1. Acceptance: Acknowledgment of this Order, or the furnishing of any work or acceptance of any payment by Seller under this Order constitutes an unqualified acceptance by Seller of this Order, including these Terms and Conditions. Buyer rejects all other terms and conditions proposed by Seller.
2. Scope of Work: The “Work” means the articles, materials, supplies and services covered by this Order, and such other articles, materials, supplies and services added to this Order pursuant to the Changes clause. The description of the Work in the Order is for convenience only and is not intended to alter the detailed requirements in the specifications, drawings or other reference documents, unless stated otherwise. No substitutions or deviations are permitted without prior written approval of Buyer. Should inconsistencies or omissions appear in the Order then Seller shall promptly notify Buyer. Seller shall promptly provide accurate shop drawings, samples and other submittals.
3. Payment and Delivery:(A)Prices include all federal, state and local taxes except any applicable state sales tax which will be paid by Buyer;(B)After delivery and acceptance of the completed Work, and upon submission of a proper invoice, Buyer shall pay Seller the prices stated in this Order less any applicable discounts or deductions; provided, however, that no compensation shall be due Seller until payment is received by Buyer from its customer for the Work;(C)The date for any discount shall commence on the day the Work is accepted or the date of the receipt of a proper invoice, whichever is later;(D)Buyer will not pay any additional charges for packing and cartage which shall be in accordance with sound commercial practice, and all containers, bills of lading and packing slips shall include the Order number;(E)The delivery or F.O.B. point is as stated in this Order;(F) Payment is subject to set-off for any valid claim of Buyer against Seller arising under or relating to this, or any other transaction; (F)Prior to final acceptance of the Work by Buyer Seller shall bear the risk of loss.
4. Performance Period: TIME IS OF THE ESSENCE FOR SELLER. Seller shall complete all Work in strict accordance with this Order within the time specified. Should Seller fail or neglect to complete all or any part of the Work in the time specified, or so fail to make progress as to endanger performance, or otherwise delay Buyer by reason of Seller’s, or any of its subcontractor’s or supplier’s, failure or neglect at any tier to perform its obligations, such shall be considered a default. Buyer shall also have the right to accelerate delivery at no additional cost.
5. Changes: Buyer may at any time by written Change Order make changes to this Order without notice to the sureties, including but not limited to the Work or Performance Period. If any Change Order causes an increase or decrease in the cost of, or the time required for the Work, an equitable adjustment will be negotiated. Buyer shall not be liable for any damages as a consequence of delay, disruption, interference or acceleration. Seller's exclusive remedy for delay, disruption, interference or acceleration shall be an extension of time for performance. Any claim by Seller for an adjustment under this clause must be asserted in writing within TEN CALENDAR DAYS from receipt of the Change Order. Nothing herein shall excuse Seller from proceeding diligently with performance of the Work.
6. Prime Contract: Buyer’s contract with its customer (“Prime Contract”) is incorporated by reference and made a part of this Order, and Seller acknowledges that it has reviewed the applicable portions of the Prime Contract. Except as modified herein, Seller assumes the same obligations to Buyer under this Order that Buyer assumes to its customer with respect to the Work. As logically appropriate, the language of the Prime Contract shall be construed to express the Buyer/Seller relationship, and the time limitations set forth in the Prime Contract
will be shortened as necessary to provide Buyer time to meet its obligations to its customer. In the event of a conflict between the Prime Contract and this Order the terms and conditions of this Order shall govern. In the event of any inconsistency or conflict between or among the provisions of this Order, such inconsistency or conflict shall be resolved by the following descending order of precedence:(A)the provisions written on the face of this Order;(B)these terms and conditions;(C)the specifications;(D)the drawings, and;(E)other incorporated or referenced documents. However, should the Prime Contract contain an Order of Precedence Clause, such clause shall govern the interpretation of the Prime Contract.
7. Inspections and Testing: The Work may be inspected and tested at all reasonable times and places before, during and after performance by inspectors designated by Buyer. Compliance by Seller with inspection or test requirements does not relieve Seller of its responsibility to provide Work that meets all applicable requirements of this Order.
8. Warranties: FOR ALL WORK SELLER SHALL GIVE THE WARRANTIES CALLED FOR IN THE PRIME CONTRACT FOR THE TIME PERIODS DESIGNATED THEREIN. IN ADDITION, SELLER WARRANTS THAT ALL WORK SHALL:(A)BE FREE FROM DEFECTS IN WORKMANSHIP AND MATERIALS,(B)BE NEW AND OF GOOD COMMERCIAL QUALITY,(C)BE SUITABLE FOR THE PURPOSE INTENDED,(D)BE OF MERCHANTABLE QUALITY,(E)IF OF SELLER’S DESIGN, MEET ALL PERFORMANCE REQUIREMENTS AND BE FREE FROM DEFECTS IN DESIGN; AND,(F)CONFORM TO THE REQUIREMENTS OF THIS ORDER. ALL WARRANTIES SHALL RUN FOR A MINIMUM PERIOD OF ONE YEAR FROM THE ACCEPTANCE OF THE WORK BY BUYER’S CUSOMER. ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, SHALL INURE TO THE BENEFIT OF BUYER. ANY EXTENDED WARRANTY IN EXCESS OF ONE YEAR SHALL BE FOR THE DIRECT BENEFIT OF BUYER’S CUSTOMER. THE BUYER SHALL NOT BE DEEMED TO HAVE ACCEPTED ANY WORK UNTIL IT HAS BEEN FINALLY ACCEPTED BY THE BUYER’S CUSTOMER. BUYER MAY AT ANY TIME DURING THE WARRANTY PERIOD REQUIRE THE SELLER TO REMEDY BY REPAIR, CORRECTION, OR REPLACEMENT, WITHOUT COST TO BUYER, ANY OF THE WORK WHICH FAILS TO COMPLY WITH THIS ORDER, INCLUDING THE FOREGOING WARRANTIES, REGARDLESS OF THE CAUSE.
9. Proprietary Information: This Order, as well as all information contained in documents, drawings, publications, specifications, schedules, and the like received from Buyer for the performance of the Work are confidential and the property of Buyer or its customer, and such information will not be transmitted, reproduced, used or disclosed by Seller (except as necessary for the performance of the Work) without the prior written approval of Buyer.
10. PATENT, COPYRIGHT AND TRADEMARK INDEMNITY: SELLER SHALL TO THE FULLEST EXTENT PERMITTED BY LAW DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS OFFICERS, AGENTS, EMPLOYEES, AND INDEMNITEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, SUITS, DAMAGES, LEGAL AND OTHERWISE IN ANY WAY, ARISING OUT OF OR RELATING TO ANY CLAIM, ACTION OR PROCEEDING FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT OR ANY TRADEMARK RELATING TO OR ARISING OUT OF THE WORK, OR OUT OF THE USE OR DISPOSAL OF THE WORK.
11. Property: Any of Buyer’s or its customer’s furnished property shall remain the property of Buyer or its
customer, and Seller shall bear the risk of loss and damage to such property, normal wear and tear excepted. Buyer and its customer shall both have the right to enter Seller’s premises at all reasonable times to inspect such property and Seller’s records with respect thereto.
12. Discharge of Liens: Seller shall immediately discharge or cause to be discharged any lien of any kind that at any time exists or arises in connection with the Work. Seller shall provide Buyer with a certificate of lien waiver in a form to be prescribed by Buyer.
13. Labor Disputes: Whenever an actual or potential labor dispute delays or threatens to delay the performance of the Work, the Seller shall immediately give notice thereof to Buyer. Such notice shall be confirmed in writing and shall contain all information relevant to the dispute.
14. Compliance with Law: (A)Seller shall comply with all federal, state and local laws, regulations, ordinances, orders, notices, actions, policies or common laws, including, but not limited to, those concerning immigration and national security, equal employment opportunity, the proper handling, transportation, treatment, removal or storage of hazardous wastes, substances or materials, or any substance the presence of which requires investigation or remediation, the Fair Labor Standards Act of 1938 (29 U.S.C. §§ 201-219), the Occupational Safety and Health Act of 1970, the Buy American Act (41 U.S.C. § 10) and Executive Order 10582, December 17, 1954, all as amended, and including any regulations or standards issued thereunder;(B)If this Order arises under or is related to a government contract or grant, Seller certifies that it is eligible to receive contracts from the government, that neither it nor its principals or employees have been convicted of any acts which would render Seller or any of its principals or employees ineligible for receipt of a government contract, and that it does not have an organizational conflict of interest with respect to the Work.
15. Termination and Default: (A)This Order may be terminated by Buyer, in whole or in part, (1) whenever Seller defaults in its performance of this Order, in any manner, and fails to remedy such default within THREE CALENDAR DAYS after receipt by Seller of a notice specifying the default, or (2) whenever for any reason Buyer determines that such termination is for its convenience. Any termination shall be effective by mailing, delivering, or faxing to Seller a Notice of Termination, and Buyer shall comply with all reasonable requirements set forth in such notice; (B)If as a result of a default by Seller, Buyer shall incur damages, or become obligated to pay damages to its customer or shall otherwise incur any additional expenses, including costs of delay, disruption or acceleration, Seller agrees to pay to Buyer as actual damages, and not as a penalty, all damages (including liquidated damages) or expenses (including attorney’s fees) so incurred by Buyer plus interest; (C)If Buyer effects a termination on the basis of a default by Seller, and it is thereafter determined that Seller was not in default, such termination shall then be deemed to have been effected for the convenience of Buyer; (D)If this Order is terminated for convenience, Seller shall only be entitled to receive as payment the difference between an amount equal to the proportion of the Order’s price, representing the percent of the Work completed by Seller and finally accepted, and the total of all amounts previously paid to Seller.
16. INDEMNIFICATION AND INSURANCE: (A) SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER, ITS OFFICERS, AGENTS, EMPLOYEES, AND INDEMNITEES FROM AND AGAINST ANY AND ALL CLAIMS, NOTICES, ORDERS, LOSSES, SUITS, DAMAGES (INCLUDING CONSEQUENTIAL OR PUNITIVE DAMAGES) LEGAL AND OTHERWISE, AND LIABILITIES INCURRED BY OR ASSERTED AGAINST BUYER WHICH IN ANY WAY ARISE OUT OF OR ARE RELATED TO (1) DEFECTIVE WORK, (2) WORK WHICH DOES NOT CONFORM TO THIS ORDER’S REQUIREMENTS, (3) ANY INACCURACY OF INFORMATION OR VIOLATION OF ANY
CERTIFICATION PROVIDED BY SELLER, (4) SELLER’S FAILURE TO COMPLY WITH THESE TERMS AND CONDITIONS, OR (5) ANY DEATH, PERSONAL INJURY, DAMAGE OR LOSS TO PROPERTY OCCASIONED WHOLLY OR IN PART BY ANY ACT OR OMISSION OF SELLER, ITS AGENTS, EMPLOYEES, SUBCONTRACTORS OR SUPPLIERS, ARISING OUT OF OR RELATED TO THIS ORDER; (B) SELLER SHALL REIMBURSE BUYER FOR ALL LEGAL AND OTHER EXPENSES REASONABLY INCURRED IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY CLAIM, NOTICE, ORDER, LOSS, SUIT, DAMAGE, LIABILITY OR RESULTING ACTION; (C) SELLER SHALL CARRY, AT ITS SOLE EXPENSE, INSURANCE IN ACCORDANCE WITH THE TERMS OF THE PRIME CONTRACT, INDUSTRY CUSTOM AND PRACTICE, AND COVERAGE REQUIRED BY LAW OR REGULATION. A PORTION OF THE PRICE IS PAID IN CONSIDERATION OF THE INDEMNITY PROVISIONS IN THIS ORDER.
17. Assignments and Subcontracts: Neither this Order, nor any rights hereunder, shall be assignable or otherwise transferable by Seller without the prior written consent of Buyer. Any such transfer without consent by Seller is void. Seller shall not subcontract all or any portion of the Work without the prior written consent of Buyer. Such written consent shall not in any way diminish the responsibility of Seller to comply with this Order. Furthermore, Seller shall include the terms of this Order, including government regulations and causes, into any sub-subcontract or purchase order.
18. Disputes: (A) With respect to any dispute between Seller and Buyer for which Buyer’s customer is or may be liable, Seller will prepare its claim and will timely present it to Buyer to allow for timely submission to Buyer’s customer under the applicable disputesresolution provision of the Prime Contract. Buyer will cooperate with Seller in presenting such claim to its customer, and will pay to Seller any amounts recovered for Seller on such claim, net of expenses. However, Buyer shall not have any obligation to submit a claim by Seller that Buyer does not in good faith believe meets all applicable requirements pertaining to submission of claims to its customer. Seller will bear all costs, including legal fees, necessary to pursue such a claim against Buyer’s customer, and this remedy shall be Seller’s sole and exclusive remedy in lieu of any claim directly against Buyer or its bonding company pursuant to any law or procedure, regardless of the outcome of the claim; (B) Any dispute arising under or relating to this Order, not included above, shall be submitted to the United States District Court for the Eastern District of Virginia, Newport News Division, or the Circuit Court for the City of Hampton; (C) In the alternative, at the sole discretion of Buyer, Seller may be required to pursue alternative dispute resolution procedures including, but not limited to, mediation and arbitration before a third party neutral. If Buyer elects arbitration any award shall be final and enforceable in a court of competent jurisdiction; (D) NO LITIGATION OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDURE ARISING UNDER OR RELATING TO THIS ORDER MAY BE COMMENCED BY SELLER MORE THAN ONE YEAR AFTER THE COMPLETION OF THE WORK. SELLER SHALL PROCEED DILIGENTLY WITH THE WORK PENDING RESOLUTION OF ANY DISPUTE.
20. General Provisions:(A)All headings are for convenience and shall not affect the interpretation of this Order;(B)In the event that any provision of this Order conflicts with law or regulation, such conflict shall not effect other provisions of this Order which can be given effect without the conflicting provision;(C)The failure of Buyer to insist on performance of any provision of this Order shall not be construed as a waiver of that provision in any later instance;(D)This Order contains the entire agreement between Buyer and Seller, and may not be changed, altered, modified, limited or extended, unless such agreement be expressed in writing and signed by Buyer;(E) The remedies of Buyer herein are cumulative and are in addition to any other remedies provided by law;(F)A portion of the Price is expressly agreed to be for the indemnity and warranty provisions of this
Order; (G) This Order shall be governed and construed in accordance with the laws of the Commonwealth of Virginia, without reference to its choice of law provisions.
21. Notices: All notices shall be sufficient if in writing and (A) personally delivered to a corporate officer or;(B) sent by certified mail, return receipt requested and postage prepaid, addressed to Seller at the address set forth in this Order; or (C)sent via facsimile transmission to Seller at the facsimile numbers identified in this Order.
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