1. ACCEPTANCE—This order becomes a binding contract upon the terms and conditions included herein and any supplementary terms and conditions attached hereto when the acknowledgment copy executed by Seller has been received by Walker Power Systems (WPS) or when WPS accepts any of the articles furnished by Seller pursuant to the terms hereof. No modification of any of these terms and conditions shall be binding unless accepted and acknowledged in writing by WPS, nor shall any provision contained in any shipping document or accompanying any shipment impose any obligation on WPS which modifies or varies any of these terms and conditions.
2. COMPLIANCE—No charges of any kind (including, but without limitation, charges for packing, crating or freight) in excess of the unit prices shown on the face of this order, will be payable unless authorized in writing by WPS. Invoices must itemize transportation charges and taxes as separate items. Complete and correct installment delivery of all of the items required to be delivered hereunder must be made to WPS' Receiving Department in accordance with the schedule set forth herein or as modified by WPS, in writing, as a condition precedent to WPS' obligation to make payment hereunder. Invoices for incomplete shipments except for the correct installments of all items required to be shipped will not be processed. Cash discounts and dating of invoices will be calculated from the date a processable invoice, as defined herein, is received by WPS. Acceptance by WPS of incomplete shipments shall not be construed or operate as a waiver of this provision. Seller warrants that the prices charged WPS, as indicated in this order, are no higher than prices charged or placed by others for similar quantities under similar conditions during the sixty (60) day period prior to the date of this order. In the event Seller breaches this warranty, the prices of the articles shall be reduced accordingly. Except as otherwise provided in this order, the price includes all applicable Federal, State and local taxes in effect on the date hereof.
3. WARRANTY—In addition to any warranties which may be prescribed by law, Seller warrants to Buyer, its successors and customers that all articles furnished will be free from defects in material and workmanship for a period of twenty‑four (24) months after delivery to Buyer or twelve (12) months after first placed into use, whichever occurs first (or for such other period as specified on the face of this order or any longer period extended by Seller in Seller's standard warranty for similar articles offered at the time of this order), will conform to applicable drawings, specifications, performance requirements, samples and other descriptions furnished or specified by Buyer, be free from defects, including defects in design, to the extent such articles are not of a design furnished by Buyer. In the event Seller is required to replace or correct any component of any article as a result of a breach of the foregoing warranty, the running of the warranty period for the article of which the defective component is a part shall be suspended from the date Seller receives notice of the breach of warranty until the date the component is replaced or corrected, and this warranty shall apply to such replacement or corrected articles furnished for the unexpired portion of the period . Buyer's approval of Seller's samples or first articles shall not be construed as a waiver by the Buyer of any requirement of the drawings, specifications, performance requirements, and/or other referenced descriptions applicable hereto. Seller shall provide to Buyer data and reports applicable to any correction or replacement under this warranty (including revision and updating of all affected data called for under this order) and Seller shall bear the cost therefor.
The Seller hereby acknowledges that Seller has represented and this order has been entered into on the basis that Seller has reviewed and accepted the performance requirement(s) as set forth in this order and that Seller assumes all risk and full responsibility for meeting said specified performance requirements. Accordingly, notwithstanding any conflict or inconsistency which hereafter may be found between achievement of the specified performance requirements and Seller's proposal for the article(s) being purchased herein, the Seller hereby warrants that the article(s) to be delivered or performed hereunder will meet or exceed the specified performance requirements of this order.
4. DELIVERY SCHEDULE—Delivery shall be strictly in accordance with the delivery schedule set out or referred to in this order. Articles shipped to WPS in advance of schedule or in excess of schedule may be returned to Seller at Seller's expense. If Seller's deliveries fail to meet such schedule, Seller, at its expense, will use an expedited method of shipment specified by WPS, if requested to do so by WPS, until past deficiencies are corrected and deliveries are on schedule. If releases are used by WPS, WPS is not liable for fabrication or shipment of articles in excess of authorized releases. Authorized release date for fabrication or shipment of each installment required by the delivery schedule shall be the date required to satisfy normal industry lead time requirements.
5. PATENT PROTECTION—Except so far as the order calls for articles or materials manufactured pursuant to WPS' drawings or specifications, Seller agrees to defend any suit or proceeding against WPS based upon a claim that any articles or any part thereof manufactured hereunder by reason of its manufacture, sale or use, infringes upon any United States patent which has been issued prior to date of contract and agrees to pay the amount of any judgment rendered against WPS resulting therefrom together with all costs and expenses incident thereto including but without limitation attorney's fees; provided Seller is notified of the threat or commencement of such suit or proceedings promptly and is given an opportunity, with the cooperation of WPS, to conduct the defense or settlement thereof.
6. COMPLIANCE WITH THE LAW—Seller agrees that the goods and/or services produced and/or rendered pursuant to this contract will be produced and/or rendered in accordance with all applicable Federal, State and local laws, orders and regulations, and that all invoices covering such goods and/or services will contain a statement certifying to this fact.
7. WAIVERS—Any waiver of strict compliance with the terms of this order or any part thereof shall not constitute a waiver of WPS' right to insist upon strict compliance with the other terms of this order or the terms of any subsequent order.
8. NON‑ASSIGNMENT—Seller shall not assign this order or any interest therein, including any payment due or to become due with respect thereto, without WPS' prior written consent except for the assignment of rights which by law can be assigned despite any agreement to the contrary. In any case, WPS shall not be bound by any assignment until after actual receipt of written notice of such assignment from Seller.
9. PRESERVATION AND PACKAGING—In the absence of any specific instructions set forth on the face of this order, all articles or materials delivered pursuant to this order shall be packed adequately to prevent any damage in shipment and storage. All packages shall be properly marked and identified.
10. TERMINATION—
A. For default:
1. WPS may terminate this purchase order, or any part thereof, by telegraphic or written notice of default to Seller under any of the following circumstances:
a. If Seller refuses or fails to make deliveries or perform the services within the time specified or any extension thereof. In this regard, time of delivery is expressly declared to be of the essence of this order.
b. If Seller fails to comply with any other provisions of this purchase order or so fails to make progress so as to endanger performance of this purchase order in accordance with its terms and does not cure any such failure within a period of ten (10) days or such longer period as WPS may authorize by written notice after receipt of notice from WPS specifying such failure.
c. If Seller becomes insolvent, or makes a general assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or for reorganization, or pursues any other remedy under any other law relating to the relief for debtors, or in the event a receiver is appointed for Seller's property or business.
2. In the event of such termination, WPS may purchase or manufacture similar supplies and/or require Seller to transfer title and deliver to WPS any and all property produced or procured by Seller under this purchase order and Seller shall be liable to WPS for any excess cost to WPS including, but not limited to, any procurement overhead incurred by WPS in doing so.
B. WPS may terminate this order in whole or in part, at any time for its convenience, by notice to Seller in writing. On receipt by Seller of such notice, Seller shall, to the extent specified therein, stop work hereunder and the placement of subcontracts, terminate work under subcontracts outstanding hereunder, and take any necessary action to protect property in Seller's possession in which WPS has or may acquire an interest. In such event, WPS shall pay to Seller without duplication, the amounts due for articles delivered and accepted to services completed in accordance herewith prior to the effective date of termination, plus actual costs incurred by Seller if properly allocable or apportionable under recognized commercial accounting practices, to the terminated portion of the contract, including liabilities to subcontractors which are so allocable, and excluding any charges for interest or material or parts which may be delivered to other orders, plus a reasonable profit on work actually done by Seller prior to such termination, plus the reasonable costs of settlement provided that the total settlement shall not exceed the contract price and provided further, that if it appears that the Seller would have sustained a loss on the entire contract had it been completed, no profit shall be included or allowed and an appropriate adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss. Such termination claim shall be submitted to WPS within sixty (60) days after the effective date of the termination.
C. If, after notice of termination of this purchase order under the provisions of paragraph 10(A) (for default) above, it is determined for any reason that the Seller was not in default under the provisions of that paragraph, or that the default was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the convenience termination clause contained in paragraph 10(B) above.
D. Any termination by WPS, whether for default or otherwise, shall be without prejudice to any claims for damages or other rights of WPS against Seller.
E. WPS shall have the right to audit all elements of any termination claim and Seller shall make available to WPS on request ail books, records, and papers relating thereto, the failure of Seller to comply with this provision as and when required shall operate as a termination of its claim.
F. Seller shall continue performance of this purchase order to the extent not terminated. Any provisions for delivery or acceptance of the articles in installments shall not make severable the obligations of Seller.
11. CHANGE—
A. WPS may at any time, by written and/or telegraphic order to Seller, signed by an authorized representative of WPS, make changes in the quantities ordered or in the specifications or drawings or in the delivery schedule relating to the articles, or may change or amend any other terms or conditions of this order.
B. Seller shall proceed promptly to make such changes in accordance with the terms of such written and/or telegraphic order. An equitable adjustment shall be made to any price, time of performance or other provisions of this order required to be changed thereby, 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 the absence of such notification, WPS 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 purchase order as changed.
C. Except as may be directed or agreed to in writing by an authorized representative of WPS, Seller shall not make any changes in any aspect of the work to be performed under this purchase order, including but not limited to drawings or specifications, quantity or articles ordered and delivery schedules.
12. 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 WPS. Seller shall insert the substance of this paragraph in any subcontract hereunder as to which a labor dispute may delay the timely performance of this order except that each such subcontractor shall provide that in the event its timely performance is delayed threatened by delay by any actual or potential labor dispute, the subcontractors shall immediately notify Seller of all relevant information with respect to such dispute.
13. SPECIAL TOOLS—Unless otherwise agreed herein, special tools, dies, jigs, and patterns, hereinafter collectively referred to as "special tooling", used in the manufacture of said articles shall be furnished by and at the expense of Seller, shall be kept in good condition and when necessary, shall be replaced by Seller without expense to WPS. WPS may at any time reimburse Seller for the cost of any of the special tooling and/or replacements and become the owner and entitled to the possession of same. If the price stated on the face hereof includes the cost of any special tooling or special equipment fabricated or acquired by Seller for the purpose of filling this order, such special tooling and equipment and any process sheets related thereto shall become the property of WPS and to the extent feasible shall be identified by Seller as such. Unless otherwise specified herein, WPS shall make payment therefor only upon acceptance of the first article fabricated from special tooling by the Seller. Seller shall, at its own expense, maintain such special tooling and equipment in proper working order and shall be responsible for all loss or damage thereto while in its possession and shall use the same only for the production of material for WPS unless otherwise authorized in writing.
14. TITLE AND RISK OF LOSS—Title to all goods furnished in fulfillment of this order by Seller shall pass to WPS only at such time as they are delivered to WPS' designated destination properly packaged so as to prevent loss in shipment. Risk loss, due to any cause, shall remain with Seller until the goods have been received by WPS or WPS' customer at the location noted as the delivery destination on the face of this order This condition shall not be affected by F.O.B. terms, choice of carrier or shipping instructions.
15. SET OFF—WPS shall be entitled to set off any amounts owing at any time from Seller to WPS or its subsidiaries, parent corporation or affiliated companies, against any amount payable at any time by WPS or its subsidiaries, parent corporation or affiliated companies to Seller.
16. RIGHTS AND RESERVATIONS—All drawings, designs, information, tools, patterns, equipment, and other items supplied by Buyer and proprietary rights therein are reserved and the same shall not be used or reproduced for any purpose whatsoever except in the performance of work under this PO. Except that upon prior written notice to Buyer and on a non‑interference basis with Seller's performance of this or other POs from Buyer, Seller shall have the right to use such item in the manufacture of end items for sale to the United States Government either directly or indirectly through a Government subcontractor to the extent the Government has the right under any contract to authorize such use by Seller, provided Seller permanently identifies each such item as having been manufactured by Seller for sale to the United States Government.
17. WORK ON WPS' PREMISES—If Seller's work under this order includes operations by Seller on WPS premises, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that any such injury is due solely and directly to WPS' negligence, shall indemnify and hold harmless WPS from all claims, actions, or causes for actions, losses, costs, attorney's fees and damages which may result in any way from any act or omission of Seller, its agents, employees, or subcontractor and Seller shall maintain such public liability property damage and employer's liability and compensation insurance as will protect WPS from any such claims.
18. APPLICABLE LAW—The construction, interpretation and performance of this order and all transactions under it, shall be governed by the laws of the State of Arizona.
19. ADDITIONAL TERMS APPLICABLE TO GOVERNMENT CONTRACTS OR SUBCONTRACTS—
If a Government contract number is inserted on the face of this order, then the provisions from the FAR/DFAR listed on attachment hereto, or in the event a schedule is not attached the FAR/DFAR provisions included in the Government contract identified, and any other mandatory FAR/DFAR provisions shall take precedence, and are incorporated into this contract by reference, provided, however, that appropriate revisions of these regulations shall be deemed to have been made so that, for example, references to "contracting officer" or "government" shall mean WPS and references to the "contractor" shall mean to the Seller herein.
20. INSPECTION, ACCEPTANCE AND REJECTION—
A. All products are subject to (a) inspection during manufacture (b) inspection prior to shipment, and (c) final inspection and acceptance at destination, notwithstanding the FOB point or any payment or prior inspection at source. Final inspection and acceptance will be made at a reasonable time after receipt of Products.
B. Seller shall furnish to Buyer, if requested, all information and data as may be reasonably required by Buyer in order to perform inspection and acceptance.
C. Inspection and Acceptance of any Products by Buyer or the Government shall not be deemed to alter or affect the obligations of Seller or the rights of Buyer and its customers under Warranties herein or as may be provided by law.
D. Buyer's failure to inspect any of the Products hereunder shall neither relieve Seller from responsibility for such Products as are not in accordance with the requirements of this Order, nor impose liability on Buyer therefor.
E. Any tender of Products which is nonconforming as to quality, quantity or delivery schedule shall constitute a breach of this Order and Buyer shall have the absolute right to reject such Products. Buyer shall notify Seller as to such rejection and Buyer shall have all such remedies as provided by law and this Order, including, but not limited to (a) hold such rejected Products or return same to Seller at Buyer's election, and at Seller's risk, and expense, (b) replace or correct Seller's Products and charge to Seller the cost occasioned to Buyer thereby or require the delivery or replacement of such Product at an equitable reduction in price. If Seller fails to remove promptly such rejected Products or unless Seller corrects or replaces the defective Product within the time required by the delivery schedule, and (c) recover by offset or otherwise any and all damages, expenses or costs caused to or experienced by Buyer as a result of such rejection or which result from a series of rejections.
F. If any inspection is made by Buyer or the Government on premises of Seller or a subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of Buyer and Government inspection in the performance of their duties.
21. QUALITY CONTROL—In accordance with the specific requirements of this Order, Seller shall provide and maintain a quality control system acceptable to Buyer covering the Products hereunder. Records of all certifications and inspection work by Seller and Seller's subcontractor(s) shall be kept complete and available to Buyer at Seller's facility during the performance of this Order or such longer period as may be specified elsewhere herein. Authorized purchasing, technical and quality assurance representative(s) of Buyer shall be entitled to enter the plant of Seller at all reasonable times for the purpose of maintaining liaison between the quality control system and the program, to review Seller's manufacturing and processing plans and records, and to conduct preliminary inspection of the Products and work in process.
22. CERTIFICATE OF CONFORMANCE—Seller shall submit with each shipment of articles under this purchase order, a Certificate of Conformance with the packing sheet. Certification shall be essentially as follows: "Seller certifies that all articles delivered in this shipment conform with all applicable drawings, specification and purchase order requirements. Evidence of such conformance is on file at our plant and is subject to examination by authorized WPS representatives."
