GENERAL TERMS AND CONDITIONS
FOR THE PURCHASE OF GOODS AND SERVICES UNDER A U.S. GOVERNMENT CONTRACT
1. Applicability
1.1 These terms and conditions of purchase (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and services ("Services") (collectively the “Product”) by Defense Architecture Systems, Inc. ("DAS") from the party named on the Order ("Seller"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
1.2 The Order including any attachments or schedules thereto accompanying these Terms (the "Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. If this Order carries a Defense Priorities & Allocations System (DPAS) rating, Seller shall provide unqualified written acceptance or rejection to DAS within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. For non-DPAS rated orders, any of the following shall constitute Seller’s unqualified acceptance of this Order and these terms and conditions: (a) acknowledgement of this Order; (b) furnishing of any part of the Products and/or Services under this Order; (c) acceptance of any payment for the Products/Services under this Order; or (d) commencement of performance under this Order.
1.3 In the event of any inconsistency between any parts of this Order, the inconsistency shall be resolved by giving precedence in the following order: (1) Change Order document (defined below), (2) Order document, (3) these Terms; (4) any attachments or schedules accompanying these Terms and (5) FAR/Defense FAR Supplement (DFARS) and Other Agency Supplemental Clauses referenced herein.
2. Delivery, Title, and Sourcing.
2.1 All Parties expressly agree that time is and shall remain a material element of this Order and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement. No acts of DAS, including without limitation, modifications to this Order or Acceptance of late deliveries, shall constitute a waiver of this provision.
2.2 Title free of liens or encumbrances shall pass to DAS upon Acceptance (except as otherwise specified within this Order); however, passing of title shall not relieve Seller of any other obligations under this Order.
2.3 All deliveries shall be strictly in accordance with the applicable quantities and schedules set forth in this Order during DAS's normal business hours or as otherwise instructed by DAS (the "Delivery Date"). If no Delivery Date is specified in the Order, Seller shall deliver the Goods within five (5) days of Seller's receipt of the Order. If Seller fails to deliver the Goods in full on the Delivery Date, DAS may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify DAS against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Order. DAS reserves the right to (i) return over shipments and early shipments at Seller’s expense, (ii) have payment therefore withheld by DAS until the date that Products or Services are actually scheduled for delivery, or (iii) be placed in storage, for which Seller shall be liable for the cost, until the delivery date specified herein. Unless otherwise provided in this Order, delivery in whole or part shall not be made more than ten (10) days prior to required delivery dates.
2.4 Whenever it appears Seller will not meet the delivery schedule, Seller shall immediately notify DAS of the reason and estimated length of the delay. If Seller’s delivery shall fail to meet the delivery schedule, DAS, without limiting its other rights or remedies, may direct expedited routing, and any excess cost incurred thereby shall be debited to Seller’s account.
2.5 If Seller is unable to meet the required delivery schedules for any reason, other than a change directed by DAS, DAS shall have the option to (1) terminate this Order, or (2) fill such Order or any portion thereof, from sources other than Seller and to reduce Seller’s Order quantities accordingly at no increase in unit price, without any penalty to DAS, or (3) Accept late delivery and recover from Seller any costs DAS incurs caused by the late delivery. This condition shall not limit DAS’s other rights and remedies DAS may otherwise have under this Order or applicable law.
2.6 If Seller intends to source or ship direct from outside of the U.S. to DAS then, in addition to complying with all applicable Export Regulations, Seller shall provide the name, country and contact information of the non-U.S. sources within ten (10) days after Order acceptance. Seller proposed sources outside of the U.S. must have a reputation for honesty and a company policy prohibiting bribes and facilitating payments intended to expedite or secure performance of a routine governmental action, such as, customs clearance. DAS retains the right to deny Seller’s use of Seller proposed sources within thirty (30) days of Seller notification. Seller shall ensure that DAS’s purchase does not transit through one of the proscribed countries listed in U.S. ITAR, 22 C.F.R. 126.1.
3. Packaging.
Seller shall be responsible for ensuring the proper packaging, packing, and marking of Product(s) delivered hereunder in accordance with this Order. Packaging, packing, and marking will conform to the instructions specified or provided by DAS. Seller must assure package integrity throughout the shipping cycle. Each package and pack shall provide physical, chemical, and cleanliness protection to prevent damage or deterioration of the Product during handling, shipment, and storage under anticipated environmental conditions. All materials, fabrication techniques and workmanship shall conform to the requirements specified herein or, if not specified, otherwise meet, or exceed good commercial quality and practice. Damage resulting from improper Product packaging will be charged to Seller. Seller must comply with all applicable carrier regulations, including National Motor Freight Classification and Department of Transportation Regulations. No extra charge for packaging or insurance shall be allowed unless specifically noted herein. Products received without proper packaging, packing, marking and/or bar coding as set forth herein may be rejected by DAS and returned to Seller at Seller’s expense.
4. DAS Property.
4.1 Title to all property furnished to Seller by DAS or paid for by DAS shall remain with DAS. Seller shall not alter or use such property for any purpose or for any other Party other than that specified by DAS, without the prior written consent of DAS. If DAS agrees to pay Seller for acquisition of tooling and equipment, either separately or as a stated part of the unit price of Products purchased herein, title to the same shall pass to DAS upon (i) commencement of processing for use in performance of this Order, or (ii) DAS payment therefore, whichever occurs first.
4.2 Seller shall assume the risk of, and be responsible for, any loss, theft, destruction of or damage to DAS property while in Seller’s possession or control. If Seller damages any property, Seller shall be responsible for making repairs at no cost to DAS. Upon DAS’s written request to Seller for any property under this clause, if Seller cannot locate DAS property within five (5) days, Seller shall notify DAS that the item was not located, and Seller subsequently has twenty (20) days to find the misplaced property. After such period, if it has not been located, the property shall be deemed “lost” and at DAS’s election, Seller shall either reimburse DAS for the replacement and all related delay costs or remake the lost property at no cost to DAS.
4.3 Seller shall return all such property in a condition as good as when received except for reasonable wear and tear. Seller shall establish and maintain a property control system approved by DAS. At all times, DAS shall have access to Seller’s facilities for the purpose of reviewing its compliance with the management of DAS property related to this Order.
5. Inspection and Rejection of Nonconforming Products.
DAS has the right to inspect the Goods on or after the Delivery Date. DAS, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. Notwithstanding any prior acceptance, DAS may reject or require prompt correction of any Products which are, in DAS’s judgment, defective in material or workmanship or otherwise fail to meet the drawings, designs, statement of work, specifications or other technical documents, or other requirements of this Order. If DAS rejects any portion of the Products, DAS has the right, effective upon written notice to Seller, to: (a) rescind this Agreement or Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products. If DAS requires replacement of the Products, Seller shall, at its expense, within five (5) days replace the nonconforming or defective Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Seller fails to timely deliver or perform replacement Products, DAS may replace them with Products from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 19 (Termination). Any inspection or other action by DAS under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement including but not limited to warranty claims, and DAS shall have the right to conduct further inspections after Seller has carried out its remedial actions.
6. Price.
The price of the Goods and Services is the price stated in the Order (the "Price"). If no price is included in the Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes (collectively “Taxes”) unless Taxes are expressly itemized in the Order. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of DAS.
7. Invoicing and Payment Terms.
Seller shall issue an invoice to DAS on or any time after the completion of delivery and only in accordance with these Terms. DAS shall pay all properly invoiced amounts due to Seller within forty-five (45) days after DAS's receipt of such invoice (“Due Date”), except for any amounts disputed by DAS in good faith. All payments hereunder must be in US dollars. Without prejudice to any other right or remedy it may have, DAS reserves the right to set off at any time any amount owing to it by Seller against any amount payable by DAS to Seller. In the event of a payment dispute, DAS shall deliver a written statement to Seller no later than the Due Date listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 7. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
8. Seller's Obligations Regarding Services.
Seller shall:
a. before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
b. comply with all rules, regulations, and policies of DAS, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by DAS to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
c. maintain complete and accurate records relating to the provision of the Services under this Agreement. If the Services are being provided on a time and materials basis, then such records shall include the time spent and materials used by Seller in providing the Services in such form as DAS shall approve. During the term of this Agreement and for a period of one (1) year thereafter, upon DAS's written request, Seller shall allow DAS to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
d. obtain DAS's written consent, which may be given or withheld in DAS's sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to DAS (each such approved subcontractor or other third party, a "Permitted Subcontractor"). DAS's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between DAS and any Seller subcontractor or supplier;
e. require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon DAS's written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to DAS;
f. ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
g. ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the DAS; and
h. keep and maintain any DAS equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the DAS's written instructions or authorization.
9. Change Orders.
DAS may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Services. Seller shall within ten (10) days of receipt of a Change Order (or such other period as is mutually agreed by the parties) submit to DAS a firm cost proposal for the Change Order. If DAS accepts such cost proposal, Seller shall proceed with the changed Services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
10. Warranties.
10.1 Seller warrants to DAS that for a period of twelve (12) months from the Delivery Date (or such other warranty period expressly provided in the Order, all Goods will:
i. be free from any defects in workmanship, material, and design;
ii. conform to applicable specifications, drawings, designs, samples, and other requirements set forth in the Order and any attachments or schedules thereto;
iii. be fit for their intended purpose and operate as intended;
iv. be merchantable;
v. be free and clear of all liens, security interests or other encumbrances; and
vi. not infringe or misappropriate any third party's patent or other intellectual property rights.
These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by DAS.
10.2 Seller warrants to DAS that it shall perform the Services:
i. conform to applicable specifications, drawings, designs, samples, and other requirements set forth in the Order and any attachments or schedules thereto;
ii. using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner
iii. in accordance with generally recognized industry standards for similar Services; and
iv. shall devote adequate resources to meet its obligations under this Agreement.
10.3 The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of DAS's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If DAS gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, ten (10) days (or such other period as is mutually agreed to between the parties) (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to DAS, and, if applicable, (ii) repair or re-perform the applicable Services. If repair, replacement, or re-performance of the Good(s) or Service(s) or both is not timely, DAS may elect to return, repair, replace, or re-procure the non-conforming Product(s) at Seller’s expense. Any corrected, replaced, or repaired Product(s) or re-performed Service(s) shall be subject to the provisions of this Clause. Should DAS’s customer require acceptance of the Product(s) or Service(s) or both not conforming to this warranty, the Parties will mutually agree on consideration to DAS, including but not limited to a refund or equitable reduction in price.
11. General Indemnification.
Seller shall defend, indemnify and hold harmless DAS and DAS's parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller's negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without DAS's prior written consent. DAS shall have the right to participate in the defense of any such claim, demand, or suit with counsel of its choosing at DAS’s expense. If Seller fails to indemnify, defend, and hold harmless DAS as provided in this clause, then Seller shall pay for any damages attorney’s fees, and any other fees, costs, and expenses that may be incurred by DAS in the prosecution of any action to enforce the provisions of this clause.
12. Intellectual Property Rights
12.1 “Intellectual Property” means ideas, inventions, information, works of authorship, and symbols, names, images, and designs embodied in for example, Technical Data, designs, computer software, mask works, computer models, Data, drawings, formulae, specifications, diagrams, processes, know-how, procedures and technology, and all legal rights therein.
12.2 “Work” means physical manifestations of Intellectual Property created under this Order.
12.3 “Background Intellectual Property” means Intellectual Property that is (i) in existence prior to the effective date of this Order or (ii) is designed, developed, or licensed by a Party after the effective date of this Order independently of both (A) the Work undertaken or in connection with this Order and (B) the Proprietary Information and Intellectual Property of the other Party to this Order.
12.4 “Foreground Intellectual Property” means all Intellectual Property conceived, created, acquired, or initially reduced to practice in connection with this Order.
12.5 Each Party shall retain and exclusively own all rights in its Background Intellectual Property and in all Foreground Intellectual Property that it creates. Foreground Intellectual Property jointly generated by employees of more than one Party shall be jointly owned. Neither Party shall have any obligation to account to the other Party for income arising from use of the jointly owned Foreground Intellectual Property. Nothing in this clause shall modify or alter any rights that the U.S.G. may have in any Products and/or Services, including Data or software deliverables to the U.S.G.
12.6 Seller hereby grants to DAS a non-exclusive, worldwide, right and license to copy, modify, use, sell, offer for sale, and disclose any Work or other deliverable delivered by Seller under this Order for the performance of this Order and any higher tier contract or Prime Contract, and any follow-on contracts to such agreements. Notwithstanding the above license, DAS shall not have the right to copy or modify any Seller hardware, except as provided by Clause 5 (Inspection and Rejection of Nonconforming Products) and Clause 10 (Warranties). If the Work or other deliverable contains third party intellectual property, Seller agrees to obtain the rights from the third party that are sufficient for Seller to grant DAS the rights in the above license. Seller warrants that it has the rights in the Work or other deliverable sufficient to grant to DAS the above license.
12.7 The terms of this Clause 12 shall survive termination or completion of this Order.
13. Intellectual Property Infringement Warranty and Indemnification.
13.1 Seller warrants that the performance of Seller under this Order, including any Services provided by Seller to DAS, and the sale, use, or incorporation into manufactured Products of all machines, devices, material, software, and firmware which are not of DAS’s design, composition, or manufacture shall be free and clear of infringement of any valid patent, copyright, trademark, mask works, or other proprietary rights.
13.2 Seller shall, at its expense, defend, indemnify, and hold harmless DAS and any Indemnitee against any and all Losses arising out of or in connection with any claim that DAS's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party (“Infringement Claims”). In no event shall Seller enter into any settlement without DAS's or Indemnitee's prior written consent. DAS and/or its customer will duly notify Seller of any such Infringement Claim and Seller will, at its own expense, fully defend such Infringement Claim on behalf of the Indemnitees. Seller will have no obligation under this clause with regard to any infringement arising from (a) a modification made to the Goods and/or Service by DAS or a third party, or (b) designs, instructions, data, materials, or any other intellectual property provided by DAS.
13.3 If the manufacture, use or sale of a Product delivered by Seller under this Order is likely to be or is enjoined as a result of a suit, Seller, at no expense to DAS, shall obtain for DAS and its customer the right to use and sell the Product or shall substitute an equivalent Product acceptable to DAS, at its sole discretion, and extend this indemnification thereto.
14. Limitation of Liability.
Nothing in this Agreement shall exclude or limit (a) either party’s liability under this Agreement; or (b) either party’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
15. Insurance.
During the term of this Agreement, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2,000,000.00 with financially sound and reputable insurers. Upon DAS's request, Seller shall provide DAS with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in these Terms. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
16. Compliance with Law.
Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. DAS may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
17. Subcontract Deliverables.
Seller agrees and acknowledges that all deliverables, or portions thereof, under this Order (“Deliverable Materials”) may be incorporated into deliverables under DAS’s higher tier contract or Prime Contract. Seller agrees to timely deliver all Deliverable Materials to DAS and mark all Deliverable Materials containing Technical Data and computer software in strict accordance with FAR 52.227-14, DFARS 252.227-7013 or 252.227-7014, or other special clauses, such as H-clauses, which apply to this Order (collectively referred to as “Government Rights Clauses”). Seller will not apply any markings or legends that are inconsistent with or otherwise prohibited by the Government Rights Clauses or deemed by the U.S.G. to restrict the rights of the U.S.G. (“Prohibited Markings”). If Seller’s Deliverable Materials contain any legends that are not specifically authorized in the Government Rights Clauses, DAS will formally accept Seller’s Deliverable Materials only after obtaining U.S.G. acceptance of such legends. Upon DAS’s written request, Seller, at Seller’s sole expense, will, within thirty (30) days of receiving DAS’s written request, remove or correct any Prohibited Markings from its Technical Data and computer software and will promptly resubmit the revised Technical Data and computer software to DAS. If Seller does not remove or correct the Prohibited Markings and resubmit the revised Technical Data and computer software to DAS within the allotted thirty (30) day period, DAS may remove or correct Seller’s Prohibited Markings on the copies of the Deliverable Materials for delivery to the U.S.G. under DAS’s higher tier contract or Prime Contract. This Clause 17 shall survive termination or completion of this Order.
18. Anti-Corruption Compliance.
The U.S. Foreign Corrupt Practices Act ("FCPA") and similar anti-corruption and anti-bribery laws in other countries generally prohibit making, promising, or offering payments or gifts to government officials to obtain or retain business or to secure any improper business advantage. Seller will comply with the FCPA and will not offer or make any payments or provide anything of value to a government official to influence an official action that awards business, retains business or secures an improper business advantage in connection with the Products. In the event of an alleged breach of the anti-corruption obligations, Seller shall cooperate in good faith with DAS to determine whether an alleged breach occurred. In such case, Seller shall furnish to DAS all information requested to establish compliance with DAS and its parent company’s anti-corruption obligations. Seller shall require that its subcontractors, consultants, sales representatives, agents, or other similar parties who are retained directly or indirectly to represent Seller in its business dealings with DAS also adhere to the provisions of this Section.
19. Termination.
19.1 Events of Termination. DAS may terminate this Agreement with immediate effect upon written notice to Seller:
a. either before or after the acceptance of the Goods or the Seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part;
b. if the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or
c. at DAS’s convenience, in whole or in part by giving written notice to Seller.
19.2 Upon Termination. If DAS terminates the Agreement for any reason, Seller's sole and exclusive remedy is:
a. with respect to Goods, payment for the Goods received and accepted by DAS; and
b. with respect to Services, payment for Services received and accepted by DAS provided that any Services that have not been completed by termination of the Agreement, the DAS shall provide payment for all Services performed by the Seller up to the date of termination and if payment for such Services is measured by payment milestones, the DAS shall be obligated to provide payment for Services due through the end of the current milestone being worked on by Seller at time of termination.
20. Confidential Information.
All non-public, confidential or proprietary information of DAS, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by DAS to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by DAS in writing. Upon DAS's request, Seller shall promptly return all documents and other materials received from DAS. DAS shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by DAS on a non-confidential basis from a third party.
21. Force Majeure.
Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. Seller's economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than thirty (30) days, DAS may terminate this Agreement immediately by giving written notice to Seller.
22. Assignment.
Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of DAS. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. DAS may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of DAS's assets.
23. Disputes.
Any dispute arising under or in connection with this Order with respect to the rights, duties, or obligations of the Parties shall be submitted in writing for resolution to ascending levels of management of the respective Parties. If a dispute cannot be resolved to both Parties’ mutual satisfaction, after good faith negotiations, within ninety (90) days from the date the written claim is received by the other Party, or such additional time as the Parties agree upon in writing, either Party may bring suit only in the state or federal court located in the State of Maryland. Seller consents to personal jurisdiction for this purpose in the State of Maryland. Pending any prosecution, appeal, or final decision referred to in this clause, or the settlement of any dispute arising under this Order, both Parties shall proceed diligently with their respective obligations under this Order. To the maximum extent permitted by law, the Parties waive any right to a jury trial. In no event shall DAS be liable for anticipated profits, incidental or consequential damages. DAS’s liability on any claim, of any kind and for any loss or damage arising out of, connected with or resulting from this Order, or from the performance or breach thereof shall, in no case, exceed the price allocable to the Goods and/or Services, or unit thereof, which gives rise to the claim. DAS shall not be liable for penalties of any description. Any action resulting from any breach on the part of DAS as to the Goods and/or Services delivered hereunder must commence within one year after the cause of action has accrued.
24. Release of Information.
Except as required by law, Seller shall not release to anyone outside Seller’s organization any information, or confirmation or denial of same, with respect to this Order or the subject matter hereof without the prior written approval of DAS. Requests for approval shall be made at least fifteen (15) days before the proposed date for release and shall identify the specific information to be released, the medium to be used, and the purpose for the release. Additionally, Seller shall not use the name “Defense Architecture Systems” or any other DAS trade name, any Products, parts thereof or replicas of Products, or in any other way identify DAS in any advertisement, display, news release, or other disclosure without DAS’s prior written consent. The Parties agree that in the event a news release is so approved and made, such news will recognize DAS and Seller.
The Seller agrees to insert the substance of this clause, including this sentence, in any lower tier subcontract. Seller shall submit requests for authorization to the DAS.
25. Relationship of the Parties.
The relationship of Seller to DAS shall be that of an independent contractor and nothing herein contained shall be construed as creating any employer/employee, agency, or other relationship of any kind. Seller’s employees, agents and/or representatives (hereinafter “Employees”) performing under this Order shall at all times be under Seller’s direction and control and Seller shall so inform them. Seller shall pay all wages, salaries, and other amounts due its Employees in connection with this Order and shall be responsible for all reports and obligations for its Employees, including, but not limited to, social security and income tax withholdings, unemployment compensation, worker’s compensation, and equal employment opportunity reporting. Under no circumstance shall Seller be deemed an agent or representative of DAS or authorized to commit DAS in any way.
26. Stop Work Order.
DAS may, at any time, by written notification to Seller, require Seller to stop all, or any part of the work called for by this Order for a period of ninety (90) days after the written notification is delivered to Seller, and for any further period to which the Parties may agree. The notification shall be specifically identified as a Stop-Work Order (SWO) issued under this clause. Upon receipt of the SWO, Seller shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the SWO during the period of work stoppage. Within a period of ninety (90) days after a SWO is delivered to Seller, or within any extension of that period to which the Parties shall have agreed, DAS shall either (1) cancel the SWO or (2) terminate the work covered by the SWO as provided for in the applicable termination clause contained herein.
If a SWO issued under this clause is canceled or the period of that SWO or any extension thereof expires, Seller shall resume work. DAS shall make an equitable adjustment in the delivery schedule or Order price, or both, and this Order shall be modified in writing accordingly if (1) the SWO results in an increase in the time required for, or in Seller’s cost properly allocable to, the performance of any part of this Order; and (2) Seller asserts its rights to the adjustment within twenty (20) days after the end of the period of work stoppage.
If a SWO is not canceled and the work covered by the SWO is terminated for the convenience of DAS, DAS shall allow reasonable costs resulting from the SWO in arriving at the termination settlement. If a SWO is not canceled and the work covered by this Order is terminated for default, DAS shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the SWO.
27. Miscellaneous Provisions.
A failure or delay of either party to this Agreement to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired, and the invalid provisions shall be replaced by a mutually acceptable provision. No modification of this Agreement shall be binding unless signed by the parties. The parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. This Agreement shall not create, or in any way be interpreted as a joint venture, partnership, or formal business organization of any kind. Nothing in this Agreement shall be interpreted as granting either party the right to make commitments of any kind for the other party. Under no circumstances shall any personnel of either party be considered to be an employee or agent of the other party. There are no intended third-party beneficiaries of any provision of this Agreement. Damages shall be an inadequate remedy in the event of a breach by either party to this Agreement and that any such breach by either party will cause the other party great and irreparable injury and damage. Accordingly, both parties agree that the party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements, and representations, whether oral or written and whether or not executed by the parties. This Agreement may be signed in multiple counterparts and delivered by electronic means. All notices required hereunder shall be in writing and transmitted to the address for each party set forth on the Order. Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require. This Agreement shall be governed by the laws of the state of Maryland without regard to its conflict of laws provisions, except that any provision of this Order incorporated from the Federal Acquisition Regulation (FAR) or any agency regulation that supplements the FAR shall be governed by the federal common law of government contracts. The parties hereby consent to suit in, and to the personal jurisdiction of the federal and state courts located in Maryland with respect to any matter arising out of this Agreement. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Order.
28. FEDERAL ACQUISITION REGULATION (FAR) AND DEFENSE FAR SUPPLEMENT (DFARS) FLOWDOWN CLAUSES.
The clauses set forth in Exhibit A (FAR and DFARS Flowdown Clauses) set forth in the FAR and DFARS as in effect on the date of this Order, unless otherwise noted, are incorporated herein by reference. The listed FAR and DFARS clauses are incorporated herein as if set forth in full text unless made inapplicable by its corresponding note, if any. Seller shall include the appropriate FAR and DFARS clauses as required in any lower-tier subcontract. Whenever said clauses include a requirement for the resolution of disputes between the Parties in accordance with the FAR “Disputes” clause, the dispute shall instead be disposed of in accordance with the clause entitled “Disputes” in these terms and conditions. Where necessary to derive proper meaning in a subcontract situation from these clauses and any other program-specific clauses incorporated into this Order, “Contractor” means “Seller,” “Contracting Officer” means “DAS,” “Contract” means this Order and “Government” means “DAS or the Government.” However, the words “Government” and “Contracting Officer” do not change: (1) when a right, act, authorization, or obligation can be granted or performed only by the Government or the Prime Contract Contracting Officer or duly authorized representative, (2) when title to property is to be transferred directly to the Government, and (3) in FAR 52.227-1, 52.227-2, and DFARS 252.227-7013 and 252.227-7014.
-- End of Terms and Conditions –
EXHIBIT A
FEDERAL ACQUISITION REGULATION (FAR) AND DEFENSE FAR SUPPLEMENT (DFARS)
FLOWDOWN CLAUSES
Clause Title FAR Reference
Limitation on Payments to Influence Certain Federal Transactions ......................................................................... 52.203-12
NOTE: Applicable to any Order greater than $150,000.
Contractor Code of Business Ethics and Conduct ..................................................................................................... 52.203-13
NOTE 1: Applicable to any Order greater than $6,000,000 and period of performance greater than 120 days.
NOTE 2: Notwithstanding any alterations to this clause to reflect the relationship between DAS and Seller, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the Office of the Inspector General of the agency issuing the Prime Contract under which this Order is being issued, with a copy to the Contracting Officer of the Prime Contract.
Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 ................................... 52.203-15
Prohibition on Contracting with Entities that Require Certain Internal Confidentiality
Agreements or Statements-Representation ................................................................................................................ 52.203-18
NOTE: This is not applicable to solicitations for a personal services contract with an individual if the services are to be performed entirely by the individual, rather than by an employee of the contractor or a subcontractor.
Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements …....................................... 52.203-19
NOTE: Applicable in all solicitations and resultant contracts, other than personal services contracts with individuals.
Basic Safeguarding of Covered Contractor Information Systems............................................................................. 52.204-21
NOTE: Applicable to all Orders at any tier for other than commercially available off-the-shelf items.
Prohibition on Contracting for Hardware, Software, and Services Developed or Provided
by Kaspersky Lab and Other Covered Entities ........................................................................................................... 52.204-23
Representation Regarding Certain Telecommunications and Video Surveillance Services
or Equipment .................................................................................................................................................................. 52.204-24
NOTE: Not including (b)(2) or (d)(2).
Prohibition on Contracting for Certain Telecommunications and Video Surveillance
Services or Equipment .................................................................................................................................................. 52.204-25
NOTE: Pursuant to (e), not including (b)(2).
Prohibition on a ByteDance Covered Application ...................................................................................................... 52.204-27
Protecting the Government’s Interest When Subcontracting with Contractors Debarred,
Suspended or Proposed for Debarment ........................................................................................................................ 52.209-6
Defense Priority and Allocation Requirements ........................................................................................................... 52.211-15
NOTE: Clause is applicable unless this Order provides no DPAS rating.
Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Items ........ 52.212-5
Utilization of Small Business Concerns ......................................................................................................................... 52.219-8
NOTE: Applicable unless contract is for personal services, or the contract, together with all of its subcontracts, will be performed entirely outside the U.S. and its outlying areas.
Prohibition of Segregated Facilities ............................................................................................................................. 52.222-21
Equal Opportunity........................................................................................................................................................... 52.222-26
NOTE: Applicable only (i) if this Order is not exempted by Secretary of Labor under Executive Order 11246 as amended per FAR 22.807, and (ii) then only with respect to provisions of subparagraphs (b)(1) through (b)(11) [binding Seller thereto].
Equal Opportunity for Veterans .................................................................................................................................... 52.222-35
NOTE 1: Applicable to any Order of $150,000 or more.
NOTE 2: The clause at 41 CFR 60-300.5(a) is incorporated herein by reference. DAS and Seller shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
Equal Opportunity for Workers with Disabilities ......................................................................................................... 52.222-36
NOTE 1: Applicable to any Order greater than $15,000 or lower threshold if effective under older, higher-tier contract.
NOTE 2: The clause at 41 CFR 60-741.5(a) is incorporated herein by reference. DAS and Seller shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Employment Reports on Veterans ................................................................................................................................ 52.222-37
NOTE: Applicable to any Order at or over the Simplified Acquisition Threshold.
Notification of Employee Rights Under the National Labor Relations Act ............................................................... 52.222-40
NOTE: Applicable to any Order greater than $10,000.
Combating Trafficking in Persons ................................................................................................................................ 52.222-50
Minimum Wages Under Executive Order 13658 ………………….…………………………………………………………..52.222-55
NOTE: Applicable to Orders subject to the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute.
Paid Sick Leave Under Executive Order 13706 ........................................................................................................... 52.222-62
NOTE: Applicable to Orders subject to the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute.
Privacy Training ............................................................................................................................................................... 52.224-3
NOTE 1: Applies to Orders if flow down required in accordance with paragraph (f) of FAR clause 52.224-3.
NOTE 2: Use Alternate I when flow down required in accordance with paragraph (f) of FAR 52.224-3 and the agency specifies that only its
agency-provided training is acceptable.
Contractors Performing Private Security Functions Outside the United States ...................................................... 52.225-26
Providing Accelerated Payments to Small Business Subcontractors ...................................................................... 52.232-40
Stop-Work Order ............................................................................................................................................................ 52.242-15
NOTE: The 90-day period in the first and fourth sentences of paragraph (a) is changed to 120 days.
Subcontracts for Commercial Items ............................................................................................................................... 52.244-6
Government Property or Alternate I ............................................................................................................................... 52.245-1
NOTE 1: Applicable to any Order if Government property is furnished to Seller.
NOTE 2: The basic clause (non-Alt 1 version) applies in most instances except for conditions referenced in Note 3 below.
NOTE 3: The Alternate 1 version of FAR 52.245-1 shall apply if; this Order was issued to Seller as a Firm Fixed Price type contracts not awarded on the basis of submission of certified cost or pricing data, DAS’s Prime Contract contains the Alternate 1 provision, or if Seller has a disapproved property control system at the time of Order award. Under the Alternate 1 clause Seller shall assume Full Risk of Loss for
Government Property under Seller’s accountability during performance of this Order.
NOTE 4: In the phrases “Government Property”, “Government-furnished property”, and in references to title to property, “Government” shall not mean “DAS”.
NOTE 5: Seller shall provide DAS immediate notice of any disapproval, withdrawal of approval, or non-acceptance by the Government of
its property control system. In the event of any of the aforementioned conditions Seller shall immediately assume Full Risk of Loss for all
loss or damage to Government property commencing on the day Seller’s property system approval was withdrawn or rescinded.
Preference for Privately Owned U.S. - Flag Commercial Vessels ............................................................................. 52.247-64
Requirement to Inform Employees of Whistleblower Rights ............................................................................... 252.203-7002
Agency Office of the Inspector General ................................................................................................................. 252.203-7003
NOTE: Applicable when Order contains FAR 52.203-13, Contractor Code of Business Ethics and Conduct.
Disclosure of Information ........................................................................................................................................ 252.204-7000
Anti-Terrorism Awareness Training for Contractors ............................................................................................ 252.204-7004
NOTE: Applicable when performance requires routine physical access to a Federally-controlled facility or military installation. Information and guidance pertaining to DoD antiterrorism awareness training is available at https://jko.jten.mil/ or as otherwise identified in the performance work statement.
Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber
Incident Information ................................................................................................................................................. 252.204-7009
Safeguarding Covered Defense Information and Cyber Incident Reporting ...................................................... 252.204-7012
NOTE: Applicable to all Orders, at any tier, including orders for commercial items, for operationally critical support, or for which performance will involve covered defense information, unless this Order is solely for commercially available off-the-shelf items.
Limitations on the Use or Disclosure of Information by Litigation Support Contractors ................................. 252.204-7014
Notice of Authorized Disclosure of Information for Litigation Support .............................................................. 252.204-7015
Covered Defense Telecommunications Equipment or Services—Representation ........................................... 252.204-7016
Prohibition on the Acquisition of Covered Defense Telecommunications Equipment
or Services—Representation .................................................................................................................................. 252.204-7017
Prohibition on the Acquisition of Covered Defense Telecommunications Equipment
or Services ................................................................................................................................................................ 252.204-7018
Notice of NIST SP 800-171 DoD Assessment Requirements ............................................................................... 252.204-7019
NIST SP 800-171 DoD Assessment Requirements................................................................................................. 252.204-7020
Item Unique Identification and Valuation ............................................................................................................... 252.211-7003
NOTE: Applicable if included in DAS’s higher tier contract or Prime Contract.
Reporting of Government-Furnished Property .................................................................................................... 252.211-7007
NOTE: Applicable if prime contract requires, may require, or permits contractor access to a DoD installation.
Use of Government Assigned Serial Numbers ..................................................................................................... 252.211-7008
NOTE: Applicable if flow down required in accordance with DFARS 211.274-6(c).
Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials ......................................... 252.223-7006
NOTE: Applicable if prime contract requires, may require, or permits contractor access to a DoD installation.
Prohibition of Hexavalent Chromium ..................................................................................................................... 252.223-7008
NOTE: Applicable to any Order for Products, maintenance and repair Services, or construction materials unless the exceptions listed in DFARS 223.7304 apply.
Replacement of Fluorinated Aqueous Film Forming Foam ................................................................................. 252.223-7009
Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies ........................... 252.225-7007
Restriction on Acquisition of Certain Articles Containing Specialty Metals ...................................................... 252.225-7009
NOTE 1: Exclude paragraphs (d) and (e)(1); paragraph (c)(6) is hereby deleted.
NOTE 2: Upon Seller notification of noncompliance with the terms of this clause and the provision of specific information related to the source of the noncompliance, DAS will facilitate management of the allowance for up to 2% otherwise noncompliant specialty metal content in the end item. The 2% minimal content exception does not apply to and cannot be used to exempt specialty metals contained in high performance magnets.
Export-Controlled Items .......................................................................................................................................... 252.225-7048
NOTE: Applicable if performance of this Order involves the use of, or access to, “export-controlled items” as defined in this DFARS clause.
Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten ................................................... 252.225-7052
Prohibition Regarding Business Operations with the Maduro Regime .............................................................. 252.225-7056
Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region .................................... 252.225-7060
Technical Data - Commercial Items ........................................................................................................................ 252.227-7015
Validation of Restrictive Markings on Technical Data .......................................................................................... 252.227-7037
Cloud Computing Services ..................................................................................................................................... 252.239-7010
Requests for Equitable Adjustment ....................................................................................................................... 252.243-7002
Subcontracts for Commercial Items ....................................................................................................................... 252.244-7000
Notification of Potential Safety Issues ................................................................................................................... 252.246-7003
Contractor Counterfeit Electronic Part Detection and Avoidance System ......................................................... 252.246-7007
NOTE 1: The provision of paragraphs (a) – (e), including its definition of “electronic parts,” are incorporated herein by reference. This clause is applicable to all orders for electronic parts or assemblies containing electronic parts.
NOTE 2: This clause is applicable only if standard note X1066 or X1067 is contained within this Order.
NOTE 3: For orders containing electronic parts or assemblies, this clause is applicable to all orders in support of Department of Defense Prime Contracts.
Sources of Electronic Parts .................................................................................................................................... 252.246-7008
NOTE 1: This clause is applicable to all orders for electronic parts or assemblies containing electronic parts.