TERMS AND CONDITIONS FOR PURCHASE
These terms and conditions (“Terms and Conditions”) are issued on behalf of Swift Tactical Systems Inc. (“STS”) and will apply to all purchases by STS of products, services, goods or development work (collectively, the “Product”) between STS and the providing entity (“Seller”) as set forth in any order document (“Purchase Order”). These Terms and Conditions, together with the Purchase Order issued by STS and any Change Order, statement(s) of work, requirements documents, specifications/drawings accepted by STS or other referenced documents executed by an authorized representative of STS, shall be collectively referred to as the “Agreement”.
The Agreement is STS’ offer to Seller. Acceptance of the Agreement is strictly limited to these Terms and Conditions. Modifications hereto, to be binding, must be in writing and signed by STS’ authorized purchasing representative. Seller’s acknowledgment, acceptance of payment, or commencement of performance, shall conclusively evidence acceptance of this offer as written. STS hereby objects to any additional or different terms contained in Seller’s acceptance.
- ORDER OF PRECEDENCE
In the event of any inconsistency between any part of this Agreement, the inconsistency shall be resolved by giving precedence in the following order:
- Change Order
- Purchase Order
- Terms and Conditions
- ITAR/FAR/DFAR Clauses
- Statement of Work
- Other Referenced Documents
- All deliveries shall be strictly in accordance with the applicable quantities and schedules set forth in the Agreement. STS reserves the right to return over shipments and early shipments at Seller’s expense. Seller shall be liable for all storage/handling charges incurred as a result of over shipments and early shipments.
- Whenever it appears Seller will not meet the delivery schedule or any timeline, Seller shall immediately notify STS of the reason and estimated length of the delay. Seller shall make every effort to avoid or minimize the delay to the maximum extent possible including the expenditure of premium time and most expeditious transportation. Any additional cost caused by these requirements shall be borne by Seller.
- If Seller is unable to meet the required delivery schedules for any reason, other than a Change Order directed by STS, STS shall have the option to (1) terminate this Purchase Order, or (2) fill such Purchase Order or any portion thereof from sources other than Seller, and reduce Seller’s Purchase Order quantities accordingly at no increase in unit price and without any penalty to STS. This condition shall not limit STS’s right under the default clause contained herein.
- All parties expressly agree that time is and shall remain a crucial element of this Purchase Order and no acts of STS, including without limitation, modifications to this Purchase Order or acceptance of late deliveries, shall constitute a waiver of this provision.
- PACKING AND SHIPPING
Seller shall be responsible for ensuring the proper packaging and shipping of Product hereunder in accordance with these Terms and Conditions. Damage resulting from improper Product packaging will be charged to seller. Title and risk of loss for the Products shall transfer to STS upon delivery and acceptance of the Products by STS at the named place of delivery in accordance with the applicable Purchase Order.
- INSPECTION AND ACCEPTANCE
The Products must adhere to quality control requirements set forth in the Agreement or as otherwise communicated, which may be periodically witnessed, inspected or audited by STS representatives. Unless otherwise specified STS’s final inspection and acceptance shall be at destination. Failure to inspect and accept or reject products shall not relieve the Seller from responsibility for compliance with Agreement requirements nor impose liability on STS.
- NONCONFORMING GOODS AND LOSS OF 3RD PARTY CERTIFICATIONS
- Seller shall notify STS of any nonconforming product on company letterhead to STS’s purchasing representative.
- Seller shall obtain STS approval prior delivery of nonconforming product.
- In the event nonconformity is discovered after the product has been delivered, Seller shall immediately notify the STS on company letterhead to STS’s purchasing representative.
- If Seller fails to deliver, or delivers defective or nonconforming Products, STS may:
- Accept all or part of the defective or nonconforming Products at an equitable price reduction; or
- Reject all or any part of the delivery of defective or nonconforming Products, and demand delivery of conforming Products. All rejected products shall be shipped to Seller at Seller’s expense; or
- Make, or have a third party make, all repairs, modifications, or replacements necessary to enable such Product to comply in all aspects with Agreement requirements and charge the expense incurred to Seller; or
- Terminate this Agreement for default in whole or in part.
- Seller shall also promptly notify STS in the event of the loss of any applicable 3rd party certification.
- Seller shall notify STS prior to any changes to product, processes, suppliers, and facilities on company letterhead to STSs purchasing representative.
- Seller warrants that all Products delivered under this Agreement will: (i) be free from defects in designs, specifications, materials, workmanship, and manufacturing processes; (ii) conform to all specifications and requirements of the Agreement or as otherwise provided by STS; and (iii) be free of all liens and encumbrances.
- If any Product fails to comply in any respect to the warranty set forth in clause 7 A. above, Seller, at STS’s option, shall promptly repair or replace the Product, or any part thereof. Transportation of replacement Product and return of nonconforming Product shall be at Seller’s expense. If repair or replacement of Product is not timely, STS may elect to return, repair, replace, or reproduce the nonconforming Product at Seller’s expense. All warranties shall run to STS and its customers.
- STS’s approval of any documentation prepared by Seller or STS’s participation in design reviews or first article approval process or similar reviews shall not relieve Seller of any obligation under his warranty.
- STS’s rights under this clause shall, at STS’s option, be assignable to and enforceable by its successors and customers.
- The rights of STS set forth in this clause shall be in addition to, and not in lieu of, any other right STS may have under this Agreement, or in law or equity.
- CHANGE ORDERS
- STS’s authorized representative may at any time, by written notice, and without notice to sureties or assignees, if any, make changes within the general scope of the Purchase Order in (1) drawings, designs, specifications, planning, and/or other technical documents; (2) method of shipment, packaging, or packing; (3) place of delivery; (4) reasonable adjustments in quantities or delivery schedules or both; (5) place of inspection; and (6) place of acceptance (“Change Order”).
- If the Change Order causes an increase or decrease in the cost or time required to perform the Purchase Order, STS and Seller shall negotiate an equitable adjustment in the price or schedule, or both, to reflect the increase or decrease. STS and Seller shall modify the Purchase Order in writing accordingly.
- Any claim for adjustment shall be unconditionally waived unless: (i) asserted in writing and delivered to STS within 15 days of the date of the Change Order; and (ii) a fully supported proposal is delivered to STS’s authorized representative within 45 days after Seller’s receipt of such direction.
- If Seller claims the cost of any property made obsolete or in excess, STS shall have the right to prescribe the manner of disposition of the property to include the right to acquire that property for the cost claimed.
- STS has the right to examine any of Seller’s pertinent books and records for the purpose of verifying Seller’s claim.
- Seller shall not be excused from proceeding with the Purchase Order as changed should any dispute arise.
- STS AUTHORIZATION
- The STS authorized purchasing representative has sole authority to make contractual commitments on behalf of the STS, to provide contractual direction, and to change contractual requirements as defined in the Purchase Order.
- STS’s engineering, technical personnel and other representatives may from time to time render assistance or give technical advice or discuss or effect an exchange of information with Seller’s personnel concerning the Product hereunder. Unless otherwise indicated in accordance with the clause “Change Order”, no such action shall be deemed to be a Change Order of to the Purchase Order and shall not be the basis for an equitable adjustment.
- STS’S PROPERTY
- Seller shall be responsible for all STS-furnished property (e.g. dies, molds, jigs, tools, materials, etc.) in accordance with clause 10-B.
- During the term of the Agreement, Seller shall, at its sole cost and expense, maintain a policy or policies of insurance covering the loss or destruction of or damage to all STS materials, tools, and equipment, special or otherwise, in which STS has an interest, in the amount of the full replacement value thereof providing protection against all perils normally covered in an “all-risk” policy, including but not limited to fire, windstorm, hurricane, tornado, sandstorm, explosion, riot, civil commotion, aircraft, earthquake, flood or other acts of nature during such time as they remain in Seller’s possession.
- GOVERNMENT PROPERTY
Seller shall maintain and administer a program for the maintenance, repair, protection, and preservation of Government property in accordance with FAR Subpart 45.5. Upon STS’s request, Seller shall submit inventory schedules in acceptable form covering all Government Property pertaining to this Agreement. Nothing herein will be deemed to contravene the rights of the Government under FAR 52.245-2, paragraph (b).
- RIGHTS OF ACCESS
STS may periodically require access to Seller’s facilities for the purpose of verification or validation activities. Seller shall provide right of access by STS, STS’s customer, and regulatory authorities to all facilities involved in this Agreement and to all applicable records.
- FLOW DOWN OF REQUIREMENTS AND SUBCONTRACTOR MANAGEMENT
Seller shall flow down all applicable requirements to suppliers including special, critical, key characteristics, qualification of personnel, and/or customer specific requirements and regulatory requirements (ITAR/FAR/DFAR). Seller shall monitor Seller’s external providers for configuration, quality and schedule performance as appropriate in this Agreement to ensure all specific requirements and regulatory requirements are met.
- CONTROL OF DOCUMENTED INFORMATION AND RECORDS RETENTION
Seller shall make every reasonable effort to maintain secure transfer and storage of sensitive (copyrighted or proprietary) documentation. Seller shall maintain all records relating to the Purchase Order for a period of five years unless stated otherwise in the contract.
- COUNTERFEIT PARTS AND MATERIALS
Seller shall make every reasonable effort to establish a policy and procedure for the detection and prevention of counterfeit parts and materials as appropriate (this is an industry specific condition). Notification of escapes or suspected escapes shall be sent to STS immediately upon discovery of such an event.
- PERSONNEL COMPETENCE AND IMPACT AWARENESS
Seller shall, as deemed appropriate by Seller, ensure the assignment of competent/qualified personnel for the production of parts and materials per the Purchase Order. Seller shall also ensure that personnel are aware of their individual contribution to product safety, product conformity, and of the importance of ethical behavior.
- MONITORING OF SELLER’S PERFORMANCE
STS may periodically produce internal reports evaluating Seller’s quality and delivery performance, which may be used in making decisions regarding the award of future work.