1. Definitions: Words, as employed in this Agreement, shall
have their
normally accepted meanings. The following terms shall have the
described
meaning:
(a)
“Buyer”
shall mean OPINICUS Corporation.
(b)
“Contract”
shall
mean the Purchase Order, these General Terms and
Conditions, and any special conditions appended hereto or
documents
incorporated herein.
(c)
“Goods
or
Services” shall mean those Goods or Services identified in this
Contract, which
may be changed, from time to time by the mutual written agreement of
the
parties.
(d)
“Seller”
shall
mean the party identified as the Seller in this Contract.
2. Price: (a) Unless otherwise specified, the prices
established
by this Contract are firm fixed prices. Seller warrants that any unit
prices
charged herein do not exceed the unit prices charged by Seller to other
customers in substantially similar transactions. (b) In the event
Seller is
liable to Buyer for any amounts, Buyer may, at its election, set-off
against
any amounts payable to Seller under this Contract.
3. Schedule and
Delivery; Notice of Delay: Seller
shall strictly adhere to all Purchase Order schedules. Time is and
shall remain
of the essence in the performance of this Contract. Seller shall notify
Buyer
in writing immediately of any actual or potential delay to the
performance of
this Contract. Such notice shall include a revised schedule and shall
not
constitute a waiver to Buyer’s rights and remedies hereunder.
4. New
Materials; Packaging and Shipping: (a)
All goods to be delivered hereunder shall consist of new materials. (b)
Seller
shall prepare and package the goods to prevent damage or deterioration
and
shall use best commercial practice for packing and packaging of items
to be
delivered under this Contract, unless otherwise specified in the
Purchase
Order.
5. Inspection
and Acceptance: (a) Buyer’s
final
acceptance of Goods or Services
is subject
to Buyer’s final inspection within sixty (60) days after receipt
at
Buyer’s facility or such other place as may be designated by Buyer,
notwithstanding
any payment or prior test or inspection.
(b) Seller and its suppliers shall establish and maintain a
quality
control and inspection program as specified in the Purchase Order.
Subject to
applicable national security regulations, Buyer and Buyer’s
representatives
shall have the right of access, on a non-interference basis, to any
area of
Seller’s or Seller’s supply chain sub-tier premises where any part of
the work
is being performed. Seller shall flow this requirement down to its sub
tier
supply chain suppliers as a condition of this contract. Seller shall,
without
additional costs to Buyer, provide all reasonable in-plant
accommodations,
facilities, and assistance for the safety and convenience of the Buyer
and the
Buyer’s representatives in the performance of their duties. (c) Seller
shall
keep and maintain inspection, test and related records, which shall be
available to Buyer or Buyer’s representative. Seller shall allow copies
to be
made and shall furnish all information required by the Buyer or Buyer’s
representative.
6. Rejection: If Seller delivers nonconforming Goods or
Services,
Buyer may, at its option and Seller’s expense: (i) return the goods for
refund
or credit; (ii) require Seller to promptly correct or replace the Goods
or
Services; (iii) correct the nonconformance; or, (iv) obtain conforming
Goods or
Services from another source. Buyer shall specify
the reason for any return or rejection of nonconforming Goods or
Services and/or shall describe the action taken. Seller shall be liable
for any
increase in costs, including procurement costs, attributable to Buyer’s
rejection of the nonconforming Goods or Services.
7. Invoices: (a) Invoices may be mailed when goods are
shipped, but
the time for payment shall not commence until Buyer’s actual or
scheduled
receipt, whichever is later, of items at their destination or upon
satisfactory
completion of services. Buyer
shall promptly
pay Seller the amount due within 45 days, except if identified elsewhere in the
Contract, unless the invoiced amount is
in dispute. Buyer may withhold payment for shortages and/or
non-conforming Goods or Services.
8. Changes: (a) By written order, Buyer may from time to
time
direct changes for: (i) technical requirements; (ii) shipment or
packing methods;
(iii) place of delivery, inspection or acceptance; (iv) reasonable
adjustments
in quantities, delivery schedules or both; (v) amount of
Buyer–furnished
property; (vi) time of performance; and, (vii) place of performance.
(b) If any
such change causes an increase or decrease in the price or in the time
required
for its performance, Seller shall promptly notify Buyer thereof and assert its claim for
equitable adjustment within
thirty (30) days after the change is ordered, and an equitable
adjustment shall be made. However, nothing in this provision shall
excuse
Seller from proceeding immediately with the directed change(s). Changes
shall
not be binding upon Buyer except when specifically confirmed in a
written
Purchase Order or Change Order.
9. Force
Majeure: The following
events, and
only the following events, shall constitute force majeure under this
Contract:
(a) acts of God or of a public enemy; (b) acts of Government; (c)
fires; (d)
floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h)
freight
embargoes; and, (i) unusually severe weather. In each case, the failure
to
perform must be entirely beyond the control and without the fault or
negligence
of the Seller. Each party shall give the other immediate notice of any
event
that such party claims is a Force
Majeure Condition
that would prevent the party from performing its obligations hereunder,
and of
the cessation of the condition. A party’s notice
under this Section shall include the party’s good faith estimate of
the
likely duration of the Force
Majeure Condition.
10.
Termination for Convenience: (a)
Buyer
may, by notice in writing, direct Seller to terminate work under this
Contract
in whole or in part, at any
time, and such
termination shall not constitute default. In such event, Buyer
shall
have all rights and obligations accruing to it either at law or in equity, including
Buyer’s rights to title and
possession of the goods and materials paid for. Buyer may take
immediate
possession of all work so performed upon notice of termination. (b)
Seller
shall immediately stop work and limit costs incurred on the terminated
work. (c) If such termination is for the
convenience of the Buyer, Buyer, after deducting any amount(s)
previously paid,
shall reimburse Seller for the actual, reasonable, substantiated and
allowable
costs with the total amount to be paid by the Buyer being determined by
negotiation.
11. Termination for Default: (a) Buyer may, by written Notice of Default to
Seller,
terminate this Contract in whole or in part, or, at Buyer’s sole
discretion,
require the Seller to post such financial assurance as Buyer deems
reasonably
necessary, if the Seller fails to: (i) deliver the goods or to perform
the services
within the time specified in
this
Contract or any extension; (ii) make progress, so as to endanger
performance of this Contract; or,
(iii) perform
any of the other provisions of this Contract. (b) Buyer may
require
Seller to transfer title and deliver to Buyer, in the manner and to the
extent
directed by Buyer, any partially completed goods and raw material,
parts,
tools, dies, jigs, fixtures, plans, drawings, services, information and
contract rights (Materials) as Seller has produced or acquired for the
performance of this Contract, including the assignment to Buyer of
Seller’s
subcontracts. Seller further agrees to protect and preserve property in
the
possession of Seller in which Buyer has an interest. Payment for
completed
goods delivered to and accepted by Buyer shall be at the Contract
price.
Payment for unfinished Goods or Services, which have been delivered to
and
accepted by Buyer and for the protection and preservation of property,
shall be
at a price determined in the same manner as provided in the Termination
for
Convenience provision hereof
except that
Seller shall not be entitled to profit. Buyer may withhold from
Seller
moneys otherwise due Seller for completed goods and/or Materials in
such
amounts as Buyer determines necessary to protect Buyer against loss due
to
outstanding liens or claims against said goods and Materials. (c)
Seller shall
promptly notify Buyer if Seller is the subject of any petition in
bankruptcy.
In the event of Seller’s bankruptcy, Buyer may require Seller to post
such
financial assurance, as Buyer, in its sole discretion,
deems necessary. Failure to post such financial assurance upon
ten (10)
days written notice shall constitute a default under this Contract. The
rights
and remedies of Buyer in this clause are in addition
to any other rights and remedies provided by law or under this
Contract.
12. Compliance with Law: (a) Seller shall comply with all applicable
provisions
of Federal, state, and local laws; ordinances and all lawful orders;
rules,
regulations. FAA, DOT and other transportation regulations and Hazard
Communication Standards promulgated pursuant to the Occupational Health
and
Safety Act. (b) Seller shall control the dissemination of and access to
technical data, information and other items received under this
Contract in
accordance with U.S.
export control laws and regulations.
13. Ethical Standards of Conduct: Seller shall neither receive nor give any
gifts or
gratuities in connection with this Contract. Seller’s employees are required to conduct
company business with integrity and
maintain a high standard of conduct in all business-related activities.
Seller shall not participate in
any unethical
conduct during performance of this Contract. Seller shall not
engage in
any personal, business, or investment
activity that may be defined as a conflict of interest, whether
real or
perceived.
14. Proprietary Information and Rights: (a) All Specifications, information, data, drawings, software
and other items supplied to Buyer
shall be disclosed to Buyer without any restrictive rights on a
non-proprietary
basis. (b) All Specifications, information, data, drawings, software
and other items which are: (i)
supplied to Seller by Buyer;
or, (ii) paid for by Buyer during the performance of
this Contract shall be treated as proprietary
to Buyer and shall not be disclosed to any third party without Buyer’s
express
written consent. Seller agrees not to use any such furnished
information except
to perform this Contract.
15. Intellectual Property: Any work, writing, idea, discovery,
improvement, invention
(whether patentable or not), trade secret or intellectual
property of any kind first made or conceived by Seller in the
performance of this Contract or which is derived from the use of
information
supplied by Buyer shall be the exclusive property of the Buyer. Seller
shall
disclose promptly all such works, writings, ideas, discoveries,
improvements,
inventions, trade secrets or intellectual property
to Buyer, and shall execute all necessary documents to perfect
Buyer’s
title thereto and to obtain and maintain effective protection thereof.
Any work
produced under this Contract is to be deemed a work-for-hire to the
extent
permitted by law, and, to the extent not so permitted,
shall be assigned to, and shall be, the exclusive property of,
the
Buyer. (b) Seller hereby grants to Buyer, and to Buyer’s subcontractors
and customers, in connection
with the use, offer for
sale, or sale of products provided to or work being performed
for Buyer,
an irrevocable, non-exclusive, paid-up worldwide license under any and
all
intellectual property (whether domestic or foreign), including patents,
copyrights, industrial designs and/or mask works owned or controlled by
Seller
at any time or licensed to Seller, provided such a sublicense does not
conflict
with any provisions of the license to the Seller. (c) Seller hereby
grants to
Buyer, and to Buyer’s subcontractors and customers, a perpetual,
non-exclusive,
paid-up worldwide license to reproduce, distribute copies of, perform
publicly,
display publicly, or make derivative works from any software included
in or
provided with Goods or Services under this Contract (Software
Documentation) as
reasonably required by Buyer in
connection
with Buyer’s testing or use of the good or service.
16. Goods Warranty: Unless stated otherwise in the documents
accompanying these terms and
conditions, Seller shall warrant all goods against defects in design
and
performance for a period of one year following delivery. If this
Contract is
for delivery of goods, Seller shall observe, comply with and afford
Buyer all
applicable Uniform Commercial
Code
warranties contained in the New York Consolidated Laws, and
Seller
hereby acknowledges that Buyer does not waive or accept any disclaimer
of any
such warranties.
17. Services Warranty: Unless stated otherwise in the documents
accompanying
these terms and conditions, Seller shall warrant all services against
defects
in performance for a period of one year following delivery. If this
Contract
includes the provision of Services, Seller
warrants that it has and will maintain sufficient trained personnel
to
promptly and efficiently execute the Services contemplated under this
Contract.
Seller further warrants that the services shall be performed to at
least the
standard of performance reasonably expected of similar service
providers in
Buyer's geographic area.
18. Intellectual Property Warranty: Seller warrants that the sale, offering for
sale, use,
or incorporation into manufactured goods and Materials (including
software) of
all machines, parts, components, services,
devices, material, and rights furnished or licensed hereunder which are not of Buyer’s design,
composition, or
manufacture does not and will not infringe any valid patent,
copyright,
trade mark, or other proprietary or intellectual property rights.
19. Extension to Buyer’s Customers: All warranties furnished pursuant to this
Contract
extend not only to Buyer but also to Buyer’s customers.
20. Indemnification: (a) Seller shall indemnify, hold harmless, and
at Buyer's request, defend
Buyer, its officers,
directors, customers, agents and employees, against all claims,
liabilities, damages, losses and expenses, including attorneys' fees
and cost
of suit arising out of or in any way connected with the Goods or
Services provided
under this Agreement, including, without limitation: (i) the breach of
any
warranty contained herein; (ii) any claim based on the death or bodily
injury
to any person, destruction or
damage to
property, or contamination of the environment and any associated
clean
up costs; (iii) Seller failing to satisfy the Internal Revenue
Service's
guidelines for an independent contractor; (iv) any claim based on the
negligence, omissions or willful misconduct of Seller or any of
Seller's
agents, subcontractors, employees
or anyone
acting on behalf of Seller; and, (v) any claim by a third party against Buyer alleging
that the Goods
or Services (including but not limited to software), the results
of such
Services, or any other products
or processes
provided under this Agreement, infringe a patent, copyright,
trademark,
trade secret or other proprietary right of a third party, whether such
are
provided alone or in combination with other products,
software or processes. Seller shall not settle any such suit or
claim without
Buyer's prior written approval. Seller agrees to pay or reimburse all
costs
that may be incurred by Buyer in enforcing this indemnity, including
attorneys'
fees. (b) Should Buyer's use, or use by its distributors,
subcontractors or
customers, of any Goods or Services purchased from Seller be enjoined,
be
threatened by injunction, or be the subject of any legal proceeding,
Seller
shall, at its sole cost and expense, either:: (i) substitute fully
equivalent
non-infringing Goods or Services; (ii) modify the Goods or Services so
that
they no longer infringe but remain fully equivalent in functionality;
(iii)
obtain for Buyer, its distributors, subcontractors or customers the
right to
continue using the Goods or Services;
or,
(iv) if none of the foregoing is possible, refund all amounts
paid for
the infringing Goods or Services. (c) Seller shall without limitation
as to
time, defend, indemnify and hold Buyer harmless from all liens which
may be
asserted against property covered hereunder, including without
limitation
mechanic’s liens or claims arising under Worker’s Compensation or
Occupational
Disease laws and from all claims
for injury
to persons or property arising out of or related to such property unless the
same are caused solely and directly
by Buyer’s negligence.
21. Insurance: If
this contract is for the performance of services on Buyer’s premises,
or,
Seller utilizes their own vehicles to deliver goods to Buyer’s
facility, Seller
shall maintain the following insurance in at least the minimum amounts
stated: (a) General Liability, Property
Damage, Employer’s Liability-$1 million (b) Workers Compensation
Insurance –
Statutory (c) Motor Vehicle Liability - $1 million. Seller shall
arrange a
waiver of subrogation, shall name Buyer as an additional insured under
each of
the above policies and shall provide to Buyer, within fifteen (15) days
of
Buyer issuance of this Contract, a Certificate of Insurance evidencing
compliance with this section.
22. Release Of Information: Seller shall not publish any information
developed
under this Contract, nor disclose, confirm, or deny any details about
the
existence or subject matter of this Contract, or use Buyer’s name in
connection
with Seller’s sales promotion or publicity without prior written
approval of
the Buyer.
23. Disputes: The
provisions of this Contract shall be interpreted in accordance with the laws of the State
of New York
without resort to said state’s
Conflict of Law rule, and in accordance
with its fair meaning and not strictly against either party.
Pending
final resolution of a dispute hereunder, Seller shall proceed
diligently with
the performance of this Contract and in accordance with all the Terms
and
Conditions contained herein and with the Buyer’s direction thereof.
Buyer and
Seller shall each bear its own costs of processing any dispute
hereunder.
24. Assignments and Subcontracting: (a) Neither this Contract nor any interest
herein nor
claim hereunder may be transferred, novated, assigned or delegated by
Seller;
nor may all or substantially all of this Contract be further
subcontracted by
Seller without the prior written consent of Buyer. No consent shall not
be
deemed or relieve Seller of its obligations to comply fully with the
requirements hereof. (b) Notwithstanding the above, Seller may, without
Buyer’s
consent, assign moneys due or to become due hereunder provided Buyer
continues
to have the right to exercise any and all of its rights hereunder,
settle any
and all claims arising out of, and enter into amendments to the
Contract
without notice to or consent of the assignee. Buyer shall be given
prompt
notice of any assignment. Amounts so assigned shall continue to be
subject to
any of Buyer’s rights to set-off or recoupment under this Contract or
at law.
(c) Buyer may assign this Contract to any successor in interest.
25. Government Contracts: For Contracts placed in support of and charged
to a
U.S. Government Contract: (i) the appendices to the contract will
include a
list or lists of clauses set forth in the Federal Acquisition
Regulation (FAR),
the Defense Federal Acquisition Regulation
Supplement (DFARS) or other agency FAR supplement; (ii) such appended
FAR,
DFARS or other agency clauses are incorporated by reference as
if set
forth at length herein.
26. Price Reduction For Defective Cost Or
Pricing Data:
(a) This section is applicable
if cost
or pricing data was furnished or was required to be furnished to Buyer
(b) If
any price, including profit or fee, negotiated in connection with this
Subcontract, was increased by a significant amount because
Subcontractor or
Subcontractor furnished cost or pricing data that were not complete,
accurate,
and current as certified in its Certificate of Current Cost or Pricing
Data or
furnished data of any description that were not accurate, the price or
cost
shall be reduced accordingly and the Subcontract shall be modified to
reflect
the reduction. (c) Subcontractor agrees to indemnify and save Buyer
harmless
from any reduction in the price (or cost and fee, as applicable) of the
Prime
Contract, including applicable overhead and profit markup, on account
of any
such defective data, whenever such reduction may occur.
27. Order of Precedence: In the event of a conflict between these Terms
and
Conditions and other portions of the Contract, the order of precedence
shall
be: (a) any typed provisions on the face of Buyer’s purchase order
specifically
modifying the terms of this Contract; (b) these Terms and Conditions;
and, (c)
any other provisions set forth in the
Buyer’s Purchase Orders including any terms and conditions stated
or
referenced therein.
28. Independent Contractor Status: Seller is, and shall remain, an independent
contractor
during the performance of this Contract.
29. Communication with Buyer’s Customer: Buyer shall be solely responsible for any and
all
communication with Buyer’s customer regarding this or any related
contract.
30. Survival: All
of the provisions of this Contract shall survive the termination
(whether for
convenience or default), suspension or completion of this Contract
unless they
are clearly intended to apply only during the term of this Contract.
31. Audit Rights: (a) Buyer reserves the right to audit Seller’s
records to assure
compliance with the terms of this Contract. Seller shall make available
all
data reasonably requested by Buyer.
OPINICUS Corporation
1827 NorthPointe Pkwy
Lutz, Florida
33558
