750 W. Ventura Blvd.
Camarillo, CA 93010
Telephone: (805) 484-0543
Fax: (805) 389-1225
PURCHASE ORDER TERMS AND CONDITIONS
1.
OFFER/ACCEPTANCE - ENTIRE AGREEMENT: Acceptance of this offer to purchase by acknowledgment, shipment or other
performance shall be unqualified, unconditional and subject to and expressly limited to the terms and conditions of this
Agreement. All previous offers by seller are hereby rejected. Purchaser shall not be bound by terms additional to or different
from those in this Agreement that may appear in Seller’s quotations, acknowledgments, invoices or in any other
communications from Seller unless such terms are expressly agreed to in a writing signed by Purchaser. Acceptance of
articles or services, payment or any inaction by Purchaser shall not constitute Purchaser’s consent to or acceptance of any
such terms. Estimates furnished by Purchaser shall not constitute commitments. Upon acceptance, the terms contained in
this Agreement shall constitute the entire Agreement between Seller and Purchaser with respect to the subject matter of this
Agreement and may not be rescinded except by a writing signed by an authorized representative of Purchaser.
2.
DEFINITIONS: As used throughout this order, the following terms shall have the meanings set forth below.
(a)
The term “Seller” refers to the Vendor to whom this order is issued.
(b)
The term “Purchaser” refers to Cooper Interconnect Inc
(c)
The term “Purchaser’s customer” refers to the party to which Purchaser has a contractual requirement for
the
supply of articles. This term may also include the Government.
(d)
The term “Government” refers to the U.S. Government as represented by the Agency or Department
awarding the prime contract to the Purchaser, or to the Purchaser acting in a subcontract capacity.
(e)
The term “Contracting Officer” refers to the person designated as the Contracting Officer for the cognizant
Government agency with respect to the prime contract with the Government.
(f)
The term “articles” refers to the goods, products, supplies, parts, assemblies, technical data, drawings,
services,
or other items constituting the subject matter of this order which are to be furnished by the Seller to the Purchaser
hereunder.
3.
PAYMENTS AND DISCOUNTS: All articles shall be subject to final inspection for acceptance or rejection by Purchaser after
delivery, notwithstanding prior payment., it being understood that payment shall not create any presumption as to final
inspection nor constitute acceptance. Payment is contingent upon delivery and upon receipt of invoice in duplicate. The basis
for cash discount calculation is the date articles are delivered or the date an acceptable invoice is received, whichever is later.
4.
CHANGES:
(a)
The Purchaser may at any time, by a written Change Order, increase the quantity of the articles to be
finished
hereunder, suspend performance in whole or in part, extend the time of delivery, or make changes within the general scope of
this order in any one or more of the following (i) drawings, designs, or specifications, (ii) method of shipment or packaging,
and (iii) place of delivery. Should any such change increase or decrease the cost of, or the time required for, performance
of any part of the work under this order, an equitable adjustment may be requested by Seller in the order price and/or
delivery schedule, and
the order shall be, if required, modified in writing accordingly.
(b)
The Seller must submit notice of any claim for adjustment under this clause, in writing, within ten (10) days from the
date the change is ordered; any claim must be asserted within thirty (30) days from the date the
change is ordered and
must set forth the amounts of any increase or decrease in the cost of performance
resulting from such change.
However, if the Purchaser decides the facts justify it, the Purchaser may
receive and act upon a claim submitted
before final payment under this order.
(c)
If the Seller’s claim includes the cost of property made obsolete or excess by the change, Purchaser shall have the
right to prescribe the manner of disposition of the property.
(d)
Purchaser’s engineering and technical personnel may from time to time render assistance or give technical advice
to, or effect an exchange of information with Seller’s personnel in a liaison effort concerning the
articles to be furnished
hereunder. However, such exchange of information or advice shall not vest Seller
with the authority to change the
articles hereunder or the provisions of the order, nor shall such changes in
accordance with paragraph (a) hereunder.
(e)
Nothing contained in this Clause shall relieve Seller from proceeding without delay in the performance of
this
order as changed.
QSF317, Rev C
1
5.
TERMINATION FOR CONVENIENCE:
(a)
Purchaser may terminate this order, in whole or in part, at any time for its convenience by notice to Seller
in
writing, specifying the extent of the termination and the effective date. On receipt by Seller of such notice, Seller shall
immediately comply with Purchaser’s instructions and, to the extent specified therein,
stop work and the placement of
subcontracts hereunder, terminate work under subcontracts outstanding
hereunder, and take any action necessary to
protect property in Seller’s possession in which Purchaser or Purchaser’s customer have or may acquire an interest. Within
fifteen (15) days of receipt by Seller of such notice, Seller shall advise Purchaser of the actions taken by Seller to comply with
Purchaser’s instructions and Seller shall also notify Purchaser of its intent to file a termination claim. In the event Purchaser
terminates this order for any reason other than Default or Insolvency and Seller submits a termination
claim,
Purchaser shall pay to Seller the following: (i) amounts due for articles delivered and accepted or services completed in
accordance herewith, and not therefore paid prior to the effective date of
termination; (ii) actual work in process
incurred by Seller if properly allocable or apportionable under generally accepted accounting principles and practices to the
terminated portion of the order, including
liabilities to subcontractors which are so allocable, excluding any and all costs of
articles which can be
diverted to other orders of Seller or retained by Seller for its own or future orders, and exclusive of
any
costs, attributable to Seller’s articles paid or to be paid under (i) above; (iii) a reasonable cancellation
charge.
Compensation to the Contractor shall be in accordance with part 49 of the Federal Acquisition
Regulation in
effect on the date of this contract. The total claim shall not exceed the order price and if it appears that the Seller would have
sustained a loss on the entire order, had it been completed, an appropriate adjustment shall be made reducing the amount of
the claim to reflect the indicated percentage
of loss. Should there be an overpayment by Purchaser to Seller as determined in accordance with (a)
above, as the result of termination, Seller shall promptly reimburse Purchaser for all sums overpaid.
(b)
In order to receive reimbursement for costs claimed under (a) above, Seller shall submit its termination
claims within thirty (30) days after the effective date of the termination. Failure to submit a claim
(c)
within the specified time period shall constitute a waiver thereof unless Seller requests in writing, prior to
the
expiration of such time period, that a time extension for filing its claim be granted by Purchaser. Any
such extension,
if granted, shall be effective only if authorized in writing by Purchaser.
(d)
Purchaser shall not be liable for claims of anticipatory profits.
6.
DEFAULT:
(a)
Purchaser may, by written notice of default to the Seller, terminate this order or any part thereof if the
Seller
fails (i) to deliver the articles in accordance with the specified delivery schedule, or (ii) to replace or correct defective articles in
accordance with the provisions of paragraph (c) of the clause hereof entitled
“Inspection” or (iii) 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 the circumstances
specified in (iii), does not correct such failure within the period of ten (10) days
after receipt of notice from Purchaser specifying such failure.
(b)
Upon such termination, Purchaser may procure similar articles on such terms and in such manner as
Purchaser may deem appropriate, and Seller shall be liable to Purchaser for any excess costs occasioned
Purchaser thereby; provided, however, that Seller shall not be liable for such excess costs where the
default
is due to any cause beyond the control and without the fault or negligence of Seller, if Seller has
notified Purchaser in
writing of the existence of such cause within 10 days from the beginning thereof.
(c)
If this order is terminated for default, Purchaser may require Seller to transfer title to Purchaser or Purchaser’s
customer, as directed by Purchaser any: (i) completed articles, and (ii) partially completed articles that Seller has specifically
produced or acquired for the terminated portion of this order. Upon
direction of Purchaser, the Seller shall also protect
and preserve property in its possession in which
Purchaser or Purchaser’s customer has an interest.
(d)
If, after termination, it is determined that the Seller was not in default, or that the default was excusable,
as
defined in the clause hereof entitled “Excusable Delays,” the rights and obligations of the parties shall
be the same as if
the termination had been issued in accordance with the provisions of the clause hereof
entitled “Termination for
Convenience.”
(e)
If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the
default
is beyond the control of both the Seller and Seller’s subcontractor, and without the fault or negligence of either, the Seller shall
not be liable for any excess costs for failure to perform, unless the
subcontracted articles were obtainable from other
sources in sufficient time for the Seller to meet the
required delivery schedule.
QSF317, Rev C
2
7.
INSPECTION:
(a)
Final inspection and acceptance of articles shall be made by the Purchaser after delivery or as otherwise
indicated in this order and shall be conclusive except as regards latent defects, fraud, such gross mistakes as
amount to fraud, and the Seller’s warranty obligations.
(b)
If any article purchased hereunder is other than a standard commercial article of the Seller, said articles
shall be
subject to inspection and test by the Purchaser, and if required, by Purchaser’s customer, to the
extent practicable at all
times and places including the period of manufacture and, in any event, prior to final acceptance. If any inspection or test is
made by the Purchaser on the premises of the Seller or the
Seller’s subcontractors, the Seller, without additional charge,
shall provide all reasonable facilities and
assistance for the safety and convenience of the Purchaser’s inspectors or the
Purchaser’s customer
inspectors in the performance of their said duties. Any inspection or test shall be performed in such
manner as not to delay unduly the work. No inspection or test made prior to final inspection and
acceptance shall
relieve the Seller from responsibility for defects or other failure to meet the requirements of this order.
(c)
In case any article is defective in material or workmanship, or otherwise not in conformity with the requirements of
this order, the Purchaser shall have the right either to reject it, require its correction, or
accept it with an equitable
adjustment in price. Any article that has been rejected or required to be corrected shall be removed and/or corrected by and
at the expense of the Seller promptly after notice. If, after being requested by the Purchaser, the Seller fails promptly to
replace or correct any defective article,
the Purchaser may (i) by order or otherwise replace or correct such article, and
charge to the Seller the
cost occasioned the Purchaser thereby, or (ii) without further notice terminate this contract for
default, in
accordance with the clause hereof entitled “Default.”
(d)
The Seller shall provide and maintain an inspection system in accordance with sound business practice
and as
otherwise provided in this order. Records of all inspection performed by the Seller shall be kept
complete and available to
the Purchaser during the performance of this order and for such longer period
and in such manner as may be specified
elsewhere in this order. Purchaser and/or Purchaser’s customer,
if required, may perform reviews and evaluations as
reasonable necessary to ascertain compliance with this paragraph. Such reviews and evaluations shall be conducted in a
manner that will not unduly delay work to be performed under this order. The right of review and evaluation, whether
exercised or not, does
not relieve the Seller of the obligations under this order.
(e)
The Purchaser reserves the right to charge to the Seller any additional cost of Purchaser inspection and
test
when articles are not ready at the time such inspection and test is required by the Seller or when reinspection or retest is
necessitated by prior rejection.
8.
WARRANTY: Seller warrants that all articles will conform to applicable specifications, drawings, descriptions and samples and
will be merchantable, of good workmanship and material, and free from defect. Unless manufactured pursuant to detailed
designs furnished by Purchaser, Seller assumes design responsibility and warrants the articles to be free from design defect
and suitable for the purposes intended by Purchaser. Seller’s warranties together with its service guarantees shall run to
Purchaser, Purchaser’s customer and users of such articles and shall not be deemed to be exclusive. Purchaser’s inspection,
approval, acceptance, use of a payment for all or any part of the articles shall in no way affect the warranty rights whether or
not a breach of Warranty has become evident at the time.
Seller will pay transportation (not to exceed an amount equal to Seller’s usual commercial method between the Seller’s plant
and designated destination point under this order) for articles which do not comply with these warranties.
This Warranty shall run equally to Purchaser, Purchaser’s customers and users of such articles.
9.
DELIVERY SCHEDULE:
(a)
Seller shall follow the delivery schedule shown on this order and shall not make deliveries later than the
dates
shown. Delivery date is understood to be on dock date at Purchaser’s facility. If articles shipped are made more than thirty
(30) days in advance of scheduled delivery dates, Purchaser may return them at Seller’s expense. If Seller exercised due
care, Seller shall not be liable for delays in delivery due to causes
beyond its reasonable control. If Seller does not
adhere to the delivery schedule, Purchaser may either
agree to a revised delivery schedule or terminate this order
without liability to Purchaser. Acceptance of any article, or the failure of the Purchaser in any instance to insist upon
performance of any of the terms
and conditions, hereof, or to exercise any right or privilege, or the waiver of any breach of
the terms and
conditions of this order shall not be construed to be a general release, but shall remain in full force and
effect as if no waiver had occurred. The acceptance of any article which requires a change in the specifications or
in the terms and conditions shall entitle the Purchaser the option to reduce the Seller’s
profit rate by a minimum of 10% for
each article accepted as substandard.
(b)
Purchaser assumes no liability for material produced, processed or shipped in excess of the amount
specified
in this agreement.
QSF317, Rev C
3
10.
SPECIAL TOOLING/SPECIAL TEST EQUIPMENT:
(a)
The term “special tooling” as used in this clause means all jigs, dies, fixtures, templates, molds, taps,
gauges,
patterns, or other equipment and manufacturing aids, and replacements thereof which have been acquired or manufactured
by the Seller for use in the performance of this order. The term “special test
equipment” as used in this clause means
either single or multi-purpose integrated test units engineer
designed, fabricated or modified to accomplish special purpose
testing in performing this order. It does
not include materials, special tooling and plant equipment items used for general
plant testing purposes.
(b)
The Seller shall furnish the Purchaser a list of all special tooling or test equipment acquired or
manufactured by
the Seller in the performance of this order. The list shall specify the nomenclature of the tool or test equipment number,
related product part number or usage and unit or group cost of the special
tooling or test equipment.
(c)
Title to all special tooling and test equipment described in this order and paid for by Purchaser shall vest in
Purchaser upon payment therefore. Seller shall: (i) identify such special tooling and test equipment with
number(s) as assigned by Purchaser, (ii) maintain them in first class condition, and (iii) hold such special
tooling
and test equipment at Seller’s risk for the exclusive use of the Purchaser. The Seller agrees to use
the special
tooling and test equipment only in performing this order or as otherwise approved by the Purchaser. Special tooling and test
equipment shall be delivered to Purchaser or duly accounted for upon demand and shall be kept insured by Seller while in
his custody or control in amounts equal to the
replacement cost thereof with loss to be paid to Purchaser. Special
tooling and test equipment shall not be
destroyed or otherwise disposed of without Purchaser’s written permission.
(d)
Seller shall, within two (2) days, notify Purchaser of the occurrence of any of the following events: (i) the
intent to
assign this order, (ii) any filing of a bankruptcy action, as defined in the clause hereof entitled
“Insolvency,” or (iii) when
there has been any damage to the special tooling/special test equipment. Upon receipt, but in no event later than five (5)
days thereafter, Purchaser shall provide and Seller shall comply
with disposition instructions relative to the special
tooling/special test equipment to which this order
applies.
11.
MATERIALS FURNISHED BY PURCHASER:
(a)
The term “materials” as used in this clause means raw material, hardware, tooling, test equipment and all
other
items provided by the Purchaser whether or not they are incorporated into the end product of this order. Title to all materials
furnished by Purchaser shall remain in the Purchaser and shall be used by the Seller only in the performance of this order,
and upon completion, all residual materials, whether rejected parts, incomplete parts and/or raw materials shall be returned
to Purchaser upon request. Purchaserfurnished material not satisfactorily accounted for or not returned shall be paid by
Seller in an amount
equal to the full replacement value. All materials referred to herein shall be fully insured by Seller
against any loss, regardless of nature, while in Seller’s possession.
(b)
If the Purchaser’s furnished material is rendered unacceptable and unreworkable, as a result of gross
negligence by Seller, Seller shall be liable for the full replacement value of the material scrapped by
Purchaser. If, however, the material is rendered unacceptable and unreworkable as a result of an unforeseeable
event, Seller shall only be liable for three times the processing cost of the material.
(c)
Material furnished by Purchaser to Seller for the performance of this order shall be inspected and accepted by the
Seller prior to use, and Purchaser’s responsibility for latent defects shall be limited only to the
replacement of the
material.
(d)
Seller shall, within two (2) days, notify Purchaser of the occurrence of any of the following events: (i) the
intent to
assign this order, (ii) any filing of a bankruptcy action, as defined in the clause hereof entitled
“Insolvency,” or (iii) when
there has been any damage to the material. Upon receipt, but in no event later than five (5) days thereafter, Purchaser shall
provide and Seller shall comply with disposition instructions
relative to the material to which this order applies.
12.
13.
INFRINGEMENT: The Seller shall, at its expense, hold harmless and defend the Purchaser, its customers, and all persons
claiming under the Purchaser, for the infringement or alleged infringement of any patent, copyright, or trademark and shall
indemnify the aforesaid parties against all losses, damages, costs, liabilities, and expenses arising therefrom by reason of the
manufacture, sale, or the normal and intended use of the articles covered by this order. The Purchaser agrees to give the
Seller prompt notice in writing of any suit for infringement and such opportunity as is afforded by applicable laws, rules, or
regulations to participate in the defense thereof.
REPRODUCTION:
(a)
The Seller agrees to and does hereby grant to the Purchaser the right to reproduce, use, and dispose of all or any
part of the reports, drawings, blueprints, data, and technical information delivered to the Purchaser hereunder, and the Seller
agrees to hold harmless the Purchaser, Purchaser’s customer and all persons
claiming under the Purchaser from any loss,
claim, cost, expense, damage or liability arising out of said
reproduction, use, or disposition. The Purchaser shall give the
Seller prompt notice in writing of any suit or action alleging such liability.
QSF317, Rev C
4
(b)
If the articles, or parts thereof, ordered hereunder are designed by the Purchaser, the Seller shall not
reproduce any of such articles or parts without the Purchaser’s written consent nor, without such written
consent,
supply or disclose information regarding such articles, or any equipment or material used therein, nor incorporate in other
products or articles any special features of design or manufacture peculiar to the
articles ordered hereunder.
14.
TAXES: No Federal, state, or local taxes on the articles furnished under this order or on the sale, purchase, transportation,
use or possession thereof shall be included in any invoice rendered the Purchaser unless specifically itemized. If the
Purchaser furnished the Seller an exemption certificate or other similar proof of exemption with respect to any Federal, state,
or local taxes included in said invoices, the prices shall be adjusted to eliminate such taxes.
15.
SETOFFS: Seller agrees that the Purchaser shall have the right to setoff against any amounts payable, or which become
payable to Seller under this order or otherwise, any amounts that Seller may owe the Purchaser, whether arising under this
order or otherwise.
16.
SUBCONTRACT/ASSIGNMENT:
(a)
(b)
No subcontract shall be made by Seller with any other party for furnishing any of the articles hereunder in
completed or substantially completed form, or the work herein contracted for.
Neither this order nor any duty or right under it shall be delegated or assigned by Seller.
17.
INSOLVENCY: If Seller becomes insolvent, or makes an assignment for the benefit of its creditors, or if a petition in
Bankruptcy is filed by or with respect to Seller, Purchaser may, by notice in writing, terminate this order without liability to
Seller except for articles already delivered. Purchaser may, (i) by written notice of default to the Seller terminate the whole or
any part of this order, or any extension thereof, and Purchaser may, (ii) if the Seller fails to deliver the supplies or perform the
services within the time specified thereafter, procure or otherwise obtain supplies or services similar to those so terminated
and the Seller shall be liable to the Purchaser for any excess reprocurement costs.
18.
REMEDIES, NON WAIVER AND EFFECT OF INVALIDITY: Each of the rights and remedies reserved by the Purchaser in
this order shall be cumulative and be in addition to any other or future remedies provided in law or equity or in this order. The
failure of the Purchaser to enforce at any time any of the provisions hereof shall not be construed to be a waiver of such
provisions nor of the right of the Purchaser thereafter to enforce each and every such provision. The invalidity in whole or in
part of any provision hereof shall not effect the validity of any other provision.
19.
TITLE AND RISK OF LOSS: Title to articles purchased by Purchaser under this Agreement shall vest in Purchaser when the
articles have been delivered at the FOB point. If this Agreement calls for additional services such as unloading, installation, or
the like to be performed after delivery, Seller shall retain risk of loss and damage to the articles until the additional services
have been performed.
20.
PRICES: Seller represents that prices quoted to or paid by Purchaser shall not exceed current prices charged to any other
customer or seller for articles which are the same or substantially similar to the articles, taking into account the quantity under
consideration, and Seller will forthwith refund any amounts paid by Purchaser in excess of such price.
21.
PACKING AND SHIPMENT: Deliveries shall be made as specified, without charge for boxing, crating, carting or storage
unless otherwise specified, and articles shall be suitably packed to secure lowest transportation costs and in accordance with
the requirements of common carriers. Articles shall be described on Bills of Lading in accordance with current National Motor
Freight or Uniform Freight Classification, whichever is applicable. Purchaser’s order numbers and symbols must be plainly
marked on all invoices, packages, bills of lading and shipping order. Packing lists shall accompany each box of package
shipment showing Purchaser’s order number and symbol, line item number and description of the articles. Two (2) packaging
slips are required with each shipment.
22.
ADVERTISING: Seller shall not, without first obtaining the written consent of Purchaser, in any manner, advertise or publish
the fact that Seller has supplied or contracted to supply to Purchaser the articles herein mentioned.
23.
COMPLIANCE WITH LAWS: To the extent applicable hereto, Seller shall in the performance of this order comply with: the
Fair Labor Standards Act of 1938 (29 U.S.C. 201-219); the Walsh-Healey Public Contracts Act (41 U.S.C. 35-45); the Contract
Work Hours and Safety Standards Act (40 U.S.C. 327-333); laws prohibiting the use of convict labor, all other federal, state,
and local laws; all regulations and orders issued under any applicable law. Seller warrants that the equipment to be furnished
hereunder complies with the Occupation Safety and Health Act of 1970 (29 U.S.C. 651-678) and the Radiation Control for
Health and Safety Act of 1968 (42 U.S.C. 263 b-n) and all applicable regulations and standards promulgated thereunder.
QSF317, Rev C
5
Seller agrees to indemnify Purchaser against any loss, claim, cost, expense, damage or liability by reason of Seller’s violation
of this clause.
24.
EXCUSABLE DELAY: An excusable delay shall include any event beyond the reasonable control of Seller or Purchaser and
shall include but not be limited to: (i) Acts of God, including fire, flood, earthquakes, storms, accidents, epidemics; (ii) Acts of
public enemy; (iii) Acts of the Government in its sovereign capacity; (iv) War and war-like events. Upon the occurrence of an
excusable delay, the delayed party shall immediately notify the other party, in writing, and the completion requirements of this
order shall be equitably adjusted in accordance with the other period of such delay.
25.
CONFIDENTIALITY:
(a)
All drawings, data, designs, inventions, computer software and other technical information supplied by
Purchaser shall remain Purchaser’s property and shall be held in confidence by Seller. Such information
shall not
be reproduced, used or disclosed to others by Seller without Purchaser’s written consent, and
shall be returned to
Purchaser upon completion by Seller of its obligations under this order or upon demand by Purchaser.
(b)
Any information which Seller may disclose to Purchaser with respect to the design, manufacture, use or
sale of
the articles covered by this order shall be deemed to have been disclosed as part of the consideration for this order and not
in confidence, and Seller shall not assert any claim against Purchaser
by reason of Purchaser’s use or disclosure thereof.
26.
GRATUITIES: Seller warrants that neither it nor any of its employees, agents or representatives has offered or given any
gratuities or kickbacks (as defined in FAR 52.203-1) to Purchaser’s employees, agents and representatives with a view toward
securing this order or securing a favorable treatment with respect thereto.
27.
ORDER OF PRECEDENCE: In the event of any inconsistency between the provisions of this order, such inconsistency shall
be resolved according to the following precedence:
(I)
(II)
(III)
Terms and Conditions on the face of the Purchase Order
These Purchase Order Terms and Conditions (including any attachments or exhibits thereto)
All other referenced documents
28.
STOP WORK: Seller shall stop work for a period of up to one hundred (100) days in accordance with the terms of any written
notice received from Purchaser, or for such longer period of time as the parties may agree 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
period, Purchaser shall either terminate or continue the work by written notice to Seller. In the event of a continuation,
equitable adjustment shall be made to the price, delivery schedule, or other provision affected by the work stoppage, if
applicable, provided that Seller’s claim for equitable adjustment is made, in accordance with the Changes clause, within fifteen
(15) days after said continuation.
29.
RIGHT OF ACCESS: Notwithstanding the inspection rights granted to Purchaser under the clause entitled “Inspection”
representatives of Purchaser or Purchaser’s customer, if required, shall be granted the right to access to the Seller’s facilities
at all reasonable times for the purposes of determining the progress of work in process for the Purchaser.
30.
LICENSES: No licenses, expressed or implied, under any patents are granted by Purchaser to Seller hereunder.
31.
SURVIVAL OF OBLIGATIONS: Seller’s obligations under this Agreement which by their nature would continue beyond the
termination, cancellation or expiration of this Agreement, including by way of illustration only and not limitation, those in the
clauses, LAWS, COMPLIANCE WITH LAWS, INFRINGEMENT, REPRODUCTION, CONFIDENTIALITY, and
WARRANTY, shall survive termination, cancellation or expiration of this Agreement.
32.
33.
CONTINGENT FEES: The Seller warrants that no person or selling agency has been employed or retained to solicit or secure
this order upon an agreement or understanding for a commission, percentage, or contingent fees, excepting bonafide
employees or bonafide established commercial or selling agencies maintained by the Seller for the purpose of securing
business. For breach or violation of this warranty the Purchaser shall have the right to annul this order without liability or in its
discretion, to deduct from the price, or otherwise recover, the full amount of such commission, percentages, brokerage, or
contingent fee.
REPRESENTATIONS AND CERTIFICATIONS: To the extent applicable, the representations and certifications contained in
Seller’s Form 328, Representations and Certifications, and Form 346, Equal Employment Opportunity Compliance Certificate,
are incorporated herein and made part of this order by reference.
QSF317, Rev C
6
34.
LAWS
This order shall be governed by, subject to, and construed according to the laws of the State of California.
35.
GOVERNMENT REQUIREMENTS: If this order contains a U.S. Government Prime Contract Number or if any of the
items to be supplied under this order are to be used on a U.S. Government contract, the FAR and, if applicable,
DFARS clauses listed in Eaton's P.O. Terms U.S.-- FAR and DFARS Flow-Downs for U.S. Government Contracts
(the "Flow-Downs") are incorporated herein by reference and made part of these terms and conditions. Unless
specified otherwise, the term "Contractor" will mean "Seller," the term "Contract" will mean "Order," and the term
"subcontractor" will mean Seller's subcontractors. Seller agrees to negotiate with Purchaser to incorporate
additional provisions beyond those identified in the Flow-Downs or to change provisions as Purchaser reasonably
deems necessary to comply with the applicable government contract. Seller shall accept mandatory flow-down
clauses at no additional cost to Purchaser. The Flow-Downs can be accessed at:
http://www.eaton.com/Eaton/OurCompany/DoingBusiness/SellingtoUs/POTerms-U.S./POTermsU.S.FARDFARSClause/index.htm
(a)
(b)
(c)
As used in the Federal Acquisition Regulations (FAR), Defense Federal Acquisition Regulations Supplement
(DFARS) and NASA Federal Acquisition Regulations Supplement (NASA FARS) the terms “Government and
Contracting Officer” shall mean “Purchaser” where applicable. “Contractor” shall mean “Seller,” “Contract” means
this order unless the context of the clause requires otherwise, and “subcontract” means Seller’s purchase order,
contract, or subcontract issued pursuant to this order.
The effective date of the referenced clauses shall be that in effect on the date of this order, unless otherwise
specified, and are incorporated herein by reference. Additionally, all references to the applicability of a “Disputes”
clauses in the FAR, DFARS, or NASA FAR clauses are deleted.
The following are applicable to all Government contracts provided that the criteria specified in the parenthetical
statement are met in this order.
FAR CLAUSES
52.203-1 Officials Not to Benefit; 52.203-3 Gratuities; 52.203-5 Covenant Against Contingent Fees; 52.203-6
Restrictions on Subcontractor Sales to the Government; 52.203-7 Anti-Kickback Procedures (excepting
subparagraph (c) (1)); 52.203-8 Requirements for Certificate of Procurement Integrity; 52.203-9 Requirement for
Certification of Procurement Integrity-Modification; 52.203-10 Remedies for Illegal or Improper Activity’; 52.203-11
Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions; 52.203-12 Limitation on
Payments to Influence Certain Federal Transactions; 52.204-2 Security Requirements (applicable to orders
involving classified information); 52.208-1 Required Source for Jewel Bearings and Related Items; 52.209-6
Protecting the Government’s Interest When Subcontracting With Contractors Debarred, Suspended or Proposed for
Debarment; 52.210-5 New Material; 52.210-7 Used or Reconditioned Material, Residual Items; 52.212-8 Defense
Priority and Allocation Requirements; 52.212-10 Delivery of Excess Quantities; 52.215-1 Examination of Records
by Comptroller General (paragraphs (b) and (d) only, applicable to orders of $10,000 or more); 52.215-2 AuditNegotiation (applicable to orders of $10,000 or more); 52.215-22 Price Reduction for Defective Cost or Pricing Data
(applicable to any new order where cost of pricing data is required); 52.215-23 Price Reduction for Defective Cost or
Pricing Data - Modifications (applicable if the FAR 52.215-22 clause is not applicable to this order); 52.215-24
Subcontractor Cost or Pricing Data (applicable to orders where the clause at 52.215-22 is applicable); 52.215-25
Subcontractor Cost or Pricing Data - Modifications (applicable to any modification of an order where the clause at
52.215-23 is applicable); 52.215-26 Integrity of Unit Prices including Alternate 1 (excepting paragraph (c)); 52.215-27
Termination of Defined Benefit Pension Plans (applicable to orders where certified cost or pricing data will be
required); 52.215-30 Facilities Capital Cost of Money; 52.215-31 Waiver of Facilities Capital Cost of Money
(applicable if the Seller did not include Facilities Capital Cost of Money in its proposal); 52.219-8 Utilization of Small
Business Concerns and Small Disadvantaged Business Concerns (applicable on orders of $10,000 or more); 52.2199 Small Business and Small Disadvantaged Business Subcontracting Plan (applicable if this order in excess of
$500,000 and Seller is not a Small Business Concern); 52.219-13 Utilization of Women-Owned Small Businesses
(applicable to orders of $25,000 or more); 52.219-16 Liquidated Damages - Small Business Subcontracting Plan
(except paragraph (e),applicable if 52.219-9 applies to this order); 52.220-3 Utilization of Labor Surplus Area
Concerns; 52.220-4 Labor Surplus Area Subcontracting Program (applicable if total amount of this order exceeds
$500,000); 52.222-1 Notice to the Government of Labor Disputes; 52.222-3 Convict Labor; 52.222-4 Contract Work
Hours and Safety Standards Act-Overtime Compensation; 52.222-20 Walsh-Healey Public Contracts Act (applicable
to orders of $10,000 or more); 52.222-21 Certification of Nonsegregated Facilities (applicable to orders of $10,000 or
more); 52.222-26 Equal Opportunity (applicable if government contracts/subcontracts have an aggregate value
exceeding $10,000); 52.222-35 Affirmative Action for special Disabled and Vietnam Era Veterans (applicable on
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orders of $10,000 or more);
52.222-36 Affirmative Action for Handicapped Workers (applicable on orders of
$2,500 or more); 52.222-37 Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era
(applicable to orders of $10,000 or more); 52.223-2 Clean Air and Water (applicable on orders of $100,000 or a
facility to be used has been subject to conviction under the applicable portion of their Act (42 USC 7413 (c) (1)) or the
Water Act (33 USC 1319 (c)) and is listed by the EPA as a violating facility, unless exempted by Statute); 52.222-3
Hazardous Material identification and Material Safety Data (applicable if this order involves hazardous material as
defined in the clause); 52.223-6 Drug-Free Workplace; 52.225-3 Buy American Act-Supplies applies to all orders for
the acquisition of supplies, or for services involving the furnishing of supplies for use within the United States, except
for acquisitions made under the Trade Agreements Act of 1979, as specified in FAR Part 25.4); 52.225-10 Duty-Free
Entry (applicable if foreign supplies in excess of $10,000 are procured in the performance of this order); 52.225-11
Certain Communist Areas; 52.225-13 Restriction on Contracting With Sanctioned Persons; 52.227-1 Authorization
and Consent; 52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement (applicable to order as
of $25,000 or more); 52.227-10 Filing of Patent Applications - Classified Subject Matter (applicable to orders
involving classified date); 52.227-14 Rights in Data-General; 52.227-15 Representation of Limited Rights Data and
Restricted Computer Software; 52.227-16 Additional Data Requirements; 52.227-17 Rights in Data-Special Works;
52.227-18 Rights in Data-Existing Works; if noted on the face of this Purchase Order “Cost Accounting Standards”
FAR clause 52.230-2 or “Disclosure and Consistency of Cost Accounting Practices” FAR Clause 52.230-3,
“Consistency in Cost Accounting Practices” FAR clause 52.230-4, and “Administration of Cost Accounting Standards”
FAR Clause 52.230-5 will apply; 52.232-17 Interest; 52.244-5 Competition in Subcontracting; 52.245-17 Special
Tooling; 52.2245-18 Special Test Equipment (applicable if this order provides that special test equipment or
components may be acquired or fabricated for the Government); 52.246-23 Limitation of Liability (applicable on
orders of $25,000 or more); 52.246-25 Limitation of Liability - Services (applicable on orders of $25,000 or more);
52.247-63 Preference for U.S. Flag Air Carriers; 52.247.64 Preference for Privately Owned U.S. Flag Commercial
Vessels; 52.248-1; Value Engineering.
(d)
In addition to the clauses stated in paragraph (c) above, the following shall apply to all purchase orders
issued
under a Department of Defense prime contract:
DFARS CLAUSES
(e)
52.203-7001 Special Prohibition on Employment (applicable if this order exceeds $25,000); 52.203-7002 Statutory
Compensation Prohibitions and Reporting Requirements Relating to Certain Former Department of Defense (DOD)
Employees (applicable to orders of $100,000 or more); 52.204-7005 Overseas Distribution of Defense Subcontracts
(applicable to orders of $100,000 or more); 52.208-7000 Required Sources for Miniature and Instrument Ball
Bearings; 52.208-7001 Required Sources for Precision Components for Mechanical Time Devices; 52.208-7002
Required Sources for High-Purity Silicon; 52.208-7003 Required Sources for High Carbon Ferrochrome; 52.2087005 Required Sources for Forging and Welded Shipboard Anchor Chair Items; 52.208-7006 Required Sources for
Antifriction Bearings; 52.208-7008 Acquisition of Carbon Fiber Manufacturing from Domestic-Sourced
Polyacrylonitirile (PAN) Precursor; 52.209-7001 Acquisition from Defense Contractors Subject to On-Site Inspection
Under the Intermediate Range Nuclear Forces (INF) Treaty (applicable to orders of $25,000 or more); 52.215-7000
Aggregate Pricing Adjustment; 52.215-7002 Availability of Contractor Records (applicable to orders where cost or
pricing data is required); 52.215-7003 Cost Estimating System Requirements (applicable to orders where cost or
pricing data is required); 52.217-7270 Identification of Sources of Supply; 52.219-7000 Small Business and Small
Disadvantaged Business Subcontracting Plan (DOD Contracts) (applicable if FAR 52.219-9 applies); 52.223-7000
Notice of Radioactive Materials; 52.223-7002 Change in Place of Performance - Ammunitions and Explosives;
52.223-7003 Safeguarding Arms, Ammunitions, and Explosives; 52.223-7004 Hazardous Material Identification and
Material Safety Data; 52.223-7500 Drug-Free Work Force; 52.225-7001 Buy American Act and the Balance of
Payments Program; 52.225-7002 Qualifying Country Sources as Subcontractors; 52.225-7008 Duty-Free Entry Qualifying Country End Products and Supplies; 52.225-7009 Preference for Certain Domestic Commodities; 52.2257011 Preference for Domestic Specialty Metals (Major Programs); 52.225-7013 Preference for Domestic Hand or
Measuring Tools; 52.225-7014 Duty-Free Entry - Additional Provisions; 52.225-7023 Restriction on Acquisition of
Foreign Machine Tools; 52.227-7013 Rights in Technical Data and Computer Software; 52.228-7018 Restrictive
Markings on Technical Data; 52.227-7026 Deferred Delivery of Technical Data or Computer Software; 52.227-7027
Deferred Ordering of Technical Data or Computer Software; 52.227-7029 Identification of Technical Data; 52.2277030 Technical Data-Withholding of Payment; 52.227-7036 Certification of Technical Data Conformity; 52.227-7037
Validation of Restrictive Markings on Technical Data; 52.228-7006 Accident Reporting and Investigation involving
Aircraft, Missiles and Space Launch Vehicles (excepting paragraph (a)); 52.231-7000 Supplemental Cost Principals;
52.235-7004 Frequency Authorization; 52.243-7000 Engineering Change Proposals; 52.243-7001 Pricing of
Adjustments; 52.271-7001 Recovery of Nonrecurring Costs on Commercial Sales of Defense Products and
Technology and of Royalty Fees for use of DOD Technical Data.
In addition to the clauses stated in paragraph (c) above, the following shall apply to all purchase orders issued under
a NASA prime contract.
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NASA FARS CLAUSES
1852.204-70 Report on NASA Subcontracts (applicable to orders over $50,000); 1852.223.72 Potentially Hazardous
Items; 1852.227-74 Rights in Data-General; 1852.227-83 Technical Data Certification, Revision, and Withholding of
Payment; 1852.235.70 Scientific and Technical Information Service; 1852.224-70 Geographic Participation in the
Aerospace Program (applicable to order of $100,000 or more); 1852-245-73 Financial Reporting of
Government/Contractor - Held Property; 1852.247-71 Protection of the Florida Manatee; 1852.252-70 Compliance
With NASA FAR Supplement; 1852.252.71 Federal Acquisition Regulation References.
36.
Notwithstanding, any other provisions of this order or referenced specifications, material furnished by the seller shall not
contain functional mercury or mercury compounds, and shall be free of mercury contamination. Materials furnished shall not
have come in direct contact with mercury containing devices or equipment which could cause contamination during
manufacturing, assembly, testing or inspection. This clause shall be included in subcontracts issued under this procurement.
37.
INDEMNIFICATION:
To the extent that Seller’s agents, employees, or subcontractors enter upon premises occupied by or under the control of the
Buyer, Seller shall indemnify and hold Buyer harmless against any and all liabilities, losses, damages and expenses, including
attorney’s fees and court costs, for persnonal injuries, including death, and/or property damage, except in those instances
where such liabilities, losses, damages or expenses are due solely and directly to Buyer’s negligence. Upon Buyer’s written
request, Seller shall provide certification or written statement evidencing issuance of the following insurance coverage:
(1) Worker’s Compensation and Employer’s Liability Insurance
(2) General Liability Insurance
(3) Automobile Liability Insurance.
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