DEFINITIONS.
(a) “AEC” means Albany Engineered Composites, Inc.
(b) “Goods” means any good or service specified in the Purchase Order or Order or Agreement to be delivered by Seller to AEC.
(c) “Order” or “Purchase Order” or “Agreement” (used interchangeably herein) means the document utilized by AEC to place an order with Supplier for the goods and/or services as therein described and incorporates by reference these Standard Terms and Conditions of Purchase set forth herein.
(d) “Seller” or “Supplier” means the contracting party with whom the Order is placed.
In the event of a conflict between these Standard Terms and Conditions of Purchase and the Purchase Order, the terms of the Purchase Order shall prevail.
1. ACCEPTANCE. The Purchase Order attached hereto and issued by AEC to Supplier is an offer by AEC, which shall become a binding contract on the terms contained therein and herein when accepted by Supplier. Supplier shall indicate acceptance of the Purchase Order on the express terms hereof by (i) written acceptance of the Purchase Order without exception; (ii) commencing work on the Goods or providing the services which are the subject of the Purchase Order; or (iii) shipment of the Goods which are the subject of the Purchase Order. THE ORDER MAY BE ACCEPTED ONLY ON THE TERMS SET FORTH THEREIN AND ANY TERMS IN THE SELLER’S ACCEPTANCE OR ACKNOWLEDGEMENT IN ADDITION TO OR NOT IDENTICAL WITH THE TERMS IN THE ORDER ARE HEREBY OBJECTED TO AND REJECTED BY AEC AND WILL NOT BECOME PART OF THE AGREEMENT UNLESS AGREED TO IN WRITING BY AEC’S AUTHORIZED PERSONNEL.
2. PACKING. All Goods shall be packed and shipped by Seller in accordance with AEC’s instructions and good commercial practice to insure protection and prevent damage to the Goods. Goods will be shipped with a certificate of conformance and test results, as applicable. Seller shall be responsible for all damage caused by nonconforming packaging. Prices include all charges for Seller’s packing and crating. Shipments of any hazardous materials or substances must be packaged and transported in compliance with all applicable U.S. laws and regulations.
3. CHARGES, TAXES AND DELIVERIES. Except as otherwise provided in the Purchase Order, the price(s) set forth in all invoices shall include all applicable taxes, import and export duties, impositions, and other similar charges. Seller warrants that the price to be charged for the Goods covered in the Order will not exceed the prices charged others under comparable conditions. Seller shall refund any excessive amount paid by AEC. All sales, excise or other taxes and charges to be paid by AEC shall be separately itemized on the invoice. If requested by AEC by written notification to Seller, invoices will contain Seller’s certification that all goods and services reflected in the invoice were produced and supplied in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended and the regulations and orders of the United States Department of Labor issued thereunder.
Except as otherwise provided in the Purchase Order, Seller agrees to use AEC approved carriers for all deliveries. All deliveries shall be f.o.b. origin and shall be in conformance with the delivery schedule and routing instructions as set forth in the Purchase Order. Seller shall notify AEC immediately, if Purchase Order delivery requirements cannot be met. The parties hereby agree that time is of the essence and if Seller’s deliveries fail to meet the schedules specified by AEC and AEC is compelled to ask Seller to ship by other than the designated routing to expedite delivery, Seller shall assume the difference for the additional cost of transportation. Unless authorized in writing to the contrary by AEC, Seller shall not manufacture, produce or deliver the Goods in advance of the schedule or otherwise anticipate AEC’s requirements. If Seller anticipates a delay in delivery, Seller shall notify AEC, in writing, as soon as reasonably possible.
4. INSPECTION. AEC, its customer and/or any governing regulatory agency shall have the right to inspect all Goods, raw materials and work-in-progress at any time during normal business hours either at the Seller’s manufacturing and storage facilities, and Seller’s sub-tier suppliers’ facilities. Notwithstanding any prior payment or inspection by AEC or that title may have passed to AEC, all Goods shall be subject to final inspection and acceptance by AEC at AEC’s facility. If at any time any of the items are found to be defective in material or workmanship or not in conformity with Purchase Order or Agreement, AEC may, in addition to any other rights it may have under the Purchase Order or otherwise (i) correct or have corrected the nonconformity at the Seller’s expense, or reject and return such nonconforming good to Seller, and (ii) recover by offset or otherwise any and all costs, expenses and damages paid, incurred, or suffered by AEC as a result or relating to holding, return, replacement, correction or rejection of such nonconforming item.
Without limiting other rights AEC may have under the Purchase Order, including AEC’s warranty rights, as set forth in Article 5, below, or by law resulting by Seller’s delivery of defective Goods, Goods not conforming to this Order may be rejected by AEC. AEC shall have the right to hold or return to Seller all or a portion of such non-conforming Goods at Seller’s sole risk and expense for a full credit or refund. If Seller fails to correct or replace any nonconforming Goods promptly after notification and authorization from AEC, AEC may charge Seller for costs incurred by AEC thereby, equitably adjust the Order price for such Goods, or set-off the cost hereunder, at the sole discretion of AEC. Delivery of nonconforming Goods rejected by AEC shall not be deemed to satisfy the delivery schedule required herein nor shall acceptance of any item be deemed to alter or affect the obligation of Seller or the rights of AEC under Article 5, below.
5. WARRANTY PRODUCT. Seller warrants that all Goods, supplies, and services furnished hereunder shall be free from defects in material and workmanship and that all items furnished will conform to applicable specifications, drawings, samples and/or other descriptions, and will be free from all liens and encumbrances. Seller assumes design responsibility and warrants the items to be suitable for the purposes intended. The warranties described in this Article 5 shall begin after AEC’s final acceptance and continue for a period of thirty-six (36) months thereafter. If a Good or service does not conform to the warranty specified herein, then AEC may, at its option, either (i) return for credit or refund; or (ii) require prompt correction or replacement of the defective or non-conforming part. The warranties of Seller together with its service warranties and guarantees shall run to AEC, its assigns and each successive customer. In addition, Seller agrees to pass any warranty benefits to AEC that Seller receives from its suppliers of any item ordered hereunder.
6. PATENT INDEMNITY: Seller shall indemnify, defend and hold harmless AEC, its customers and their respective successors or assigns, from any and all damages, awards, liabilities, costs, and/or attorney fees, and AEC shall conduct (at Seller’s sole cost and expense) the entire defense of any claim, suit, or action alleging that the manufacture, use, or sale of the Goods infringes the intellectual property rights of a third-party.
7. PROPRIETARY INFORMATION. All information disclosed or furnished by AEC to Seller under this Agreement, regardless of form or format, and including, but not limited to, designs, models, processes, drawings, specifications, reports, data, trade secrets, software, know-how, and other technical or business information and the features of all parts, equipment, tools, gauges, patterns, and other items furnished or disclosed to Seller by AEC, and all information created, developed or made by Seller in the performance of this Agreement is and shall be treated by Seller as proprietary information of AEC (“Proprietary Information”). Unless otherwise provided herein or authorized by AEC in writing, Seller shall hold all Proprietary Information in confidence, and shall use Proprietary Information only in the performance of the Agreement. This clause shall survive the performance, completion, expiration and/or termination, of the Agreement or any Purchase Order or Order.
8. TERMINATION.
For Default.
(1) AEC may terminate this Order in whole or in part by written notice to Seller in any of the following circumstances:
a. If Seller refuses or fails to make deliveries, including any installment thereof, or perform the services within the time specified in the Purchase Order or extension thereof granted by AEC.
b. If Seller fails to comply with other provisions of this Order, including, but not limited to, specified quality requirements, or fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure any such failure within a period of thirty (30) days or such longer period as AEC may authorize by written notice after receipt of notice from AEC specifying such failure.
c. If Seller becomes insolvent, or makes a general assignment for the benefit of creditors, or pursues any remedy under any law relating to relief for debtors, or in the event a receiver is appointed for Seller’s property, or becomes subject to any law relating to bankruptcy, insolvency, or relief of debtors, to the extent AEC may lawfully exercise such right of termination.
(2) In addition to the foregoing termination rights, as well as all other rights and all remedies available to AEC under applicable law, upon the occurrence of any event described in Section 8(1), above, AEC shall have the right to purchase or manufacture similar Goods without further payment to Seller and/or require Seller to transfer title and deliver to AEC in a manner directed by AEC any and all property produced or procured by Seller under this Order including, but not limited to, materials, parts, tools, dies, plans, drawings, services, Agreement rights, and other property and technical data, and Seller shall be liable to AEC for any excess cost to AEC.
For Convenience.
AEC may terminate this Order in whole or in part at any time for its convenience, by notice to Seller in writing, such termination effective thirty (30) days from the date of such notice. Upon Seller’s receipt of such notice, Seller shall to the extent specified therein, stop work and the placement of subcontracts hereunder, terminate work under subcontracts outstanding thereunder, and take any necessary action to protect property in Seller’s possession in which AEC has or may acquire an interest. Seller shall submit a termination claim within thirty (30) days after the effective date of termination notice incorporating all claims of Seller. The amount to which Seller shall be entitled upon complete termination of the Purchase Order shall be determined by the parties hereto as being a fair and reasonable amount for the effort performed prior to the date of notice of termination. AEC may deduct any amounts due to AEC from Seller from the amount to be paid by Seller on other open Purchase Orders. In no case shall AEC be responsible for items procured or manufactured in advance of lead-time.
Any termination by AEC, whether for default or otherwise, shall be without prejudice to any claims for damages or other rights of AEC against Seller. AEC shall have the right to audit all elements of any termination claim and Seller shall make available to AEC on request all books, records, and papers relating thereto. Seller shall continue performance of this Order to the extent not terminated.
9. STOP WORK. AEC may, at any time by written order to Seller, order Seller to stop work, in whole or in part, for a period of up to ninety (90) days. Upon receipt of such stop-work order, Seller shall comply with the terms of such order and shall take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within said ninety (90) day period, AEC shall either cancel the stop-work order or terminate the work covered by the stop-work order. In case of termination, the terms of Article 8 shall apply. In the event of a continuation of the work, equitable adjustment shall be made to the price, delivery, schedule, or other provision affected by the work stoppage, provided the claim for equitable adjustment is made within thirty (30) days after said continuation.
10. CHANGES:
(A) AEC may at any time by written order to Seller signed by an authorized representative of AEC’s Purchasing department and without notice to sureties, if any, make changes in the quantities ordered or in the specifications or drawings or in the delivery schedule relating to the Goods, or may change or amend any other term or condition of this Order.
(B) Seller shall comply immediately with such changes in accordance with the terms of such written order. An equitable adjustment shall be made to any price, time of performance, or other provisions of this Order required by AEC’s changes to this Order, and this Order shall be amended in writing accordingly. Any claim for adjustment under this clause must be made in writing within thirty (30) days from the date of receipt by Seller of such change. In absence of such notification, AEC shall not be obligated to consider Seller’s claim for an equitable adjustment resulting from a change. Nothing in this clause shall excuse Seller from proceeding with the order as changed.
(C) Except as may be directed or agreed to in writing by an authorized representative of AEC’s Purchasing department, Seller shall not make any changes in any aspect of the work to be performed under this Order, including, but not limited to drawings or specifications, quantity of Goods ordered and delivery schedules.
11. COMPLIANCE WITH LAWS:
(A) Seller warrants that performance of work under this Order complies with all federal, state and local laws, executive regulations and orders. Seller shall certify that the Goods were produced in compliance with all applicable requirements of the Fair Labor Standards Act, including sections 6, 7 and 12 thereof, and the regulations and order of the U.S. Department of Labor issued under section 14 thereof.
(B) The Equal Employment Opportunity Clause in Section 202 of Executive Order 11246, as amended, the Affirmative Action Clauses in Section 402 of the Vietnam Era Veterans Readjustment Assistant Act and Section 503 of the Rehabilitation Act, and the implementing rules and regulations of the Office of Federal Contract Compliance Programs relative to equal employment opportunity are incorporated herein by specific reference.
12. INDEMNITY AND INSURANCE: Seller hereby agrees to indemnify and hold harmless AEC and its officers, directors, affiliates, and employees from any cost, damage, expense or other loss or liability incurred or paid, arising out of or on account of claims or suits, whether in law or equity, which may be asserted or brought against any of the indemnified parties hereunder, for property damage or destruction, personal injury or death or any other damages of whatsoever nature or kind including claims of consequential loss and breach of Agreement, in any way related to Seller’s work, its products, or its workmanship or the actions or omissions of the Seller or its employees, agents, or subcontractors, except for claims arising through the claimed sole and exclusive negligence of AEC.
Whenever Seller, by virtue of this Order, shall have in its possession property of AEC, Seller shall be deemed an insurer thereof and shall be responsible for its safe return to AEC.
In the event Seller, its employees, agents, or subcontractors enter AEC sites or AEC’s customer’s sites for any reason in connection with the Order then Seller and its subcontractors shall maintain for the performance of this Order insurance as provided below:
· Automobile Liability $1,000,000 per occurrence (including non-owned auto and under insured motorists)
· General Liability $1,000,000 per occurrence and $3,000,000 in aggregate (to include products and completed operations)
· Worker’s Compensation Part A: Statutory Limits and Part B: $1,000,000 bodily injury by accident; $1,000,000 bodily injury by disease (each employee); and $1,000,000 bodily injury by disease (policy limit – aggregate)
Seller shall provide AEC with thirty (30) days prior written notice to the effective date of any cancellation or change in the term or coverage of any of Seller’s required insurance, provided however that such notice shall not relieve seller of its obligations to maintain the required insurance. Seller shall name AEC as an additional insured commercial general liability and automobile liability policies for the duration of this Order and provide a waiver of subrogation on the Workers Compensation/Employer Liability Limits. Specialty vendors/contractors may be required to carry additional insurance such as higher Liability Limits, Pollution Liability, Professional Errors and Omissions or Contractors Liability as deemed necessary by AEC. If requested by AEC, Seller shall provide AEC with a “Certificate of Insurance.” Insurance maintained pursuant to this clause shall be considered primary as respect to the interests of AEC and is not contributory with any insurance which AEC may carry.
13. RISK OF LOSS.
Unless otherwise provided in the Order, Seller shall bear risk of loss or damage to the Goods purchased hereunder until they are delivered in conformity with the Purchase Order, FOB Seller’s dock, as specified herein and upon such delivery Seller’s responsibility for loss or damage shall cease, except for loss or damage resulting from Seller’s negligence or failure to comply with the terms of the Agreement, Order or Purchase Order. Title shall transfer from Seller to Buyer upon receipt of the Goods at Buyer’s dock.
14. SETOFF. AEC may set off any amount due from Seller whether or not under this Order, against any amount due Seller hereunder.
15. NON ASSIGNMENT. Seller shall not assign this Order or any interest herein, including any payment due or to become due with respect thereto, without AEC’s prior written consent.
16. SUBCONTRACTING. If any Goods are to be made to AEC’s design, all subcontracting by Seller with respect thereto shall be subject to AEC’s prior written approval.
17. ADVERTISING. Seller shall not advertise or publish the fact that the AEC has placed this Order without AEC’s prior written consent except as may be necessary to comply with a proper request for information from an authorized representative of the Government.
18. CONFIDENTIALITY. Seller and AEC each agree that the terms of this Purchase Order are confidential unless otherwise agreed to in writing. Seller and AEC each agree to limit disclosures of the terms of this Purchase Order only to those who have a need to know within their own organizations, outside auditors, outside advisors, and government agencies.
19. EXPORTS. Supplier and AEC shall comply with the laws and regulations of the United States of America (USA) relating to exports and foreign transactions, including, but not limited to, the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Parts 120-130), the Arms Export Control Act (22 U.S.C. 2778), the Export Administration Regulation (EAR) (15 C.F.R. Parts 730-774) and the Export Administration Act of 1979, as amended (50 U.S.C. 2401 et. Seq.). In particular, the Parties shall not disclose any technical data, nor deliver, export, re-export or re-transfer any Product out of the USA, or to foreign persons or entities within or outside the USA, without prior review and determination by AEC and the proper written authorization and/or license from the U.S. Government. Supplier hereby indemnifies and agrees to hold AEC harmless from any costs, damages, penalties, attorney’s fees and similar expenses of AEC due to Supplier’s breach of such obligation. Any governmental license, approval or notification required for export shall be the responsibility of the Supplier. The Parties shall reasonably cooperate with each other in obtaining all required export and import licenses, approvals and/or notifications pursuant to such U.S. laws.
20. HAZARDOUS SUBSTANCES. Seller represents, warrants and undertakes, at its sole cost, to supply Goods under this Purchase Order in compliance with European Union Regulation Number 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), or any similar law or regulation adopted by any country or jurisdiction in the world, which would prevent or restrict the sale or transport of the Goods. Upon request, Seller shall timely provide AEC with information regarding the chemical composition of the Goods, including information regarding the registration with, authorization by, or notifications to the European Chemical Agency under REACH. Without the need for a request by AEC, Seller shall notify AEC of any chemical substances contained in the Goods which are listed in Annex XIV of REACH (i.e., Substances of Very High Concern), as that annex may be amended or supplemented.
21. CONTROLLING LAW. Seller and AEC agree that this Purchase Order will be governed by and construed and enforced in accordance with the substantive laws of the State of New York, except that the United Nations Convention on Contracts for the International Sale of Goods will not apply. The parties agree to the exclusive jurisdiction of the state and federal courts of general jurisdiction of the State of New York and agree not to commence any suit or proceeding, whether directly or indirectly relating or arising from this Purchase Order, except in such courts.
22. NOTICE OF LABOR DISPUTES. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this Order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to AEC. Any subcontract hereunder as to which a labor dispute may delay the timely performance of this Order, shall provide that in the event its timely performance is delayed or threatened to be delayed by any actual or potential labor dispute, the subcontractor shall immediately notify Seller of all relevant information with respect to such dispute.
23. NON WAIVER. No waiver of any provision or failure to perform any provision of this Order shall be effective unless consented to by AEC in writing nor shall any such waiver constitute a waiver of any other provision or failure to perform.
24. RECORDS RETENTION. Suppliers are required to maintain all records generated as a result of this purchase order in accordance with industry standards but for no less time than the life of the program the Purchase Order is supporting.
25. ADDITIONAL SELLER REQUIREMENTS. SUPPLIER shall notify BUYER of (i) changes in their product or processes; (ii) changes from their suppliers; (iii) changes of manufacturing locations; and (iv) notification of nonconforming Goods prior to shipment. All such changes shall be approved by BUYER prior to being implemented. Seller shall flow down to sub-tier suppliers the applicable requirements in the purchasing document, including key characteristics when required. AEC, their customers, and regulatory authorities shall have the right of access to all facilities involved in the Order and to all applicable records.
26. MANDATORY CLAUSES REQUIRED UNDER GOVERNMENTAL CONTRACTS OR SUBCONTRACTS. If a government contract number is shown on the purchase order, clauses contained in the Armed Services Procurement Regulation, or other applicable federal law or regulation and which the government makes mandatory for a contractor under a government contract to include in it subcontracts thereunder, will apply to this Order.
27. ENTIRE AGREEMENT, AMENDMENT. Provisions contained herein constitute the entire agreement and supersede all previous communications, representations, either verbal or written, between the parties hereto with respect to the subject matter hereof. This agreement may not be changed, altered, supplemented or added to at any time except by supplemental written agreement.
28. GOVERNMENT RATED ORDERS. If a Defense Priority and Allocation System (DPAS) rating appears on this Order, the Seller shall comply with all the requirements of 15 CFR Part 700. A person must accept or reject a rated order in writing or electronically within 15 working days after receipt of a DO rated order and within 10 working days after receipt of a DX rated order. If the order is rejected, the person must give reasons in writing (not electronically) for rejection.
CLAUSES INCORPORATED BY REFERENCE FOR ORDERS UNDER U.S. GOVERNMENT CONTRACT
The following clauses from the Federal Acquisition Regulation (“FAR”) and the Department of Defense (“DFARS”) are applicable to and incorporated by reference into all Orders issued by AEC in which the ultimate purchaser or end user is the United States Government or any instrumentality thereof. The following clauses shall have the same force and effect as if set forth in full text. The dates of these clauses are the dates in effects as of the date of the Order issued by AEC. Supplier further agrees that all notifications and other communications required by these clauses shall be made through AEC’s purchasing representative, unless the Order specifically provides otherwise.
Except as noted below, the following changes to the FAR and DFARs clauses are made for incorporation of these clauses into the Order in order to make the context of these clauses reflect the contractual relationship between AEC and Supplier: “Contractor” or “prime contract” or “Offeror” shall mean “Supplier.” “Government” means “AEC.” “Contracting Officer” means “AEC’s purchasing representative.” “Contract” or “Schedule” means the Order(s) issued by AEC to Supplier. Provided, however, that the terms “Government” and “Contracting Officer,” do not change (1) when a right, act, authorization, or obligation can be granted or performed only by the Government or its duly authorized representative; (2) when title to property is to be transferred directly to the Government; (3) with regards to FAR 52.203-6, 52.227-1, 52.227-2; and (4) where specifically modified as noted below: 