Standard Terms and Conditions of Purchase.

Inspection of Records

If this is a time and material or cost-based Order or provides for the payment of any amount prior to final delivery of Goods hereunder based on Supplier’s incurred cost, including, without limitation, progress or advance payments based on cost, Supplier agrees that its books, records and its plant, or such parts of its plant as may be engaged in the performance of this Order, shall at all reasonable times be subject to inspection by Buyer

Changes

1. Buyer may, at any time and without notice to third parties, including sureties (if any), unilaterally make changes within the general scope of this Order, including, but not limited to, changes in whole or part and to any one or more of the following: (i) shipping or packing instructions, (ii) place of delivery or performance, (iii) any drawings, designs, or specifications, (iv) the statement of work, (v) the method or manner of performance of the work, and (vi) Buyer-Furnished property, facilities, equipment, materials, or Services. Supplier shall perform any changes ordered by Buyer.
2. Buyer’s engineering and technical personnel may from time to time render assistance or give technical advice or discuss or affect an exchange of information with Supplier’s personnel concerning the Goods or Services provided hereunder. No such action shall be deemed to be a change under the “Changes” clause of this Order and shall not be the basis for equitable adjustment. No change will be binding on Buyer unless issued in writing by an authorized representative of Buyer’s purchasing department.
3. If any change under this clause causes an increase or decrease in the cost of or the time required for performance, an equitable adjustment shall be made in price or delivery schedule or both, and the Order shall be modified in writing accordingly. Any claim by Supplier for adjustment, must be asserted in writing not later that fifteen (15) calendar days after the date of receipt by Supplier of the change order, or within such extension of that fifteen-day period as Buyer, in its sole discretion, may grant in writing at Supplier’s request. Supplier’s complete change proposal, fully supported by factual information, shall be submitted to Buyer’s purchasing department within forty-five (45) days of the notice of change, provided, however, that Buyer may in its discretion consider any such claim regardless of when asserted, except that no claim for equitable adjustment hereunder shall be allowed if it is asserted after final payment of this Order.
4. If the cost of property or material made obsolete or excess as a result of a change is included in Supplier’s claim for adjustment, Buyer shall have the right to prescribe the disposition of such property or material.

1. Notwithstanding any pending claims for adjustment submitted by Supplier, Supplier shall diligently proceed with the performance of this Order, as directed by Buyer, and nothing herein shall be construed as relieving Supplier of its obligations to perform, including without limitation the failure of the parties to agree upon Supplier’s entitlement to, or the amount or nature of, any such adjustment.
2. Schedule 

Notwithstanding Article 14 “Changes”, Buyer may revise the delivery schedule without additional cost or change to the unit price stated in the applicable Order if (1) the delivery date of the Product under such Order is on or before the last date of the Order and (2) Buyer provides Supplier written notice of such changes.

Upon receipt of the written notice of the change, Supplier shall make its best effort to implement the change as soon as possible, but in no event shall the change be implemented later than four

1. months after notification of a schedule acceleration or three (3) months after notification of a schedule deceleration.
2. Compliance with Applicable Laws and Regulations
3. Supplier will perform the requirements of this Order in compliance with all applicable laws, statutes, orders, acts, codes, rules and regulations of the United States and its individual states (including, but not limited to, the Fair Labor Standards Act, the Walsh-Healey Act, the Occupational Safety and Health Act, Executive Orders, export/import laws and regulations, Uniform Commercial Code, and Environmental Protection Acts), and of other Countries or Unions. Supplier will indemnify Buyer against any and all loss, cost, liability, damage or expense arising from or related to Supplier’s failure to comply with this provision.
4. If this Order is issued under a United States Government prime contract or subcontract, the flow down clauses attached hereto and any other provision or requirement mandated as applicable to U.S. Government subcontracts by the Federal Acquisition Regulation and or applicable government department or agency supplement (including, without limitation, the Department of Defense FAR Supplement) is hereby incorporated herein. Such government contract provisions shall be controlling over any conflicting terms and conditions set forth herein.
5. Supplier expressly acknowledges and agrees that it will, to the extent required by law or government contract requirements, provide information and verification concerning the citizenship or immigration status of Supplier’s personnel or Supplier’s subcontractor personnel entering onto Buyer’s premises or the premise of Buyer’s prime contractor or the U.S. Government

Government Import / Export Regulations

1. The Goods or Services, including technical data, provided under this Order may be subject to the provision of the Export Administration Act of 1979 (50 USC 2401-2420) and the Export Administration Regulations (15 CFR 768-799) promulgated there under; the Arms Export Control Act of 1976 (22 USC 2751-2779) and the International Traffic in Arms Regulation (22 CFR 120-128 and 130) promulgated there under; and the Foreign Corrupt Practices Act. The Parties acknowledge that these statutes and regulations impose restrictions on import, export, and transfer to third countries of certain categories of Goods or Services, including technical data, and that licenses from the U.S. Department of State and/or U.S. Department of Commerce may be required before such Goods or Services, including technical data, can be provided hereunder, and that such licenses may impose further restrictions on use of such Goods or Services, including technical data. Disclosure of such Goods and Services, including technical data to foreign persons is subject to the above regulations regardless if the export occurs in the U.S. or abroad. Supplier agrees to comply with all U.S. Governmental regulations mentioned above as they relate to the import, export, and re- export of Goods and Services and/or technical data, including, without limitation, the ITAR Registration requirements specified at 22 CFR 122.1.
2. Supplier agrees to notify Buyer if any deliverable under this Order is restricted by export control laws or regulations.
3. Supplier shall immediately notify the Buyer’s Procurement Representative if Supplier is, or becomes, listed in any denied parties list or if Supplier’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.
4. If Supplier is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Supplier represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.
5. Where Supplier is a signatory under a Buyer export license or export agreement (e.g., TAA, MLA), Supplier shall provide prompt notification to the Buyer’s Procurement Representative in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U. S. Government investigation, that could affect the Supplier’s performance under this Order.
6. Supplier shall on the first shipment to Buyer, provide to Buyer a Certificate of Origin or a Manufacturer’s Affidavit for each item, and either:
7. for U.S. sources, the U.S. Munitions List Category or Export Control Classification Number (ECCN) and the Harmonized Tariff Schedule Classification (HTS) Number.
8. for non-U.S. sources, the HTS Number.
9. Supplier shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorneys’ fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Supplier, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this clause.

Insurance / Disaster Recovery

1. Insurance. Without limiting Supplier’s duty to hold harmless and indemnify Buyer, Supplier agrees to secure and maintain insurance adequate to cover the obligations and liabilities assumed hereunder with respect to all work to be performed and Goods to be produced under the Order with minimum limits as follows:
2. Workers’ Compensation and Employer’s Liability Insurance in an amount sufficient by virtue of the laws of the country, state, or other governmental subdivision in which the Services or any portion of the Services are performed and Employer’s Liability Insurance in the amount of $1,000,000 for any one occurrence;
3. Commercial General Liability Insurance including coverage for Products and Completed Operations, Premises Liability and Contractual Liability, in which the limit of liability for property damage and bodily injuries, including accidental death, shall be a Combined Single Limit of $5,000,000 for any one occurrence;
4. If Supplier vehicles are used on Buyer’s premises and/or used to accomplish work under the Order or otherwise on behalf of Buyer, Automobile Liability Insurance in which the limit of liability for property damage and bodily injuries, including accidental death, shall be a combined single limit of $1,000,000 for any one occurrence;
5. If Supplier or its subcontractors have Buyer’s materials or equipment in its care, custody or control, Supplier shall have and maintain All-Risk Property Insurance in an amount sufficient to meet the replacement value of such material; and
6. The following shall apply if Supplier is providing goods, component parts, materials or work classified as: (i) flight safety critical as defined in 41CFR102-36.40 or (ii) mission critical on a space system. Supplier shall maintain Aviation Products Liability, Completed Operations Liability and, if applicable to the Goods or Services, Hangarkeepers’ Liability Insurance coverage in an amount of Combined Single Limit of $10,000,000 for any one occurrence and in the aggregate (or such higher limits as Buyer may require), including AV52 coverage (War Risks Insurance). Such insurance shall remain in effect for two (2) years after the expiration or termination of the Order.
7. The insurance limits required above may be satisfied by any combination of both primary and excess limits. For each of the above policies, Supplier shall arrange a waiver of subrogation in favor of Buyer, and with the exception of (i) Workers’ Compensation and (v) Aviation Products Liability, shall name Buyer as an additional insured party. All such insurance shall be issued by companies authorized to do business under the laws of the State or jurisdiction in which all or part of the Services are to be performed, and must have an AM Best financial rating of A- (or equivalent) or better. The insurance coverages described above shall contain a provision prohibiting cancellation or material change except upon at least thirty (30) days’ prior notice to Buyer.
8. Prior to commencement of services under this agreement, Supplier shall submit a certificate of insurance in confirmation of having secured the required insurance. 
9. Supplier shall require its subcontractors and lower-tier suppliers to maintain insurance in the amounts and types required by this provision.
10. Disaster Recovery. Supplier shall have and comply with a company security and crisis management policy, which shall be revised and maintained proactively and as may be requested by Buyer in anticipation of security and crisis risks relevant to Supplier’s business (“Security and Disaster Recovery Plan”). The Security and Disaster Recovery Plan shall, at a minimum, provide for the physical security of personnel at Supplier’s facilities, physical security of property and facilities used for performance of this Agreement, procedural security (e.g., documentation processing, manifest procedures, shipping and receiving, cargo discrepancies), information technology security, and security training and threat awareness.
    
11. Buyer Right of Review: Buyer reserves the right to review Supplier’s Security and Disaster Recovery Plan (22.2.a below) and to work cooperatively with Supplier in determining if such policy is reasonably sufficient. Buyer will notify Supplier if, after reviewing Supplier’s Security and Disaster Recovery Plan, Buyer believes any changes thereto to be desirable or necessary to protect Buyer’s property and interests. Supplier, in its sole discretion, shall determine whether or not to implement any actions that may be reasonably requested by Buyer, and, if necessary, the manner in which any costs related to implementation shall be borne by Supplier.
12. The Disaster Recovery Plan shall, at a minimum, provide for:
13. (i) the retention and retrieval of data and files;
14. (ii) obtaining resources necessary for recovery; 
15. (iii) appropriate continuity plans to maintain adequate levels of staffing required to provide the Goods and Services during a disruptive event; 
16. (iv) procedures to address potential disruption to the Supplier’s supply chain; and 
17. (v) a defined escalation process for notification of Buyer in the event of a Plan-trigger event. Supplier shall be able to demonstrate that there is a regular review, maintenance and testing of the Plan through documented exercises.

Force Majeure

1. Neither party shall be deemed in default of this Order to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, or strikes (“Force Majeure”).
2. If any Force Majeure condition affects Supplier’s ability to perform, Supplier shall give immediate notice to Buyer and Buyer may elect to either: (1) Cancel at no cost to Buyer the affected Order(s) or any part thereof, (2) suspend the affected Order(s) or any part for the duration of the Force Majeure condition, with the option to obtain elsewhere Goods and Services to be furnished under such Order(s) and deduct from any commitment under such Order(s) the quantity of the Goods and Services obtained or for which commitments have been made elsewhere or (3) resume performance under such Order(s) once the Force Majeure condition ceases, with an option in Buyer to extend any affected Delivery Date or performance date up to the length of time the Force Majeure condition endured. Unless Buyer gives written notice otherwise within thirty (30) days after being notified of the Force Majeure condition, option (2) shall be deemed selected.

Termination for Convenience

1. Buyer may, at any time by written notice to Supplier, terminate all or any part of this Order for Buyer’s convenience, in which event Supplier agrees to stop work immediately as to the terminated portion of this Order and to notify subcontractor(s) to stop work, and protect and preserve property in its possession in which Buyer has an interest. If this Order is terminated, in whole or in part, for Buyer’s convenience, Supplier shall be paid an amount, to be mutually agreed upon, which shall be adequate to cover the reasonable cost of Supplier’s actual performance of Services under this Order to the effective date of termination, plus a reasonable profit thereon provided that no amount shall be paid to Supplier for
2.  (i) any anticipatory profits related to Services under this Order not yet performed, or 
3. (ii) costs incurred due to Supplier’s failure to terminate Services as ordered on the effective date of termination. Buyer shall have no obligation to make any of the aforementioned payments to Supplier, either for completed Goods or in connection with terminated work in process, unless Supplier shall establish to Buyer’s satisfaction that such completed Goods, or the work in process, including materials, are unusable in connection with Supplier’s other business. In no event shall the termination charges and all previous payments made under this Order exceed the total Order value shown on the face of this Order.
4. Supplier shall submit to Buyer all claims resulting from such termination within sixty (60) days after Supplier’s receipt of Buyer’s notice of termination. Buyer shall have, upon reasonable advanced notice, the right to inspect Supplier’s records, facilities, work, and materials relating to performance of the Order for purposes of evaluating Supplier’s claim.

1. Buyer may terminate the whole or any part of this Order in any of the following circumstances:
2. If Supplier fails to deliver the Goods or to perform the Services required by this Order within the time specified herein, or any extension thereof granted by Buyer in writing; or
3. If Supplier fails to perform any of the other provisions of this Order or so fails to make progress as to endanger performance of this Order in accordance with its terms, and in either of these two (2) circumstances does not cure such failure within a period of ten (10) days after receipt of notice from Buyer specifying such failure; or
4. In the event of suspension of Supplier’s business, insolvency, institution of bankruptcy, liquidation proceedings by or against Supplier, appointment of a trustee or receiver for Supplier’s property or business, or any assignment, reorganization or arrangement by Supplier for the benefit of creditors; or
5. If otherwise expressly authorized under the provisions of this Order;

1. Buyer may require Supplier to transfer title and deliver to Buyer in the manner and to the extent directed by Buyer (1) any completed Goods, and (2) such partially completed Goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights, (hereinafter called “manufacturing materials”) as Supplier has produced or acquired for the performance of this Order, including the assignment to Buyer of Supplier’s subcontracts; and Supplier shall protect and preserve property in possession of Supplier in which Buyer has an interest. Payment for completed Goods delivered to and accepted by Buyer shall be at the Order price. Payment for manufactured materials delivered to and accepted by Buyer and for the protection and preservation of property shall be at a price determined in the same manner as provided in Article 20 hereof, except that Supplier shall not be entitled to profit. Buyer may withhold from Supplier monies otherwise due Supplier for completed Goods and/or manufacturing materials in such amounts as Buyer determines necessary to protect Buyer against loss due to outstanding liens or claims against said Goods.
2. If this Order is entirely or partially terminated by Buyer under this section, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, goods or services similar to those so terminated, and Supplier shall be liable to Buyer for any and all re-procurement costs for such similar goods or services, including any price for such similar goods or services that is higher than this Order provided however, that Supplier shall continue the performance of this Order to the extent not terminated. Supplier shall not be liable for such additional costs if Supplier’s failure to perform this Order:
3. arises out of causes beyond the control and without the fault or negligence of Supplier. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of a government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; or
4. is caused by the default of a vendor or subcontractor to Supplier, so long as such default arises out of causes beyond the control of both the Supplier and the vendor or subcontractor, and the subcontracted goods or services were not obtainable from other sources in sufficient time to permit Supplier to meet the required delivery schedule.
5. No cause shall constitute a basis for excusable delay unless Supplier has notified Buyer in writing of the existence of such cause within ten (10) days from the beginning thereof.
6. if after notice of termination under this section, it is determined that Supplier was not in default, 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 section entitled “Termination for Convenience.”

Suspension of Work

1. Buyer may, by written notice, suspend all or part of the work to be performed under this Order for a period not to exceed one hundred (100) days. Within such period of any suspension of work, Buyer may: (i) cancel the suspension of work; (ii) terminate the Order in accordance with the “Termination for Convenience” clause; (iii) terminate the Order in accordance with the “Termination for Default” clause, if applicable; or (iv), with the written consent of the Supplier, extend the stop work period.
2. Supplier shall resume work whenever a suspension is canceled. Buyer and Supplier shall negotiate an equitable adjustment in the price or schedule or both if: (i) this Order is not canceled or terminated, (ii) the suspension results in a change in Supplier’s cost of performance or ability to meet the Order delivery schedule, and (iii) the Supplier asserts a claim for such adjustment within twenty-five (25) days after the suspension is canceled. Supplier shall submit its fully supported request for equitable adjustment no later than sixty (60) days, or such other time as Buyer may allow, after the suspension is canceled.

Environmental Health and Safety

Supplier represents and warrants that it shall perform all obligations under this Order in compliance with all applicable Federal, State, and local environmental, health, and safety laws and regulations.

Ozone Depleting Substances

Supplier represents and warrants that none of the Goods contain or are manufactured using any substances restricted under the Montreal Protocol on Ozone Depleting Substances.

Electrostatic Discharge Control Requirements

Supplier will determine if any Goods ordered by Buyer are electrostatic discharge (ESD) sensitive and, if so, will comply with the following requirements: (i) Supplier will design, manufacture, test, and repair these Goods using good commercial ESD control practices at all related sites and facilities; (ii) Goods supplied to Buyer that are susceptible to ESD damage as delivered will be properly handled and packaged to prevent ESD damage; and (iii) packages containing ESD sensitive items will be marked with an appropriate caution label.

Access to Supplier’s Facilities 

1. Buyer, Buyer’s customer and relevant regulatory authorities will have access to Supplier’s, and all other facilities involved in this Order, where they will have access to all procedures, practices, processes, associated documents and records related to quality assurance, quality control and configuration control. Buyer reserves the right to determine and verify the quality of work, records and material. Supplier will notify Buyer of any change in the location of Supplier’s facility.
2. When Supplier is contracted to perform a service on the Buyer’s premises, Supplier agrees to follow all of the site’s applicable Environmental, Health & Safety procedures, including, but not limited to, the Facility’s Environmental Management System (EMS), Safety Management System (SMS), and Emergency Action Plan (EAP). All waste generated by the Supplier while on Buyer’s premises must be managed in accordance to the EMS, and all waste Supplier generates while on Buyer’s site becomes Buyer’s responsibility. The Supplier may be audited to ensure compliance with these requirements.
3. Facility Specific Environmental, Health & Safety requirements will be delineated on the Statement of Work (SOW).

Supplier Changes In Product, Manufacturing Location, Or Process Definition

Buyer must be promptly notified of changes in the, manufacturing location of the Goods, or process definition that were not requested by Buyer. Notification should describe the change or changes that have been made or are being proposed. Buyer reserves the right to require its approval of the manufacturing location of the Goods or the process change before the Supplier forwards the Goods.

Intellectual Property Indemnity

Supplier shall indemnify and defend Buyer and Buyer’s customers and their respective officers, agents and employees against liability and losses, including costs, for infringement of any United States or foreign patent, copyright, trademark, or other intellectual property arising out of the manufacture of delivery of the Goods or performance of Services under this Order or out of the use or disposal by, or for the account of, Buyer, Buyer’s customer and/or the Government, of such Goods or Services. The foregoing indemnity shall not apply unless Supplier shall have been informed as soon as practicable by Buyer, Buyer’s customer and/or the Government, of the suit or action or other proceedings alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules or regulations to participate in the defense thereof.

Subcontracting

Supplier agrees to obtain Buyer’s written approval before subcontracting this Order or any substantial portion of this Order. However, this requirement will not apply to the purchase of standard commercial supplies or raw materials on which Supplier will perform further work.

Assignment

The assignment of any right or interest in this Order, without the written permission of Buyer, will be void and totally ineffective. Supplier may, with written consent of Buyer, assign claims for money due or to become due through a bank, trust company, federal lending agency or other financial institution. Supplier will not delegate any obligation under this Order without the written permission of Buyer and any attempted delegation without written permission will be void and totally ineffective for all purposes. Any permitted assignment will provide that payment by Buyer to an assignee of any amount will be subject to set-off or recoupment for any present or future claims which Buyer may have against Supplier and will be valid only after Supplier has provided Buyer with two properly executed copies of the assignment.

Ethical Compliance; Gratuities

1. Supplier agrees that it has reviewed and that it shall comply with applicable provisions of the MAA Statement of Business Ethics, available 
2. Supplier warrants that neither it nor any of its employees, agents, or representatives have offered or given, or will offer or give, any gratuities to Buyer’s employees, agents, or representatives for purposes of securing this Order or securing favorable treatment under this Order. If it is found that gratuities (in the form of entertainment, gifts or otherwise) are offered by Supplier, or any agent or representative of Supplier, to any employee of Buyer or its agents or representatives with a view toward securing favorable treatment with respect to the awarding or performing of any Order issued by Buyer to Supplier, Buyer may, by written notice to Supplier, terminate this Order in accordance with Article 21,Termination for Default, in addition to the exercise of any other rights or remedies provided to Buyer by law.

Governing Law and Interpretation

The requirements of this Order will be interpreted and construed in accordance with the laws of the State of North Dakota, excluding choice of law rules. Buyer’s remedies described herein shall be cumulative and in addition to any remedies provided by law or in equity. The failure of Buyer to insist upon strict performance of any of the terms of this Order or to exercise any rights under this Order will not be construed as a waiver of Buyer’s right to assert or rely on any such terms or rights in the future. Jurisdiction and venue for any suit between the Parties hereto arising out of or connected with this Order or the goods or services furnished hereunder shall lie only in the County of Erie and State of North Dakota. In the event this Order is issued to an international Supplier in a country that has ratified the United Nations Convention on the International Sales of Goods (UNCISG), it is expressly agreed that the UNCISG will not apply. The Parties agree that English is the official language of this Order and all documents related to the Order shall be supplied and reviewed in the English language.

Confidential, Proprietary and Trade Secret Information and Materials

1. Buyer and Supplier will each keep confidential and protect from unauthorized use and disclosure all (i) confidential, proprietary and/or trade secret information; (ii) tangible items containing, conveying or embodying such information; and (iii) tooling identified as being subject to this provision and obtained, directly or indirectly, from the other in connection with this Order (collectively referred to as “Proprietary Information”). Buyer and Supplier will each use and disclose Proprietary Information of the other only in the performance of and for the purposes of this Order.
2. However, despite any other obligations or restrictions imposed by this provision, Buyer will own and maintain all rights in any design and/or development work or items, including software, that are produced by Supplier under the Order and paid for by Buyer. Further, Buyer will have the right to use, disclose and reproduce Supplier’s Proprietary Information and make derivative works for the purposes of testing, certification, use, sale and support of any item delivered in connection with this Order. Any such use, disclosure, reproduction or derivative work by Buyer will include restrictions suitable under the particular circumstances.
3. The restrictions on disclosure and use of Buyer’s Proprietary Information by Supplier will apply to all materials derived therefrom by Supplier. Upon Buyer’s request at any time, and in any event upon the completion, termination or cancellation of this Order, Supplier will return to Buyer all of Buyer’s Proprietary Information and all derivative materials and copies unless specifically directed otherwise in writing by Buyer. Supplier will not, without the prior written authorization of Buyer, sell or otherwise dispose of (as scrap or otherwise) any parts or other materials containing, conveying, embodying or made in accordance with any of Buyer’s Proprietary Information. Prior to disposing of such parts or other materials as scrap, Supplier will render them unusable. Buyer will have the right to audit Supplier’s compliance with this provision.
4. Supplier may disclose Buyer’s Proprietary Information to its subcontractors as required for the performance of this Order, provided that legends are maintained on each disclosure and subcontractors first agree in writing to the same obligations imposed on Supplier by this provision. Supplier will be liable to Buyer for any breach of this obligation by a subcontractor. The requirements of this provision will take precedence over any inconsistent restrictive legends or notices applied to Proprietary Information and will survive the performance, completion, termination or cancellation of this Order.
5. Notwithstanding any other provisions of these Terms and Conditions, upon prior written notice to Buyer and to the extent that such use will not interfere with Supplier’s performance of purchase orders with Buyer, Supplier with the Government’s authorization, may use any Proprietary Information or items, which the Government owns or for which it has the right to authorize use on other Government contracts or subcontracts.
6. Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of these terms and conditions, Supplier acknowledges and shall ensure that its sub-suppliers and the employees of Supplier and sub- suppliers are aware that an individual shall not be held criminally or civilly liable under any United States Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a United States Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any United States Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.
   

Disputes

Any dispute that arises under or is related to this Order that cannot be settled by mutual agreement of the Parties following consideration through ascending levels of their respective management, up to and including their Presidents or Chief Executive Officers, may be submitted to and decided by a court of competent jurisdiction in the County of Cass, State of North Dakota, except for injunctive relief to protect against the unauthorized release or use of Proprietary Information, which may be brought in any court of competent jurisdiction. Pending final resolution of any dispute, Supplier will diligently proceed with the performance of this Order, including the delivery of Goods, as directed by Buyer. Upon resolution of the dispute, this Order shall be equitably adjusted, if necessary, to reflect such resolution.

Entire Agreement

This Order contains the entire agreement of Buyer and Supplier with respect to its terms and supersedes any and all prior agreements, understandings and communications between them. No amendment or modification of this Order will be valid or binding unless it is in writing and is signed by Buyer’s authorized Purchasing Department Representative.

Federal, State and Local Taxes

Except as may be otherwise provided in the Order, the price includes all applicable Federal, State and local taxes and duties.

Order of Precedence

The various documents constituting this Order shall, insofar as is possible, be interpreted so as to be consistent with one another. In the event that a conflict or ambiguity arises in the interpretation of this Order, said conflict or ambiguity shall be resolved in accordance with the following order of precedence, with the first listed item having a higher precedence than later listed items: (a) provisions required by statute, regulation or Government contract; (b) provisions set forth on the face page of this Order; (c) this Terms and Conditions document; (d) the Statement of Work attached hereto, if any; (e) Specifications approved by Buyer; and (f) Drawing(s) approved by Buyer.

Intellectual Property Rights

1. All technical work product, including inventions (whether patented or not), information, data, documents, drawings, software, software documentation, designs, specifications and processes produced by or for Supplier, either alone or with others, using funds paid by Buyer under this Order will be the exclusive property of Buyer and will be delivered to Buyer promptly upon request.
2. All inventions conceived, developed or first reduced to practice by or for Supplier, either alone or with others, using funds paid by Buyer under this Order, and any patents based on any such inventions will be the exclusive property of Buyer. Supplier will (i) promptly disclose all such inventions to Buyer in writing and (ii) execute all papers, cooperate with Buyer and perform all acts necessary in connection with the filing, prosecution or assignment of related patents or patent applications on behalf of Buyer.
3. All works of authorship, including documents, drawings, software, software documentation, photographs, videotapes, sound recordings and images, created by or for Supplier using funds paid by Buyer under this Order, together with all copyrights subsisting therein, will be the sole property of Buyer. To the extent permitted under United States copyright law, all such works will be works made for hire, with the copyrights therein vesting in Buyer.
4. Supplier grants to Buyer, and to Buyer’s subcontractors and customers in connection with work being performed for Buyer, an irrevocable, nonexclusive, paid-up, worldwide license under any patents, copyrights, industrial designs and mask works owned or controlled by Supplier at any time and existing prior to or during the term of this Order, but only to the extent that such patents or copyrights would otherwise interfere with Buyer’s or Buyer’s subcontractors’, suppliers’ or customers’ use or enjoyment of the goods being delivered under this Order or the work product, inventions or works of authorship belonging to Buyer under this Order. Neither Party’s property shall be used, disclosed to others or reproduced for any purpose, including, but not limited to, (1) the design, manufacture, or repair of parts, or to obtain U.S. Federal Aviation Administration (“FAA”) and European Aviation Safety Agent (“EASA”) or any other governmental approval to do so; or
5. to provide any part by sale or otherwise, to any person or entity other than the other Buyer or Supplier.
6. Supplier grants to Buyer and to Buyer’s subcontractors and customers in connection with Goods or Services being performed hereunder, a perpetual, nonexclusive, paid-up, world-wide license to reproduce, distribute copies of, perform publicly, display publicly and make derivative works from software included in or provided with or for the goods delivered under this Order (Software) and related information and materials (Software Documentation) as reasonably required by Buyer in connection with (i) the testing, certification, use, sale or support of a product or the manufacture, testing, certification, use, sale or support of any item including and/or utilizing the goods delivered under this Order or (ii) the design or acquisition of hardware or software intended to interface with Software. The license granted to Buyer includes the right to grant sublicenses to its customers as reasonably required in connection with customers’ operation, maintenance, overhaul and modification of any item including and/ or utilizing Software. All copies and derivative works made pursuant to the foregoing license or any sublicense to a customer will automatically become the property of Buyer or customer, and Buyer agrees to preserve Supplier’s copyright notice thereon to the extent that such notice was included with the original Software and/or Software Documentation. Supplier acknowledges that Buyer is the owner of all copies of Software and Software Documentation provided to or made by Buyer or customers pursuant to this Order, and Supplier authorizes Buyer and customers to dispose of, and to authorize the disposal of, the possession of any such copies by rental, lease or lending or by any act in the nature of rental, lease or lending.

Offset Notification

Definition: For purposes of this Order, “Offset Agreement” or “Offset Commitment”, means an agreement, arrangement, or understanding between Buyer and a foreign country or other corporation under which Buyer has agreed to purchase or acquire, or to promote the purchase or acquisition by other entities of, goods or services produced, manufactured, grown, or extracted, in whole or in part, in that foreign country in consideration for the purpose by the foreign country of articles or services from Buyer.

Regardless of whether this Order is in direct support of a foreign sale, to the extent allowed by applicable law, Supplier agrees that it will assist Buyer to satisfy its Offset Agreements and Commitments. During the term of this Order in support of Buyer’s offset obligations, supplier agrees to inform Buyer when it is considering procurement of products and services from non-

United States sources in connection to the supply of products subject to this Order.

Offset credits arising out of or resulting from, directly or indirectly, this order are for the exclusive use of Buyer and may be used by Buyer and any of its affiliates and subsidiaries to fulfill all past, present and future Offset Agreements. In addition, Supplier agrees to identify and retain for Buyer’s use any rights to offset credits generated by its subcontractors arising out of or resulting from this Order.

Notices

All notices required or permitted to be given in connection with this Order shall be deemed to be properly given if in writing and delivered to the receiving party at the address (including to the attention of the individual representative, if specified) shown on the face of this Order or to such other address or individual representative specified from time to time by such written notice. Notice shall be deemed effective upon receipt.

Duty to Proceed

Supplier shall proceed diligently with the performance of this Order. Except as expressly authorized in writing by Buyer, no failure of Buyer to perform or Supplier and Buyer to reach any agreement provided for by the terms of this Order shall excuse the Supplier from proceeding.

Partial Invalidity/Unenforceability

If in any instance any provision of this Order shall be determined to be invalid or unenforceable under any applicable law, such provision shall be ineffective only to the extent of such prohibition or unenforceability. The remaining provisions shall be given effect in accordance with their terms.

Survival

Supplier agrees that the Warranty, Indemnification, Inspection of Records, Intellectual Property Rights, Cumulative Remedies, Offset, Intellectual Property Indemnity and Confidential, Proprietary and Trade Secret Information and Materials provisions of this Order and all provisions which relate to claims which may be made by Buyer under this Order shall survive and continue in full force and effect upon the termination of this Order, unless otherwise agreed to in writing by a duly authorized representative of the Supplier and an attorney in Buyer’s Legal Department.

No Waiver

Buyer’s failure to seek a remedy for any breach by Supplier or Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege hereunder shall not thereafter be deemed a waiver for any such terms, conditions, or privileges or any other terms, conditions, or privileges whether of the same or similar type.

Cumulative Remedies

The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity.

Non-Endorsement Policy

1. Neither Buyer’s purchase of Goods nor procurement of Services from Supplier shall be deemed in any way to constitute or authorize Buyer’s endorsement of Supplier or of Supplier’s Goods and/or Services. Accordingly, any release, advertisement, or publication of information, (whether oral or written, in whatsoever format, and regardless of medium) relating to this Contract or to any Order and/or relating to Buyer’s obtaining Goods and/or Services from Supplier shall require the advance written permission of Buyer, which Buyer may, in its sole discretion, elect to withhold for any reason or for no reason. This provision shall extend to, but shall not be limited to, the following: news bulletins, press releases articles, brochures, advertisements, marketing material, promotional material, and speeches. Further, Supplier shall not use any Buyer trademarks or trade names for any purpose, unless otherwise expressly authorized by Buyer in writing, which such authorization shall be at Buyer’s sole discretion.
2. Supplier further agrees to include this provision in any subcontract awarded as a result of this Order.
3. In the event of Supplier’s breach of this provision, Buyer shall, in addition to other available remedies, have the right to terminate this Order in accordance with the provisions of Article 21 of this Order.

Independent Contractor Relationship

1. Supplier’s relationship to Buyer shall be that of an independent contractor and this Order does not create an agency, partnership, or joint venture relationship between Buyer and Supplier or Buyer and Supplier personnel. Supplier personnel engaged in performing Services under this Order shall be deemed employees of Supplier and shall not for any purposes be considered employees or agents of Buyer. Supplier assumes full responsibility for the actions and supervision of such personnel while engaged in Services under this Order. Buyer assumes no liability for Supplier personnel.
2. Nothing contained in this Order shall be construed as granting to Supplier or any personnel of Supplier rights under any Buyer benefit plan.
3. Supplier personnel: (i) will not remove Buyer or its Customer’s assets from Buyer’s or Customer’s premises without Buyer authorization; (ii) will use Buyer or Customer assets only for purposes of this Contract; (iii) will only connect with, interact with or use Buyer’s computer networks and equipment, communications resources, programs, tools or routines as Buyer agrees, all at Supplier’s risk and expense, and then only in compliance with applicable Buyer policies; and (iv) will not share or disclose user identifiers, passwords, cipher keys or computer dial port telephone numbers. Buyer may monitor any communications made over or data stored in Buyer computer networks and equipment or communications resources.

Prohibited Software

This clause only applies to any IP that includes software whether developed or not or whether included or intended to be included in, or interoperable with automated test equipment or software development tools.

1. As used herein, “Prohibited License” means the General Public License (“GPL”) or Lesser Library GPL, the Artistic License (e.g. PERL), the Mozilla Public License, the Netscape Public License, the Sun Community Source License, the Sun Industry Standards License, or variations thereof, including without limitation licenses referred to as “GPL Compatible, Free Software License.”
2. As used herein, “Prohibited Software” means software that incorporates or embeds software in, or uses software in connection with, as part of, bundled with, or alongside any
   1. Open Source, publicly available, or “free” software, library or documentation, or (2) software that is licensed under a Prohibited License, or (3) software provided under a license that (a) subjects the delivered software to any Prohibited License, or (b) requires the delivered software to be licensed for the purpose of making derivative or be redistributable at no charge, or (c) obligates Buyer to sell, loan, distribute, disclose or otherwise make available or accessible to any third party (i) the delivered software, or any portion thereof, in object code and/or source code formats, or (ii) any products incorporating the delivered software, or any portion thereof, in object code and/or source code formats or (iv) any commercial software or software licenses.
   2. Unless Supplier has obtained Buyer’s prior written consent, which Buyer may withhold in its own discretion, Supplier shall not use in connection with this Order, or deliver to Buyer any Prohibited Software. Before Buyer will consider providing written approval for the incorporation of such Prohibited Software, Supplier shall first identify all Prohibited Software incorporated into Goods or Services to be performed and/or delivered under this Order, including a complete source code listing of the Software comprising the Goods or Services with a description of the operation of the Software in English and machine-readable form, together with copies of any licenses required to be accepted
   3. Supplier agrees to indemnify, defend, and hold harmless Buyer, its customers and other suppliers from and against any and all claims, damages, losses, costs, and expenses, including reasonable attorney’s fees, relating to use in connection with this Order or the delivery of any Prohibited Software.

Parts Obsolescence

Counterfeit Goods Prevention

1. Supplier represents and warrants that Counterfeit Goods are not contained in Goods delivered to Buyer through the implementation of policies that include prevention, detection and risk mitigation methods to protect against the use of Counterfeit Goods
2. Supplier shall purchase parts directly from the Original Component Manufacturer (OCM) / Original Equipment Manufacturer (OEMs), or from the OCM authorized or franchised distributor. Procurement through an independent distributor, non-franchised distributor or broker is NOT authorized. A certificate of conformance shall accompany each shipment of Goods delivered, along with OCM/OEM documentation that authenticates traceability of the components to that applicable OCM. If an original OEM/OCM certificate is NOT available, distributor shall provide a De-lid and Die Verification Report for the supplied parts verifying authenticity of the parts and such other documentation, testing and/or other information as Buyer shall reasonably request; however, the submission of such additional items shall not relieve Supplier of its obligations hereunder.
3. In the event Supplier becomes aware or suspects that it has furnished Counterfeit Goods, it shall immediately notify Buyer. When requested by Buyer, Supplier shall provide (if available) Authorized Supplier documentation that authenticates traceability of the parts to the applicable Authorized Supplier.
4. In the event that Goods delivered under this Order are, or include, Counterfeit Goods, Supplier shall promptly investigate, analyze and report in writing to Buyer whether such Counterfeit Goods should be replaced with genuine Goods conforming to the requirements of this Order, or whether an alternative solution is recommended to meet the Order requirements at Supplier’s sole expense. The parties shall then agree upon the appropriate course of action.
5. Supplier shall include this clause or reasonably equivalent provisions in all subcontracts for the delivery of Goods that will be furnished to or included in Goods furnished to Buyer.

Customer Communication 

Buyer shall be solely responsible for all liaison and coordination with the Customer and higher tier customers, if any, as it affects this Order or any Goods or Services hereunder or related thereto. Except as required by law, Supplier shall not communicate with the Customer, and any higher tier customers, with respect to this Order or any Goods or Services provided hereunder or related thereto, without prior approval of the Buyer’s Procurement Representative. Supplier shall promptly notify Buyer of any communications initiated by the Customer or any higher tier customers that affects this Order or any Goods or Services related thereto.

Electronic Contracting

Buyer and Supplier agree that if this Order, or any ancillary agreement, or correspondence is transmitted electronically neither Buyer nor Supplier shall contest the validity thereof, on the basis that this Order, acknowledgement, ancillary agreement, or correspondence exists only in electronic form, an electronic record was used in its creation or formation, or it contains only an electronic or facsimile signature.

Conflict Minerals

Supplier recognizes, consistent with the public policy underlying enactment of the Conflict Minerals provision (Section 1502) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), the significant legal and non-legal risks associated with sourcing tin, tantalum, tungsten and gold (the “Conflict Minerals”) from the Democratic Republic of the Congo and adjoining countries (“DRC countries”). Accordingly, Supplier commits to comply with Section 1502 of Dodd-Frank and its implementing regulations. In particular, Supplier commits to have in place a supply chain policy and processes to undertake (1) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into Goods it provides Buyer; (2) due diligence of its supply chain, as necessary, to determine if Conflict Minerals sourced from the DRC countries directly or indirectly support unlawful conflict there, and (3) risk assessment and mitigation actions necessary to implement the country of origin inquiry and due diligence procedures. Supplier shall take all other measures as are necessary to comply with the Act and its implementing regulations, as they may be amended over time

 

Anti-Human Trafficking/ Modern Slavery Act

Supplier represents and warrants that neither Supplier, nor any of its agents or subcontractors, has: (i) committed a violation of any applicable statute aimed at mitigating or preventing Human Trafficking, including but not limited to, the United States Federal Acquisition Regulation (FAR) 52.222.50, the California Transparency in Supply Chain Act, the United Kingdom Modern Slavery Act, the Trade Facilitation & Trade Enforcement Act of 2015 (the “Human Trafficking Laws”); (ii) been notified that it is subject to an investigation relating to an alleged Human Trafficking Law violation; nor (iii) been made aware of any circumstances in its supply chain that could give rise to an investigation relating to a Human Trafficking Law violation. Supplier agrees that it shall: (i) comply with all applicable provisions of the Human Trafficking Laws and any Human Trafficking Laws reporting/disclosure statement requirements; (ii) notify Buyer in writing promptly if it becomes aware or has reason to believe that it or any of its agents or subcontractors have breached or potentially breached the Human Trafficking Laws; (iii) respond promptly to any Buyer requests for Human Trafficking Law questionnaire completion and/or certification; (iv) permit and cooperate with any Human Trafficking Law compliance audit of Supplier and/ or its agents or subcontractors (whether announced or unannounced) conducted by Buyer or an independent third party on Buyer’s behalf; and (v) flow down the requirements of this Human Trafficking Law section to any of its agents and subcontractors or sub-suppliers performing work under this order. If notice of a violation to Buyer becomes necessary, such notice shall set out full details of the circumstances concerning the breach or potential breach of Supplier’s obligations. Any Human Trafficking Law violation or breach of this paragraph by Supplier or its agents or subcontractors shall be deemed a material breach of this Order and shall entitle Buyer, at its option, to immediately terminate this Order in accordance with paragraph 21 “Termination for Default” herein.