1) TERMS AND CONDITIONS OF ACCEPTANCE:
(a) Seller shall offer "Quotations" for acceptance within sixty (60) calendar days from the date printed on the face of the Quotation, unless a longer time period is specified on the Quotation. The Quotation is withdrawn if not formally accepted by: (1) a return to Seller of a copy of the Quotation signed by Buyer, or (2) a signed "Purchase Order" referencing the Seller's Quotation number and these NTS Terms and Conditions, within the designated period. No other form of acceptance of a Seller's Quotation is valid or will be recognized or accepted. Seller shall commence work only after receipt of one of the above identified acceptance instruments. Additional or differing terms or conditions proposed by Buyer or included in Buyer's "Purchase Order", attachments thereto, or contract or acceptance are hereby objected to by Seller and shall have no effect unless expressly accepted in writing by Seller.
(b)Seller's acceptance of any purchase order is contingent upon Seller's continuing approval of Buyer's credit. Seller is under no obligation to enter an order acknowledgement and may rescind the Quotation at any time prior to Buyer's unqualified acceptance. Buyer agrees that Seller's acknowledgement of receipt of Buyer's Purchase Order or a signed Seller's Quotation is conditioned upon and subject to the terms and conditions contained herein, and no other terms or conditions shall apply.
(c)BUYER'S SUBMISSION OF ITEMS FOR TEST SHALL CONSTITUTE BUYER'S UNQUALIFIED WITHDRAWAL OF ALL PRIOR AND CURRENT OBJECTIONS TO, AND ACCEPTANCE, WITHOUT ADDITIONS OR CHANGES, OF THE PRICES, TERMS AND CONDITIONS CONTAINED IN SELLER'S QUOTATION, UNLESS SELLER HAS EXPLICITLY AGREED TO OTHER PRICES, TERMS OR CONDITIONS IN A SIGNED WRITING. NO OTHER DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL APPLY.
2) PRICES:
The prices contained in Seller's Quotation are predicated upon the use of the terms and conditions contained in these "NTS Terms and Conditions". The use of different or additional terms and conditions may result in higher prices. When a Quotation involves multiple items, the Quotation is non-severable. If the Quotation is made prior to receipt and review by Seller of all applicable specifications and proposed contract documents, prices quoted are subject to revision once missing documents are received. Prices quoted are "Market Prices" (defined in FAR §2.101(a) "Commercial Items" (6)ii ), and are: (i) predicated upon the existence of viable competitors; (ii) for services offered to the general public and sold in substantial quantities in the commercial marketplace; (iii) valid only for the purpose of the Quotation. All pricing details are budgetary in nature, and may not be utilized as a basis for pricing similar, repeat, or subsequent testing. The prices for procedures and reports include one (1) revision; additional revisions will be separately priced. All prices are Free on Board Seller's facility, unless otherwise specified. All prices quoted are exclusive of taxes. Buyer agrees that all taxes, interest and penalties thereon, if any, relating to the services performed or the products produced or sold hereunder, are to be paid when due by the Buyer.
3) BUYER'S OBLIGATIONS AND RIGHTS:
(a)Unless otherwise specified in Seller's Quotation, the prices in the Seller's Quotation are based upon the timely receipt of all "Buyer's Property", as defined in Article 8, and technical information, in correct and operating condition prior to the date such items are required to support the testing schedule. Any Buyer supplied technical support labor must be available on the same date. Buyer shall supply all mating connectors, hardware, adapters and vibration fixtures compatible with Seller's equipment, unless specific exemptions to this requirement are identified in the Quotation. Buyer is responsible for test item operation unless specific exemptions to this requirement are identified in the Quotation. If the Buyer-furnished items and labor are not so provided, the prices and schedule quoted shall be subject to change. All test articles and equipment must be received by Seller in one (1) lot, unless specific exemptions to this requirement are identified in the Quotation. Buyer shall provide to Seller a listing of all property, and the value (in accordance with DFAR 211.274-3) of each item proposed to be furnished by Buyer to Seller for each Purchase Order where the value of any item exceeds fifty-thousand dollars ($50,000).
(b)SELLER'S LIABILITY FOR BUYER'S PROPERTY SHALL BE AS SET FORTH BELOW IN ARTICLE 8. Seller may dispose of any Buyer-supplied articles, supplies, specifications, fixtures, special tooling, drawings or related items provided by the Buyer, and which are unclaimed within sixty (60) calendar days after Seller gives written notice to Buyer to remove such items from Seller's facility. Buyer-supplied equipment at Seller's facilities shall be subject to additional charges for disposal, storage, transportation, and other charges, to the extent applicable, where Buyer does not remove the property from Seller's facility or provide timely disposition instructions following written notice to remove such items.
(c)Buyer personnel shall adhere to all Sellers' work rules, safety standards and security requirements that are reasonably provided to Buyer personnel who are on-site at Sellers' facilities. Buyer may inspect Seller's facilities and review Seller's quality controls from time to time upon reasonable notice.
(d) Buyer warrants that unless specifically and individually identified in writing, data provided to Seller does not contain information required in the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of the test articles. Buyer also warrants that such information cannot be obtained by casual inspection of the assembled items provided for test, unless Buyer notifies Seller to the contrary. Buyer agrees to cooperate with Seller by providing any information required under the Arms Control Export Act, the Export Administration Act, the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations.
4) SELLER'S OBLIGATIONS :
(a)The Seller agrees to perform the services quoted in compliance with procedures and specifications furnished by Buyer and specifically incorporated into Seller's Quotation, if any, at the time of quotation, except for deviations as noted by the Seller in the Quotation. In any event or instance not covered by the Buyer's specifications, or a failure of Buyer to timely respond to inquiries by Seller, the Seller reserves the right to perform services in accordance with its standard practices. Seller shall not be responsible for errors or omissions due to the Buyer's supplied or approved procedures, specifications, or other supplied information. Seller shall not be responsible for incompatibility of the Buyer's supplied or approved materials, specifications or test specimens.
(b)Buyer agrees that Seller's sole obligation is to perform services in a professional and workman-like manner, exercising a reasonable degree of care consistent with testing services industry standard practices, and report the results in accordance with applicable specifications and instructions received from Buyer's "Authorized Representatives". Seller's standard report delivery is through Seller's Web Portal, unless an alternative delivery method is specified in the Quotation. Seller does not render opinions as to the suitability of the item tested for any intended purposes.
5) TOOLING AND SETUPS:
Where applicable, tooling and setups quoted by Seller reflect costs and special designs to adapt or modify Seller's proprietary test fixtures or Buyer's Property, and neither the tooling nor the setups will be released from the Seller's facility. All right, title and interest to Seller's fixtures, special tooling drawings, design and related data is, and shall remain, the property of the Seller, except where the fixtures, tooling, drawings, design and related data are specifically identified as deliverable items in the Quotation. Seller may, incorporate, proprietary information, intellectual property or trade secrets of the Seller in such deliverable items or data. Where such information is incorporated in deliverable items, Buyer shall protect such items or data as set forth in Article 11.
6) SCHEDULES:
The estimated schedule and pricing in the Seller's Quotation are based upon on the Seller's current commitments at the time the Quotation is issued, Seller's standard business hours (nine (9) hours per day, Monday through Friday) and the Seller's acceptance of the Buyer's supplied documents and materials. Firm schedules will be acknowledged by the Seller from time to time. ALL WORK SCHEDULE DATES AND TEST DURATIONS ARE APPROXIMATE. All durations are stated in calendar days. All orders are subject to reschedule due to the possibility of Government priority orders superseding a normal schedule. Performance of services is subject to delays caused by acts of God, labor difficulties, shutdowns, the availability of utilities or materials, equipment breakdown, unforeseen engineering problems, government regulations, priorities, preemption, or other causes beyond Seller's control.
7) CHANGE ORDERS, INTERRUPTIONS, AND TERMINATION:
(a)Seller is not obligated to perform any additional services not specifically referenced in Seller's Quotation, including, but not limited to, repeat testing. If Seller agrees to perform additional services requested by Buyer's Change Order, the Seller's price and schedule shall be equitably adjusted for the additional work commensurate with the changed requirements, the status of Seller's work in process at the time of the Seller's receipt of the Buyer's Change Order, and the Seller's written acceptance of the changed work.
(b)If for any reason beyond Seller's control, the original test program is interrupted at Buyer's direction, or is interrupted or delayed due to: (i) a failure or malfunction of items under test; (ii) a failure or malfunction of Buyer's support equipment; (iii) additional services (e.g., repeat tests) necessitated by specimen failure, standby charges will accrue until resumption or termination of testing is directed by Buyer in writing. Buyer required revisions of documents/drawings in excess of one revision, or a failure of Buyer to definitively review and approve/disapprove documents and drawings within ten (10) business days will be construed as Change Orders, and the appropriate charges will be added accordingly. Re-setup charges may apply at resumption of testing. Rescheduling shall be at the discretion of Seller.
(c)Termination or cancellation, whether partial or complete, may be made by Buyer, subject to payment of equitably cancellation charges based upon status of work completed or in process, commitments made and facilities allocated. Seller will make every effort to mitigate such termination charges. Notwithstanding the Service Warranty provisions of Article 8(d) regarding the provision of non-conforming services, if Buyer should disagree, for any reason, with the results or conclusions of the Service hereunder, and require additional work for verification, Seller shall be entitled to the cost of the additional work required to verify results.
(d) Seller shall not be liable for any damages arising from delay in the performance of services, if such delay is due to a cause beyond reasonable control of the Seller. Any event beyond the Seller's reasonable control shall not constitute cause for cancellation of Buyer's Purchase Order, but shall extend the Seller's time to perform on a business-day for business-day basis for a period equal to the duration of the delay.
(e) Seller shall have the right to stop work and adjust prices or schedules, or terminate this Agreement, without default, breach or liability, if unforeseen engineering difficulties, impossibility to perform or commercial impracticability is in the sole determination of Seller, detected after the work is begun. In the event of such a termination, Buyer's liability is limited to payment for the work performed to date of termination, and termination costs to cover closure of the work as equitably agreed between Seller and Buyer.
8) LIMITATIONS OF LIABILITY:
(a) General: BUYER ACKNOWLEDGES AND UNDERSTANDS THAT THERE ARE HAZARDS ASSOCIATED WITH THE SERVICES AND EQUIPMENT PROVIDED UNDER THESE NTS TERMS AND CONDITIONS THAT THE SELLER CANNOT SAFEGUARD AGAINST. Buyer acknowledges and accepts a responsibility to warn and protect its employees and others exposed to such hazards. Buyer agrees that regardless of the claim, claimant, form or theory of law applied, including, but not limited to negligence, other torts, warranty, strict liability, reckless conduct or intentional conduct, under which any legal or equitable action may be brought against Seller by any party, Seller shall not be liable for any damages, costs (including attorney's fees) or expenses, whether direct, indirect, special, consequential, exemplary, punitive or compensatory, including, but not limited to, loss of profits, except as expressly set forth herein, and only when Seller is decided to be responsible for such loss by a court of competent jurisdiction. Seller is neither an insurer nor a guarantor and disclaims all liability in such capacity. Buyer is not a co-insured under Seller's insurance. BUYER ACKNOWLEDGES THAT IF SEEKING A GUARANTEE AGAINST LOSS OR DAMAGE, BUYER SHOULD OBTAIN APPROPRIATE INSURANCE.
(b) Bodily Injury: Each party hereby agrees to indemnify and hold harmless the other party from any form of action, lawsuit, claims, losses, costs (including attorney's fees), expenses or damages arising from the injury, illness or death of Buyer's customers, employees, agents or invitees directly or indirectly related to the services or equipment supplied by Seller under this Agreement, except to the extent such injury, illness or death is proven to have been caused by, resulted from, or contributed to the negligence of the party seeking to be indemnified.
(c) Property Damage: "Buyer's Property" as defined herein, includes but is not limited to: Buyer's owned, leased, borrowed or hired property furnished to Seller; Buyer furnished Government Property; Buyer furnished Contractor Acquired Property and all similar property of Buyer's subcontractor's. Transfer of Buyer's Property to Seller's premises shall not constitute a bailment or transfer of title to Seller, and such property shall remain at all times under the stewardship, care, custody, control and primary insurance coverage of the Buyer and Buyer's property management system. The "Test Period" commences with the completion of mounting of the test article in/on the test equipment, and terminates with the initiation of de-mounting. The Test Period includes: all intra-test periods; unattended test periods; test-preparatory actions and test completion actions such as equalization, abated level tests, run-up, run-down, reset and axis changes. Seller's liability for maintenance, loss, damage, destruction or theft of Buyer's Property, for all public and private contracts under this Agreement, shall generally conform to FAR 52.245-1(h) as amplified and made explicit herein. Regardless of claim, form or theory of law applied, Seller shall not be liable for maintenance, loss, damage, destruction or theft of Buyer's Property, nor does Seller insure Buyer's Property, during the Test Period, except for, and only in proportion to the extent such loss is caused by or results from the negligent or intentional acts or omissions of the Seller. At all other times, Seller shall not be liable for maintenance, loss, damage, destruction or theft of Buyer's Property while on Seller's premises, including during storage, preparation for shipment, mounting and demounting, except where a court of competent jurisdiction shall decide that Seller acted with willful misconduct, negligently or with a lack of good faith on the part of the Seller's officers, directors and senior managers. Seller's liability for any claims relating to loss, damage, destruction or theft of Buyer's Property, regardless of claim, form or theory of law applied, shall be strictly limited to the lesser of the amount of reimbursement from Seller's insurance, or the stated unit replacement cost as defined in DFAR 211.274-3.
(d) Service Warranty: Seller warrants that the "Services" provided hereunder shall conform to the specifications and express warranties set forth in these NTS Terms and Conditions and Seller's Quotation, and that at the time of delivery, Seller shall have the right to perform such Services and that the Services and any resulting report or other deliverable shall be delivered upon due payment, free of encumbrances. Services performed by Seller will be performed in a professional and workman-like manner exercising a reasonable degree of care consistent with testing services industry standard practice. Seller will modify or correct any such Services that have not been so performed if written notice of any such failure is given to Seller within ninety (90) calendar days of the date of delivery of any final deliverable for such services. Seller warrants that the Services provided hereunder shall meet the specifications and requirements stated in the Seller's Quotation unless exception is taken to the applicable specification in writing by Seller. No claim of any kind with respect to the conformance of the Services to the foregoing specifications, whether or not based on negligence, warranty, strict liability or any other theory of law, will be greater than the Seller's price of the nonconforming Services in respect to which such claim is made. Seller shall be provided ample opportunity to re-perform the Services at its expense. If the Seller is unable to re-perform the services, Buyer and Seller shall mutually agree upon an equitable adjustment in price, which shall not exceed the Seller's price of the nonconforming Services. The foregoing constitutes the Buyer's exclusive remedies and Seller's sole obligation with respect to any such claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS PARAGRAPH. NO WARRANTIES BY SELLER WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER THEORY OF LAW, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9) TERMS OF PAYMENT:
(a)Where credit terms are extended by Seller to Buyer, all invoices issued by Seller for any public or private contract or subcontract under this Agreement shall be consistent with the terms of the Prompt Payment Act as implemented in FAR §52.232-25 Alternate I ( net thirty (30) calendar days from date of receipt of an undisputed invoice). The applicable interest rate for late payments and penalties can be found at http://www.fms.treas.gov/prompt/. Payment of Seller's invoices by Buyer shall not be delayed by, or contingent upon, approval or payment by Buyer's customer or any other third party. Failure to make such payments when due shall entitle Seller to discontinue Services without further notice and such failure may result in additional requirements or deposit requirements being imposed before work is resumed. Any test program or order requiring more than ten (10) calendar days to complete will be billed on a Line Item or Milestone basis. Buyer must separately list the billable Line items or Milestones in the purchase order issued to Seller.
(b)Unless otherwise required by law, if a petition is brought by or against Buyer under any present or future bankruptcy or insolvency laws seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief with respect to Buyer, or if Buyer shall make any assignment for the benefit of creditors, or if a receiver is appointed for Buyer, or if Buyer shall fail to make payments in accordance with these Terms and Conditions, or if in Seller's opinion Buyer's credit has been impaired, Seller may, at its option, terminate Buyer's credit terms by written notice to Buyer or impose such new payment terms, including cash on delivery, auto pay or a security agreement as it deems adequate to protect its interest. Buyer agrees to pay costs associated with collection of any overdue amount including reasonable attorney's fees. Buyer acknowledges and agrees that until final payment, the Seller shall have a lien as a result of Services rendered on any and all reports or data generated and upon Buyer's Property in Seller's possession.
(c)The election of any option under this Paragraph shall not preclude the exercise of any and all rights and remedies available to Seller at law or in equity.
10) NOTICES:
Notice shall be deemed effective when received or refused, if sent prepaid to the other party at the address provided on the face of Seller's Quotation.
11) CONFIDENTIAL AND PROPRIETARY INFORMATION:
(a)The respective proprietary knowledge of Buyer and Seller, as well as all other confidential commercial and operational information of Buyer and Seller, including the contents of contracts, (hereinafter called "Information") shall be treated as confidential information by both Parties. Both Parties shall take all necessary measures to protect the Information from unauthorised access, unauthorised release, copying, transmission or unauthorised use of the Information of the other Party using the same care as they would for their own confidential information. Information that is already publicly available prior to or following its transmission to either Party shall not be subject to these provisions.
(b)Both Parties shall use reasonable care to ensure that employees and third parties receiving access to the Information are subject to the same requirements of confidentiality as identified above.
(c)The Parties shall immediately notify each other in the event that either Party receives any court, government or other official and binding demand for the release of Information, where such notice is not prohibited by the court or government.
(d)This Article 11 of this Agreement shall continue in effect for a period of three (3) years after the termination of this Agreement.
12) APPLICABLE LAW AND REGULATIONS:
(a)Seller's Quotation including these NTS Terms and Conditions, Buyer's Purchase Order, and Seller's Order Acknowledgement (if given) shall constitute the contract between Buyer and Seller and shall be governed under the laws of the State of California without regard to conflict of laws provisions, or under Federal Procurement Law, as applicable.
(b)Seller warrants that all goods and services supplied pursuant to any Purchase Order will have been produced and supplied in compliance with all applicable federal, state and local laws, orders, rules and regulations including, but not limited to those addressing: Equal Employment Opportunity and Affirmative Action; EEO-1 Representations; VETS-100 Reporting; Forced, Indentured And/or Convict Labor and Non-segregated Facilities. In accordance with FAR 4.1201, Seller representations and certifications of compliance with these and other regulations can be found at the On-line Representations and Certifications Application (ORCA) available at https://orca.bpn.gov/, under DUNS Number 063818587. Seller also warrants that Seller has not violated any patent or copy write in the performance of any Purchase Order established under this Agreement. Seller shall indemnify Buyer against any liability caused by any non-compliance with this provision.
(c) If a government contract number appears on the face of the Purchase Order, Seller agrees to comply with all applicable flowed-down terms and conditions of such contract, which shall be appended to Buyer's Purchase Order and made a part hereof, and with any other pertinent laws, regulations or Presidential Executive Orders to the extent that they apply to the subject matter of such Purchase Order. Where the Federal Acquisition Regulations (FAR) are referenced in these NTS Terms and Conditions, the version in effect on the revision date shown above shall be used. In all FAR clauses listed herein, the terms "Government" and "Contractor" shall be revised to identify properly the contracting parties under this contract, generally by replacing "Government" with "Buyer" and "Contractor" with "Seller", but governed by the context of the usage.
13) ENTIRE AGREEMENT:
Seller's Quotation incorporating these NTS Terms and Conditions, the Buyer's Purchase Order, and the Seller's acknowledgement of the Buyer's Purchase Order (if given) form the contract for the sale and purchase of the Services or materials described in the Seller's Quotation, and supersedes any and all previous instruments or agreements which are hereby made null and void. Notwithstanding the foregoing, the Buyer and Seller may have executed certain separate Non-disclosure Agreements that also form a part of these NTS Terms and Conditions. No modification or waiver of these NTS Terms and Conditions in this contract shall bind Seller or Buyer unless written, signed, and accepted by Authorized Representatives of both Seller and Buyer. The contract so formed is valid only if in writing and bilaterally executed by Authorized Representatives of Seller and Buyer. In the absence of a definitive written warrant or statement of authority or statement of limitation of authority, an Authorized Representative shall be any employee, consultant or representative of the party to this Agreement having the apparent authority to legally bind that party.
14) DISPUTES:
(a)Any dispute between the parties relating to the contract between Buyer and Seller that cannot be resolved with reasonable promptness shall be referred to each party's senior manager in an effort to obtain prompt resolution. Neither party shall commence any action against the other until the expiration of fifteen (15) business days from the date of referral to such senior managers, provided, however, this shall not preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.
(b) All disputes under this Contract (including any question regarding its existence, validity and termination) which are not disposed of by mutual agreement following good faith negotiations within a period of thirty (30) days from the notification of a dispute shall be finally resolved at Buyer's sole discretion either by submitting the claim to (i) the Los Angeles Superior Court, State of California or (ii) binding arbitration, before a mutually acceptable arbitrator in the County of Los Angeles, State of California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In any dispute resolved by the aforementioned methods, the prevailing party shall be entitled to all reasonable attorney's fees and costs.
(c)Buyer acknowledges that it has read these NTS Terms and Conditions, and has had the opportunity to clarify these NTS Terms and Conditions with Seller, and is satisfied that it reflects the intent of the parties. Accordingly, the rule of contra preferendum shall not apply to the contract formed between Buyer and Seller, and Buyer agrees and acknowledges that any ambiguity, inconsistency or conflict that remains in the contract between Buyer and Seller after its execution by both parties shall not be construed for or against either party.
15) SEVERABILITY:
If any provisions of these NTS Terms and Conditions are held invalid by any law and/or regulation, all other provisions hereof shall continue in full force and effect. A waiver of any provision of these NTS Terms and Conditions shall not constitute a waiver of any other provision. Any failure of Seller or Buyer to enforce a provision of these NTS Terms and Conditions shall not constitute a waiver of any other provision of these NTS Terms and Conditions and all other provisions shall remain in full force and effect.
16) HEADINGS:
The headings contained herein are for the convenience of the reader and they are not intended to be all-inclusive nor shall they be considered for any other purpose in construing these NTS Terms and Conditions.
17) ELECTRONIC SIGNATURE VALID:
The parties agree that the contract between the Buyer and Seller may be executed: (i) pursuant to the process set forth in the Electronic Signatures in Global and National Commerce Act (15 USC §7001 et. seq.), or (ii) in as many counterparts as may be required to reflect all Parties' assent; all counterparts shall collectively constitute a single agreement. A legible facsimile signature that can be authenticated will constitute an original and binding signature of a Party.
