TC-004 from January 2009

TC-004 from January 2009
INTERNATIONAL GENERAL TERMS AND
CONDITIONS OF PURCHASE
TC-004 (1/09)
PART I – GENERAL PROVISIONS
1. 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
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 to this Purchase Order.
2.
Shipping Instructions
(a) Seller shall be responsible for ensuring adequate and/or
compliant 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) If Seller uses wood packaging materials such as pallets,
crates, boxes, dunnages, cases, skids and pieces of
wood used to support or brace cargo being imported into
the United States, it shall be heat treated or fumigated
with methyl bromide in accordance with EPA label
instructions and include a mark that certifies the wood
completed the required treatment under the “Guidelines
for Regulating Wood Packaging Material in International
Trade,” ISPM 15 of the International Standards of
Phytosanitary Measures (ISPM) and any associated
amendments, revisions or exemption identified by the
U.S. Department of Agriculture, Animal and Plant Health
Inspection Service (APHIS).
(c) Seller shall at all times comply fully with Buyer’s written
shipping instructions and Incoterms 2000 reflected on the
Purchase Order. 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, Seller shall not insure and not
declare a value except when transportation rates are
based on “released value,” in which instance Seller shall
annotate on the bill of lading the lowest released value
provided in applicable tariffs.
(d) Purchase Order number(s) must appear on all
correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading,
airbills, and invoices.
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(e) Invoices shall be produced entirely in English and shall
include the elements set forth in Exhibit A.
3.
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.
(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 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) 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.
5.
Termination for Default
(a) Subject to paragraphs (c) and (d) below, 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, failure to provide adequate assurance of future performance or becoming insolvent or making a general assignment for the benefit of
creditors, or files or has filed against it a petition of bankruptcy or pursues any other remedy under any other law
relating to the relief for debtors, or in the event a trustee
or receiver is appointed for Seller’s property or business;
or assignment. 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 Seller’s default hereunder, Buyer may
exercise any or all rights accruing to it, both at law, or in
equity.
(c) If this Purchase Order is terminated for default, Buyer
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may require Seller to transfer title and deliver to Buyer, as
directed by Buyer, any (1) completed supplies, and (2)
partially completed supplies and materials, parts, tools,
dies, jigs, fixtures, plans, drawings, information, and
contract rights (collectively referred to as “manufacturing
materials” in this clause) that Seller has specifically
produced or acquired for the terminated portion of this
Purchase Order. Upon direction of Buyer, Seller shall also
protect and preserve property in its possession in which
Buyer has an interest.
(d) Buyer shall pay the Purchase Order price for completed
supplies delivered or services performed and accepted.
Seller and Buyer shall agree on the fair and reasonable
amount of payment for manufacturing materials delivered
and accepted and for the protection and preservation of
the property.
6. 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 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.
Failure of any relevant government to issue any required import or
export license, or withdrawal/termination of a required import or
export license by such relevant government, shall relieve Buyer of
its obligations under this Purchase Order, and shall relieve Seller of
its corresponding obligations.
7.
ized to, nor shall they award punitive damages or multiple damages against either Party. The Arbitrator(s) shall
have the authority but not the obligation to award the
costs of arbitration and reasonable attorney’s fees to the
prevailing Party; however, if the Arbitrator(s) do not
award such costs and fees, each Party will be responsible for its costs incurred in arbitration except that the
costs and fees imposed by the Arbitrator(s) for their
expenses shall be borne equally by the parties.
(c) Pending any final decision, or the settlement of any
dispute arising under this Purchase Order, Seller shall
proceed diligently, as directed by Buyer, with performance of the Purchase Order.
(d) To the maximum extent permitted by law, the parties
waive any right to a jury trial.
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 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 or other government regulations referred to
below, or (ii) Buyer has executed a separate agreement
restricting the use and disclosure of such information,
data, software and the like.
(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
Disputes
(a) Any dispute arising under or in connection with this
Purchase Order shall be governed by and interpreted in
accordance with Section 20, Governing Law, below.
(b) If a dispute cannot be resolved to both Parties’ mutual
satisfaction, after good faith negotiations, within ninety
(90) calendar days from the date the written claim is
received by the other Party, or such additional time as
the Parties agree upon, in writing, such dispute shall be
settled in New York City, New York by arbitration in the
English language in accordance with the Rules of the
American Arbitration Association. The Appointing
Authority shall be the president of the American
Arbitration Association. Judgment upon the award
rendered by the Arbitrator(s) may be entered in any court
having jurisdiction thereof. The Arbitrator(s) award may
include compensatory damages against either Party.
Under no circumstances will the Arbitrator(s) be author-
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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”. To the extent any of
such copyright interests do not qualify as a “work made
for hire” (hereinafter “Non-Qualifying Work(s)”), Seller
agrees to assign and does hereby assign to Buyer all its
rights, title and interest in and to any of such NonQualifying Work(s). Seller’s foregoing assignment shall
become effective immediately upon creation of the NonQualifying Work(s).
(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, 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.
10. 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.
(e) Records to account for all drawings, tools, jigs, dies,
fixtures, materials and other property supplied or paid for
by Buyer shall be maintained by both Buyer and Seller.
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 busTC-004 (1/09)
iness 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 International General Terms and Conditions of
Purchase and any Federal Acquisition Regulation (FAR)
or Defense Federal Acquisition Regulation Supplement
(DFARS) provisions incorporated by reference;
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.
13. Warranty
(a) Seller warrants the materials delivered pursuant to this
Purchase Order shall (i) be new; (ii) not be Counterfeit
Items; and (iii) be free from defects in workmanship,
materials, and design and be in accordance with all the
requirements of this Purchase Order. Seller further
warrants that it shall perform the work and services under
this Purchase Order in accordance with the requirements
of this Purchase Order and in conformance with high
professional standards. These warranties shall survive
final acceptance and payment.
(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, highertier 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 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.
(d) For purposes of this Section 13 Warranty, a Counterfeit
Item is defined to include, but is not limited to, (i) an item
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that is an illegal or unauthorized copy or substitute of an
Original Equipment Manufacturer (“OEM”) item; (ii) an
item that does not contain the proper external or internal
materials or components required by the OEM or that is
not constructed in accordance with OEM design; (iii) an
item or component thereof that is used, refurbished or
reclaimed but Seller represents as being a new item; (iv)
an item that has not successfully passed all OEM
required testing, verification, screening and quality control
but that Seller represents as having met or passed such
requirements; or (v) an item with a label or other marking
intended, or reasonably likely, to mislead a reasonable
person into believing a non-OEM item is a genuine OEM
item when it is not.
14. 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. 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 material,
products 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.
(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 Section 14(a) above.
(c) Buyer’s failure to inspect does not 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 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
TC-004 (1/09)
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 work, materials, products, 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.
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 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.
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agent of any foreign government entity or person; for
the purpose of influencing any act or decision of
such foreign official, foreign political party or official
thereof, candidate or person, officer, director,
shareholder, employee or agent in his, her or its
official capacity, or inducing such foreign official,
foreign political party or official thereof, or candidate
or person to do or omit to do any act in violation of
the lawful duty of such foreign official, foreign
political party or official thereof, candidate or person,
or securing any improper advantage; or inducing
such foreign official, foreign political party or official
thereof, candidate or person, officer, director,
shareholder, employee or agent to use his, her or its
influence with any foreign government or instrumentality thereof or any customer to affect or influence
any act or decision of such foreign government or
instrumentality or customer; in order to assist Buyer
in obtaining or retaining business with, or directing
business to, any person. As used herein, “foreign
official” means any officer or employee of a foreign
government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for
or on behalf of any such government or department,
agency, or instrumentality, or for or on behalf of any
such public international organization.
3. None of Seller’s officers, directors, shareholders,
employees or agents is a Restricted Person. Neither
Seller nor any of its shareholders, directors, officers,
employees or agents has performed or will perform
any act which would constitute a violation of the
FCPA or which would cause Buyer to be in violation
of the FCPA.
4. No Restricted Person has a right to share directly or
indirectly in any compensation payable under this
Purchase Order. No payment will be made hereunder to any person other than Seller; and no
payment will be made to Seller under this Purchase
Order other than the payment of the compensation in
accordance with the terms hereof. No compensation
payable hereunder, has been used, nor will be used,
for any activity or purpose that would violate the
FCPA or that might expose Buyer to liability under
the FCPA.
5. Any modification or amendment to this Purchase
Order shall be deemed a re-certification of the
accuracy and truthfulness of the foregoing representations and warranties of this Section.
(c) Seller certifies that neither Seller nor anyone employed by
Seller is in violation of applicable federal statutes such as
the Defense Acquisition Improvement Act of 1986 and the
Post-Employment Restrictions Act of 1988 with regard to
the employment of former government officers and
employees and Section 423, Title 41 of the United States
Code prohibiting certain activities by competing contractors and Government procurement officials during the
conduct of Federal procurements involving soliciting or
(b) Seller may not subcontract any part of this Purchase
Order without the prior written consent of Buyer. Buyer
shall not be obligated to any subcontractor for the
materials, products or services of any subcontractor
whether or not Buyer has consented to or designated a
subcontractor. Approval of a subcontractor is not a
release or waiver of any obligation of Seller or right of
Buyer. Seller is responsible for all actions or inactions of
any subcontractor and shall bind its subcontractors for the
benefit of Seller and Buyer to perform its obligations
under these terms. If Seller subcontracts any part of the
work outside the country of purchase, Seller shall be
responsible for customs formalities and clearances to the
country of Purchase Order placement, unless the
Purchase Order states otherwise, and Buyer may direct
the contract of carriage. Seller shall agree with Buyer on
a mutually acceptable customs broker, but Seller shall in
no way be relieved from its responsibilities for customs
formalities and clearances, including the actions of the
selected customs broker. Any subcontract awarded to a
foreign person, as defined in the International Traffic in
Arms Regulations or the Export Administration Regulations, must comply with the Export and Import Compliance Controls clause herein.
(c) Seller shall promptly notify Buyer in writing of any
organizational changes made by Seller, including name
or ownership changes, mergers or acquisitions.
19. Compliance with Law
(a) Seller warrants that it shall comply with all applicable
Federal, State and local laws, rulings, and regulations of
the United States of America, including the Foreign
Corrupt Practices Act, 15 U.S.C. 78 et seq. (the “FCPA”),
and all laws and regulations of Seller’s country, during the
performance of this Purchase Order.
(b) Seller represents and warrants to, and covenants and
agrees with, Buyer that:
1. Seller is familiar with the FCPA and its purposes. In
particular, Seller is familiar with the FCPA’s prohibition of the acts described herein.
2. In connection with its performance of this Purchase
Order, Seller has not, directly or indirectly, offered,
paid, given, promised to pay or give, or authorized
the payment or giving of any money, gift, or anything
of value, and will not, directly or indirectly, offer, pay,
give, promise to pay or give, or authorize the
payment or giving of any money, gift, or anything of
value to: (i) any foreign official (as defined herein),
any foreign political party or official thereof, or any
candidate for foreign political office; or (ii) any person
while knowing that all or a portion of such money, gift
or thing of value will be offered, paid, given or
promised, directly or indirectly, to any such foreign
official, foreign political party or official thereof, or to
any candidate for foreign political office, (each such
official, political party or official thereof or candidate
or person being herein called a “Restricted Person”);
or (iii) any officer, director, shareholder, employee or
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discussing post-government employment, offering or
accepting a gratuity, or soliciting or disclosing proprietary
or source selection information.
(d) The provisions of this Section 19 shall be included in any
agreement between Seller and any consultant or
subcontractor operating in the United States. Seller and
its employees who are employed by Seller to perform
Seller’s obligations and work under this Purchase Order
are in compliance with federal statutes and regulations
applicable to federal procurements, including but not
limited to:
1. 18 U.S.C. 207 restricting the employment of former
government employees;
2. 41 U.S.C. 423 (Procurement Integrity as set forth at
FAR 3.104) prohibiting during the conduct of Federal
Procurements, the soliciting or discussing postgovernment employment, offering a gratuity, or
soliciting or disclosing proprietary or source selection
information; and
3. The Honest Leadership and Open Government Act
of 2007.
(e) Seller further agrees to save Buyer harmless and
indemnify Buyer from any loss, damage, fine or penalty or
expense whatsoever that Buyer may suffer as a result of
Seller’s failure to comply with its certification under
Section 19(b) above.
20. Governing Law
(a) 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 quasijudicial
agencies of the United States Government.
(b) Seller shall procure all licenses/permits, and pay all fees,
and other required charges, and shall comply with all
applicable guidelines and directives of any United States
or foreign local, state, and/or federal governmental
authority.
(c) 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.
21. Customs Trade Partnership Against Terrorism
(C-TPAT) Program
(a) The U.S. Bureau of Customs and Border Protection has
created the Customs Trade Partnership Against Terrorism
(“C-TPAT”) program in which the U.S. Government and
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business will work to protect the supply chain from the
introduction of terrorist contraband (weapons, explosives,
biological, nuclear or chemical agents, etc.) in shipments
originating from off-shore of the United States to Buyer,
drop shipments to its sub-tier suppliers, or drop shipments
to its customers originating from off-shore of the United
States. Seller shipments through U.S. importers, from
manufacturers in foreign countries, and brokers/freight
forwarders/carriers must be contracted or assigned with
transportation companies that are C-TPAT participants
certified and/or validated by the U.S. Customs Service.
Seller shall ensure that it has completed the Raytheon CTPAT Foreign Supplier Security Self-Assessment Questionnaire and shall keep such Questionnaire updated.
(b) Seller agrees to take such reasonable measures as may
be required by Buyer to ensure the physical integrity and
security of all shipments under this Purchase Order
against the unauthorized introduction of harmful or
dangerous materials, drugs, contraband, weapons or
weapons of mass destruction or introduction of unauthorized personnel in transportation conveyances or containers. Such measures may include, but are not limited
to, physical security of manufacturing, packing and
shipping areas, restrictions on access of unauthorized
personnel to such areas; personnel screening to the
maximum limits of law or regulations in Seller’s or
manufacturer’s country; and development, implementation and maintenance of procedures to protect the
security and integrity of all shipments.
(c) Seller also agrees that during the period in which it ships
materials or products to Buyer, it and its subcontractors
who either ship directly or package materials or products
for shipment will either (i) be certified under the C-TPAT
program by the U.S. Bureau of Customs and Border
Protection or (ii) demonstrate to Buyer’s satisfaction that it
meets the security requirements of C-TPAT. Accordingly,
Seller must either provide Buyer with documentation that
it and such subcontractors are certified (e.g., C-TPAT
certification or Status Verification Interface (SVI) number)
or provide documentation and evidence satisfactory to
Buyer to demonstrate compliance with C-TPAT security
requirements. C-TPAT requirements can be found at
www.cbp.gov.
(d) Upon five days prior written notice, Buyer, or its designee,
may audit all pertinent books and records of Seller and its
subcontractors, and make reasonable inspection of
Seller’s and its subcontractor’s premises, in order to verify
compliance with the requirements of this provision.
Any delay in delivery due to Seller’s failure to comply with this
provision shall not relieve Seller of its obligations and shall not
constitute a force majeure or give rise to an excusable delay.
22. Trade Agreements
If materials or products will be delivered to a destination country
having a trade preferential, customs union agreement, or customs
program (“Trade Agreement”) with Seller’s country, Seller shall
cooperate with Buyer to review eligibility of materials, products or
services for any special program for Buyer’s benefit and provide
6 of 14
TC-004 (1/09) (continued)
Buyer required documentation to support the applicable special
customs programs to allow duty free or reduced duty entry of
materials or products into the destination country. Similarly, should
any Trade Agreement applicable to the scope of a Purchase Order
exist at any time during its term and be of benefit to Buyer in
Buyer’s judgment, Seller shall cooperate with Buyer’s efforts to
realize any such available credits, including counter-trade or offset
credit value, which may result from such Purchase Order, and
Seller acknowledges that such credits and benefits shall inure
solely to Buyer’s benefit.
Seller shall agree and cooperate with any verification audit/on-site
inspection at Seller’s facilities requested by Buyer or Buyer’s
Customs authorities to verify compliance with the rules of origin
requirements.
23. 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.
24. 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.
(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 and
liability which arise from personal injury, death, or
property loss or damage attributed to, or caused by, the
materials, products, goods, services or other items
supplied by Seller, its subcontractors, agents, or
employees in performance of this Purchase Order,
including, without limitation, latent defects in such
materials, products, goods, services or other items,
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.
(c) If Seller fails to defend, hold harmless, and indemnify
Buyer as provided in this clause, then Seller shall pay for
TC-004 (1/09)
any damages, attorney’s fees, and any other fees, costs,
and expenses that may be incurred by Buyer in the
defense of any action related to this Purchase Order
and/or in the prosecution of any action to enforce the
provisions of this clause.
25. Currency and Offsets
(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 and
prohibitions on incentive payments for the purpose of
satisfying any offset agreement with that country under
22 U.S.C. § 2779a (the “Feingold Amendment”).
In
addition, Seller agrees to identify and retain for Buyer’s
use any rights to offset credits generated by its suppliers
and subcontractors arising out of or resulting from this
Purchase Order. Seller shall provide a copy of each
purchase order or subcontract placed with a foreign
source under this Purchase Order in support of Buyer’s
rights to offset credit. Seller shall execute all necessary
documents to evidence Buyer’s right to use or assign any
offset credits. Buyer reserves the right to assign offset
credits generated through Seller’s efforts under this
Purchase Order to third parties. Seller shall include the
substance of this clause, in favor of Buyer, in its subcontracts issued at all tiers pursuant to this Purchase
Order.
26. Export/Import Controls
(a) Seller hereby certifies that it understands its obligations to
comply with International Traffic in Arms Regulations
(“ITAR”) and the Export Administration Regulations
(“EAR”) and the terms of any U.S. Department of State or
U.S. Department of Commerce export license or export or
temporary import exemption/exception applicable to this
Purchase Order.
(b) Seller shall exercise strict control covering 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 Non-U.S. Persons or to a foreign entity, including
without limitation, a foreign employee or subsidiary of Seller
(including those located in the U.S.), 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. Seller shall consult with Buyer 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
7 of 14
TC-004 (1/09) (continued)
Items to be delivered or exchanged pursuant to this
Purchase Order shall not be imported, exported, or reexported. Resale or other transfer of items delivered or
exchanged pursuant to this Purchase Order shall be in
accordance with this clause. Seller shall comply with the
instructions or requirements of any attachment to this
Purchase Order pertaining to import documentation
necessary to comply with U.S. customs regulations.
(f) U.S. Government import/export authorization is based on
the following ITAR requirements and on all applicable
export licenses with which Seller agrees to comply:
1. Seller shall use Controlled Items furnished by Buyer
only in the manufacture of materials or products in
accordance with this Purchase Order.
2. Seller shall not disclose or provide Controlled Items
furnished by Buyer to any foreign person either in
the United States or abroad before obtaining written
authorization from Buyer or from the U.S. Department of State Office of Defense Trade Controls,
except that if Seller is itself a foreign person, it may
disclose or provide Controlled Items furnished by
Buyer to Seller’s employees who are nationals of
Seller’s country.
3. Seller acquires no rights in Controlled Items
furnished by Buyer except to use them to perform
this Purchase Order. Seller shall not purport to
convey to any subcontractor or person any greater
rights in the Controlled Items than Seller has been
authorized by the U.S. Government. Seller may
convey to subcontractors the right to use the Controlled Items only as required to perform their subcontracts.
4. Seller shall deliver the materials or products
manufactured in accordance with this Purchase
Order only to Buyer in the United States or, with
Buyer’s authorization, to the U.S. Government.
5. On completion or termination of this Purchase Order,
Buyer may require Seller to (i) return to Buyer all
technical data furnished by Buyer pursuant to this
Purchase Order or (ii) destroy such technical data
and to certify in writing to such destruction.
6. Seller shall impose these requirements, 1 through 6
inclusive, suitably revised to properly identify the
parties, on all subcontractors to whom Seller intends
to furnish Controlled Items provided by Buyer for use
by the subcontractors in performance of subcontracts.
(g) Seller agrees, in addition to the above procedures
established by the ITAR, to place the following legend on
all Technical Data obtained, used, generated, or delivered
in performance of this Purchase Order:
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) The following restrictions shall apply to all technical data,
as that term is defined in ITAR 22 CFR 120-130, including
paragraph 120.6, 120.9, and 120.10, including, but not
limited to: drawings, designs, specifications, process
specifications, process information, know-how information, technical assistance, detailed process information, manufacturing know-how, and other technical
documents and information furnished or disclosed to
Seller by Buyer (herein called “Technical Data”) and to
any materials or products manufactured by use of
Technical Data.
(d) Seller shall comply with ITAR and shall not disclose any
Technical Data for any purpose not contemplated under
the terms of this Purchase Order and the licensed
authorization described in Paragraph (b), above.
Sublicensed disclosure of Technical Data to any authorized third party requires a Non-Disclosure Agreement
(NDA). Third parties include Seller’s subcontractors or
potential subcontractors; i.e., non-United States subcontractors or any subcontractor, U.S. or foreign, located
outside of the United States. The NDA requires compliance with ITAR and specifically the required provisions
for Technical Assistance Agreements (TAAs) or Manufacturing License Agreements (MLAs) in ITAR Sections
124.8 and 124.9 respectively. To the extent that this
Section 26 is included without change in any subcontract,
it will serve as the required NDA. Whether addressed in a
separate NDA or through the application of this Section,
the NDA must be maintained on file for a period of five (5)
years after Purchase Order completion. Seller, upon
execution of each NDA obtained pursuant to this Section
(or a purchase order containing this Section), shall
provide a copy to Buyer. The complete content of this
Paragraph (d) must be included in all agreements or
purchase orders issued to all affected subcontractors at
any tier.
(e) The importer/exporter of record has obtained, or will
obtain and properly use, U.S. Government import/export
authorization to furnish to Seller any defense articles,
Technical Data, defense services, software, and/or other
controlled items (collectively referred to herein as
“Controlled Items”), which are necessary for Seller to
perform this Purchase Order and which require such
authorization. Such Controlled Items are authorized for
export only to Seller’s country for use by Seller and may
not, without the prior written approval of the U.S.
Government, be transferred, transshipped on a noncontinuous voyage, or otherwise disposed of in any other
country, either in their original form or after being
incorporated into other end items. If so requested by the
importer/exporter of record, the other party shall assist in
obtaining such authorization. If U.S. Government import/
export authorization is not available, cannot be obtained,
or is obtained and subsequently revoked, Controlled
TC-004 (1/09)
WARNING—Information Subject to Export Control Laws.
This document, or software if applicable, contains
information subject to the International Traffic in
Arms Regulation (ITAR) or the Export Administration Regulation (EAR) of 1979. This infor8 of 14
TC-004 (1/09) (continued)
mation may not be exported, released, or
disclosed to foreign persons, whether within or
outside the United States without first complying
with the export license requirements of the ITAR
and/or the EAR. Include this notice with any
reproduced portion of this document.
(h) When requested by Buyer’s Authorized Representative or
agent, Seller shall, promptly and without additional cost,
furnish Buyer with any documentation, including import
certificates or end-user statements from Seller or Seller’s
government, which is reasonably necessary to support
Buyer’s application for U.S. import or export authorizations. Buyer shall not be responsible for delays in U.S.
import or export of Controlled Items supplied hereunder
by Buyer resulting from a lack of necessary documentation from Seller or Seller’s country.
(i) 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 by the United States
Government or the government of Seller.
(j) If the government of either party denies, fails to grant, or
revokes any import or export authorizations necessary for
the performance of this Purchase Order, that party shall
immediately notify the other party and neither party shall
be responsible for performance or payment under this
Purchase Order for directly affected activities.
(k) Should Seller’s products or services originate from a
foreign location and are 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 Buyer in connection with
any violations of such laws and regulations by Seller.
Buyer shall be responsible for complying with any laws or
regulations governing the importation of the articles into
the United States of America.
(l) 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.
(m) Should Seller discover any violation, Seller shall promptly
notify Buyer and cooperate fully with any investigation
and, if required by Buyer, in the preparation and
submission of any voluntary disclosure to government
authorities.
(n) Seller shall ensure that they prepare and provide a
compliant invoice for each shipment to Buyer for Buyer’s
use in affecting an import entry declaration with U.S.
Customs & Border Protection (CBP). Seller shall further
ensure that the invoice contents accurately and
completely reflect the transaction subject to this Purchase
Order. The invoice shall be produced in the form
described in Section 2 above, and shall include the
elements set forth in Exhibit A attached hereto.
TC-004 (1/09)
27. 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.
28. 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 Ethics and Code of Conduct of Raytheon
Company (available at www.raytheon.com) 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.
29. English Language
This Purchase Order is made in the English language and all
correspondence between the parties of a technical and nontechnical nature shall be in the English language and shall employ
the units of measure customarily used by Buyer in the United
States of America, unless otherwise specified. All notices and other
binding communications may, unless otherwise specified, be sent
by facsimile, electronic mail, air mail, or other customary means.
30. Electronic Transmissions
Seller shall, at Buyer’s request and Seller’s expense, send and
receive business transactions by electronic means using Webbased technologies. Such electronic transmissions may include, but
not be limited to, transmission by or through: (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. All transactions
executed by electronic transmissions shall be governed by the
terms contained in Buyer’s transmissions, except that standard
terms and conditions which may be a part of EXOSTAR or Buyer’s
EDI system shall be supplemented by, and superseded to the
extent inconsistent with, these International General Terms and
Conditions of Purchase. A transmission shall be deemed signed if it
contains the name of the individual authorizing the transaction and
is otherwise in accord with authentication and other provisions of
EXOSTAR or Buyer’s EDI system.
31. Buyer’s Access to Records and Facilities
In order to assess Seller’s work quality, conformance with Buyer’s
specifications and compliance with this Purchase Order, and
Seller’s overall financial statements and financial condition, Buyer
or its authorized agents and representatives shall have the right at
any time during normal business hours of Seller and without
reasonable notice to Seller to inspect all: (i) records, books, tax
returns and other documents in the possession or under the control
of Seller relating to any of Seller’s obligations under this Purchase
Order (“Records”) or any termination claim of Seller; (ii) materials
and services related in any way to the products, including
purchased tooling at all places, including sites where the materials
or products are created or the services are performed, whether they
be at premises of Seller, Seller’s suppliers or elsewhere; (iii)
9 of 14
TC-004 (1/09) (continued)
furnished property; and (iv) required tooling. If any inspection, audit
or similar oversight activity is made on Seller’s or its suppliers’
premises, Seller shall, without additional charge, provide all
reasonable access and assistance for the safety and convenience
of the inspectors; and take all necessary precautions and
implement appropriate safety procedures for the safety of the
inspectors while they are present on such premises. In the event
that Buyer notifies Seller of any deficiency detected during such
inspection, Seller shall correct such deficiency within the time
period specified in such notice. Seller shall obtain from its subcontractors such access rights for the benefit of Buyer.
32. Audit Rights
Seller shall maintain general Records relating to this Purchase
Order for a minimum period of four years (or for such longer period
agreed to in writing by the parties) after completion of final delivery
of materials, products or services pursuant to this Purchase Order.
Records of all manufacture, testing and inspection by Seller of the
materials or products shall be kept complete, separate and
available to Buyer and its Customer during the performance of this
Purchase Order and for such longer periods as may be specified in
this Purchase Order, but not less than ten years after the last
delivery of the materials, products or services to Buyer. Buyer or its
authorized agents and representatives shall have the right at any
time during normal business hours of Seller and without prior notice
to audit Records. In the event any such audit shall disclose an
overpayment to Seller, Seller shall pay Buyer, within 14 calendar
days after receipt of notice from Buyer, the amount of such
overpayment together with interest and Seller shall reimburse
Buyer for the cost of such audit. Seller shall obtain from its
subcontractors such audit rights for the benefit of Buyer.
33. Labor Disputes
Whenever Seller has knowledge that any actual or potential labor
dispute is delaying or threatens to delay timely performance of this
Purchase Order, Seller shall immediately give notice to Buyer
including all relevant information including, but not limited to, the
nature of dispute, the labor organizations involved, the estimated
impact on Seller’s performance of Buyer’s Purchase Order and the
estimated duration. Seller shall also provide updated reports
throughout the dispute duration. Seller agrees to insert the
substance of this clause, including this sentence, in any lower–tier
subcontract where a labor dispute might delay timely performance
of this Purchase Order.
34. Independent Contractor
Seller and Buyer are and shall be deemed to be independent
contractors at all times during performance of the work specified in
this Purchase Order. Under no circumstances shall Seller be
deemed an agent for Buyer or Buyer be deemed an agent for
Seller.
Export/Import Controls (Section 26) provisions of this Purchase
Order, shall survive termination, expiration, or completion of this
Purchase Order.
36. 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) when Seller places purchase orders with suppliers in the
United States.
37. FAR/DFARS Provisions/Clauses
When the materials, products or services furnished are for use in
connection with a U.S. Government prime contract or higher-tier
subcontract, in addition to the terms and conditions referenced
above, the following FAR and DFARS clauses and provisions shall
apply, as required by the terms of the prime contract or by
operation of law or regulation. The effective version of each FAR or
DFARS provision shall be the same version as that which appears
in Buyer’s prime contract, or higher-tier subcontract under which
this Purchase Order is a subcontract. The following clauses set
forth in the FAR and DFARS in effect as of the date of the prime
contract or higher-tier subcontract are incorporated herein by
reference. In all clauses listed herein, the terms “Government,”
“Contracting Officer” and “Contractor” shall be revised to suitably
identify the contracting parties herein and affect the proper intent of
the clause or provision except where further clarified or modified
below. However, 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;
(2) when title to property is to be transferred directly to the
Government; and (3) in FAR 52.227-1, 52.227-2, and 52.246-23.
The word "Government" does not change in DFARS 252.227-7013
and 252.227-7014. “Subcontractor,” however, shall mean “Seller’s
Subcontractor” under this Purchase Order. The listed FAR and
DFARS clauses are incorporated herein as if set forth in full text
unless made inapplicable by its corresponding note, if any.
Whenever said clauses include a requirement for the resolution of
disputes between the parties in accordance with the “Disputes”
clause herein, the dispute shall be disposed of in accordance with
the clause entitled “Disputes” in these International General Terms
and Conditions of Purchase. If any of the following FAR or DFARS
clauses do not apply to this Purchase Order, such clauses are
considered to be self-deleting. The most recent versions of U.S.
Government provisions and clauses for Purchase Orders under
U.S. Government Contracts that are incorporated by reference into
this Purchase Order are made available on the Internet at:
http://www.raytheon.com/connections/supplier/terms/index.html
35. Survivability
Seller’s obligations, including but not limited to obligations under the
Termination for Convenience (Section 4), Termination for Default
(Section 5), Proprietary Rights (Section 9), Release of Information
(Section 11), Warranty (Section 13), Infringement (Section 16),
Compliance with Law (Section 19), Responsibility and Insurance
(Section 23), Indemnity Against Claims (Section 24), and
TC-004 (1/09)
10 of 14
TC-004 (1/09) (continued)
PART II – FAR/DFARS CLAUSES FOR COMMERCIAL ITEM
PROCUREMENTS
Orders with economic price adjustment.)
Excessive Pass-Through Charges –
Identification of Subcontract Effort.
(MAY 2008) (Applicable to solicitations
for Purchase Orders issued under DoD
solicitations issued after May 12, 2008,
except solicitations for FFP Purchase
Orders and FP Purchase Orders with
economic price adjustment.)
For Purchase Orders placed in support of and charged to a U.S.
Government Prime Contract or subcontract thereunder procuring an
item meeting the FAR 2.101 definition of a “commercial item,” the
following clauses set forth in the FAR or the 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. Seller shall include the terms of
this Section, in all purchase orders or subcontracts awarded under
this Purchase Order. Clauses that are marked in this PART II with
an asterisk (*) are applicable to this Purchase Order if work under
the Purchase Order will be performed in the United States or Seller
is recruiting employees in the United States to work on the
Purchase Order.
15. Excessive Pass-Through Charges.
252.215-7004
(APR 2007) (Applicable to Purchase
Orders under DoD contracts entered
into after April 25, 2007 and before May
13, 2008, except FFP Purchase Orders
and FP Purchase Orders with economic
price adjustment.)
A. APPLICABLE TO ALL PURCHASE ORDERS:
1.
Contractor Code of Business Conduct
2.
Requirements for Cost or Pricing Data
or Information Other than Cost or
Pricing Data
52.203-13
52.215-21
4.
Combating Trafficking in Persons and
Alternate 1 (Include Alternate 1 if it is
included in the prime contract)
52.222-50 &
Alt 1
5.
Restrictions on Certain Foreign
Purchases
52.225-13
6.
Subcontracts for Commercial Items
52.244-6
7.
Preference for Privately Owned U.S.
Flag Commercial Vessels
52.247-64
8.
Utilization of Small Business Concerns* 52.219-8
9.
Prohibition of Segregated Facilities*
52.222-21
10. Equal Opportunity*
52.222-26(b)
11. Ozone-Depleting Substances*
52.223-11
12. Requirements for Contracts Involving
Export-Controlled Items
252.204-7008
13. Requirements Regarding Potential
Access to Export-Controlled Items
252.204-7009
14. 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, except solicitations for firm-fixed price (FFP) Purchase
Orders and fixed-price (FP) Purchase
252.215-7003,
excluding
(c)(1), which is
deleted from
this provision
TC-004 (1/09)
252.215-7004
Excessive Pass-Through Charges.
(MAY 2008) (Applicable to Purchase
Orders under DoD contracts entered
into after May 12, 2008, except FFP
Purchase Orders and FP Purchase
Orders with economic price adjustment.)
52.215-20
Requirements for Cost or Pricing Data
or Information Other than Cost or
Pricing Data
3.
252.215-7003,
excluding
(c)(1), which is
deleted from
this provision
16. Preference for Domestic Specialty
Metals and Alternate 1
252.225-7014
and (Alt 1)
17. Preference for Domestic Specialty
Metals (DEVIATION No. 2006-O0004)
and Alternate 1 (DEVIATION No. 2006O004) (These deviations apply to
Purchase Orders under prime contracts
awarded after November 15, 2006, and
before October 26, 2007)
252.225-7014
(Dev. No.
2006-O0004) &
Alt 1 (Dev. No.
2006-O0004)
18. Preference for Domestic Specialty
Metals (DEVIATION No. 2007-O0011)
and Alternate 1 (DEVIATION No. 2007O0011) (These deviations apply to
Purchase Orders under prime contracts
awarded after October 25, 2007 and
before January 29, 2008.)
252.225-7014
(Dev. No.
2007-O0011) &
Alt 1 (Dev. No.
2007-O0011)
19. Preference for Domestic Specialty
Metals (DEVIATION No. 2008-O0002)
and Alternate 1 (DEVIATION No. 2008O0002) (These deviations apply to
Purchase Orders under prime contracts
awarded after January 28, 2008.)
252.225-7014
(Dev. No.
2008-O0002) &
Alt 1 (Dev. No.
2008-O0002)
B. APPLICABLE IF PURCHASE ORDER EQUAL OR
GREATER THAN $10,000:
1.
Affirmative Action for Workers with
Disabilities*
52.222-36
C. APPLICABLE IF PURCHASE ORDER EQUAL OR
GREATER THAN $100,000:
11 of 14
TC-004 (1/09) (continued)
1.
Limitation on Payments to Influence
Certain Federal Transactions
52.203-12
11. Ozone-Depleting Substances*
52.223-11
2.
Notification of Employee Rights
Concerning Payment of Union Dues or
Fees*
52.222-39
12. Requirements for Contracts Involving
Export-Controlled Items
252.204-7008
Equal Opportunity for Special Disabled
Veterans, Veterans of the Vietnam Era,
and Other Eligible Veterans*
52.222-35
13. Requirements Regarding Potential
Access to Export-Controlled Items
252.204-7009
3.
Employment Reports on Special
Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible
Veterans*
52.222-39
14. 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, except
solicitations for firm-fixed price (FFP)
Purchase Orders and fixed-price (FP)
Purchase Orders with economic price
adjustment.)
252.215-7003,
excluding
(c)(1), which is
deleted from
this provision
Excessive Pass-Through Charges –
Identification of Subcontract Effort.
(MAY 2008) (Applicable to solicitations
for Purchase Orders issued under DoD
solicitations issued after May 12, 2008,
except solicitations for FFP Purchase
Orders and FP Purchase Orders with
economic price adjustment.)
252.215-7003,
excluding
(c)(1), which is
deleted from
this provision
4.
D. APPLICABLE IF PURCHASE ORDER EQUAL OR
GREATER THAN $550,000:
1.
Small Business Subcontracting Plan*
52.219-9
PART III – FAR/DFARS CLAUSES FOR NON-COMMERCIAL
ITEM PROCUREMENTS
For Purchase Orders placed in support of and charged to a U.S.
Government Prime Contract or subcontract thereunder procuring a
non-commercial item, the following clauses set forth in the FAR or
the 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. Seller
shall include the terms of this Section, in all purchase orders or
subcontracts awarded under this Purchase Order. Clauses that are
marked in this PART III with an asterisk (*) are applicable to this
Purchase Order if work under the Purchase Order will be performed
in the United States or Seller is recruiting employees in the United
States to work on the Purchase Order.
15. Excessive Pass-Through Charges.
252.215-7004
(APR 2007) (Applicable to Purchase
Orders under DoD contracts entered
into after April 25, 2007 and before May
13, 2008, except FFP Purchase Orders
and FP Purchase Orders with economic
price adjustment.)
A. APPLICABLE TO ALL PURCHASE ORDERS:
1.
Restrictions on Subcontractor Sales to
the Government
52.203-6
2.
Price Reduction for Defective Cost or
Pricing Data
52.215-10
3.
Price Reduction for Defective Cost or
Pricing Data-Modifications
52.215-11
4.
Subcontractor Cost or Pricing Data
52.215-12
5.
Subcontractor Cost or Pricing DataModifications
52.215-13
6.
Integrity of Unit Prices
52.215-14
7.
Utilization of Small Business Concerns* 52.219-8
8.
Contract Work Hours and Safety
52.222-4
Standards Act-Overtime Compensation*
9.
Prohibition of Segregated Facilities*
10. Equal Opportunity*
TC-004 (1/09)
Excessive Pass-Through Charges.
252.215-7004
(MAY 2008) (Applicable to Purchase
Orders under DoD contracts entered
into after May 12, 2008, except FFP
Purchase Orders and FP Purchase
Orders with economic price adjustment.)
52.222-21
52.222-26
12 of 14
16. Safety Precautions for Ammunition and
Explosives “Government” means
“Government and/or Buyer”
252.223-7002
17. Duty-Free Entry
252.225-7013
18. Preference for Domestic Specialty
Metals and Alternate 1
252.225-7014
and (Alt 1)
19. Preference for Domestic Specialty
Metals (DEVIATION No. 2006-O0004)
and Alternate 1 (DEVIATION No. 2006O004) (These deviations apply to
Purchase Orders under prime contracts
awarded after November 15, 2006, and
before October 26, 2007)
252.225-7014
(Dev. No.
2006-O0004) &
Alt 1 (Dev. No.
2006-O0004)
TC-004 (1/09) (continued)
20. Preference for Domestic Specialty
Metals (DEVIATION No. 2007-O0011)
and Alternate 1 (DEVIATION No. 2007O0011) (These deviations apply to
Purchase Orders under prime contracts
awarded after October 25, 2007 and
before January 29, 2008.)
252.225-7014
(Dev. No.
2007-O0011) &
Alt 1 (Dev. No.
2007-O0011)
21. Preference for Domestic Specialty
Metals (DEVIATION No. 2008-O0002)
and Alternate 1 (DEVIATION No. 2008O0002) (These deviations apply to
Purchase Orders under prime contracts
awarded after January 28, 2008.)
252.225-7014
(Dev. No.
2008-O0002) &
Alt 1 (Dev. No.
2008-O0002)
B. APPLICABLE IF PURCHASE ORDER EQUAL TO OR
GREATER THAN $10,000:
1.
Affirmative Action for Workers with
Disabilities*
52.222-36
C. APPLICABLE IF PURCHASE ORDER EQUAL TO OR
GREATER THAN $25,000:
1.
Audit – Negotiation
52.215-2
D. APPLICABLE IF PURCHASE ORDER EQUAL TO OR
GREATER THAN $100,000:
1.
Integrity of Unit Prices*
52.215-14
2.
Equal Opportunity for Special Disabled
Veterans, Veterans of the Vietnam Era,
and Other Eligible Veterans*
52.222-35
3.
Employment Reports on Special
Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible
Veterans*
52.222-37
22. Notice and Assistance Regarding Patent 52.227-2
and Copyright Infringement
23. Refund of Royalties
52.227-9
24. Authorization and Consent
52.227-1
25. Stop Work Order
52.242-15
26. Rights in Technical Data –
Noncommercial Items
252.227-7013
4.
52.222-39
252.227-7014
27. Rights in Noncommercial Computer
Software and Noncommercial Computer
Software Documentation
Notification of Employee Rights
Concerning Payment of Union Dues or
Fees*
5.
Toxic Chemical Release Reporting*
52.223-14
E.
APPLICABLE IF PURCHASE ORDER EQUAL TO OR
GREATER THAN $550,000:
28. Technical Data - Commercial Items
252.227-7015
29. Rights in Bid or Proposal Information
252.227-7016
30. Identification and Assertion of Use,
Release, or Disclosure Restrictions
252.227-7017
31. Validation of Asserted Restrictions –
Computer Software
252.227-7019
1.
Contractor Code of Business Ethics and 52.203-13
Conduct*
32. Limitation on the Use or Disclosure of
Government Furnished Information
Marked with Restrictive Legends
252.227-7025
2.
Display of Hotline Poster(s)*
33. Deferred Delivery of Technical Data or
Computer Software
252.227-7026
34. Deferred Ordering of Technical Data or
Computer Software
252.227-7027
35. Technical Data - Withholding of
Payment
252.227-7030
36. Validation of Restrictive Markings on
Technical Data
252.227-7037
37. Accident Reporting and Investigation
Involving Aircraft, Missiles, and Space
Launch Vehicles
252.228-7005
38. Frequency Authorization
252.235-7003
39. Warranty of Data
252.246-7001
40. Value Engineering
52.248-1
TC-004 (1/09)
1.
F.
13 of 14
Small Business Subcontracting Plan*
52.219-9
APPLICABLE IF PURCHASE ORDER EQUAL TO OR
GREATER THAN $5,000,000:
52.203-14
TC-004 (1/09) – EXHIBIT A
INVOICING INSTRUCTIONS
Invoices submitted to Buyer shall contain the following information:
a.
Purchase Order number, including Purchase Order item number for the delivered articles.
b.
Location and Names of Seller and/or Shipper, Buyer, Buyer’s Supply Chain contact person, and dates, as follows:
i.
Date when merchandise is sold or agreed to be sold.
ii.
Merchandise shipment date (month, day, year).
iii.
Name and address of the Shipper, if Seller is not the Shipper.
iv.
Name and contact information for an employee, employed by Seller or Shipper, who has detailed knowledge of the sales
transaction.
c.
Terms of Sale: Specify the Incoterms 2000 as agreed in the Purchase Order.
d.
Quantities, weights and measures:
i.
Record the quantity of each article/part number in the shipment.
ii.
If not separately noted on a packing list(s), include the following on the invoice:
1.
Total quantity of parts being shipped.
2.
Net weight of each part and gross weight of entire shipment.
3.
Specify unit of measure being used.
4.
Specify the total number of boxes included per packing list.
e.
Detailed description of each item being shipped to ensure proper product classification per the Harmonized Tariff Schedule (HTS),
including, at a minimum:
i.
The full name (no abbreviations) by which each item is known.
ii.
Part number as it appears on the Purchase Order. If the item is raw material, provide the material type (e.g. aluminum sheet
rock), form (e.g. bar, wire, plates, sheets), and dimensions.
Note: Generic descriptions, abbreviations and acronyms are not acceptable.
f.
Country of origin: Indicate the country of manufacture of each item.
g.
Valuation:
i.
Must be complete and accurate, including the unit price of each part and the total value of the entire shipment.
ii.
Currency on all invoices must reflect the actual currency of the Purchase Order and the transaction of money between Buyer
and Seller.
iii.
List separately any Assists and/or Additional costs or charges made for activities related to the Purchase Order transaction.
Examples of these include:
1.
Assists: any finished or semi-finished components, raw materials, forgings, castings or tooling that are supplied by
Buyer to Seller free of charge or at a reduced cost, and used in the production of the imported goods.
2.
Engineering and Design Work: Work that is performed outside of the United States by non-U.S. employees, and is not
included in the unit price of the merchandise being imported.
3.
Packing Costs: Costs for packing that are incurred by Buyer and that have not been included in the unit price.
4.
Non-recurring charges: One-time charges, incurred by Buyer, for such items as, expedite fees, Non-Recurring
Engineering tooling costs, which have not been included in the unit price.
5.
Selling Commissions – Commissions incurred by Buyer that have not been included in the unit price.
6.
Royalties: Fees Buyer is required to pay as a condition of the sale.
iv.
List all discounts that have been agreed to, or may be allowed, that apply to the Purchase Order price or value, but that have
not been included in the unit price (terms of payment).
v.
Repairs or modified parts – separately declare the value of the item and the value of the repair or modifications on the invoice.
For repairs affected at “no charge,” declare the actual value of the repair had there been a charge on the invoice.
TC-004 (1/09) – Exhibit A
14
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