes to the relevant tax authorities;
provided, however, that Buyer provides Seller with relevant tax receipts or other suitable
documentation evidencing the payment of such taxes promptly after such taxes are paid.
18. Assignments, Subcontracting, Organizational Changes, and Independent Contractor
(a) Seller may not assign any rights, delegate any of its obligations due or to become due under this
Purchase Order, or subcontract all or substantially all of its obligations under this Purchase Order,
without the prior written consent of Buyer.
Any purported assignment, delegation, or
subcontracting by Seller without such consent shall be void. Buyer may assign this Purchase
Order to (i) any affiliated company, (ii) any successor in interest, or (iii) Buyer’s customer.
(b) Seller shall promptly notify Buyer in writing of any organizational changes made by Seller,
including name or ownership changes, mergers or acquisitions.
(c) In connection with Seller services hereunder, Seller is an independent contractor and this
Purchase Order does not create an agency, partnership, or formal business relationship of any
kind between Buyer and Seller or between Buyer and Seller’s employees. All Seller personnel
providing services under this Purchase Order are deemed employees of Seller. Seller has no
authority to bind Buyer or to commit Buyer to any obligation or liability. Seller, as an independent
company contracting to Buyer, shall be responsible for all taxes, fees, licenses or other legal or
governmental requirements for the work and its employees performing services under this
Purchase Order.
19. Compliance with Law
(a) Seller warrants that the services and Deliverable Work Product to be delivered under this
Purchase Order shall be in compliance with all relevant federal, state, local law, orders, rules,
ordinances, and regulations, including but not limited to the Foreign Corrupt Practices Act, 15
U.S.C. § 78 et seq. (the “FCPA”) and all laws and regulations of Seller’s place of performance,
and in compliance with applicable international prohibitions on child labor. Seller certifies that with
respect to the services and Deliverable Work Product covered by this Purchase Order, it has fully
complied with Sections 6, 7, 12, and 15 of the Fair Labor Standards Act of 1938, as amended,
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TC-SERVICES (08/14) (continued)
and of regulations and orders of the United States Department of Labor under Section 14 thereof,
if applicable.
(b) Seller warrants that all services and Deliverable Work Product under this Purchase Order are in
conformance with the latest OSHA requirements.
(c) Seller warrants that in the performance of this Purchase Order, it will comply with all applicable
U.S. Department of Transportation regulations on hazardous materials and any other pertinent
federal, state, or local statutes, laws, rules, or regulations.
(d) Seller warrants that it has complied with the Anti-Kickback Act of 1986 and has not offered or
given and will not offer or give to any employee, agent, or representative of Buyer any gratuity or
any kickback within the meaning of the Anti-Kickback Act of 1986. Any breach of this warranty
shall be a material breach of each and every contract between Buyer and Seller.
(e) For Purchase Orders placed in support of and charged to a U.S. Government (“Government”)
Prime Contract or subcontract thereunder procuring an item meeting the Federal Acquisition
Regulation (FAR) definition of a commercial item, the following clauses set forth in the FAR or the
Defense Federal Acquisition Regulation Supplement (DFARS) in effect as of the date of the prime
contract or higher-tier subcontract are incorporated herein by reference as if set forth in full text
unless made inapplicable by its corresponding note, if any. In all clauses listed herein terms shall
be revised to suitably identify the party to establish Seller’s obligations to Buyer and to the
Government; and to enable Buyer to meet its obligations under its prime contract. Without
limiting the generality of the foregoing, and except where further clarified or modified below, the
term “Government” and equivalent phrases shall mean “Buyer”, the term “Contracting Officer”
shall mean “Buyer’s Purchasing Representative", the term “Contractor” or “Offeror” shall mean
“Seller”, “Subcontractor” shall mean “Seller’s Subcontractor” under this Purchase Order, and the
term “Contract” shall mean this “Purchase Order”. For the avoidance of doubt, the words
“Government” and “Contracting Officer” do not change: (1) when a right, act, authorization or
obligation can be granted or performed only by the Government or the prime contract Contracting
Officer or duly authorized representative, such as in FAR 52.227-1 and FAR 52.227-2 and (2)
when title to property is to be transferred directly to the Government. If any of the following FAR
or DFARS clauses do not apply to this Purchase Order, such clauses are considered to be selfdeleting.
A. THE FOLLOWING FAR CLAUSES ARE APPLICABLE TO PURCHASE ORDERS FOR
COMMERCIAL ITEMS UNDER ALL GOVERNMENT CONTRACTS:
1. 52.203-7 “Anti-Kickback Procedures” (Excepting paragraph (c)(1))(Applicable to Purchase
Orders that exceed $150,000.)
2. 52.203-12 “Limitation on Payments to Influence Certain Federal Transactions” (Applicable to
Purchase Orders exceeding $150,000.)
3. 52.203-13 “Contractor Code of Business Ethics and Conduct” (Applicable to Purchase
Orders (i) that have a value more than $5,000,000; and (ii) that have a performance period
of more than 120 days. (In Paragraph (b)(3)(i), the meaning of “agency office of the
Inspector General” and “Contracting Officer” does not change, in Paragraph (b)(3)(ii) the
meaning of “Government” does not change, and in Paragraphs (b)(3)(iii) and (c)(2)(ii)(F), the
meaning of “OIG of the ordering agency”, “IG of the agency” “agency OIG” and “Contracting
Officer” do not change.)
4. 52.204-10 “Reporting Executive Compensation and First-Tier Subcontract Awards”
(Applicable to Purchase Orders of $25,000 or more and when Buyer is the Prime
Contractor.) (The usual substitution of the parties is not applicable to this clause. Seller
shall report to Buyer the information required under the clause.)
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5. 52.209-6 “Protecting the Government’s Interest When Subcontracting With Contractors
Debarred, Suspended, or Proposed for Debarment” (Applicable to Purchase Orders of
$30,000 or more.)
6. 52.215-22 “Limitations on Pass-Through Charges – Identification of Subcontract Effort”
(Applicable to solicitations for Purchase Orders that will incorporate FAR clause 52.215-23
or 52.215-23 Alt I.)
7. 52.215-23 & Alt I “Limitations on Pass – Through Charges” (Include Alternate I if it is
Included in the prime contract) (Under other than DoD prime contracts, applicable to time
and material and labor hour Purchase Orders that exceed the simplified acquisition
threshold; and under DoD prime contracts, applicable to time and material, labor hour, and
fixed price Purchase Orders, except those identified in FAR 15.408(n)(2)(i)(B)(2), that
exceed the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4.)
8. 52.219-8 “Utilization of Small Business Concerns”
9. 52.222-21 “Prohibition of Segregated Facilities” (Applicable to Purchase Orders exceeding
$10,000.)
10. 52.222-26 “Equal Opportunity” (Applicable to Purchase Orders exceeding $10,000.)
11. 52.222-35 “Equal Opportunity for Veterans” (Applicable to Purchase Orders exceeding
$100,000.)
12. 52.222-36 “Affirmative Action for Workers with Disabilities” (Applicable to Purchase Orders
exceeding $15,000.)
13. 52.222-40 “Notification of Employee Rights Under the National Labor Relations Act”
(Applicable to Purchase Orders that exceed $10,000 and are issued under prime contracts
resulting from Solicitations issued after December 12, 2010.)
14. 52.222-41 “Service Contract Act of 1965” (Applicable to Purchase Orders that are subject to
the Service Contract Act of 1965.)
15. 52.222-50 & Alt I “Combating Trafficking in Persons” (Alternate I is applicable to Purchase
Orders if it is included in the prime contract.)
16. 52.222-54 “Employment Eligibility Verification” (Applicable to Purchase Orders (i) for
construction or commercial or noncommercial services (except commercial services that are
part of a purchase of a COTS item, or an item that would be a COTS item, but for minor
modifications, performed by the COTS provider, and that are normally provided for that
COTS item); (ii) has a value more than $3,000; and (iii) includes work performed in the
United States.)
17. 52.244-6 “Subcontracts for Commercial Items”
18. 52.247-64 “Preference for Privately Owned U.S.-Flag Commercial Vessels”
B. THE FOLLOWING DFARS CLAUSES ARE APPLICABLE TO PURCHASE ORDERS FOR
COMMERCIAL ITEMS UNDER DoD CONTRACTS:
1. 252.204-7008 “Export-Controlled Items”
2. 252.215-7003 “Excessive Pass-Through Charges – Identification of Subcontract Effort”
(APR 2007) (Applicable to solicitations for Purchase Orders issued under Department of
Defense (DoD) solicitations issued after April 25, 2007 and before May 13, 2008 and that do
not specifically incorporate the FAR Limitations on Pass-Through Charges provision, except
solicitations for firm-fixed price (FFP) Purchase Orders and fixed-price (FP) Purchase
Orders with economic price adjustment.)
3. 252.215-7003 “Excessive Pass-Through Charges – Identification of Subcontract Effort”
(MAY 2008) (Applicable to solicitations for Purchase Orders issued under DoD solicitations
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issued after May 12, 2008 and before October 14, 2009 and that do not specifically
incorporate the FAR Limitations on Pass-Through Charges provision, except solicitations for
FFP Purchase Orders and FP Purchase Orders with economic price adjustment.)
4. 252.215-7004 “Excessive Pass-Through Charges” (APR 2007) (Applicable to Purchase
Orders issued under DoD contracts awarded after April 25, 2007 and before May 13, 2008
and that do not specifically incorporate the FAR Limitations on Pass-Through Charges
clause, except FFP Purchase Orders and FP Purchase Orders with economic price
adjustment.)
5. 252.215-7004 & Alt I “Excessive Pass-Through Charges” (MAY 2008) (Include Alternate I if
it is included in the prime contract) (Applicable to Purchase Orders under DoD contracts
awarded after May 12, 2008 and before October 14, 2009 and that do not specifically
incorporate the FAR Limitations on Pass-Through Charges clause, except FFP Purchase
Orders and FP Purchase Orders with economic price adjustment.)
6. 252.223-7008 “Prohibition of Hexavalent Chromium” (Applicable to all Purchase Orders for
supplies, maintenance and repair services, or construction materials.)
7. Reserved
8. Reserved
9. Reserved
10. Reserved
11. Reserved
12. Reserved
13. Reserved
14. 252.227-7013 “Rights in Technical Data Noncommercial Items” (Applicable whenever any
technical data for commercial items developed in part at Government expense will be
provided for delivery to the Government under this Purchase Order.)
15. 252.227-7015 “Technical Data – Commercial Items” (Applicable whenever any technical
data related to commercial items developed in any part at private expense will be provided
under this Purchase Order for delivery to the Government.)
16. 252.227-7037 “Validation of Restrictive Markings on Technical Data” (Applicable to
Purchase Orders requiring the delivery of technical data.)
17. 252.244-7000 “Subcontracts for Commercial Items and Commercial Components (DoD
Contracts)”
18. 252.246-7003 “Notification of Potential Safety Issues” (Applicable to Purchase Orders for (i)
parts defined as critical safety items in accordance with this clause; (ii) systems and
subsystems, assemblies, and subassemblies integral to a system; and (iii) repair,
maintenance, logistics support, or overhaul services for systems and subsystems,
assemblies, subassemblies, and parts integral to a system.)
19. 252.247-7023 “Transportation of Supplies by Sea”
20. 252.247-7024 “Notification of Transportation of Supplies by Sea”
(f) Seller warrants that it has and shall maintain all registrations and licenses and shall obtain
permits all as required to perform the work hereunder.
(g) Seller further agrees to defend, indemnify and save Buyer harmless from any loss, damage, fine,
penalty, or expense whatsoever that Buyer may suffer as a result of Seller’s failure to comply with
the warranties in this Section 19. The foregoing is in addition to and not in mitigation of any other
requirements of this Purchase Order.
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TC-SERVICES (08/14) (continued)
20. Responsibility and Insurance
(a) Seller shall maintain, and cause its subcontractors to maintain, the insurance coverages that are
specified as required in this Purchase Order or, if none are specified, the following minimum
insurance coverage and limits: Statutory Workers’ Compensation coverage and Employers’
Liability with a limit of $500,000; Commercial General Liability (including bodily injury and property
damage, products / completed operations coverage and contractual liability coverage) with a limit
of $1,000,000 per occurrence. When applicable to Seller’s performance on the Purchase Order,
Seller shall also maintain, and cause its subcontractors to maintain, (i) Automobile Liability
coverage with a limit of $1,000,000 per accident; and (ii) Professional Liability covering the
services provided by Seller under this Purchase Order. Upon Buyer’s request, Seller shall (i)
provide Buyer with certificates of insurance evidencing required insurance, (ii) arrange for a
waiver of subrogation in favor of Buyer and / or (iii) in the case of the Commercial General
Liability and Automobile Liability policies direct that Buyer be added as an additional insured.
(b) If work is to be performed on premises owned or controlled by Buyer, then Seller shall comply
with all the rules and regulations established by Buyer for access to and activities in and around
premises controlled by Buyer or Buyer’s customer. Seller shall be responsible for the actions and
failure to act of all parties retained by, through, or under Seller in connection with the performance
of this Purchase Order.
21. Indemnity Against Claims
(a) Seller shall keep its work hereunder and Buyer premises free and clear of all liens and
encumbrances, including mechanic’s liens, in any way arising from performance of this Purchase
Order by Seller or by any of its vendors or subcontractors. Seller may be required by Buyer to
provide a satisfactory release of liens as a condition of final payment.
(b) Seller shall, without limitation, indemnify and save Buyer and its customer(s) and their respective
officers, directors, employees and agents harmless from and against (i) all claims (including
claims under Workers’ Compensation or Occupational Disease laws or other equivalent laws in
Seller’s country) and resulting costs, expenses (including attorney fees and costs) and liability
which arise from personal injury, death, or property loss or damage attributed to, or caused by,
the services performed by Seller pursuant to this Purchase Order, including, without limitation,
latent defects in such Deliverable Work Product and services, except to the extent that such
injury, death, loss or damage is caused solely and directly by the negligence of Buyer, and (ii) all
claims (including resulting costs, expenses and liability) by the employees of Seller or any of its
subcontractors.
22. International Transactions
(a) Payment will be in United States dollars unless otherwise agreed to by specific reference in this
Purchase Order.
(b) Seller agrees that Buyer, its subsidiaries, affiliates or its designees may exclusively use the value
of the Purchase Order to satisfy any international offset obligations that Buyer may have with
Seller’s country, subject to the offset qualifying laws, rules and regulations of that country.
23. Export/Import Controls
(a) If Seller is a U.S. company that engages in the business of either manufacturing or exporting
defense articles or furnishing defense services Seller hereby certifies that it has registered with
the U.S. Department of State Directorate of Defense Trade Controls and understands its
obligations to comply with International Traffic in Arms Regulations (“ITAR”) and the Export
Administration Regulations (“EAR”).
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TC-SERVICES (08/14) (continued)
(b) Seller shall control the disclosure of and access to technical data, information and other items
received under this Purchase Order in accordance with U.S. export control laws and regulations,
including but not limited to the ITAR. Seller agrees that no technical data, information or other
items provided by Buyer in connection with this Purchase Order shall be provided to any foreign
persons or to a foreign entity, including without limitation, a foreign subsidiary of Seller, without
the express written authorization of Buyer and Seller’s obtaining of the appropriate export license,
technical assistance agreement or other requisite documentation for ITAR-controlled technical
data or items. It shall be the sole responsibility of Seller to determine whether the information
provided by Buyer is technical data as outlined in the ITAR (22 CFR 120-130) prior to any release
to a third party abiding by the terms outlined herein. Seller shall indemnify Buyer for all liabilities,
penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in
connection with any violations of such laws and regulations by Seller.
(c) Seller shall immediately notify Buyer if it is or becomes listed on any Excluded or Denied Party
List of an agency of the U.S. Government or its export privileges are denied, suspended or
revoked.
(d) Should Seller’s services originate from a foreign location, those services may also be subject to
the export control laws and regulations of the country in which the services originate. Seller
agrees to abide by all applicable export control laws and regulations of that originating country.
Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that
may be imposed on or incurred by Buyer in connection with any violations of such laws and
regulations by Seller, its officers, employees, agents, suppliers or subcontractors at any tier.
Seller shall be responsible for complying with any laws or regulations governing the importation of
the articles into the United States of America.
(e) Buyer may be required to obtain information concerning citizenship, nationality, and related
information of Seller’s personnel. Seller agrees to provide such information as necessary and
certifies the information to be true and correct.
24. Severability
If any provision of this Purchase Order or application thereof is found invalid, illegal or unenforceable by
law, the remainder of this Purchase Order will remain valid, enforceable and in full force and effect, and
the Parties will negotiate in good faith to substitute a provision of like economic intent and effect.
25. Standards of Business Ethics and Conduct; No Solicitation
(a) By the acceptance of this Purchase Order, Seller represents that it has not participated in any
conduct in connection with this Purchase Order that violates the Standards of Business Ethics
and Conduct of Raytheon Company (available at www.raytheon.com/ourcompany/ourculture
/ethics/code/index.html) or, alternatively, equivalent Business Ethics and Conduct Standards of
Seller. If, at any time, Buyer determines that Seller is in violation of the applicable Standards of
Business Ethics and Conduct, Buyer may cancel this Purchase Order upon written notice to
Seller and Buyer shall have no further obligation to Seller.
(b) Except as may be agreed in writing during the term of this Purchase Order, or for twelve (12)
months after its termination or expiration, neither Buyer nor Seller will solicit directly or indirectly
for employment or employ any person then employed (or who was employed within the preceding
twelve (12) months) by the other party or an affiliate of the other party, who has been involved in
the activities to which the Purchase Order relates.
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TC-SERVICES (08/14) (continued)
26. Priority Rating
If so identified, this Purchase Order is a “rated order” certified for national defense use, and Seller
shall follow all the requirements of the Defense Priorities and Allocation System Regulation (15
C.F.R. Part 700).
27. Survivability
Seller’s obligations that by their very nature must survive expiration, termination or completion of this
Purchase Order, including but not limited to obligations under the Termination for Convenience,
Termination for Default, Proprietary Rights, Release of Information, Warranty, Infringement,
Compliance with Law, Responsibility and Insurance, Indemnity Against Claims, Export/Import
Controls, Electronic Transmissions, and Seller Records provisions of this Purchase Order, shall
survive expiration, termination or completion of this Purchase Order.
28. Electronic Transmissions
(a) The Parties agree that this Purchase Order, if transmitted electronically and the electronic
signatures thereon are authenticated; that neither Party shall contest the validity of such on the
basis that this Purchase Order was electronically transmitted or contains an electronic signature.
(b) Seller shall, at Buyer’s request and Seller’s expense, send and receive business transactions by
electronic means using Web-based technologies. Such Web-based technologies for electronic
transmissions may include, but not be limited to: (a) email; (b) the Internet directly between Buyer
and Seller; (c) electronic marketplace or portal (“EXOSTAR”); and (d) Buyer’s current and future
electronic data interchange (“EDI”) systems. When using either EXOSTAR or Buyer’s EDI
systems the standard terms and conditions which may be a part of such systems shall be
supplemented by, and superseded to the extent inconsistent with, these Service Terms and
Conditions of Purchase.
29. Seller Records
Seller shall maintain general records relating to this Purchase Order for a minimum period of four
years of final delivery of Deliverable Work Product and completion of services pursuant to this
Purchase Order or for such longer period as required by statute or as may be specified elsewhere in
this Purchase Order.
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