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Vendor Terms and Conditions
ACCEPTANCE. Vendor agrees to sell and Global Aviation Technologies LLC (“GAT”) agrees to buy the Products (defined below) described in and furnished under this Purchase Order for the price and on the terms of payment set forth herein. If the Purchase Order is construed as an offer, acceptance is strictly limited to the terms of this offer and GAT hereby notifies Vendor of its objection to any different or additional terms in Vendor’s acceptance. If this Purchase Order is construed as an acceptance of Vendor’s offer, this acceptance is expressly conditional on Vendor’s assent to any additional or different terms (from Vendor’s offer) contained herein. These Terms and Conditions, together with the Purchase Order form, and the exhibits and documents expressly referenced therein (collectively, the “Purchase Order”), become effective when executed by both GAT and Vendor or when Vendor commences performance or tenders the Products after execution by GAT. Vendor’s performance and/or tender of Products conclusively evidences Vendor’s unconditional acceptance of these Terms and Conditions. “Vendor” means the legal entity selling Products to GAT pursuant to the Purchase Order. “Products” means the goods and/or services being ordered or purchased by GAT and/or furnished or sold by Vendor pursuant to the Purchase Order.
No other agreement, quotation or acknowledgment in any way modifying any of the terms and conditions of this Purchase Order will be binding upon GAT unless made in writing and signed by GAT’s authorized representative. In the event of a conflict between any of these Terms and Conditions and any other document, these Terms and Conditions shall govern. This Purchase Order shall not be changed or modified by any oral agreement.
PRICES AND PAYMENTS. Unless stated otherwise in the Purchase Order, all prices are stated in U.S. Dollars. Regardless of the payment terms in this Purchase Order, GAT’s obligation to pay the purchase price is conditioned upon (i) receipt of completed, non- defective conforming Products; (ii) receipt and acceptance by GAT of Vendor’s accurate and properly completed invoice accompanied by satisfactory supporting documentation; and (iii) compliance by Vendor with all terms and conditions of this Purchase Order.
CHANGES TO PURCHASE ORDER. GAT shall have the right from time to time to make changes to this Purchase Order via written change order(s) issued by GAT to Vendor. Should any change in the work affect any price, completion time or delivery time contained herein, Vendor shall, before proceeding, notify GAT of any such changes and receive GAT’s agreement thereto and the same shall be included in a written change order. No claim by Vendor for an adjustment in price or to the time for performance resulting from any change required by GAT shall be considered unless presented to GAT in writing within ten (10) days after Vendor obtains knowledge of the facts giving rise to the claim. The provisions of this Purchase Order shall apply to all such changes, modifications, additions or deletions with the same effect as if they were embodied in the original Purchase Order. Vendor will not be granted additional time or compensation for extra or additional work (as hereinafter defined) and no modification, alteration or amendment to this Purchase Order shall be effective, unless authorized by a prior written change order from GAT.
SCOPE OF WORK. Vendor agrees to provide all labor, supervision, materials, supplies, equipment, transportation, tools, permits and services to provide and deliver to GAT the Products described in this Purchase Order. Vendor shall obtain and pay for all permits, licenses, fees and certificates of inspection necessary for the performance and completion of the work. Vendor shall arrange for all necessary inspections and approvals by governmental officials. Vendor is legally qualified at the place of delivery to supply the Products specified and will maintain its qualification to do business.
TAX LIABILITY. Unless otherwise provided for in this Purchase Order, Vendor is responsible for payment of, and the compensation set forth herein includes, all sales, use, excise, value-added, business and other taxes, any taxes imposed on Vendor which are based on revenue, income, net income or capital and any taxes imposed in lieu thereof, and all duties, fees or other assessments of whatever nature imposed by governing authorities or any jurisdiction applicable in connection with performance under this Purchase Order. If it is ever determined that any tax included in the price paid by GAT was not required to be paid, Vendor agrees to refund promptly such amount to GAT. Vendor shall release, defend, indemnify and hold GAT harmless from and against any fines, penalties, costs (including attorneys’ fees and court costs), losses, damages or liabilities, arising from, alleged to arise from or in any way associated with Vendor’s failure to comply with the terms of these requirements.
VENDOR’S INVESTIGATION AND REPRESENTATIONS. Vendor represents that: (i) it is financially solvent; (ii) it is, if and to the extent required by law, licensed to perform the work; (iii) it has marketable title to the items conveyed hereby and has the right to convey same; (iv) the items conveyed hereby are unencumbered and free from security interests and liens; (v) it has carefully examined all of the provisions of this Purchase Order, acquainted itself with the work and the place where the work is to be performed and all conditions relevant to the work and has made all evaluations and investigations necessary to a full understanding of any difficulties which may be encountered in performing the work; and (vi) this Purchase Order is sufficient for the proper and complete execution of the work.
WARRANTY. In addition to any warranties set forth elsewhere in this Purchase Order, Vendor expressly warrants that the Products furnished hereunder shall be free from defects in material, workmanship and design, and according to the best applicable standard practices. The Products shall be new, unless otherwise specified, and of first class quality. Vendor guarantees and hereby gives full, complete and maximum warranties of title, fitness for purpose and merchantability for Products furnished hereunder. Vendor further warrants that the Products shall be of sufficient size and capacity, and of proper materials, to properly perform the functions intended herein. Vendor expressly warrants that the Products furnished hereunder shall strictly comply with all provisions of this Purchase Order, including but not limited to any specifications of GAT and shall conform to all applicable laws, ordinances, codes and regulations. The Products shall be unconditionally guaranteed for (i) eighteen (18) months from the date of being placed into service by GAT, or (ii) two (2) years from the date of delivery, whichever is earlier to occur. If, within the warranty period specified in these Terms and Conditions, GAT discovers defects, errors, omissions, operational or performance deficiencies or breach of any warranty as to the Products, Vendor guarantees to repair or replace at Vendor’s expense, including parts, freight and labor for removal and reinstallation, the Products or any part thereof found to be defective. Any replacement parts or materials or corrections to workmanship shall be additionally warranted against defects for a period of eighteen (18) months after replacement or corrective work. If Vendor fails after reasonable notice to proceed promptly with and complete the repair, re-performance, or replacement of the defective Products, GAT may repair, re-perform, or replace the Products and charge all related costs (including labor and access costs) to Vendor without voiding the warranties herein, and without GAT waiving any other rights or remedies it may have under this Purchase Order. If GAT determines, for any reason, that the remedies provided for herein are not adequate or feasible, GAT may elect to have such Products removed at Vendor’s expense and any portion of the purchase price paid refunded in full. Any ultimate owner of the Products, as well as GAT, shall have the benefit of this warranty, and such rights and remedies are in addition to any other rights or remedies provided in law, equity, or under this Purchase Order. Vendor acknowledges that, notwithstanding any drawings, specifications or other express descriptions of Products set forth herein, GAT is relying on Vendor’s skill and judgment to furnish suitable Products and/or services for the purposes described herein. All warranties shall survive any inspections, delivery, acceptance and/or payment. If required by GAT, Vendor shall supply satisfactory evidence of the origin, composition, manufacture, kind and quality of the Products.
INSPECTIONS AND EXPEDITING. Vendor shall provide all interim inspections required to ensure compliance with this Purchase Order. GAT shall have the right at all reasonable times to inspect, test and expedite all work in progress, whether at GAT’s location or any other place where work may be in process, preparation, manufacture, storage, installation, or tendered by Vendor for GAT’s receipt. Neither the inspection, the presence nor absence of an inspector or other personnel of GAT in Vendor’s facilities shall relieve Vendor from any requirements of this Purchase Order, and failure on the part of GAT to discover or reject Products not in accordance with the specified requirements shall not be deemed an acceptance or a waiver of defects. At GAT’s option, Vendor shall submit monthly (or more frequently if delivery requirements make it necessary) to GAT, engineering and production status reports which GAT may require including reports on Vendor’s purchases pursuant to this Purchase Order. Notwithstanding any prior inspection, the passage of title, or any payments hereunder, all Products furnished hereunder are subject to final inspection and acceptance by GAT.
DELIVERY. Unless otherwise specified herein, title to the Products (and in the event the Products are made to order, then title to all material, inventory, work in progress, and tooling unique to the Products) shall vest in GAT immediately upon acceptance of the Products by GAT. Vendor is responsible for properly and carefully packing and shipping the Products, at its expense unless otherwise specified herein, and shall comply with any documentary requirements or instructions of GAT in the shipment process. Irrespective of the vesting of title and any other provision herein to the contrary, Vendor shall bear the risk of loss and damage and shall insure or self-insure, for the benefit of Vendor and GAT, the Products in its care, custody and control, including free issue material supplied to Vendor for incorporation into, or work in conjunction with, the Products until the same are delivered in good condition and accepted by GAT in accordance with the provisions of this Purchase Order.
CONFORMING PRODUCTS AND ACCEPTANCE. The Products shall conform strictly to the description, plans, specifications, performance criteria and sample, if any, and no substitution in whole or in part will be permitted without the prior written approval of GAT. If there are no specific descriptions, plans, specifications, performance criteria or samples, or to the extent that any which may be provided are not explicit, the Products shall be new, of the latest design or model conforming to GAT’s requirements, fit for the purpose(s) intended under this Purchase Order and of the best quality. Prior to shipment, Vendor shall carefully inspect and test the Products for conformance to the requirements of this Purchase Order. If the words “or equal” are used in this Purchase Order, proposed equals must be approved in writing in advance by GAT. There shall be no substitutes or shipment of more or less than the quantity specified without the prior written approval of GAT. Upon delivery of the Products or in any other location or time as may be specified herein, GAT shall conduct a visual inspection of the Products and may accept or reject the Products, in whole or in part, provided that GAT reserves all rights provided for herein to reject any Products, in whole or in part, at a later time upon discovery of a latent defect not apparent by visual inspection. If Products received do not conform to those ordered or if more or less than the quantity ordered are shipped, GAT may reject such shipment in whole or in part by giving notice thereof to Vendor. Vendor shall remove any rejected Products at Vendor’s expense within ten (10) working days after notice. If any Products are rejected by GAT, Vendor shall not ship any replacement Products without the prior written approval and directions of GAT. For any defective, non- conforming or rejected Products, GAT may cancel this Purchase Order in whole or in part without any obligation to pay a cancellation fee or other fee or penalty.
TIME OF PERFORMANCE. TIME IS OF THE ESSENCE OF THIS PURCHASE ORDER. Vendor shall be liable to GAT for any and all loss or damage as a result of any delay on the part of Vendor in the prosecution or completion of the work, or for any delay to the completion of the work and delivery of the Products attributable to Vendor. In addition to all other rights or remedies GAT may be entitled to in the event of Vendor’s untimely performance under this Purchase Order, GAT, upon written notice to Vendor, may require Vendor to take those steps necessary to expedite the work and may require Vendor to work on an overtime or premium schedule, and, further, may require Products to be shipped expeditiously, either by special over-land transport and/or air freight, from point of manufacture to the point of delivery, Vendor being responsible for all additional costs. Without relieving Vendor of its obligations and liabilities hereunder, Vendor shall immediately report to GAT any delay or anticipated delay in performance of the work, and Vendor’s plan to overcome or minimize any such delay or anticipated delay. If GAT fails to meet any of the stated conditions upon which Vendor’s performance under this Purchase Order is based, such failure(s) shall excuse Vendor from fulfilling its performance only to the extent, if any, that such failure(s) actually prevents Vendor from achieving any part of its performance, and shall not otherwise excuse Vendor from completely fulfilling its performance.
GAT’S REMEDIES UPON DISCOVERY OF DEFECTS. Within one (1) year of the discovery of any defective Products that are not in accordance with this Purchase Order, at GAT’s option, GAT may, in addition to any other remedies available in equity or at law, either: (i) reject the defective Products by sending written notice to Vendor; or (ii) require Vendor to replace, repair, correct, or make the same good.
- Rejection: If GAT rejects the defective Products and if the same is in GAT’s control, GAT will, to the extent it is commercially reasonable, hold the rejected Products (for a reasonable time period under the circumstances) for Vendor’s inspection, instruction and at Vendor’s risk, and, if Vendor so directs, return same at Vendor’s expense. Upon GAT’s rejection, GAT shall have the right to cover the same with another supplier, and Vendor agrees to pay GAT on demand for any and all loss, damage, costs, attorneys’ fees, and other charges incurred and/or made by GAT in connection with such replacement order, together with interest thereon at the highest rate allowed by law from the date incurred.
- Repair, Replacement or Correction: Upon GAT’s exercise of its option to have the Vendor replace, repair, correct, or make good the ordered Products, Vendor shall immediately, after receiving notice from GAT of such, proceed, at Vendor’s sole cost and expense, to replace, repair, correct or make the same good, including providing parts, freight and labor for removal and reinstallation, to the satisfaction of GAT. In the alternative, GAT shall have the right to have the defective Products remedied or changes made at the expense of Vendor, and Vendor agrees to pay GAT on demand for any and all loss, damage, costs, attorneys’ fees, and other charges incurred and made by GAT in connection with such corrective work, together with interest thereon at the highest rate allowed by law from the date incurred.
CANCELLATION, TERMINATION AND SUSPENSION.
- For Convenience: For GAT’s convenience, GAT reserves the right to terminate or suspend all or any part of the Purchase Order. In such event, GAT’s sole and exclusive liability to Vendor shall be limited to payment of the reasonable, actual, documented costs incurred by Vendor for work actually performed by Vendor pursuant to this Purchase Order until such cancellation, but in no event shall GAT be liable for any loss of profits or consequential damages based on this Purchase Order or portion thereof so canceled. At the time of such cancellation, Vendor shall discontinue all work pertaining thereto, place no additional procurement orders or make any other commitment, and cancel forthwith existing procurement orders on the best possible terms. Pending GAT’s instructions, Vendor shall preserve and protect the Products on hand, work in progress, supplier data and completed work, both in its own and in its suppliers’ facilities. If the Products have been paid for, GAT shall have the immediate right to enter Vendor’s premises to take possession and remove the Products and all drawings, records, material and equipment to be incorporated into the Products from Vendor’s premises.
- For Default: If, in the opinion of GAT, Vendor shall at any time: (i) refuse or fail to provide sufficient properly skilled workers, adequate supervision or material of the proper quality; (ii) fail in any material respect to prosecute the performance of this Purchase Order according to the schedule; (iii) cause, by any action or omission, the stoppage, delay of, or interference with GAT’s business operations or that of any other vendor or contractor; (iv) fail to comply with any provision of this Purchase Order; (v) fail to perform the work or deliver the Products in a timely manner; or (vi) become insolvent, make an assignment for the benefit of creditors, or file or have filed against it, a voluntary or involuntary petition in bankruptcy (each event separately or together, constituting a “Vendor’s Default”), then GAT may, at its sole option and in addition to any other remedies available at law, in equity, or under this Purchase Order, cancel or suspend all or any part of the Purchase Order. In such event, GAT may purchase the Products elsewhere and charge Vendor with any loss or added cost incurred as a result thereof, and GAT shall not be obligated to make further payment to Vendor until Vendor has fully satisfied its indemnity and other obligations under this Purchase Order. Any action taken by GAT hereunder shall not void or in any way affect the other provisions of this Purchase Order, including, but not limited to those for the resolution of disputes. At the time of such cancellation, Vendor shall discontinue all work pertaining thereto, place no additional Purchase Orders or make any other commitment, and cancel forthwith existing procurement orders on the best possible terms. Pending GAT’s instructions,
Vendor shall preserve and protect the Products on hand, work in progress, supplier data and completed work, both in its own and in its suppliers’ facilities. If the Products have been paid for, GAT shall have the immediate right to enter Vendor’s premises to take possession and remove the Products and all drawings, records, material and equipment to be incorporated into the Products from Vendor’s premises.
ASSIGNMENT AND SUBCONTRACTING. Vendor shall not assign or transfer its rights, delegate or sublet its performance in whole or in part under this Purchase Order, or funds due hereunder, without GAT’s prior written consent. Any attempted assignment or delegation without prior written consent shall be void and shall constitute a material breach of this Purchase Order.
SUBCONTRACTORS, SUBVENDORS AND SUBSUPPLIERS. GAT reserves the right to approve or disapprove all subcontractors, subvendors or subsuppliers proposed by Vendor to be involved in Vendor’s implementation of or performance under this Purchase Order. Upon request by GAT, Vendor shall submit a listing of all subcontractors, subsuppliers or subvendors for review and approval by GAT and shall submit unpriced copies of all its procurement orders or other contracts for materials or equipment procured from third parties pertaining to this Purchase Order. Vendor agrees that GAT has the right to contact or visit any of Vendor’s subcontractors, subvendors or subsuppliers directly to confirm delivery commitments or the origin, composition, manufacture, kind, quantity or quality of any Products provided thereunder. Any approval by GAT shall not constitute a waiver of any term or condition hereunder, at law, or in equity, nor relieve Vendor of any obligation herein. Vendor shall incorporate these Terms and Conditions into any procurement order or other contract issued to any subcontractor, subsupplier or subvendor for any work to be provided under this Purchase Order.
INDEMNITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW AND SUBJECT TO THE APPLICABLE STATUTE OF LIMITATIONS, VENDOR AT ALL TIMES SHALL INDEMNIFY, RELEASE, PROTECT, DEFEND (AT GAT’S OPTION) AND HOLD GAT, ITS OWNERS, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, INSURERS AND SUCCESSORS AND ASSIGNS (THE “GAT INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LOSS, LIABILITY, EXPENSE, CLAIMS OR DEMANDS, INCLUDING, BUT NOT LIMITED TO ABATEMENT/REMOVAL COSTS, AND ATTORNEYS’ FEES AND EXPENSES, ARISING FROM VENDOR’S OR VENDOR’S EMPLOYEES, MATERIALMEN, AGENTS, OR SUBCONTRACTORS PERFORMANCE OR NON- PERFORMANCE OF THE WORK, BREACH OF THIS PURCHASE ORDER, DEFECTS IN PRODUCTS FURNISHED HEREUNDER, NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL ACT THAT CAUSES OR COMBINES WITH OTHER EVENTS TO CAUSE ANY PERSONAL INJURY, INCLUDING DEATH AT ANY TIME, PROPERTY DAMAGE, OR ECONOMIC LOSSES, INCLUDING BUT NOT LIMITED TO, DAMAGE TO VENDOR, GAT, OR THIRD PARTIES, OCCURRING AS A DIRECT OR INDIRECT RESULT OF OR IN ANY MANNER CONNECTED WITH THE PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS UNDER THIS PURCHASE ORDER OR THE PRODUCTS SUPPLIED HEREUNDER. GAT SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO CONTROL THE DEFENSE OR SETTLEMENT OF ANY CLAIM OR LAWSUIT COVERED BY VENDOR’S INDEMNITY HEREUNDER AND, AT GAT’S OPTION, VENDOR SHALL, AT VENDOR’S EXPENSE: (1) DEFEND ANY AND ALL ACTIONS BASED THEREON; OR (2) PAY GAT ALL ATTORNEYS’ FEES AND ALL COSTS AND OTHER EXPENSES ARISING FROM ITS DEFENSE AND SETTLEMENT THEREOF.
PATENTS AND TRADE SECRETS. To the fullest extent permitted by law, Vendor shall protect, defend, indemnify and save and hold harmless the GAT Indemnified Parties from any damages, liabilities, costs, expenses, fines, penalties and losses in connection with any suit, claim or demand alleging infringement of any patent, copyright, trade secret, trademark, trade name or other intellectual property infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Products and/or misappropriation of any confidential information or trade secrets based upon the performance of said work or manufacture, sale or use of the Products supplied hereunder.
CONFIDENTIAL INFORMATION. All information, data, designs, drawings, specifications, communications, whether written, oral, electronic, visual, graphic, photographic, observational or otherwise, and documents supplied, revealed or disclosed in any form or manner to Vendor by GAT, or produced or created by Vendor for GAT hereunder (“Information”) are proprietary and confidential to GAT and shall be used solely by Vendor for purposes of this Purchase Order. All such Information shall be treated and protected by Vendor as strictly confidential, and shall not be disclosed to any third party without the prior written consent of GAT, and shall be disclosed within Vendor’s organization only on a need-to-know basis. Any nondisclosure agreement heretofore executed by Vendor in connection with GAT’s business, this Purchase Order or any other contract pertaining to the Products, is hereby expressly incorporated within this Purchase Order. Vendor shall immediately return to GAT any Information provided, either upon demand, or upon completion of the warranty period hereunder, including all copies made by Vendor. Notwithstanding restrictive legends to the contrary, no confidentiality or limited use obligation will be accepted by GAT due to receipt of materials supplied by Vendor and GAT shall have the right to copy, modify, distribute, use and disclose such materials as it sees fit without accounting to Vendor or any third party and Vendor shall protect, defend, save and hold harmless the GAT Indemnified Parties from any damages, liabilities, costs or expenses which the GAT Indemnified Parties may suffer in connection with any such copying, modifying, distribution, use and disclosure of such materials.
DESIGN PROPERTY. All designs (whether detailed or conceptual) in whatever form, including software, which are prepared by Vendor or provided to Vendor by GAT in response to this Purchase Order, are the sole property of GAT, and, with respect to designs prepared by Vendor, with title vesting upon identification to this Purchase Order and shall be considered and protected by Vendor as “Information” as set forth herein. Vendor shall turn over all such designs to GAT, including copies thereof, at the expiration date of the warranty period, or earlier as may be requested in writing by GAT. Vendor agrees to execute any documents requested by GAT to confirm GAT’s legal title to all such rights.
INSURANCE. Vendor shall within ten (10) days from acceptance of this Purchase Order, but in any event before commencement of performance under this Purchase Order, provide GAT with certificates evidencing that the following minimum insurance is in force:
|Insurance Coverage Worker’s Compensation Employer’s Liability|
Commercial General Liability
$1,000,000 Combined Single Limit
|including premises, products/completed|
operations and contractual liability insuring the indemnity agreements contained herein.
Bodily Injury and Property Damage
$1,000,000 Combined Single Limit each occurrence
Vendor shall ensure that its insurance policies are compliant with applicable government regulations, and shall obtain the following endorsements to its insurance policies for coverages required herein: (i) Additional Insureds – GAT, and its owners, officers, directors, employees and agents shall be named as additional insureds (“Additional Insureds”), except for Workers’ Compensation and Employer Liability; (ii) Waiver of Subrogation – Vendor’s insurer(s) shall waive all rights of subrogation against GAT, and its owners, officers, directors, employees and agents; and (iii) Primary Insurance – Vendor’s insurance policies shall be primary to any liability insurance policies carried by GAT. Vendor shall furnish insurance certificates to GAT evidencing its compliance with the insurance requirements included herein. Should Vendor fail to furnish such insurance certificates, GAT shall have the right to purchase such insurance from a company of its own selection and deduct the costs of same (including any costs incurred in the procurement thereof) from amounts otherwise payable to Vendor. All policies of insurance to be secured and maintained hereunder shall provide that Vendor and GAT shall be provided in writing with at least 30 days’ prior notice of any material policy changes, cancellations, or reductions in the policies and that no such changes, cancellations or reductions shall be effective without such notice.
LIENS. Vendor warrants free and clear title to the Products, free and clear from any and all liens, restrictions, reservations, security interests and encumbrances. Vendor agrees to pay promptly when due all bills for labor, material, equipment or services in connection with the Products. If such bills are not promptly paid by Vendor when due, GAT, in its discretion, may pay them and Vendor shall immediately reimburse GAT, or GAT may, at its discretion, set off these funds owed by Vendor against any other amounts due to Vendor under any other contract with GAT.
To the maximum extent allowed by law, Vendor agrees to release, defend, indemnify, and hold harmless GAT from and against any and all laborers’, materialmen’s, mechanic’s or other liens arising from, alleged to arise from, or in any way associated with Vendor’s performance or nonperformance under this Purchase Order. Vendor waives all lien rights against the property of GAT. Any sums due Vendor hereunder may be applied by GAT as a set off against any sums owed by Vendor to GAT or against any claims of third parties against GAT arising from Vendor’s performance, whether under this or any other purchase order or other document. At its sole discretion, GAT may withhold from payments to be made to Vendor amounts legally required to be withheld from such payments and remitted to the taxing authority of any jurisdiction relevant to the transaction.
COMPLIANCE WITH LAWS, REGULATIONS. During the performance hereunder, Vendor shall be subject to all applicable provisions of laws, rules, regulations, orders, permits and authorizations issued by governmental authorities with jurisdiction over the location(s) where Products are manufactured, transported or delivered or where work is performed. Upon GAT’s written request, Vendor shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation. Vendor agrees to release, defend, indemnify and hold harmless GAT Indemnified Parties and its affiliates from and against any loss, cost (including attorney fees and court costs), civil or other fines and penalties, damage or liability, arising from or alleged to arise from any violation, alleged violation, or failure to comply with, the terms hereof by Vendor or any person for whom Vendor may be responsible.
GOVERNING LAW AND DISPUTES. This Purchase Order shall be governed by and construed in accordance with the laws of the State of Kansas, U.S.A., without reference to principles of conflicts of laws. The parties agree that any dispute, controversy or claim arising out of, in connection with or relating to this Purchase Order, whenever arising, including any question regarding its existence, validity, interpretation, performance, breach or termination, including claims in tort, which cannot be amicably settled between the parties, shall be finally resolved by binding arbitration in Wichita, Kansas, U.S.A. Any such dispute, controversy or claim shall be exclusively and finally settled by binding arbitration utilizing the Arbitration Rules of the American Arbitration Association in effect at such time. Each party shall appoint one arbitrator, and the two arbitrators shall appoint a third arbitrator. The award of the majority of arbitrators shall be final, binding and not subject to appeal. Judgment upon an award may be entered in any court having jurisdiction over the person or assets of the party owing the judgment or application may be made to such court for judicial acceptance of the award and an order of enforcement, as the case may be.
SEVERABILITY. The invalidity or unenforceability of any provision of this Purchase Order shall not impair the validity or enforceability of any other provision; provided, however, that whenever a provision is held to be invalid or unenforceable, the parties shall negotiate in good faith to adopt a replacement provision to carry out the parties’ original intention to the extent permitted under applicable law.
CONFLICTS OF INTEREST. Vendor shall not pay or give any fee, commission, rebate or anything of value to or for the benefit of any employee of GAT, nor will Vendor do business with any company knowing the results might directly benefit an employee of Vendor.
IMPORT AND EXPORT COMPLIANCE. Vendor agrees that it is responsible for required compliance with the import and export laws and regulations of the United States of America, and those of any other jurisdiction or country as may be applicable, in its performance under this Purchase Order. If any import or export control or compliance form is attached to this Purchase Order, Vendor shall thoroughly and accurately complete such form and return it within ten (10) days to GAT. Vendor understands and acknowledges that (a) GAT will rely on the information provided by Vendor, including making a determination whether any U.S. or foreign export or import license is required for the export of the supplied materials to the country of destination; (b) Vendor is responsible for compliance with local import and export control laws of any jurisdiction, and is responsible for compliance with applicable U.S. re-export laws; and (c) Vendor shall be fully responsible for the accuracy and completeness of import and export documentation prepared or executed by Vendor as part of Vendor’s performance of this Purchase Order, including that required for the import of any materials used in the production or manufacture of the Products and of any documents prepared by Vendor’s employees, agents and brokers.
FCPA COMPLIANCE. Vendor warrants that it is not a foreign government official nor is it affiliated with any foreign government official; that it understands the United States Foreign Corrupt Practices Act of 1977 as amended (15 U.S.C. 78dd-1, 78dd-2, 78m (1998)), including any additional amendments passed during the term of this Purchase Order; that it has not previously engaged in conduct that would violate the FCPA if it had been subject to it; that it will not in the future engage in conduct that would violate the FCPA if it is subject to it; and that it will not cause GAT to violate the FCPA.
LIQUIDATED DAMAGES. If delivery does not occur as contemplated in this Purchase Order, Vendor hereby agrees to pay to GAT, as part of the consideration for awarding this Purchase Order, an amount equal to the liquidated damages amount set forth in the Purchase Order. Liquidated damages shall apply from the first instance Vendor fails to make a timely delivery. This shall not be construed to limit Vendor’s other obligations with respect to this Purchase Order. Vendor and GAT agree and acknowledge that the liquidated damages amount set forth in the Purchase Order to be paid by Vendor are reasonable, considering the loss GAT will sustain as a result of late deliveries. The amount is agreed upon and fixed by the parties because of the difficulty in ascertaining the actual damages which will be sustained by GAT. The payment of these damages shall not affect GAT’s other rights including its right to terminate this Purchase Order. GAT may set off amounts due to it by Vendor pursuant to this provision against amounts due and owing Vendor pursuant to the terms of this Purchase Order.
DOCUMENTATION AND RIGHT OF AUDIT. Where Vendor’s invoice includes compensation for work performed at a unit price or for changes in the work, Vendor shall submit Vendor’s determination of units of work performed, determined in accordance with the provisions of this Purchase Order and substantiated by documents satisfactory in form and content to GAT. Upon verification by GAT of said documents, GAT will advise Vendor in writing of either GAT’s acceptance of Vendor’s determination of such units or of GAT’s determination of such units. Where Vendor’s invoices include compensation for work performed for a reimbursable price, all costs, expenses and other amounts so invoiced shall be substantiated and supported by documents satisfactory to GAT and verified by GAT. Vendor shall maintain for a minimum period of seven (7) years after final payment has been made to Vendor under this Purchase Order all records and accounts pertaining to work performed hereunder. Vendor agrees that GAT shall have the right to audit, copy and inspect, or cause to have audited, copied and inspected, Vendor’s records and accounts pertaining to performance under this Purchase Order at all reasonable times during the course of performance hereunder and for a minimum period of seven (7) years after final payment has been made to Vendor.
PUBLICITY. Vendor shall not publicize, disclose or discuss the existence, content or scope, whether generalities or details, of this Purchase Order or make any reference to GAT, the business of either or the project for which this Purchase Order is made to any third party by any means and through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs) without obtaining the prior written consent of GAT.
SUCCESSORS AND ASSIGNS. Subject to the Assignment and Subcontracting Section herein, this Purchase Order shall inure to and be binding on the transferees, successors and assigns of such party.
NOTICES. Any notice required hereunder shall be in writing and shall be given to the appropriate party by (i) personal delivery, (ii) certified mail, postage prepaid, return receipt requested, or (iii) recognized overnight delivery services to GAT at its corporate headquarters and directed to the attention of Purchasing Manager, and to Vendor at the address provided in the Purchase Order.