TC-001 from February 2007

TC-001 from February 2007
General Terms and Conditions of Purchase
TC-001 (02/07)
1.
2.
Acceptance of Purchase Order
Agreement by Seller to furnish the materials, products, or services hereby ordered, or its
commencement of such performance, or acceptance of any payment, shall constitute acceptance by
Seller 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 of purchase 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.
Shipping Instructions
(a)
Seller shall be responsible for ensuring the proper packaging of materials hereunder. No charges
will be allowed for packing, crating, freight, local cartage, and/or any other services unless so
specified in this Purchase Order.
(b)
(c)
3.
(b)
7.
(b)
9.
Seller shall at all times comply with Buyer’s written shipping instructions. Unless otherwise
directed, all items shipped on the same day from and to a single location must be consolidated on
one bill of lading or airbill, as appropriate. Seller shall submit all required shipping papers to
Buyer prior to final payment. For material purchased F.O.B. origin, the Seller shall not insure and
not declare a value except when transportation rates are based on “released value,” in which
instance the Seller shall annotate on the bill of lading the lowest released value provided in
applicable tariffs.
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.
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 work so performed upon written notice of termination to Seller.
10.
Buyer may, by notice in writing, terminate this Purchase Order in whole or in part at any time for
breach of any one or more of its terms, for failure to make progress so as to endanger
performance of this Purchase Order, or failure to provide adequate assurance of future
performance. In the event of partial termination, Seller is not excused from performance of the
non-terminated balance of work under the Purchase Order.
In the event of Seller’s default hereunder, the Buyer may exercise any or all rights accruing to it,
both at law, including without limitation, those set forth in Article 2 of the Uniform Commercial
Code, or in equity.
Force Majeure
Except for defaults of Seller’s subcontractors 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 as are reasonably required by the existence of Force Majeure or this Purchase Order
may be terminated for convenience.
(b)
Unless otherwise expressly agreed in writing to the contrary and subject to Section 9 (d) below,
all specifications, information, data, drawings, software 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
goods or 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 writing to the contrary and subject to Section 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 writing to the
contrary and subject to Section 9(d) below, any work performed pursuant to this Purchase Order
which includes any copyright interest shall be considered a “work made for hire”.
(d)
Applicable 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, software 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.
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 will be construed and interpreted according to
Buyer's Property
(a) All drawings, tools, jigs, dies, fixtures, materials, and other property supplied or paid for by Buyer
shall be and remain the property of Buyer; and if Seller fails to return such property upon Buyer’s
demand, Buyer shall have the right, upon reasonable notice, to enter Seller’s premises and remove
any such property at any time without being liable for 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)
Material made in accordance with Buyer’s specifications and drawings shall not be furnished or
quoted by Seller to any other person or concern without Buyer’s prior written consent.
(d) Seller shall have the obligation to maintain any and all property furnished by Buyer to Seller and
shall be responsible for all loss or damage to said property except for normal wear and tear.
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 products 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 which are typed or
handwritten on the Purchase Order as additions to the pre-printed terms; 2. Documents
incorporated by reference on the face page(s) of this Purchase Order; 3. These General Terms and
Conditions of Purchase and Supplements thereto; 4. Statement of Work; and 5. Specifications
attached hereto or incorporated by reference. Buyer’s specifications shall prevail over those of the
United States Government, and both of the foregoing shall prevail over specifications of Seller.
(b) 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.
Disputes
(a)
Any controversy or claim that may arise out of or in connection with this Purchase Order that after
good faith negotiations cannot be resolved to both Parties’ satisfaction may be resolved by
submitting the claim to a court of competent jurisdiction.
(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.
Proprietary Rights
(a)
Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data,
drawings, software 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, unless (i)
otherwise required by the U.S. Government Regulations referred to below, or (ii) the Buyer has
executed a separate agreement restricting the use and disclosure of such information, data,
software and the like.
Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping
documents, including all packing sheets, bills of lading, airbills, and invoices.
Termination for Default
(a)
6.
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.
Termination for Convenience
(a)
Buyer may, by notice in writing, terminate this Purchase Order or work under 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)
5.
8.
Delivery; Notice of Delay
(a)
Time is of the essence and failure to deliver in accordance with the delivery 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 deliveries, shall constitute waiver of this provision. Buyer also reserves the right to refuse or
return at Seller’s risk and expense shipments made in excess of Buyer’s orders or in advance of
required schedules, or to defer payment on advance deliveries until scheduled delivery dates.
(b)
4.
the laws of the State from which the Purchase Order is issued, without resort to said State’s
Conflicts of Law Rules.
13.
Page 1 of 3
Warranty
(a) Seller warrants the materials delivered pursuant to this Purchase Order shall be new, free from
defects in workmanship, materials, and design and to be in accordance with all the requirements
of this Purchase Order. Seller further warrants that the performance of work and services pursuant
General Terms and Conditions of Purchase
TC-001 (02/07)
to the requirements of this Purchase Order shall conform to high professional standards. These
warranties shall survive final acceptance and payment.
19.
(b) This warranty entitlement 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 such as
direct sale end-users, higher-tier subcontractors, prime contractors and the ultimate user under
relevant prime contract(s).
(c)
14.
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 repair, replacement or reimbursement of the purchase price of nonconforming
materials and, in the case of services either correction of the defective services at no cost or
reimbursement of the amounts paid for such services.
(b) Seller warrants that all equipment and materials delivered under this Purchase Order are in
conformance with the latest OSHA requirements.
Inspection
(a) All material and workmanship shall be subject to inspection and test at all reasonable times and
places by Buyer or Buyer’s customer before, during and after performance and delivery. The Buyer
may require Seller to repair, replace or reimburse the purchase price of rejected material or Buyer
may accept any materials and upon discovery of nonconformance, may reject or keep and rework
any such materials not so conforming. Cost of repair, rework, replacement, inspection,
transportation, repackaging, and/or reinspection by Buyer shall be at Seller’s expense. Buyer’s
acceptance of work and services 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.
(c)
15.
(e) For orders placed in support of and charged to a U.S. 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 said prime contract are incorporated
herein by reference. In all clauses listed herein the terms "Government" and "Contractor" shall be
revised to identify properly the contracting parties under this Purchase Order. The Seller shall
include the terms of this Article, including this Section 19(e) in all purchase orders or subcontracts
awarded under this Purchase Order.
Buyer’s failure to inspect does not relieve Seller of any responsibility to perform according to the
terms of the Purchase Order.
Changes
(a) Buyer shall have the right by written order to suspend work or to make changes from time to time in
the services to be rendered or the materials to be furnished by Seller hereunder or the delivery
date. If such suspension 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 Section 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 the Seller from proceeding with this Purchase Order as
changed pending resolution of the claim.
1. Utilization of Small Business Concerns
2. Equal Opportunity
(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.
17.
18.
Infringement
Seller warrants that all work, materials, services, equipment, parts and other items 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 items by Buyer or any of Buyer’s customers shall be free from any claims of 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 items
with comparable goods 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 items. If the
use or sale of any of the above items 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 item.
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 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 United States 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.
52.219-8
52.222-26(b)
3. Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era,
and Other Eligible Veterans
52.222-35
4. Affirmative Action for Workers with Disabilities
52.222-36
5. Notification of Employee Rights Concerning Payment of Union Dues or Fees
52.222-39
6. Subcontracts for Commercial Items
7. Preference for Privately Owned U.S.-Flag Commercial Vessels
8. Preference for Domestic Specialty Metals and Alternate 1 (DoD Contracts)
52.244-6
52.247-64
252.225-7014
and Alt. 1
9. Preference for Domestic Specialty Metals (DEVIATION) and Alternate I (DEVIATION) 252.225-7014
(These deviations apply to Purchase Orders under prime
(Deviation) and
contracts entered into after November 15, 2006.)
Alt. I (Deviation)
10. Subcontracts for Commercial Items and Commercial Components (DoD Contracts)
252.244-7000
11. Notification of Potential Safety Issues
252.246-7003
12. Transportation of Supplies by Sea (DoD Contracts)
252.247-7023
13. Notification of Transportation of Supplies by Sea (DoD Contracts)
252.247-7024
20.
Responsibility and Insurance
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. Seller shall also maintain and cause
its subcontractors to maintain such General Liability, Property Damage, Employer’s Liability, and
Workers’ Compensation Insurance, Professional Errors and Omissions Insurance, and Motor Vehicle
Liability (Personal Injury and Property Damage) Insurance as are specified in this Purchase Order or, if
none are specified, such amount as will protect Seller (and its subcontractors) and Buyer from said risks
and from any claims under any applicable Workers’ Compensation, Occupational Disease, and
Occupational Safety and Health statutes. Seller shall provide Buyer with certificates evidencing required
insurance upon Buyer’s request.
21.
Indemnity Against Claims
(a) Seller shall keep its work and all items supplied by it hereunder and Buyer premises free and clear of
all liens and encumbrances, including mechanic’s liens, in any way arising from performance of this
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.
Assignments and Organizational Changes
(a)
Seller may not assign any rights or delegate any of its obligations due or to become due under
this Purchase Order without the prior written consent of Buyer. Any purported assignment or
delegation 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)
The 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; and Seller further agrees to 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 this warranty. The foregoing is in addition to and not in
mitigation of any other requirements of this Purchase Order.
(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.
(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 Article are supplementary to and not in
lieu of the provisions of Section 14(a) above.
(c)
Compliance with Law
(a) Seller warrants that the materials to be furnished and the services to be rendered under this
Purchase Order shall be manufactured, sold, used and rendered in compliance with all relevant
federal, state, local law, orders, rules, ordinances, and regulations and in compliance with
applicable international prohibitions on child labor. Seller certifies that with respect to the production
of the articles and/or the performance of the services 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, and
of regulations and orders of the United States Department of Labor under Section 14 thereof, if
applicable.
Seller shall promptly notify the Buyer in writing of any organizational changes made by Seller,
including name or ownership changes, mergers or acquisitions.
Page 2 of 3
(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) and resulting costs, expenses and
liability which arise from personal injury, death, or property loss or damage attributed to, or caused
by, the goods, services or other items supplied by Seller pursuant to this Purchase Order,
including, without limitation, latent defects in such goods, services or other items, except to the
General Terms and Conditions of Purchase
TC-001 (02/07)
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 the
Purchase Order.
(b) Seller agrees that the 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 the 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”).
(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 the 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 the Buyer and the 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 the Seller’s products or services originate from a foreign location, those products may also
be subject to the export control laws and regulations of the country in which the articles or 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 the Buyer in connection with any violations of
such laws and regulations by Seller. The Buyer shall be responsible for complying with any laws or
regulations governing the importation of the articles into the United States of America.
(e) The Buyer may be required to obtain information concerning citizenship or export status 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
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) or, alternatively, equivalent Business Ethics and
Conduct Standards of the 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.
26.
Survivability
Seller’s obligations, 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, and Export/Import Controls
provisions of this Purchase Order, shall survive termination, expiration, or completion of this Purchase
Order.
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