Supplier Terms and Conditions - 7362103 REV B
HARMONIC DRIVE LLC
TERMS AND CONDITIONS OF PURCHASE
(Aviation Space and Commercial Items under U.S. Government Contract)
1. DEFINITIONS
As used throughout this Order the following definitions apply unless otherwise specifically stated:
(a) FAR means the Federal Acquisition Regulation (48 CFR Parts 1 through 53; available at http://www.acquisition.gov/far/) in effect on the date of this Order.
(b) DFARS means the Defense Federal Acquisition Regulation Supplement (48 CFR Parts 201 through 253; available at http://www.acq.osd.mil/dpap/dars/dfarspgi/current/) in effect on the date of this Order.
(c) The term “Commercial Item” shall be as defined as defined in FAR 2.101 – Definitions, and is incorporated herein by reference.
(d) Buyer refers to Harmonic Drive LLC. HD LLC refers to Harmonic Drive LLC.
(e) Seller means the legal entity, which is the contracting party with Buyer with respect to this Order. In FAR clauses incorporated herein the term “Contractor” shall be deemed to refer to Seller, and the term “Subcontractor” refers to Seller’s subcontractors.
(f) “This Order” (or “this subcontract”) refers to this contractual instrument, and in FAR and DFARS clauses incorporated herein. The term “contract” means this Order (or this subcontract).
(g) Government refers to the Government of the United States acting through the Department, procuring activity or agency, which awarded the prime contract.
(h) Prime contract means the Government contract (identified in this Order) under which this Order was issued.
2. ACCEPTANCE
Written acceptance by Seller of this Order or the commencement of any work or the performance of any services hereunder by Seller shall constitute acceptance by Seller of this Order, its terms and conditions and applicable law. Acceptance of this Order is limited to the terms and conditions stated herein. Any additional or different terms proposed by Seller are objected to and hereby rejected unless Buyer agrees otherwise in writing.
3. COMPLETE AGREEMENT
This Order is the complete and exclusive statement of the terms of the agreement between Seller and Buyer.
4. BUYER’S AUTHORIZED PURCHASING REPRESENTATIVE
(a) Buyer’s Authorized Purchasing Representative is the individual authorized by Buyer to administer and/or execute this Order. The Buyer’s Authorized Purchasing Representative has sole authority to make contractual commitments on behalf of Buyer, to provide contractual direction, and to change contractual requirements as defined in this Order.
(b) Buyer’s engineering, technical personnel and other representatives may from time to time render assistance or give technical advice or discuss or effect an exchange of information with Seller’s personnel concerning the supplies or services being provided under this purchase order. No such action shall be deemed to be a change under the “Changes” clause of this Order and shall not be the basis for an equitable adjustment.
5. MODIFICATION
No modification of this Order (including any additional or different terms in Seller’s Acknowledgement) shall be binding on Buyer unless agreed to in writing and signed by Buyer’s Authorized Purchasing Representative.
6. SUBCONTRACTING
Seller shall not further subcontract the entirety nor any portion of this Order without first obtaining Buyer’s written approval thereof if (a) this Order is a cost-type contract and, in addition, (b) if the subcontract is in excess of $2,500. Provided, however, that this limitation shall not apply to Seller’s purchase of standard commercial supplies or raw materials. Seller shall select subcontractors (including supplies) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of this Order.
7. CHANGES
The Buyer may, at any time by written or electronic order, and without notice to the sureties, make changes within the general scope of this Order, and including attachments, method of shipment or packing, and place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for performance of this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the order shall be modified in writing accordingly. Failure to modify in writing by either party shall not be considered a waiver of the requirement of such writing and no extra charge shall be made by Seller for any change unless pursuant to modification in writing. Any claim for adjustment, under this clause must be asserted within 30 days from the date of receipt by the Seller of the notification of change. Provided, however, that if the Buyer decides that the facts justify such action, he may receive and act upon any such claim asserted at any time prior to final payment under this Order. Nothing in this clause shall excuse the Seller from proceeding with the contract as changed; Buyer will not be liable for delay in furnishing any items to be provided by it, when such delay is caused by its failure to receive such items from its source of supply or by any causes beyond the control of Buyer.
8. PACKING, MARKING AND SHIPPING
(a) Seller shall pack, mark and ship all goods and supplies in accordance with the requirements of this Order so as to be in compliance with transportation regulations and good commercial practice for preservation, protection and shipment and to secure the most advantageous transportation service and rates consistent therewith. No separate or additional charge shall be payable by Buyer for containers, crating, boxing, bundling, dunnage, drayage or storage unless specifically stated in this Order. Any expense or damage incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Seller. Packing list showing this Order number (and release number, if applicable) shall be included with each shipment, and each container shall be marked to show the Order number. Seller shall mail original bill of lading to Buyer’s Purchasing Department at point of Order unless otherwise instructed. Any transportation charges paid by Seller for which Seller is entitled to reimbursement shall be shown on Seller’s invoice as a separate line item and the receipted freight bill shall be attached thereto.
(b) In case of drop shipment Seller shall send Buyer at time of shipment two copies of above packing list.
9. DELIVERY
Deliveries (as specified in the Order) shall be strictly in accordance with the quantities and schedules specified in the Order. If at any time it appears Seller may not meet such schedule, Seller shall immediately, by verbal means (to be confirmed in writing), notify Buyer of the reasons for and estimated duration of the delay and, if requested by Buyer, take action to mitigate the delay, including without limitation by making arrangements for the expenditure of premium time and for shipping via air or other means of expedited transportation. Any additional cost caused by these requirements shall be borne by Seller, unless the delay in delivery arises out of causes beyond the control and without the fault or negligence of Seller or its subcontractors within the meaning of the “Default” clause herein. The foregoing requirements are in addition to all of Buyer’s other rights and remedies as may be provided by law or this Order.
10. INSPECTION, REJECTION AND REMEDY OF DEFECTS
(a) All articles, material and workmanship furnished in the performance of this Order shall be subject to inspection and test by Seller and the Buyer at all times and places, and when practicable, during manufacture. Except as otherwise provided in these terms, inspection by the Buyer shall constitute final acceptance except as regards latent defects, fraud, or such gross mistakes as amount to fraud. Payment for material under this Order prior to inspection shall not constitute an acceptance thereof;
(b) The Buyer shall have the right to reject any articles found to be defective in material or workmanship (with or without instructions as to their disposition) and to require their replacement or correction. Unless the Seller elects to correct or replace the items which the
Buyer has a right to reject and is able to make such correction or replacement within the required delivery schedule, the Buyer may, in its sole discretion, require the delivery of such articles at a reduction in price which is equitable under the circumstances. If materials are rejected, Buyer shall be relieved of any obligation to accept and pay for such material.
11. LOSS OR DAMAGE CAUSED BY SELLER
In the event Seller, its employees, agents and/or subcontractors enter premises occupied by or under the control of Buyer in the performance of this Order, Seller shall indemnify and hold harmless Buyer, its officers and employees, from any damage, expense or liability by reason of property damage, personal injury or death arising out of or in connection with negligent actions or omissions of Seller on or about such premises, and also from any claim against Buyer as a third party for death of or injury to any of Seller’s or Seller’s subcontractor’s employees arising out of and in the course of the employee’s employment. Without in any way limiting the foregoing undertakings, Seller and its subcontractors at all tiers shall maintain public liability and property damage insurance in reasonable limits covering the obligations set forth above and shall maintain proper Workmen’s Compensation insurance covering all employees performing this Order.
12. RESPONSIBILITY FOR PROPERTY
All property, including material, tooling and equipment which is furnished to Seller by Buyer for performance of this Order or for which Buyer has specifically agreed to pay Seller, shall be and remain the property of Buyer or the Government, as applicable, and title to such property shall not be affected by incorporation or attachment to any other property. All property manufactured or acquired by Seller under this Order, the title to which is in Buyer or the Government, and all property furnished or consigned to Seller by Buyer under this Order, including Government property, shall be kept and maintained in accordance with standards in FAR Subpart 45.5 “Management of Government Property in Possession of Contractors” which is hereby incorporated in and made a part of this Order. Such property shall be used by Seller only in the performance of this Order or as may otherwise be authorized by Buyer, or by the Government. When instructed by Buyer, Seller shall deliver the property covered by this clause to Buyer or the Government, as appropriate, F.O.B. carrier, Seller’s plant at the completion or termination of this Order, or shall make such other disposition of property of the Government as Buyer may direct. Seller shall bear the risk of loss or destruction of and damage to property covered by this clause until delivered or returned to Buyer or the Government. Seller shall deliver or return Buyer property and Government property in the same condition as when manufactured, acquired, or received, except for reasonable wear and tear or for utilization thereof in accordance with the terms of this Order. With respect to Government Property this clause applies only to Government property coming into Seller’s possession and control solely under this Order; it does not, for example, apply to Government property held by Seller under a facilities or other Government contract which governs Seller’s responsibility therefor.
13. USE OF BUYER’S DATA
Seller agrees to maintain the confidentiality of, and not use or disclose drawings, specifications, technical information and other data furnished by Buyer except in furnishing supplies under this Order; provided, however, that Seller may produce such supplies for sale direct to the Government where the Government has the right to authorize and has authorized, the use of such drawings, specifications, technical information and other data or where the prime contract contains the clause FAR 52.227-14 (Rights in Data—General) and/or DFARS 252.227-7015 (Technical Data--Commercial Items). Nothing in this clause, however, shall restrict Seller’s rights to use or disclose un-copyrighted drawings, specifications, technical information and other data which are or become generally known to the public without breach of this provision by the Seller or are rightfully obtained from other sources.
14. TAXES
Federal, State, or local taxes of any nature shall be billed separately in Seller’s invoices.
15. PUBLIC RELEASES
Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish Buyer with the items herein mentioned, or disclose any of the details connected with this Order to any third party except as herein specified, and except as may be required to perform this Order.
16. RISK OF LOSS AND RESPONSIBILITY FOR SUPPLIES
(a) When this Order specifies that the designated delivery point is F.O.B. carrier, Seller’s plant, risk of loss (used in this clause to include damage, destruction, theft or other loss of the supplies) shall pass to Buyer upon delivery of the items to the common carrier by Seller properly addressed, labeled and consigned, and Buyer shall be responsible for asserting any claims against the carrier and for maintaining any required insurance against loss in transit.
(b) When this Order specifies that the designated delivery point is F.O.B. destination, risk of loss shall remain with Seller until delivery of the items to Buyer, and Seller shall be responsible for asserting any claims against the carrier and for maintaining any required insurance against loss in transit.
(c) Seller shall be responsible for the supplies covered by this Order until they are delivered at the designated delivery point, regardless of the point of inspection. After delivery to Buyer at the designated delivery point and prior to acceptance by Buyer or rejection and giving notice thereof by Buyer, Buyer shall be responsible for risk of loss. Seller shall bear all risks of loss as to properly rejected supplies after timely written notice of rejection has been given, except that Buyer shall be responsible for risk of loss as to the rejected supplies if such loss results from the negligence of officers, agents or employees of Buyer.
17. DISPUTES
(a) Any dispute arising under this Order which is not settled by agreement or pursuant to the following paragraphs of this clause, may be settled by appropriate legal proceedings. Notwithstanding any other provisions herein, any decision of the Government under the prime contract which binds Buyer shall also bind Seller to the extent that it relates to this Order, provided Buyer shall have notified Seller promptly of such decision.
(b) Any decision on appeal, or any other decision of the Government under the prime contract which cannot be appealed under the Disputes clause of the prime contract if binding on Buyer, shall also bind Seller to the extent that it relates to this Order; provided Buyer shall have promptly notified Seller of such decision.
(c) If any appeal, suit or claim is prosecuted by Buyer under this clause, Seller shall be permitted at Seller’s expense, to participate fully in such prosecution for the purpose of protecting Seller’s interest. If requested by Buyer, Seller shall prosecute any appeal, suit or claim initiated by Buyer at Seller’s request. Each party shall cooperate fully in assisting the other party in such proceedings. Buyer agrees that after Seller has commenced to participate in any claim or proceedings against the Government pursuant to this clause, Buyer will not enter into a settlement agreement with the Government or take any other action which would prejudice Seller’s rights in such claim or proceeding without Seller’s consent.
(d) During pendency of any dispute, decision, appeal, suit or claim covered by this clause, Seller shall proceed diligently with performance. All costs and expenses incurred by Seller and Buyer in prosecuting any appeal, suit or claim initiated by Buyer solely at Seller’s request shall be paid by Seller; otherwise each party shall bear its allocable share of the expense. The rights and obligations of Buyer and Seller under this clause shall survive completion of, and final payment under this Order.
18. WAIVER, MODIFICATION AND DELIVERY
Time is of the essence in the performance of this Order. Seller agrees to notify Buyer if, at any time, it appears that any delivery schedule set forth herein may not be met. Such notification shall include the reasons for any possible delays, steps being taken to remedy any such problems, and a proposed revised delivery date, if Seller is of the opinion that such a date is required. If Seller fails to meet the contractual delivery date, the Buyer may, without limiting Buyer’s other rights or remedies, direct, expedite and route any or all material in the most expeditious manner, and any excess costs incurred thereby shall be debited to the Seller’s account. Nothing herein shall be interpreted as waiving Buyer’s remedies for default (including right of termination) if Seller fails to meet the delivery schedule specified on the face hereof.
The failure of Buyer in any one or more instances to insist on delivery at an agreed time or on performance of any other provisions of this Order shall not be construed to be a waiver by Buyer of delivery time or any other provision. Delivery according to Schedule being an important condition hereof, will not be advanced or delayed without written agreement between the parties, and in event of termination or change to Buyer, any portion of Seller’s claim based on manufacture or procurement of materials in advance of Seller’s normal flow times must be supported by Buyer’s prior written consent to be allowable. No provision herein concerning inspection or conclusiveness of acceptance shall exclude any warranty or constitute a waiver thereof. A modification of this Order must be in writing and signed by Buyer’s authorized purchasing representative if it is to be binding on Buyer.
19. LAWS
This Order shall be governed in all respects by the laws of the Commonwealth of Massachusetts, except to the extent the prime contract shall be governed by the laws of a different jurisdiction, in which case this Order shall to such extent be governed by the laws of such other jurisdiction, without reference to the principles of conflict of laws.
20. ANTI-KICKBACK ACT
Seller warrants that it is in full compliance with the provisions of the Anti-kickback Act, as amended, 41 U.S.C. 51-54, and FAR 52.203-7, and shall hold Buyer harmless from any liability resulting from failure of such compliance.
21. LIENS
All items to be delivered herein and all property to be returned to Buyer shall be free and clear of any and all claims, liens and encumbrances whatsoever.
22. WARRANTIES
Seller warrants that all products delivered under this Order shall conform to the requirements of this Order (including without limitation all technical descriptions, performance criteria, specifications and drawings), shall be free from defects in material and workmanship and shall, to the extent not manufactured pursuant to detailed designs furnished by the Buyer, be free from defects in design and fit for the intended purposes as Buyer has relied upon Seller’s ability, expertise and awareness of such intended purpose. Buyer’s approval of designs furnished by Seller or any approval of Seller’s “First Article” shall not relieve Seller of its obligations under this Warranty. All of Seller’s warranties set forth in this Order shall be enforceable by Buyer’s customers and any subsequent owner or operator of the Products as well as by Buyer. Any inspection or acceptance of the Product by Buyer shall not be deemed to alter or affect the obligation of Seller or the rights of Buyer and its customers under these warranties.
23. PRICE
(a) If the Seller’s price or the regular market price of the articles covered herein shall be lower than the price stated in the Order on the date of shipment of any unshipped part of this Order, the Seller agrees to give the Buyer the benefit of such lower price on such unshipped part.
(b) If any manufacturer’s excise or other similar or different tax is included in or added to the prices paid to the Seller for the merchandise described in this contract and if such tax, or any part thereof, is hereafter refunded to the Seller, then the Seller shall immediately pay the Buyer the amount of such refund.
(c) Any trade custom, other custom and/or any practice to the contrary notwithstanding, Buyer shall not be required to receive or pay for any items or articles in excess of the definite amount or quantity herein specified.
24. INVOICES AND STATEMENTS
(a) Payment of Seller’s invoice is subject to adjustment for over shipment, shortage and rejection. (b) Individual invoices showing this Order number and item number or order and description of item as shown on this Order, must be issued for each shipment applying to the order. One copy of each individual invoice must be plainly marked “ORIGINAL”. (c) Any applicable sales tax, duty, excise tax, use tax or other similar tax or charge, for which Buyer has not furnished an exemption certificate must be itemized separately on Seller’s invoices.
25. SHIPMENT
Seller shall not ship in advance of schedule without the permission of the Buyer, and except as otherwise specified or consented to by Buyer, shall ship exact quantities ordered. Seller shall not be liable for delay in shipment due to causes beyond Seller’s control and without Seller’s fault or negligence, provided Seller exercises due diligence in promptly notifying Buyer of conditions which will result in delay.
26. COMPLIANCE WITH LAWS
(a) HD LLC may terminate the whole or any part of this Order in either of the following circumstances: (i) If Seller fails to deliver the items or to perform the services required by this Order within the time specified herein, or any extension thereof granted by HD LLC in writing; or
Seller warrants that in the performance of this Order, it will comply with all applicable Federal, State and local laws, rules, regulations, or ordinances and amendments, thereto.
27. NON-WAIVER
Any and all failure(s) of Buyer or delay(s) or forbearance(s) by Buyer in enforcing any of the provisions of this Order shall not be construed as a waiver thereof or of the Buyer’s rights to subsequent enforcement.
28. PARTIAL INVALIDITY
If any provision of this Order is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable.
29. PATENT PROTECTION
To the extent the subject articles are not manufactured pursuant to design originated by Buyer, Seller agrees it will save Buyer and/or its agents or customers harmless from any loss, damage or liability which may be incurred on account of infringement of the United States patent rights with respect to such articles or materials and that it will at its own expense defend any action, suit or claim in which such infringement is alleged with respect to the sale or use of the articles or materials delivered hereunder, provided Seller is duly notified as to suits against Buyer, and provided further Seller’s indemnity as to use shall not apply to any infringement arising from use in combination with other items where such infringement would not have occurred from the normal use for which the article was designed.
30. RECEIVING BY BUYER
The Buyer shall not be responsible for failure to receive, if occasioned by war, strikes, fires, the acts of God or the public enemy, labor or transportation difficulties, or other causes beyond Buyer’s control.
31. MECHANIC’S LIEN AND INDEMNITY
If this Order calls for work to be performed upon property owned or controlled by Buyer, it is agreed that: (a) Seller will keep the premises and work free and clear of all mechanic’s liens, and agrees to furnish Buyer such affidavits and waivers as, in Buyer’s opinion, are necessary or appropriate to insure immunity from mechanic’s liens arising from the performance of this Order, all as a condition precedent to any payment by Buyer hereunder. (b) The work will remain at Seller’s risk prior to written acceptance by Buyer and Seller will replace at his own expense all work damaged or destroyed by fire, force, or violence of the elements or any other cause whatsoever. (c) Seller will indemnify, save harmless, and defend Buyer from all liability for loss, damage or injury to person or property in any manner arising out or of incident to Seller’s performance of this Order. (d) Seller will indemnify, save harmless, and defend Buyer from any and all claims, demands, or suits made or brought against Buyer on account of any of the terms or provisions of any applicable Workman’s Compensation Law and will furnish Buyer with proper evidence that Seller is insured against all liability under such law.
32. TERMINATION
1 Convenience
The performance of work under this purchase order may be terminated in whole, or from time to time in part, by HD LLC for its convenience in accordance with provisions set forth in FAR 52.249-2, Termination for Convenience Fixed-Price.
2 Default
(ii) If Seller fails to perform any of the other provisions of this Order or so fails to make progress as to endanger performance of this Order in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of ten (10) days after receipt of notice from HD LLC specifying such failure.
(b) In addition to any other rights provided in this clause, HD LLC may require Seller to transfer title and deliver to HD LLC, in the manner and to the extent directed by HD LLC (i) any completed products, and (ii) such partially completed products and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights, (hereinafter called “manufacturing material”) as the Seller has produced or acquired for the performance of this purchase order; and the Seller shall, upon direction of HD LLC, protect and preserve property in possession of the Seller in which HD LLC has an interest. Payment for completed products delivered to and accepted by HD LLC shall be at the Order price. Payment for manufacturing materials delivered to and accepted by HD LLC and for the protection and preservation of property shall be at a price determined in the same manner as provided in 32.1, except that Seller shall not be entitled to profit.
(c) In the event HD LLC terminates this Order in whole or part HD LLC may require Seller to assign to HD LLC all of Seller’s rights, title and interest to Seller’s purchase orders and subcontracts as selected by HD LLC for materials, services or facilities necessary to the completion of the requirements of this Order so terminated.
(d) In the event of such termination, HD LLC shall have the right to procure on such terms and in such manner as it may deem appropriate, items or services similar to those terminated, and to recover from Seller the excess cost for such similar items or services; provided, however, Seller shall not be liable for such excess costs where the failure upon which the termination is based has arisen out of cause beyond the control of Seller and without the fault or negligence of Seller. Such causes shall be deemed to include, but not be limited to fires, floods, earthquakes, strikes and acts of the public enemy. The rights of HD LLC provided in this clause shall be in addition to any other rights provided by law or this Order.
(e) If, after notice of termination of this Order for default, it is determined for any reason that the Seller was not in default, the rights and obligations of the parties shall be the same as if the notice had been issued under Clause 32.1 of this purchase order.
3 Other
By written notice to Seller, HD LLC may cancel the whole or any part of this Order in the event of suspension of Seller’s business, insolvency of Seller, institution of bankruptcy, reorganization, arrangement or liquidation proceedings by or against Seller, appointment of a trustee or receiver for Seller’s property or business, or any assignment by Seller for the benefit of creditors. Such cancellations shall be deemed “for default” in accordance with the provisions of 32.2 above, and the rights and obligations of the parties shall be determined as therein provided.
4 Failure of HD LLC to enforce any right under this clause shall not be deemed a waiver of any right hereunder. The rights and remedies of HD LLC under this Clause 32 shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Order.
33. COSTS AND ATTORNEY’S FEES
In the event that it becomes necessary for the Buyer to bring suit against the Seller for the Seller’s breach of any of the conditions or terms of this Order, either for the recovery of monies paid or for damages incurred, the Buyer shall be entitled to recover, in addition to damages or recovery of monies paid, reasonable attorneys’ fees and costs and disbursements of said suit.
34. APPLICABLE GENERAL PROVISIONS
The General Provisions set forth herein supersede in their entirety the Standard Terms and Conditions which may be printed on the reverse side of HD LLC purchase order forms or Seller’s quotation and acceptance forms.
35. GOVERNMENT PROCUREMENT REGULATIONS
The following clauses, as set forth in the FAR and DFARS in effect on the date of this Order/subcontract, unless otherwise noted, are incorporated by reference as if in full text. Wherever appearing in the text of the clause, the terms “Contracting Officer” and “Government” shall mean HD LLC and the term “Contractor” shall mean “Seller,” unless otherwise noted. Seller shall include the following clauses in its lower-tier purchase orders as required. If any of the following FAR or DFARS clauses do not apply to a particular purchase order, such clauses are considered to be self-deleting.
a) Applicable to All Orders:
FAR 52.203-15 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (applicable if funded in whole or in part with Recovery Act funds)
FAR 52.211-5 Material Requirements
FAR 52.215-20 Requirements for Cost and Pricing Data or Information other than Cost or Pricing Data
FAR 52.215-21 Requirements for Cost and Pricing Data or Information other than Cost or Pricing Data - Modifications
FAR 52.222-21 Prohibition of Segregated Facilities
FAR 52.222-26 Equal Opportunity
FAR 52.222-50 Combating Trafficking in Persons
FAR 52.225-13 Restrictions on Certain Foreign Purchases
FAR 52.244-6 Subcontracts for Commercial Items
FAR 52.245-1 (ALT 1) Government Property (except in clauses (e)(1),(e)(2)(ii),(e)(3)(i),(f)(1)(ii), the term “Government” shall remain)
FAR 52.246-26 Reporting Nonconforming Items
FAR 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels
DFARS 252.204-7008 Requirements for Contracts Involving Export-Controlled Items
DFARS 252.244-7000 Subcontracts for Commercial Items
DFARS 252.227-7015 Technical Data-Commercial Items
c) Applicable to Orders of $10,000 and Greater:
FAR 52.222-36 Affirmative Action for Workers with Disabilities
d) Applicable to Orders of $100,000 and Greater:
FAR 52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
e) Applicable to Orders of Greater than $150,000:
FAR 52.203-12 Limitation on Payments to Influence Certain Federal Transactions
FAR 52.219-8 Utilization of Small Business Concerns
f) Applicable to Orders of $5,000,000 and Greater and a Period of Performance of greater than 120 days:
FAR 52.203-13 Contractor Code of Business Ethics and Conduct (Notwithstanding any alterations to this clause to reflect the relationship between Buyer and Seller, all disclosures of violation of the civil False Claims Act or of federal criminal law shall be directed to the Office of the Inspector General of the Agency issuing the prime contract, with a copy to the Contracting Officer of the prime contract.
g) Applicable to Orders as Indicated:
FAR 52.204-2 Security Requirements (Applies if the Work requires access to classified information.)
FAR 52.204-9 Personal Identity Verification of Contractor Personnel (Applicable where the Contractor will have physical access to a federally-controlled facility or access to a Federal information system.)
FAR 52.223-11 Ozone-Depleting Substances (Applicable if the Work was manufactured with or contains ozone-depleting substances.)
FAR 52.225-1 Buy American Act – Supplies (Applicable if Work contains other than domestic components.)
FAR 52.225-5 Trade Agreements (Applicable if the Work contains other than U.S. made or designated country end products as specified in the clause.)
FAR 52.227-19 Commercial Computer Software-Restricted Rights (Applicable only if existing computer software is to be delivered under the Contract.)
DFARS 252.225-7001 Buy American and Balance of Payments Program (Applicable if the Work contains other than domestic components. Applicable in lieu of FAR 52.225-1.)
DFARS 252.225-7009 Restrictions on Acquisition of Certain Articles Containing Specialty Metals (JUL 2009) (Applicable if the Work to be furnished contains Specialty Metals. Paragraph (d) is deleted.)
36. GOVERNMENT INSPECTION
Any authorized representative of the Government may inspect the plants of Seller or Seller’s subcontractors engaged in the performance of this Order and inspect and test the goods to be delivered under this Order to the extent practicable, at all times and places including the period of manufacture, and in any event prior to acceptance. If any such inspection or test is made by the Government or the Government’s authorized representative, Seller shall provide all reasonable facilities and assistance for the safety and convenience of the personnel involved in the performance of their duties. In the case of any rejection pursuant to inspection of any goods, articles, or supplies, and also in the case of any latent defect, fraud, or such gross mistakes as amount to fraud, without limitation of any other remedies which may be available to Buyer, the Government or Buyer shall have the right to take any action specified by the clause set forth in FAR 52.246.2, Inspection of Supplies – Fixed Price.
37. NON-DISCRIMINATION IN EMPLOYMENT
The Seller will not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. The Seller will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Such actions shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, lay-off, or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Seller agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause (available at the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) website at: http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm ). Seller agrees to comply with all provisions of U.S. Government executive order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended, 38 U.S.C. 4212; and the Americans with Disabilities Act of 1990. Compliance assistance information can be found at: http://www.dol.gov/ofccp/regs/compliance/ofcpcomp.htm.
38. PRIORITY RATING
If so identified, this Order is a “rated order” certified for national defense use, and the Seller shall follow all the requirements of the Defense Priorities and Allocation System Regulation (15 C.F.R. Part 700).
39. COUNTERFEIT WORK
(a) For purposes of this clause, Work consists of those parts delivered under this Order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). "Counterfeit Work" means Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
(b) Seller shall not deliver Counterfeit Work to HD LLC under this Order.
(c) Seller shall only purchase products to be delivered or incorporate as Work to HD LLC directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by HD LLC.
(d) Seller shall immediately notify HD LLC with the pertinent facts if Seller becomes aware or suspects that it has furnished Counterfeit Work. When requested by HD LLC, Seller shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM.
(e) This clause applies in addition to any quality provision, specification, statement of work or other provision included in this Order addressing the authenticity of Work. To the extent such provisions conflict with this clause, this clause prevails.
(f) In the event that Work delivered under this Order constitutes or includes Counterfeit Work, Seller shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Order. Notwithstanding any other provision in this Order, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation HD LLC 's costs of removing Counterfeit Work, of installing replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged. The remedies contained in this paragraph are in addition to any remedies HD LLC may have at law, equity or under other provisions of this Order.
(g) Seller shall include paragraphs (a) through (e) and this paragraph (g) of this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to HD LLC.
40. ORDER OF PRECEDENCE
To the extent of any inconsistency between the Special Conditions of the General Purchase Order Terms and Conditions, and any specifications or other provisions which are made a part of this purchase order by reference or otherwise, the Special Conditions and the General Purchase Order Terms and Conditions shall control.
