NTS TECHNICAL SYSTEMS
GENERAL TERMS AND CONDITIONS
REV. 6/1/14

(“NTS Terms and Conditions”)

 

1)      CONTRACT FORMATION ANDACCEPTANCE

(a) The “Seller” in this contract for the purchase and sale of goods and services, is NTS Technical Systems, a California corporation (dba National Technical Systems and NTS).  The “Buyer” is named on the Seller’s offer to sell (hereinafter, the “Quotation”).  Buyer and Seller are collectively herein the “Parties” or separately the “Party”.  Buyer’s acceptance of the Quotation as evidenced by: (1) a signed Purchase Order referencing the Seller’s Quotation number and these NTS Technical Systems General Terms and Conditions, (2) a return to Seller of a copy of the Quotation signed by Buyer or (3) payment, and the Seller’s acknowledgment of the acceptance (if given) together form the contract for the purchase and sale of the goods and/or services described in the Quotation, hereafter collectively forming an “Order”.  Notwithstanding the foregoing, the Buyer and Seller may have executed certain separate Non-disclosure Agreements that also form a part of the contract. Any ambiguity or inconsistency in these documents shall be resolved in the following order of precedence: (1) the Seller accepted Order, (2) the Quotation, (3) these NTS Technical Systems General Terms and Conditions, (4) any separate Non-disclosure Agreement.  All other prior agreements are hereby made null and void.  The contract so formed is valid only if entirely in writing, and bilaterally executed by Authorized Representatives of Seller and Buyer.

(b) Additional or differing terms or conditions proposed by Buyer or included in Buyer’s Order or attachments thereto are hereby objected to by Seller and shall have no effect unless expressly accepted in writing by Seller.  No modification or waiver of these terms and conditions or the Order shall bind Seller or Buyer unless written, signed, and accepted by Authorized Representatives of both Seller and Buyer.  Seller will not commence services, deliver goods, or be bound by contract until the Order has been accepted by the Seller.  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.

(c) Seller Quotations are offered for acceptance within sixty (60) calendar days from the date printed on the face of the Quotation, unless a longer time period is specified in the Quotation.  The Quotation is withdrawn if not formally accepted by one of the means indicated above, within the designated period.  No other form of acceptance is valid or will be recognized or accepted.  Seller’s acceptance of any 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.

2)      PRICES:The prices contained in the Quotation are predicated upon the use of 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 the Federal Acquisition Regulations (FAR) §2.101(a) ”Commercial Items” (6)ii ), and are: (i) for goods or services offered to the general public and sold in substantial quantities in the commercial marketplace; (ii) 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 orders.  The prices for procedures and reports include one (1) revision; additional revisions will be separately priced.  Freight related charges are not included in the pricing, unless otherwise specified in the Quotation.  All prices quoted are exclusive of taxes, unless otherwise specified in the Quotation.  Buyer agrees that all taxes, interest and penalties thereon, if any, relating to the services performed or the goods produced or sold hereunder, excluding taxes based upon the Seller’s income and ad valorem property taxes of Seller, are to be paid when due by the Buyer.

3)      SELLER’S  OBLIGATIONS AND RIGHTS:

(a) The Seller agrees to perform the services quoted in compliance with procedures and specifications furnished by Buyer and specifically incorporated into the accepted Order, including all deviations noted 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, or consequential effects of such 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 engineering and 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 accepted Order.  Seller does not render opinions as to the suitability of any item tested or provided for any particular intended purposes.

  (c) Nothing herein shall limit the Seller’s other rights as set forth elsewhere herein, or at law or in equity.

4)      BUYER’S OBLIGATIONS AND RIGHTS :

(a) Unless otherwise specified therein, the prices in the Quotation are based upon the timely receipt of all “Buyer’s Property”, as defined herein, in correct and operating condition,  and all related technical information, prior to the date such items are required to support the Seller’s offered schedule.  Any Buyer supplied technical support labor must be available on the same date.  All test articles and equipment must be received by Seller in one (1) lot, unless specific exemptions to this requirement are specified in the Quotation.  Buyer is responsible for all freight charges, freight insurance, duties, customs brokerage fees, transit taxes and export/import filings for transfer of freight inbound or outbound, unless specific exemptions to this requirement are specified in the Quotation.  Freight outbound from Seller to Buyer shall be INCOTERMS 2010, EXW-Location named by Seller (FOB Seller’s Dock). Freight inbound from Buyer to Seller shall be INCOTERMS 2010 DDP-Location named by Seller (FOB Seller’s Dock, duty paid) at Buyer’s additional expense.   Buyer shall provide to Seller a listing of all property, and its “unit replacement value” (in accordance with DFARS 211.274-3) of each item proposed to be furnished by Buyer where the total value of the shipment exceeds fifty-thousand US dollars (US$50,000).  If not so separately declared, Buyer agrees that the total value of shipment is less than fifty-thousand US dollars (US$50,000).

(b) 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 may inspect Seller’s facilities and review Seller’s quality controls from time to time upon reasonable notice.  Seller does not permit the audit of proprietary financial data by commercial entities.  Government assist audits, such as those performed by DCAA, and Government audits are permitted.

(d) Buyer shall identify items, materials or information which are subject to control by any export regulations, and shall identify any items or materials where export sensitive information can be obtained by casual inspection of the items or material (i.e., no disassembly or touch).  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), the Export Administration Regulations, or other export control laws and regulations.

(e) Any reports or data provided as deliverable items are “works made for hire” and are the exclusive property of the Buyer and may be reproduced, distributed or sold by the Buyer without limitation, excepting that such reports and data shall be reproduced, distributed or sold only in their entirety, and with all markings intact.  Any misuse or fraudulent misrepresentation of the reports or data, or the information contained therein, is the exclusive liability of the Buyer, their successors and assigns.

(f) Seller may at times, and from time-to-time, notify Buyer, in writing, that unusual or excessive hazards exist in the Buyer’s supplied procedures or specifications, or of dangers to excessively high value items.  In such instances, the notification shall be deemed to be a formal notification of  the hazard, and Buyer agrees to provide a full waiver of all liability for any damage to Buyer’s Property, if so requested by Seller.

(g) Nothing stated herein shall limit the Buyer’s other rights as set forth elsewhere herein, or at law or in equity.

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 equipment or fixtures or Buyer’s Property, and neither the Seller’s tooling nor the Seller’s 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 accepted Order.   Seller may incorporate proprietary information, intellectual property or trade secrets of the Seller in such deliverable items or data.  Where such information is incorporated into deliverable items, Buyer shall protect such items or data in accordance with the confidentiality provisions of these terms and conditions rendering the same degree of care as Buyer uses to protect its own confidential information, but no less than a reasonable degree of care.

6)      SCHEDULES: The estimated schedule and pricing in the Quotation are based upon 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.  Due to the uncertain nature of testing services, ALL WORK SCHEDULE DATES AND TEST DURATIONS ARE APPROXIMATE and 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, severe weather or other causes beyond the Seller’s control.  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 the reasonable control of the Seller.  Any event beyond the Seller’s reasonable control shall not constitute a cause for termination of the 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.

7)      CHANGE ORDERS, INTERRUPTIONS, AND TERMINATIONS:

(a) Change Orders. Seller is not obligated to perform any additional services not specified in the accepted Order, including, but not limited to, repeat testing. If Seller agrees to perform additional services requested by Buyer’s change to the accepted Order (hereinafter, a “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 or added work.  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 may be construed as Change Orders, and the appropriate charges may be added accordingly.  In accordance with Seller’s Quality Management System and FAR 52.243-1 Alt III, Seller cannot proceed with disputed work.

(b) Interruptions, Delays and Standby Charges. 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. Unless otherwise stated in the Quotation, standby charges will begin to accrue, in whole business day increments, four (4) business hours (at Buyer’s notified location) after Seller’s notification (by telephone, e-mail and/or in-person) to Buyer of the interruption or delay, and will accrue at the average daily rate, per business day, of the delayed line items.  The average daily rate for standby charges is calculated by dividing the line item price by the estimated duration, as stated in the quotation.  Seller will use best efforts to mitigate such stand-by charges.  Re-setup charges may apply at resumption of testing.  Rescheduling shall be at the discretion of the Seller.

(c) Terminations. Buyer may, by written notice to Seller, terminate all or part of this contract for its sole convenience.  In the event of such termination, Seller shall immediately cease all terminated work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease any terminated work.  Buyer may also, by written notice to Seller, terminate all or part of this contract: (i) if Seller fails to perform any other provision of this contract or (ii) fails to make progress, so as to endanger performance of this contract, and, in either of these two circumstances, within ten (10) days after receipt of notice from Buyer specifying the failure, does not initiate a cure of the failure or provide Buyer with a written detailed plan adequate to cure the failure; or (iii) in the event of Seller's bankruptcy, suspension of business, insolvency, appointment of a receiver for Seller's property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors.  In case of termination by Buyer of all or any part of this contract, Seller may submit a claim to Buyer within sixty (60) calendar days after the effective date of termination for fees owing for goods or services provided prior to the effective date of such termination plus equitable termination charges based upon the status of work completed or in process, commitments made and facilities allocated.  Termination charges shall not include lost profits or unabsorbed overhead, and shall not exceed the remaining contract price.  Seller will use best efforts to mitigate such termination charges.  Seller shall continue Services not terminated or disputed, unless prohibited by law or court order.

8)          LIMITATIONS OF LIABILITY:

(a) General: IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR  OTHERWISE FOR  ANY  SPECIAL, INDIRECT, PUNITIVE OR  CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF TEMPORARY EQUIPMENT, OVERTIME, BUSINESS INTERRUPTION, SPOILAGE OF GOODS, CLAIMS OF CUSTOMERS OR OTHER ECONOMIC HARM, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY SHALL BEAR ALL LIABILITY AND RESPONSIBILITY FOR THE ACTS, ERRORS OR OMISSIONS OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, ASSIGNS, SUCCESSORS, REPRESENTATIVES OR AGENTS COMMITTED WITHIN THE SCOPE OF THEIR EMPLOYMENT OR FIDUCIARY DUTY. EACH PARTY SHALL MAINTAIN INSURANCE  IN REASONABLE AND RESPONSIBLE AMOUNTS FOR SUCH LIABILITIES,  NEITHER PARTY SHALL BE LIABLE FOR THE ACTS, ERRORS OR OMISSIONS OF THE OTHER PARTY’S OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, ASSIGNS, SUCCESSORS, REPRESENTATIVES OR AGENTS  WHETHER OR NOT CARRIED OUT WITHIN THE SCOPE OF THEIR EMPLOYMENT OR FIDUCIARY DUTY.Nothing in this Agreement shall exclude or limit either Party’s liability for death or personal injury caused by said Party’s negligence or for fraudulent misrepresentation or for any liability that cannot legally be excluded or limited.  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, unless specifically so stated in the accepted Order.

(b) Bodily Injury:  Each Party hereby agrees to indemnify and hold harmless the counter 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 goods or services 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. For claims under Workers’ Compensation Insurance related to this contract, each Party hereby waives subrogation in favor of the other Party.   Each Party agrees that its customers, employees, agents or invitees visiting the counter Party’s facilities shall adhere to all of the counter Party’s work rules, safety standards and security requirements that are reasonably provided to visiting personnel.

(c) Property Damage: “Buyer’s Property” as defined herein, includes but is not limited to: Buyer’s owned, leased, borrowed or hired property; Buyer furnished Government Property; Buyer furnished Contractor Acquired Property and all similar property of Buyer’s subcontractor’s furnished to Seller, or by Seller, for the Order.  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, and primary insurance coverage of the Buyer and Buyer’s property management system.  Seller’s liability for maintenance, loss, damage, destruction or theft of Buyer’s Property, for all public and private contracts under this Agreement, shall conform to FAR 52.245-1(h).  BUYER ACKNOWLEDGES AND UNDERSTANDS THAT THERE ARE UNKNOWN HAZARDS ASSOCIATED WITH THE GOODS AND SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS WHICH THE SELLER CANNOT SAFEGUARD AGAINST.  Regardless of claim, form or theory of law applied, Seller shall not be liable for loss, damage or destruction of Buyer’s Property, caused by the administration of the tests to the Buyer’s Property or associated activities, except for, and only in proportion to the extent such loss is caused by or results from the negligence or willful misconduct of the Seller, nor shall Seller be liable for any loss, damage or destruction due to the accidental malfunction of the Seller’s equipment.  Seller shall not be liable for maintenance, loss, damage or destruction of Buyer’s Property while on Seller’s premises, including during storage, preparation for shipment, mounting and demounting, except where Seller acted with negligence or willful misconduct or where covered by Seller’s Commercial Property Insurance for loss, damage, destruction or theft.  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 value as defined in DFARS 211.274-3.  Buyer is not responsible for loss, damage or destruction of Seller’s equipment.   

(d)Service Warranty: Seller warrants that the “Services” provided hereunder shall conform to the specifications and express warranties set forth in these terms and conditions and the accepted Order, and that at the time of delivery: (i) Seller shall have the right to perform such Services; (ii) 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 one-hundred eighty (180) calendar days of the date of delivery of any final deliverable for such Services (the “Warranty Period”).  No claim of any kind with respect to the conformance of the Services to the foregoing specifications (including any exceptions or waivers), 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 in the event of a warranty claim. 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. Notwithstanding the provisions of this Service Warranty regarding 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 the results, where the results are subsequently so verified.  SELLER’S LIABILITY OF EVERY FORM AND TYPE,  EXCEPTING  THOSE  LIABILITIES COVERED BY THE SELLER’S PRODUCTS AND COMPLETED OPERATIONS INSURANCE,  OR ANY PENDING OR UNRESOLVED WARRANTY CLAIMS ARISING DURING THE WARRANTY PERIOD,  SHALL ABSOLUTELY AND COMPLETELY TERMINATE AT THE CONCLUSION OF THE ONE-HUNDRED EIGHTY (180) DAY WARRANTY PERIOD.  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 net thirty (30) calendar days, from date of receipt of an undisputed invoice. The applicable interest rate for late payments shall be the lesser of one percent (1.0%) per month or the maximum allowed by law.  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 Order requiring more than ten (10) calendar days to complete will be billed on a Line Item or Milestone basis, but not more frequently than monthly.  Buyer must separately list the billable Line items or Milestones in its Order.

(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 the collection of any overdue amount, including reasonable attorney’s fees. 

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 the 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”), which are conspicuously marked or identified in writing as confidential or proprietary information, shall be treated as confidential information by both Parties. Both Parties shall take all necessary measures to protect the Information from unauthorized access, unauthorized release, copying, transmission or unauthorized use of the Information of the other Party using the same care as they would for their own confidential information, but not less than a reasonable degree of care. 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 shallimmediately 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 the government agency.

(d) Buyer indemnifies Seller against any liability caused by Buyer’s infringement of any letters patent, trade secrets, copyrights, confidential information or proprietary information in the specifications, information or goods provided by Buyer to Seller.  Seller indemnifies Buyer against any liability caused by Seller’s infringement of any letters patent, trade secrets, copyrights, confidential information or proprietary information in the specifications, information or goods provided by Seller to Buyer.

(e) This article of this contract shall continue in effect for a period of three (3) years after the termination of this contract, but may be superseded by any separate Non-disclosure Agreement or Proprietary Information Agreement executed by mutual consent of the Parties. Buyer acknowledges Seller must archive all project information for a minimum of three (3) years to comply with the Seller’s Quality Management System.

12)   APPLICABLE LAW AND REGULATIONS:

(a) The contract between Buyer and Seller and shall be governed under the laws of the State of California without regard to conflict of law provisions, or under Federal Procurement Law, as applicable.

(b) Seller warrants that all goods and services supplied pursuant to any accepted 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.  Seller representations and certifications of compliance with these and other regulations can be found at The System for Award Management website at www.sam.gov, under DUNS Number 063818587.  

(c) If a government contract number appears on the face of the accepted Order, Seller agrees to comply with all applicable flowed-down terms and conditions of such contract, which shall be appended to Buyer’s 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 Order.  Where the Federal Acquisition Regulations (FAR) are referenced in these 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 properly identify 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)    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. Seller will not proceed with any work in dispute in accordance with Seller’s Quality Management System and FAR 52.243-1 Alt III.

(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 Seller’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.  Buyer and Seller agree not to pursue any suit, action or judicial proceeding against the other arising out of, or connected with this Agreement, or the performance thereof in any jurisdiction other than the state of California.  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 terms and conditions, and has had the opportunity to clarify these terms and conditions with Seller, and is satisfied that it reflects the intent of the Parties.  Accordingly, the rule of contra proferentem 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.

14)   SEVERABILITY: If any provisions of these 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 terms and conditions shall not constitute a waiver of any other provision.  Any failure of Seller or Buyer to enforce a provision of these terms and conditions shall not constitute a waiver of any other provision of these terms and conditions and all other provisions shall remain in full force and effect.

15)  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 terms and conditions.

16)    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 or certified digital signature that can be authenticated will constitute an original and binding signature of a Party.