CUSTOMER TERMS AND CONDITIONS OF SALE
Ideal System Solutions, Inc. (ISSI) is a value added reseller of computer systems and equipment, electronic components, software and services (hereinafter) referred to as Product to Customers. By placing an order to Ideal System Solutions, Inc. for Product(s), the Customer agrees to be bound by and accept these terms and conditions. NOW THEREFORE, in consideration of the foregoing and the terms and conditions and procedures hereinafter set forth the parties hereto agree as follows:
1. Order Purchasing. ISSI will supply Product to Customer pursuant to written Purchase Order(s) received and approved by ISSI on the ongoing basis from the date of the delivered product(s)
2. Shipping. ISSI will use its choice of carrier to ship all Product supplied to applicable Purchase Orders under this Agreement unless an alternate carrier is designated by Customer. If an alternate carrier is requested, Customer will provide ISSI with Customer’s account number with the requested carrier in order for the carrier to bill directly for shipping of Product on the applicable Purchase Order(s). All orders will ship F.O.B. origin. It will be Customers responsibility to insure individual shipments should they so choose.
3. Pricing. All Products will be shipped at the price quoted to and included in the applicable Purchase Order submitted by Customer. Price quotations contained in Purchase Orders will not bind or obligate ISSI to use those prices on future orders. ISSI reserves the right to change the prices of Product without prior notice to Customer, including but not limited to Manufacturer’s Suggested Retail Price (MSRP) and Minimum Advertised Price (MAP). The Customer agrees not to advertise any price lower than the MAP, including but not limited to all Internet and print advertising, for all Products that have an established MAP (refer to ISSI price sheet).
4. Payment. Payment terms are prepay, credit card, or net terms. Upon shipment, ISSI will invoice for Order(s) shipped. The invoice will include the price of the shipped Product and the costs of shipping. Payment in full will be due within thirty (30) days of the invoice date for term customers. Payments may be mailed to Ideal System Solutions, Inc. at P.O. Box 399, Pequot Lakes, MN 56472. Title to equipment remains with Ideal System Solutions, Inc, until payment has been received in full. As an additional security for performance of the terms of this Agreement, which will apply to all Product purchased by Customer for their own end use during the term of this Agreement, Customer agrees to execute a Security Agreement for the Product in addition to this Agreement, at ISSI’s request.
5. Interest on Outstanding Invoices. Permitted by Minnesota law up to and including 18% per annum, where allowed.
6. Return Policy. ISSI’s complete Returns Policy can be obtained by contacting your sales rep or by contacting customer service at 888-696-1044.
6.1. Defective Product. For Customer to return defective Product during the Warranty period, a Return Merchandise Authorization (RMA) number must be requested from ISSI. This number may be obtained by calling your sales rep or by contacting customer service at 888-696-1044 prior to returning any Product. ISSI will require the following information from Customer in order to process the request for an RMA number:
Company name, telephone and fax numbers, and name of contact person;
Original invoice number for the Product returned;
Serial number, description, quantity and unit price; and
RMA number issued by ISSI will be valid for fourteen (14) days following the date of issue. Customer must display the RMA number prominently on all shipping cartons containing returned Product. Defective Product being returned for credit or replacement must be shipped to ISSI freight prepaid and in the original packaging within thirty (30) days of the original invoice date, and must include all accessories, manuals and packing materials. Defective Product returned for repair must include only the item(s) to be repaired. ISSI will not be responsible for the return of non-defective accessories or other material after completion of any repairs of defective Product. ISSI will not be responsible for any damage to the Product not covered by Warranty prior to their return to ISSI.
6.2. Non-Defective Product. Non-defective Product returned to ISSI for credit must be shipped to ISSI freight prepaid in the original packaging and must include all accessories, manuals and packing materials. A twenty percent restocking fee will be charged for all non-defective Product returned in good condition within thirty (30) days of original invoice date. No refunds will be made for Product returned after thirty (30) days from the date of receipt by Customer. ISSI will not be responsible for any damage to the Product not covered by Warranty prior to return to ISSI and will not refund or credit Customer for freight paid to return the non-defective Product. All decisions regarding any refund or return will be made by ISSI at their sole discretion.
7. Risk of Loss. ISSI will retain title to and risk of loss and damage on all Products to be delivered hereunder until shipment.
8. Excusable Delays. ISSI will not be liable for any damages including incidental or consequential damages, or liquidated damages, if any, for delays in delivery or failure to perform due to causes beyond the control and without the fault or negligence of ISSI.
9. Term. The term of this Agreement will continue indefinitely unless sooner terminated by either party.
10. Termination. This Agreement may be terminated by either party without cause upon the giving of thirty (30) days written notice to the non-terminating party. Any Order issued during the term of this Agreement and not completed within the term may be completed by ISSI at their sole discretion. This Agreement will govern the Parties rights and obligations with respect to any such Order which ISSI determines they will complete to the same extent as if the Order were completed during the Agreement term.
11. Customer’s Representations and Warranties. Customer represents that each time a Purchase Order is submitted to ISSI, Customer has the present intention and ability to pay for the Product ordered. Additionally, Customer represents that the information provided by them to ISSI in conjunction with the Application for Open Account was true, accurate and correctly reflects the financial condition of Customer. The Parties agree that ISSI is relying upon these representations in entering into this Agreement and will be relying upon these representations when they accept Purchase Orders from Customer and ships Product in accordance with each Purchase order.
12. ISSI’s Representations and Warranties. ISSI warrants their Products to be free of defects in material and workmanship for a period of ONE (1) YEAR after date of purchase by Customer or the length of the warranty from the manufacturer, whichever is shorter. During the Warranty period, ISSI will repair or replace, at their sole discretion, components of the Product(s) which prove to be defective. The length of time for the repair will vary among Products and may take up to six (6) to eight (8) weeks from receipt of the defective Product(s) by ISSI. This Warranty shall not apply to Products that have been damaged by unreasonable use, accident, negligence, modification or service work performed by anyone other than an ISSI authorized technician.
13. Title to equipment transfers upon full payment of equipment to Ideal System Solutions, Inc. In the event that Customer resells equipment to a third party, Customer agrees that there is an unconditional obligation to enter into a same security agreement with third party for equipment until payment has been made in full to Ideal System Solutions, Inc. At ISSI’s discretion, a UCC Security Interest may be filed insecurity of equipment and Customer agrees to notify third party of such agreement. Customer will not pass title onto a third party until payment for equipment has been made in full.
14. Limitation of Warranty. EXCEPT AS HEREIN STATED, IDEAL SHALL NOT BE LIABLE FOR ANY DAMAGES OR FOR THE BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OR FOR ANY OTHER OBLIGATION OR LIABILITY ON ACCOUNT OF THE PRODUCTS COVERED BY THIS AGREEMENT WHICH THEY MAY SELL TO CUSTOMER.
15. Confidentiality Agreement. Customer will neither use nor disclose to any third parties any confidential information concerning the business, affairs or Products of ISSI which Customer may acquire during the course of their activities under this Agreement or any prior agreements between ISSI and Customer. In addition, Customer will take any and all necessary precautions to prevent any such disclosure by any and all of their employees, officers, directors, representatives, agents or sub-distributors. Customer acknowledges that any right, title and interest in and to the aforesaid confidential information are vested in ISSI and that the information is the sole property of ISSI. For purposes of this Agreement, it is understood by the Parties that the term confidential information includes, but is not limited to, trade secrets and un-patentable intellectual property.
16. Indemnification. Each Party (individually, Indemnifying Party) agrees to indemnify, hold harmless and defend the other Party, their past and future affiliates, subsidiaries and assigns against any and all claims, demand, obligation, causes of action and lawsuits (Claim) brought by any third parties and arising from the Indemnifying Party’s action or inaction in conjunction with the Agreement, including but not limited to (a) services performed, actions take or Product supplied by the Indemnifying Party or those acting under it to comply with the Agreement; and (b) failure of the Indemnifying Party or those acting under it to comply with the regulations and other requirements of any governmental authority with respect to their actions, obligations and duties under the Agreement. The non-indemnifying party agrees to give the Indemnifying Party prompt notice of any Claim and to allow the Indemnifying Party to control the defense and settlement of same.
17. Notice. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given upon the earlier of the actual delivery to the party to whom the notice is given or three days subsequent to mailing by certified or registered mail, postage prepaid and addressed:
To Ideal: Ideal System Solutions, Inc.
P.O. Box 399
Pequot Lakes, MN 56472
18. Governing Law. This Agreement shall be governed and construed under the laws of the State of Minnesota.
19. Choice of Forum/Venue. The Parties expressly agree that venue will be the State of Minnesota only, and consent to the exclusive jurisdiction of the courts of the State of Minnesota, County of Hennepin in either the state or federal courts located therein.
20. Collection Costs. In the event that any demand, suit or action is necessary to collect any outstanding invoice amounts due from Customer under this Agreement, ISSI shall additionally recover all costs of collection, including reasonable attorney fees. A thirty dollar ($30.00) service charge will be assessed on any returned check.
21. Parties in Interest. This Agreement will be binding upon, and inure to, the Parties and their respective heirs, legal representatives, successors, assigns and transferees, as the case may be.
22. Entire Agreement. This Agreement constitutes the entire understanding of the Parties hereto and shall supersede all prior understandings or agreements, both written and oral, relating to the subject matter hereof, and no course of dealing or usage of trade will be applicable unless expressly incorporated in this Agreement. This Agreement shall not be altered, modified, supplemented or amended, nor any provision waived, except by a writing duly signed by the Parties.
23. Equal Opportunity Clause 41 CFR60-1.4(a) [or (b) as the situation applies] is incorporated here by reference.
TERMS AND CONDITIONS OF PURCHASE
BY ACCEPTANCE AND FULFILLMENT OF AN IDEAL SYSTEM SOLUTIONS, INC. (“ISSI”) PURCHASE ORDER (“PURCHASE ORDER”) FOR GOODS OR SERVICES, YOU (“SELLER”) ARE HEREBY AGREEING TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF PURCHASE:
General Purchase Order Instructions.
1. Deliver no goods without purchase order;
2. Acknowledge receipt of this order to firstname.lastname@example.org;
3. Make no changes to this order without written authorization;
4. Specify purchase order number on all packaging;
5. If shipping to a location other than Ideal System Solutions, Inc., use ISSI as the sender (blind shipment);
6. Unless otherwise stated, all goods must be new and in original packaging;
7. No substitutes or third party products will be accepted
8. Unless otherwise stated, do not insure goods.
Hazardous Material. Seller warrants that items delivered under this Purchase Order do not contain any of the hazardous material listed on the hazardous materials elimination list (HMEL) under the heading “Table 1: Banned Materials” as of the effective date of this Purchase Order. Seller agrees to indemnify buyer against any loss, cost, damage or liability, including removal costs by reason of seller’s violation of this warranty.
Billing. Buyer shall not be billed at or charged prices higher than stated on the Purchase Order without the prior written consent of ISSI.
Delivery. If Seller refuses or fails to make deliveries of the articles within the time specified in this order or any extension thereof, ISSI may terminate the right of Seller to deliver the articles, except when delay of Seller in delivering articles is due to unforeseeable causes beyond the control and without the fault or negligence of Seller such as “acts of G
Warranty. (a) Seller warrants the goods delivered pursuant to an ISSI Purchase Order, unless specifically stated otherwise in the Purchase Order, shall (i) be new (ii) be free from defects in workmanship, materials, and design and (iii) be in accordance with all the requirements of this Purchase Order. Seller further warrants that the performance of work and services shall conform with the requirements of this Purchase Order and to high professional standards and that the articles to be supplied under this contract are fit and sufficient for the purpose intended: that they are merchantable, of good quality and free from defects, whether patent or latent in material and workmanship. All warranties in this Purchase Order shall survive inspection, test, final acceptance and payment of goods and services; (b) Seller warrants that the goods delivered pursuant to this Purchase Order shall (i) be and only contain materials obtained directly from the Original Component Manufacturer (OCM) or the Original Equipment Manufacturer (OEM), (collectively, the Original Manufacturer (OM) or an authorized OM reseller or distributor; (ii) not be or contain counterfeit items; (c) Seller warrants that any hardware, software and firmware goods delivered under this Purchase Order: (i) shall not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (a) damage, destroy or alter any software or hardware; (b) reveal, damage, destroy, or alter any data; (c) disable any computer program automatically; or (d) permit unauthorized access to any software or hardware; (ii) shall not contain any third party software (including software that may be considered free software or open source software) that (a) may require any software to be published, accessed or otherwise made available without the consent of Buyer, or (b) may require distribution, copying or modification of any software free of charge; and (iii) shall not infringe any patent, copyright, trademark, or other proprietary right of any third party or misappropriate any trade secret of any third party; (c) Seller is an authorized reseller or distributor for all goods specified on Purchase Order; and (d) Seller shall be liable for and hold ISSI and its customers harmless from any loss, damage, or expense whatsoever that ISSI may suffer from breach of any of these warranties. Remedies shall be at ISSI’s election, including, but not limited to, the prompt repair, replacement or reimbursement of the purchase price of nonconforming goods and, in the case of services either the prompt correction of the defective services at no cost or reimbursement of the amounts paid for such services. Return to Seller of defective or nonconforming goods and redelivery to ISSI or ISSI’s customer of repaired or replaced goods shall be at Seller’s expense. Goods or services required to be corrected, repaired or replaced shall be subject to this Section and the Inspection Section of this Purchase Order in the same manner and to the same extent as goods or services originally delivered under this Purchase Order, but only as to the repaired or replaced goods or parts thereof or the corrected service thereof. Seller shall promptly comply with ISSI’s direction to (i) repair, rework or replace the goods, (ii) furnish any material or parts and installation required to successfully correct the defect or nonconformance or (iii) successfully correct the defective or nonconforming service.
Indemnity. The Seller agrees to defend, indemnify and hold harmless ISSI, its successors, assigns, and/or its customers in any and all suits brought for infringement of letters patent by reason of the use of the equipment or materials furnished hereunder by the Seller.
Title. Seller hereby represents and warrants to ISSI that (a) seller is the lawful owner of and holds title to the above mentioned items and the items are free and clear from any liens and encumbrances; (b) seller has the full right, power and authority to sell all such items to successors and assignees to ISSI in accordance here within; and (c) seller does hereby bind itself, its successors and assignees to forever warrant and defend the title to said equipment, and any part thereof, by, through, or under seller.
Services. Services provided by seller are subject to any service agreements or statements of work agreed upon in writing by the parties or, as applicable, to the ISSI Subcontractor Agreement, available at idealssi.com/legal/subcontractor agreement.
United States Export Control Laws and Regulations. Sellers Goods are subject to the Export Administration Regulations (EAR) promulgated by the US Department of Commerce.
Subcontracts For Commercial Items per FAR 52.244-6. For the purchase of Commercial items for resale to the US Government, as defined in Federal Acquisition Regulation 2.101, the following clauses are hereby incorporated by reference to this purchase order, or subcontract. Seller shall include the terms of this clause, including this paragraph, in all tiered subcontracts awarded under this subcontract.
(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Apr 2010) (41 U.S.C. 3509), if the subcontract exceeds $5,000,000 and has a performance period of more than 120 days. In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.
(ii) 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub. L. 111-5), if the subcontract is funded under the Recovery Act.
(iii) 52.219-8, Utilization of Small Business Concerns (Oct 2014) (15 U.S.C. 637(d)(2) and (3)), if the subcontract offers further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $650,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.
(iv) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246).
(v) 52.222-35, Equal Opportunity for Veterans (Jul 2014) (38 U.S.C. 4212(a));
(vi) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793).
(vii) 52.222-37, Employment Reports on Veterans (Jul 2014) (38 U.S.C. 4212)
(viii) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496), if flow down is required in accordance with paragraph (f) of FAR clause 52.222-40.
(ix) 52.222-50, Combating Trafficking in Persons (Feb 2009) (22 U.S.C. 7104(g))
(x) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Jul 2013) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).
(xi) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Dec 2013), if flow down is required in accordance with paragraph (c) of FAR clause 52.232-40
(xii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. App. 1241 and 10 U.S.C. 2631), if flow down is required in accordance with paragraph (d) of FAR clause 52.247-64).
GENERAL TERMS AND CONDITIONS OF PURCHASE FOR COMMERCIAL ITEMS PURCHASED UNDER U.S. GOVERNMENT CONTRACTS (12/2015)
1. ACCEPTANCE AND TERMS AND CONDITIONS
a. By acceptance of this PO, Seller agrees to comply with all of its terms and conditions and specifications, including those contained in all documents incorporated into this PO by reference. These General Terms and Conditions of Purchase are hereby incorporated to this PO. ISSI objects to any terms and conditions contained in any acknowledgment of this PO which are different from or in addition to those recited in this PO.
b. Failure by ISSI either to enforce at any time any of the provisions hereof or to protest at any time any breach or default thereof shall not be construed as evidence to interpret the terms and conditions of this PO, nor as a waiver of the terms and conditions of such provisions, nor of the right of ISSI thereafter to enforce each and every such provision. ISSI’s approval of documents shall not relieve Seller from compliance with the terms and conditions and specifications governing this PO.
c. Any inconsistencies shall be resolved in accordance with the following descending order of precedence: (1) Face of the PO (which term shall include PO continuation sheets, Master Agreements, other subcontract instruments, and the Amendments to any of these), (2) Supplemental Terms and Conditions (meaning any applicable supplementary provisions and/or negotiated exceptions to these General Terms and Conditions documented as an incorporated attachment to this PO), (3) Statement of Work, (4) Federal Acquisition Regulation (―FAR‖) Clauses (5) General Terms and Conditions, (6) Specifications, (7) Drawings.
d. Until final resolution of any dispute hereunder, Seller shall proceed diligently with the performance of this PO in accordance with ISSI’s direction.
e. Seller shall make no change in any design, specification, configuration, material, part, manufacturing process, material supplier, or manufacturing location which affects form, fit, function, reliability, or maintainability of goods without the prior written approval of ISSI’s Buyer (which shall be the individual specified on the Face of the PO as “Buyer”); and notify, in writing, ISSI’s Buyer of any proposed change, whether considered to affect form, fit, function, reliability or maintainability or not, including changes related to Commercial Off-The-Shelf (COTS) items, to facilitate Buyer’s assessment of impact to any higher level assembly or system. Seller shall insert this clause in each of its purchase orders issued pursuant to this PO, requiring that its suppliers seek its written approval for such changes (which approval shall not be granted until Seller receives written approval for the change from ISSI’s Buyer when required). Additional requirements associated with process change and configuration control are included in quality clauses invoked by this PO.
f. Seller acknowledges that it has available to it all specifications, drawings, data, and other documents referenced in this PO and that they are adequate to enable Seller to perform the work called for herein in accordance with the delivery schedule.
g. The interpretation and enforcement of this PO shall be in accordance with the laws of the state where the goods are to be received by ISSI or where the ISSI facility for which the services are to be performed is located, excluding its choice-of-law rules, except that any provision in this PO that is (1) incorporated in full text or by reference from the Federal Acquisition Regulations (FAR); or (2) incorporated in full text or by reference from any agency regulation that implements or supplements the FAR; or (3) substantially based on any such agency regulation of a FAR provision, shall be construed and interpreted according to the federal common law of government contracts as enunciated and applied by federal judicial bodies, boards of contracts appeals, and quasi-judicial agencies of the federal Government.
h. ISSI’s rights under this PO are cumulative and in addition to any other rights available at law and equity.
i. The line item price for each line in this PO is deemed a Firm Fixed Price, unless indicated to the contrary elsewhere in this PO.
j. The ISSI PO number and line item number must appear on all correspondence, invoices, packages, and shipping documents.
k. ISSI Accounts Payable Customer Service number is 888-696-3344.
Should follow the instructions listed on the Purchase Order.
3. RISK OF LOSS
Seller shall bear all risk of loss during shipment.
4. NEW MATERIALS
The goods to be delivered hereunder shall consist of new materials (not used or reconditioned).
a. ISSI, ISSI’s customer, and the Government (regardless of whether the Government is ISSI’s direct customer) may at any time inspect Seller’s and Seller’s suppliers’ facilities which will or may be used in the performance of this PO and may inspect and test all material and workmanship involved in the performance of this PO at any time and place before, during, or after manufacture or completion. No such inspection or test shall in any way relieve Seller of its obligations to furnish all required goods, materials, and services in strict accordance with the terms and conditions of this PO. If inspection and test is made on the premises of Seller or any of its suppliers, Seller shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance for safety and convenience of the inspectors in the performance of their duties. All inspections and tests shall be performed in such a manner as not to delay the work unduly. All goods are subject to final inspection and acceptance at ISSI’s plant (or at any other location specified in writing by ISSI) notwithstanding any payments or prior inspections. Such final inspection shall be made within a reasonable time after delivery.
b. Seller shall provide and maintain an inspection and process control system acceptable to ISSI covering the goods hereunder. Records of all inspection work by Seller shall be kept complete and available to ISSI and its customers during the performance of this PO and for such longer periods as may be specified in this PO.
c. Acceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided in the PO.
6. MINOR DISCREPANCIES
a. If the goods contain minor discrepancies which cannot be reworked to conform to 100% of this PO’s terms and conditions and specifications, Seller shall report such discrepancies as soon as possible for potential ISSI Material Review consideration. The following information shall be included in the report: PO number and amendment, part number, revision letter, part name, serial numbers, quantity of defective parts, nature and cause of defects, and corrective action taken. ISSI Material Review will determine the disposition of nonconforming materials/goods and will convey its findings to ISSI’s Buyer for communication to Seller. Major discrepancies (which are defined as discrepancies which adversely affect performance, durability, reliability, interchangeability, effective use or operation, weight or appearance [where a consideration], health or safety and maintainability and which cannot be eliminated by rework or reduced to a minor discrepancy by repair) will not be considered for ISSI Material Review and will not be accepted by ISSI nor its material and other costs paid for by ISSI.
b. ISSI’s requiring reports of discrepant material/goods shall not imply willingness to accept such material/goods nor does it relieve the Seller of its performance obligations hereunder.
Delivery shall be at the location described elsewhere in this PO.
a. If, without written authorization from ISSI, Seller ships goods so as to arrive more than thirty (30) days in advance of schedule, ISSI may return the goods at Seller’s expense. Seller shall not invoice ISSI for payment prior to the scheduled delivery date.
b. If delivery is delayed or threatened to be delayed by any event, Seller shall immediately notify ISSI’s Buyer of the estimated delay involved and the reasons therefore. Seller shall include the substance of this clause in all purchase orders and subcontracts issued hereunder.
8. TERMINATION FOR DEFAULT
a. ISSI may, by written notice of default to Seller, terminate this PO in whole or in part if the Seller fails to: (1) deliver the goods or to perform the services within the time specified in this PO or any extension, or (2) make progress, so as to endanger performance of this PO; or (3) perform any of the other provisions of this contract; and in either of these latter two circumstances does not cure such failure within ten (10) days (or such longer period as ISSI may authorize in writing) after receipt of the notice from ISSI specifying the failure.
b. If this PO is terminated for default, ISSI may require Seller to deliver to ISSI any usable supplies and materials, manufacturing materials, and manufacturing drawings that Seller has specifically produced or acquired for the terminated portion of the PO. ISSI and Seller shall agree on the amount of payment for such deliverables; ISSI will not require delivery of, accept, nor retain unusable materials/goods and documentation/drawings (for example, goods/materials with major discrepancies) and therefore does not agree to payment for these. ISSI shall pay the PO price for completed goods that were delivered and accepted.
c. Seller shall not be liable to ISSI for delays in performance occasioned by causes beyond Seller’s reasonable control and without its fault or negligence, including but not limited to acts of God or of the public enemy, acts of the government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of Seller’s suppliers at any tier provided, however, that the delays of Seller’s suppliers at any tier are beyond the control of both Seller and its suppliers and without fault, or negligence of either.
d. Seller shall promptly notify ISSI’s Buyer, if Seller is the subject of any petition in bankruptcy.
e. The rights and remedies of ISSI in this provision are in addition to any other rights and remedies provided by law or under this PO.
9. TERMINATION FOR CONVENIENCE
ISSI may, by written notice, terminate this PO, in whole or in part, when it is in ISSI’s interest. If this PO is so terminated, the rights, duties, and obligations of the parties, shall be determined in accordance with Part 49 of the Federal Acquisition Regulation in effect on the latter of the date of issuance this PO or the date of its most recent Amendment. (wherein ―Government,‖ and ―Contracting Office‖ shall be deemed to apply to ISSI). Seller must submit a termination claim within six (6) months of receipt of initial written notice that this PO has been terminated for convenience.
10. STOP WORK ORDER
ISSI may, at any time, by written order to the Supplier, require the Supplier to stop all, or any part, of the work called for by this purchase order for a period of 100 days after the order is delivered to the Supplier, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order. Upon receipt of the order, the Supplier shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order, including costs incurred by subcontractors, during the period of work stoppage.
a. ISSI may, at any time by a written notification, make changes within the general scope of this PO in any one or more of the following:
i. The method of shipment or packing;
ii. The place of delivery, inspection and acceptance;
If any such change to the general scope causes a change in the cost of, or the time required for, performance of this PO, an equitable adjustment shall be made in the price and/or delivery schedule, and in other provisions of this PO that are affected. Any claim by Seller for such an adjustment must be made within twenty (20) days from the date of receipt of the change notification. Failure to agree to any adjustment shall constitute a claim that is subject to the Controversies Section hereunder; however, Seller is obligated to proceed with this PO as changed regardless of the status of disputes. Any agreed adjustment shall be documented in a written Amendment to this PO signed by both parties. ISSI, at its unilateral discretion, may approve payment for the adjustment amount in the Amendment before final payment is otherwise due on this PO.
b. Only ISSI’s Buyer is authorized on behalf of ISSI to issue a notification of change within the general scope or to communicate and negotiate a necessary change outside of the general scope. If any direction or instruction by ISSI personnel is deemed by Seller to constitute such a change, Seller shall not rely upon such instruction or direction without the written confirmation of ISSI’s Buyer.
12. INFORMATION DISCLOSED TO SELLER
Seller shall keep confidential all information, drawings, specifications, or data either:
a. Furnished by ISSI and marked as confidential or proprietary; or
b. Prepared by Seller specifically in connection with the performance of this PO.
Seller shall not disclose such information, drawings, specifications or data except to those of its officers, employees (including independent contractors, contract labor employees and leased employees), third party vendors or subsidiaries who have a “need-to-know” the information, drawings, specifications or data for the purposes of performance under this PO, and Seller certifies that such officers, employees, third party vendors, or subsidiaries, as the case may be, have previously agreed, either as a condition to employment or in order to obtain the confidential/proprietary information, to be bound by terms and conditions at least as restrictive as the terms and conditions of this provision. Any electronic transmission of Confidential Information by Recipient shall be transmitted using encryption protection or other reasonable precautions, such as password protection. Seller will immediately give notice to ISSI of any unauthorized use or disclosure of the confidential/proprietary information. Seller agrees to assist ISSI in remedying any such unauthorized use or disclosure of the confidential/proprietary information. Except as required for the efficient performance of this PO, Seller shall not make copies or permit copies to be made without the prior written consent of ISSI. Seller shall thereafter make no further use, either directly or indirectly, of any such information, drawings, specifications, data, or of any derivation there from without obtaining ISSI’s written consent. This provision shall not apply to information after its entry into the public domain by means other than as a result of a breach of this provision, nor shall it limit any rights the Government may have in such information. At the conclusion of this PO, seller shall, at the option of ISSI, either return to ISSI or destroy all confidential/ proprietary information. This provision survives termination of this PO.
13. OCEAN TRANSPORT OF FURNISHED PROPERTY
The Seller shall advise ISSI of any proposed transportation by ocean vessels of Furnished Property in the possession of Seller or his subcontractors (including property, the title to which will pass to ISSI, the Government, or ISSI’s customer prior to such transportation) in the performance of this PO. Such Furnished Property shall subsequently be transported only on United States-flag vessels as directed by ISSI.
14. WORK ON ISSI’S OR ITS CUSTOMER’S PREMISES
a. If this PO involves work by Seller on ISSI’s premises or its customer’s premises, Seller shall comply with all safety and security regulations and shall take all precautions required by ISSI or its customer or otherwise necessary to prevent the occurrence of any injury to person or property during the progress of such work. Seller shall promptly inform ISSI of any injury or damage that occurs.
b. Seller shall provide timely notice to ISSI prior to the introduction to the premises of any hazardous material, as defined in any Federal, state, or local law or ordinance or in any lawful order, rule or regulation there under applicable to the premises. Seller shall equip its employees, agents and subcontractors for the use of such hazardous material, and for the use of such other hazardous materials, as identified by ISSI to Seller, used by ISSI or its customer on the premises.
c. Seller, and any subcontractors used by Seller in connection with this PO, shall carry the appropriate amount of State required Worker’s Compensation and Employee Liability insurance to cover Seller’s and such subcontractor’s legal liability on account of accidents to their respective employees. Seller and its subcontractors shall carry a minimum of $1,000,000 of Comprehensive General Liability insurance and a minimum of $1,000,000 of Comprehensive Automobile Liability Insurance covering the legal liability of Seller and such subcontractors on account of accidents arising out to the operations of Seller or such subcontractors and resulting in bodily injury, including death, being sustained by any person or persons, or in any damage to property. Such Comprehensive General Liability and Comprehensive Automobile Liability Insurance policies shall include a clause or endorsement waiving the insurers’ rights of subrogation against ISSI and recognizing ISSI as an additional insured. Seller shall furnish to ISSI certificates from Seller’s insurers showing such coverage in effect prior to commencing work on ISSI’s premises and Seller agrees to give ISSI ten days prior written notice of any material change or cancellation of such coverage.
d. Seller shall defend, indemnify and hold harmless ISSI, its officers, employees and agents from any losses, costs, claims, causes of action, damages, liabilities and expenses, including reasonable attorneys fees, all expenses of litigation and/or settlement and court costs, by reason of property damage or loss or personal injury to any person caused in whole or in part by the actions or omissions of Seller, its officers, employees, agents, suppliers or subcontractors in performance of the work under this PO.
e. Whenever this PO involves work on ISSI’s or its customer’s premises, Seller also shall implement and maintain a program for achieving the objective of a drug-free workforce. Seller’s program shall be written and shall include as a minimum drug testing when: (i) employees are newly-hired or re-hired after a break in service, (ii) employees are involved in accidents or unsafe practices, and (iii) reasonable suspicion exists that an employee is using illegal drugs. Seller shall provide ISSI with a copy of its written program with its bid or proposal. Seller shall make available for ISSI’s inspection at reasonable times and places all of Seller’s records relating to its drug-free program. In addition to any other remedies that ISSI or its customer may have if Seller fails to comply with the provisions of this paragraph, ISSI may, without notice or an opportunity to cure: (1) terminate this PO for default, and (2) expel from ISSI’s property any employee, agent, or subcontractor of Seller who is suspected of using, possessing, or selling alcohol or illegal drugs on ISSI’s property.
f. Prior to the commencement of any work to be performed under this PO, Seller must complete a Certificate of Citizenship (SCM-FRM-201.0.3) with regard to all employees of Seller and Seller’s subcontractors that will perform work at ISSI Facilities or will have access to technical data so that ISSI may determine what level of access to facilities and technical data is allowed in order to comply with United States law or certain government contract requirements. Seller must provide prompt notice in writing to ISSI of any change in the information provided in the certification for any reason, including the substitution or addition of employees performing work under this PO.
15. INVOICES, PAYMENTS, AND DISCOUNTS
Unless otherwise expressly provided for in the PO, the standard payment terms for ISSI PO’s will be NET 30 days following the formal receipt of goods as defined by ISSI’s verification of the accuracy and completeness of Seller’s invoice and any required supporting documents. Payment shall be deemed to have been made as of the date of mailing of ISSI’s payment.
Neither this PO nor any rights or obligations under it shall be assigned to third parties by Seller without the prior written consent of ISSI. However, claims for any payment due or to become due under this PO may be assigned by Seller without such consent, if ISSI is promptly furnished with written notice and a signed copy of any such assignment. Payment to an assignee of any such claim shall be subject to set off or recoupment of any present or future claim or claims which ISSI may have against Seller.
17. COMPLIANCE WITH LAWS
a. Seller shall comply with the applicable provisions of all Federal, state, and local laws and ordinances of the United States, equivalent applicable legislation in the Seller’s country of manufacture (if other than the United States), and all applicable, lawful orders, rules, and regulations ratified under such laws, and such compliance shall be a material requirement of this PO.
b. Seller represents that the goods to be furnished hereunder were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended.
c. Seller warrants that each chemical substance constituting or contained in goods sold or otherwise transferred to ISSI hereunder is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 U.S.C. Sec 2601 et seq.) as amended.
d. Seller shall provide to ISSI with each shipment of a chemical substance the Material Safety Data Sheet applicable to the substance and containing such information as required by the Occupational Safety and Health Act and regulations.
18. PREFERENCE FOR DOMESTIC SPECIALTY METALS
If the conditions of DFARS 252.225-7009 or DFARS 252.225-7014 Alt 1 apply and there are any of the following specialty metals – steel with a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent or containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium; metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 percent; titanium and titanium alloys; or zirconium and zirconium base alloys – incorporated in articles delivered under this purchase order, they shall be melted in the United States, its outlying areas, or a qualifying country unless specifically exempt by DFARS 252.225-7009 or DFARS 252.225.7014 Alt 1. DFARS 252.225.7014 Alt 1 applies to any Government contract awarded prior to July 29, 2009 and DFARS 252.225-7009 applies to any Government contract awarded on or after July 29, 2009. Questions on applicability should be discussed with the ISSI buyer.
Qualifying countries are Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Egypt, Federal Republic of Germany, Finland, France, Greece, Israel, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland. The Supplier shall insert the substance of this clause in all subcontracts for items containing specialty metals and require his subcontractors to incorporate this clause in any of their subcontracts. This clause does not apply to specialty metals incorporated in an article manufactured in a qualifying country.
19. PUBLIC RELEASE OF INFORMATION
No public release of information, including, without limitation, photographs, films, announcements, denials or confirmations of any part of the subject matter of this PO (including that the PO is associated with requirements or a phase of a particular Government program), shall be made without the prior written approval of ISSI.
20. EXTRA CHARGES
Unless this PO is issued as a Time and Materials or Cost Reimbursable subcontract, the prices indicated in this PO cover all work required by Seller to satisfy the requirements of this PO.
21. SECURITY INTERESTS
Seller shall cooperate with ISSI in executing such documents as ISSI deems appropriate to protect the security interest of ISSI and ISSI’s customers in Seller’s work-in-process and in Furnished Property
Unless expressly specified differently elsewhere in this PO, Seller warrants and implies that the goods delivered hereunder are merchantable and fit for use for the particular purpose described in this PO. In addition, unless the solicitation under which this PO was awarded, or the Face of the PO itself, specifies minimum warranty terms (such as minimum duration, and/or other cost-effective or preferred minimums that are appropriate for ISSI’s customer’s or the Government’s intended purposes) that would be less than those offered by Seller to the general public in customary commercial practice, then Seller hereby offers ISSI at least the same warranty terms—including extended warranties—that it offers to the general public in customary commercial practice.
23. FOREIGN SALES
If the goods or services provided pursuant to this PO are intended for incorporation in, or use in connection with, military equipment to be used by the armed forces of a foreign government or international organization (and ISSI’s Buyer shall inform Seller if such incorporation or use is intended in advance of issuance of this PO), the following provision applies:
The articles or services to be supplied under this PO are intended for incorporation in, or use in connection with, military equipment to be used by the armed forces of a foreign government or an international organization. Part 130 of the International Traffic in Arms Regulations (ITAR), 22 CFR Part 130, requires ISSI to report if Seller has made, makes or intends to make any payment, loan or donation of $1,000 or more either as a political contribution or as a fee or commission in connection with the sale of the articles or services described in this PO, or an end item incorporating such articles. Accordingly, Seller agrees to promptly notify ISSI in writing if it has made, intends to make, or upon the making of, any payment, loan or donation required to be reported under Part 130 of ITAR, and Seller agrees to furnish ISSI with information with respect to any such payment to enable ISSI to comply with the reporting requirements of Part 130 of ITAR. Seller agrees to include this provision in all subcontracts of $500,000 or more made hereunder. ISSI will furnish to Seller a copy of Part 130 of ITAR on request.
24. EXPORT OF TECHNICAL DATA
Some of the information disclosed under this PO may contain technical data that is categorized on either (i) the United States Munitions List and, as such, is subject to the International Traffic in Arms Regulations (ITAR, 22 CFR 120-130), and/or (ii) the Commerce Control List and, as such, is subject to the Export Administration Regulations (EAR, 15 CFR 730-799). Technical data that is controlled by the ITAR or the EAR may not be given to foreign persons (including foreign corporations) by a U.S. person unless and until the U.S. person has obtained the appropriate export license and/or approvals from the U.S. Government.
(1) Accordingly, Seller certifies that: 1) Seller is a ―U.S. Person‖ as defined in the ITAR to whom such technical data may be disclosed or that Seller possesses the appropriate licenses and/or approvals from the U.S. Government to receive the ISSI-furnished technical data under this PO, and further, 2) Seller shall not transfer such technical data directly or indirectly to any third person or firm, country or countries unless in compliance with all applicable laws and regulations and having obtained specific written authorization from ISSI in advance to effect such a transfer.
(2) Seller agrees that it will not permit any employee access to furnished technical data nor permit any employee to perform services under this PO unless such employee qualifies as a ―U.S. person,‖ defined as: (i) a U.S. citizen or national; (ii) an alien lawfully admitted for permanent resident (those possessing a valid Form I-550 or ―green card‖); an alien admitted following a 1986 amnesty statute; (iv) an asylee or refugee as defined in 8 U.S.C. 1324b(a)(3); or (v) an alien lawfully admitted for temporary agricultural employment.
(3) The acquisition of any rights in any technical data by Seller or by a foreign person is prohibited.
(4) Upon completion of this PO all technical data exported pursuant to this PO, including that data provided to subcontractors at any tier, shall be returned to ISSI or destroyed with an appropriate certification of destruction forwarded to ISSI.
(5) Seller shall deliver any defense articles manufactured outside of the United States pursuant to this paragraph only to ISSI’s United States business address or to an agency of the United States Government.
All of Seller’s subcontracts involving ISSI-furnished technical data shall contain the substance of this Section, including this sentence.
25. NEW MATERIAL – NO COUNTERFEIT MATERIAL
DEFINITIONS: The term Material, as used in this clause, includes, but is not limited to raw material, parts, components, assemblies and end items. The term New, as used in this clause, means Original Equipment Manufacturer (OEM) or Original Component Manufacturer (OCM) Material previously unused or composed exclusively of previously unused Material, allowing for conventional use including, but not limited to integration, installation, assembly, test, burn-in, training, troubleshooting, and rework as required. The term Counterfeit Material means Material salvaged, produced or altered to resemble a product without authority or right to do so, with the intent to mislead or defraud by presenting the imitation as New Material.
a. Unless ISSI specifies in writing otherwise, Seller shall deliver New Material under this subcontract that is fully warranted.
b. Seller shall not deliver Counterfeit Material to ISSI under this subcontract.
c. Seller represents and warrants that all electronic parts delivered under this subcontract are obtained from OEMs, OCMs, or their authorized dealers. If electronic parts cannot be obtained from OEMs, OCMs, or their authorized dealers and must be procured from alternative source(s), Seller shall obtain ISSI’s written approval before making such procurements. Seller shall employ, or cause to be employed, inspection, testing and authentication processes reasonably designed to detect and avoid Counterfeit Material and shall provide written description of Seller’s detection and avoidance processes and a certification of Seller’s use of such processes to ISSI on or before delivery.
d. Seller shall immediately notify ISSI when Material is found or suspected to be Counterfeit Material. Notice must be in writing and must be provided to ISSI within 10 days of discovery.
e. Upon request, Seller shall provide OEM/OCM documentation that enables traceability of the affected Material to the applicable OEM/OCM.
f. Should any Material delivered under this Contract be found to constitute or include Counterfeit Material, Seller shall, at its expense, promptly replace such Counterfeit Material with genuine parts conforming to the requirements of this Contract. Notwithstanding any other provision in this subcontract, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Material, including, without limitation, ISSI’s costs of removing Counterfeit Material, of installing replacement New Material and of any testing/corrective action necessitated by the replacement of Counterfeit Material with New Material. The remedies contained in this paragraph are in addition to any remedies ISSI may have at law, equity or under other provisions of this subcontract.
g. Seller shall include this clause or equivalent provisions in any subcontracts that Seller issues for the delivery of New Material that will be included in or furnished to ISSI.
26. PROCUREMENT FROM A RECOGNIZED SOURCE
This clause applies to all parts and material delivered under this purchase order that are the lowest level of separately identifiable items, including but not limited to fasteners and Electrical, Electric and Electromechanical (EEE) components. “Counterfeit” includes parts and material that is misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved parts and/or material that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
With specific regard to counterfeit hardware, a registry of active fastener trademarks is maintained by the US Patent and Trademark Office and can be found at: http://www.uspto.gov/trademarks/law/fastener/fqa.jsp.
All purchased material included in assemblies and subassemblies being delivered per this order must have been procured by the seller directly from either the manufacturer of the item(s) or an authorized distributor of the manufacturer of the item(s). A Certificate of Conformance (CoC) and a method of item traceability shall be retained for each component. These documents shall be retained per the records retention requirements directed elsewhere within this order and made available upon request.
Seller shall maintain the Manufacturer’s CoC for each component included in the assemblies and subassemblies being delivered per this order. At a minimum, the CoC shall include:
Manufacturer’s name and address
Manufacturer’s and/or buyer’s part number
Batch identification for the item such as date code, lot code, etc.
Seller shall maintain a method of item traceability that ensures tracking of the supply chain back to the manufacturer of all material included in assemblies and subassemblies being delivered per this order. This traceability method shall clearly identify the name and location of all of the supply chain intermediaries from the manufacturer to the direct source of the product for the seller. The manufacturer shall also include the manufacturer’s batch identification for the item(s) such as date codes, lot codes, serializations, or other batch identifications.
In the event any item required to be delivered under this order cannot be procured by the Seller in accordance with this requirement, the Seller shall submit written justification and request a deviation from this requirement prior to making delivery. If the request for deviation is accepted by the Buyer, the Buyer shall modify this order accordingly. Additional verification of the items may be required prior to allowing the deviation from this requirement. This additional verification shall include inspections and/or tests activities (including, but not limited to include visual inspection, X-Ray inspection, destructive physical analysis, thermal cycle testing, and electrical testing) necessary to assure the authenticity of the purchased product. The Buyer may request copies of such acceptance criteria and records of this activity prior to granting the deviation.
This PO and activities hereunder are within the jurisdiction of the United States Government. Any knowing and willful act to falsify, conceal or alter a material fact, or any false, fraudulent or fictitious statement or representation in connection with the performance of work under this purchase order may be punishable in accordance with applicable Federal statutes. Seller employees engaged in the performance of work under this purchase order shall be informed in writing prior to performance of work that there is a risk of Federal criminal penalties associated with any falsification, concealment, or misrepresentation in connection with work performed under this purchase order.
If counterfeit parts/ assemblies are furnished under this purchase agreement, such items shall be impounded. The seller shall promptly replace such items with items acceptable to the Buyer and the seller may be liable for all costs relating to impoundment, removal, and replacement. The Buyer may turn such items over to US Governmental authorities (Office of Inspector General, Defense Criminal Investigative Service, Federal Bureau of investigation, etc.) for investigation and reserves the right to withhold payment for the items pending the results of the investigation.
The seller shall flow the substance of this clause, including this sentence, in all sub-tier subcontracts for work performed under this PO.
27. LABOR DISPUTES
If the seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the performance of this PO, the seller shall immediately notify ISSI.
28. REPORTING EXECUTIVE COMPENSATION AND FIRST-TIER SUBCONTRACT AWARDS
If the conditions of FAR 52.204-10 apply, Supplier must submit the following if Supplier had gross income from all sources over $300,000 (Note: Even if income is below $300,000, Supplier must refer to and comply with item “(g) (i)” below):
a. DUNS number
b. NAICS code
c. Complete company name
d. Physical address
e. Primary performance location if different than “(d)”
f. The names and total compensation of each of the five most highly compensated executives for Supplier’s preceding fiscal year if all of the following conditions are met:
i. 80% or more of Supplier’s annual gross revenues is from Federal contracts and subcontracts
ii. Supplier has $25,000,000 or more in annual gross revenues from Federal contracts and subcontracts
iii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities and Exchange Act of 1934 or section 6104 of the Internal Revenue Code of 1986
g. Supplier may omit the information required in item “(f)” above if instead Supplier provides: (i) a signed and dated certification that Supplier is not required to provide this information because gross income was less than $300,000 or (ii) Supplier is not required to provide executive compensation information due to not meeting all of the conditions in subsection (f).
The parties will attempt to settle in good faith all disputes arising under this PO. Disputes upon which the parties cannot reach an amicable settlement will be resolved in the applicable state or federal court in Charlotte, North Carolina, and in accordance with the choice of law provisions of this PO. Seller shall bring any dispute arising under or related to this PO within two (2) years after the cause of action for such dispute accrues. Notwithstanding any provisions herein to the contrary, if a decision under the prime contract is made by the contracting officer and such decision is also related to this PO, said decision, if binding upon ISSI under the prime contract, shall in turn be binding upon ISSI and Seller insofar as it relates to this PO. If ISSI elects to appeal such a decision pursuant to the “Disputes” clause in ISSI’s prime contract, any decision from such an appeal, if binding upon ISSI under the prime contract, shall in turn be binding upon ISSI and Seller insofar as it relates to this PO. If ISSI elects not to dispute such a decision pursuant to the “Disputes” clause in the prime contract, ISSI shall promptly notify Seller, and Seller shall, to the extent of its interest, have the right to assert in ISSI’s name at Seller’s expense, ISSI’s right to dispute such a decision under the “Disputes” clause in the prime contract and any decision upon an appeal with respect to a final decision, if binding upon ISSI under the prime contract, shall in turn be binding upon ISSI and Seller insofar as it relates to this PO. The decision of the contracting officer, or if an appeal is taken as above provided, the decision on appeal, shall be final and conclusive between ISSI and Seller except that Seller shall have the rights reserved to ISSI under the Contract Disputes Act of 1978 to prosecute an appeal to a board or court of competent jurisdiction within the times specified by the Contract Disputes Act of 1978, in ISSI’s name and at Seller’s expense. Any final judgment by the boards or courts, is binding upon ISSI and Seller insofar as it relates to this PO. Prior to Seller submitting a claim to be appealed hereunder, Seller shall certify its claim in the form found at FAR 33.207(c) or its successor provisions. Seller agrees to indemnify ISSI for any and all losses ISSI incurs as a result of Seller’s certification. Pending final resolution of any decision, appeal, or judgment in such proceedings, or the settlement of any dispute arising under this PO, Seller shall proceed diligently with the performance of this PO
This Section and the following Sections shall survive termination of this PO: Section 1.i (regarding venue and choice of law); Section 1.j (regarding ISSI’s rights at law and in equity); Section 8 (Termination for Default); Section 9 (Termination for Convenience); Section 12 (Information Disclosed to ISSI); Section 18.b-d (regarding Seller’s failure to comply with laws that results in damage to ISSI); Section 20 (Public Release of Information); Section 23(Warranties); Section 25 (Export of Technical Data); Section 29 (Disputes)
31. CONFLICT MINERALS
To enable General Dynamics to comply with the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173), supplier is required to report with their proposal and upon contract delivery the existence of any conflict minerals (tantalum, tin, tungsten, and gold) in products to be provided under this Subcontract or Purchase Order. The report will identify the country of origin of any conflict minerals, whether the conflict minerals came from scrap or recycled sources, whether the conflict minerals came from a covered country (Democratic Republic of Congo, Burundi, Central African Republic, Tanzania, Zambia, Angola, Rwanda, South Sudan, and Uganda), whether the conflict minerals from the covered countries directly or indirectly finance armed groups, and your process for determining and verifying the information provided. If there are any changes to your supply base in regard to this part that affect your certification, you are required to send an amended certification to your ISSI buyer. ISSI reserves the right to request any additional information on Conflict Minerals associated with this Subcontract or Purchase Order necessary to comply with this legal requirement and supplier will make good faith efforts to provide the requested information.
32. INCORPORATION OF FEDERAL ACQUISITION REGULATION CLAUSES AND SUPPLEMENTS CLAUSES
a. The following clauses are incorporated by reference and constitute binding terms of this PO (and, as to certain clauses, binding conditions of response to this solicitation: See Section a.1 herein); provided however that any given clause is itself incorporated into the prime contract. These clauses shall be those in effect at issuance of this PO. The FAR and its Supplements are obtainable online at http://www.acqnet.gov/far or from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.
b. All references to “Disputes” in any FAR clause, or DFARS clause (the FAR Supplement pertaining to purchases for the U.S. Department of Defense and its associated Agencies), incorporated by reference are hereby deleted except as expressly provided elsewhere in this PO or in this solicitation.
c. Wherever used in the text of these clauses, the terms “Contract” and “Contractor” shall mean this PO and Seller, respectively. Wherever used in the text of these clauses, the terms “Government,” “Contracting Officer,” and equivalent phrases shall mean ISSI, except that clauses identified by * shall retain the original meaning of those terms as written in FAR; and when identified by ** shall not only retain the original meaning of those terms as written in FAR, but shall also mean ISSI.
In addition to all of the other Sections in this document, the following clauses apply to all purchases or solicitations referencing these General Terms for Commercial Purchases:
FAR FAR Clause Title and modifications thereof
52.203-13 Contractor Code of Business Ethics and Conduct
52.203-15 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009
52.209-5 Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters.
(a) By either submitting its proposal/quotation or accepting this order, Seller shall be deemed to have certified that, to the best of its knowledge and belief, that:
(i) Seller and/or any of its Principals (as defined in FAR 52.209-5)–
(A) Are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;
(B) Have not within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; and
(C) Are not presently indicated for otherwise criminally or civilly charged by a government entity with, commission of any of the offenses enumerated in subdivision (a) (i) (B) of this provision.
(ii) That it has not within a three-year period preceding this offer had any contract terminated for default by any Federal agency.
(b) Seller shall provide immediate written notice to ISSI’s Buyer if, any time prior to award of any order it learns that its certification was erroneous, when submitted, or has become erroneous by reason of changed circumstances.
(c) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed in making the award.
52.211-15 Defense Priority and Allocation Requirements. If this PO is a “rated PO” as indicated by a DPAS rating elsewhere in this PO, Seller will follow all the provisions of the Defense Priorities and Allocation System regulation (15CFR350). Seller shall accept or reject it in writing promptly, within five (5) working days after receipt thereof if DX-rated or ten (10) working days if DO-rated, per 15 CFR 350.13(d).
52.219-8 Utilization of Small Business Concerns (Applies only if this PO offers further subcontracting opportunities).
52.222-1 Notice to the Government of Labor Disputes.
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Disabled and Vietnam Era Veterans*
52.222-36 Affirmative Action for Workers with Disabilities*
52.222-40 Notification of Employee Rights under the National Labor Relations Act
52.222-50 Combating Trafficking of Persons
52.225-8 Duty-Free Entry**
52.244-6 Subcontracts for Commercial Items
52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels.
DFARS DFARS Clause Title and modifications thereof
252.223-7008 Prohibition of Hexavalent Chromium
252.225-7009 Restrictions on Acquisition of Certain Articles Containing Specialty Metals (Contracts after 11/29/2009)
252.225-7014 Preference for Domestic Specialty Metals, Alternate 1. (Contracts prior to 11/29/2009)
252.225-7039 Contractors Performing Private Security Functions
252.227-7015 Technical Data – Commercial Items
252.227-7037 Validation of Restrictive Markings on Technical Data
252.236-7013 Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers
252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel
252.237-7019 Training for Contractor Personnel Interacting with Detainees
252.246-7003 Notification of Potential Safety Issues
252.244-7000 Subcontracts for Commercial Items and Commercial Components (DOD contracts)
252.247-7023 Transportation of Supplies by Sea.
252.247-7024 Notification of Transportation of Supplies by Sea
Supplemental Terms and Conditions may be sent with Purchases Orders in addition to the General Terms and Conditions of Purchase for Commercial Items Purchased under U.S. Government Contracts listed above.