BLUE FORCE GEAR, INC.
Terms and Conditions for Purchase Orders
1. Definitions.
The word “Buyer” whenever used herein shall mean Blue Force Gear, Inc. The party with which this order is placed is referred to herein as “Seller”. The products, machinery, equipment, supplies and/or labor or services covered by this Purchase Order are referred to herein as “Goods”. The terms “Purchase Order”, “herein” and “hereto” refer to and include the Purchase Order defining the goods, pricing, and delivery schedule along with these Standard Terms and Conditions and any other documents specifically made a part of the Purchase Order.
2. Acceptance.
Buyer shall not be bound by this Purchase Order until Seller executes and acknowledges in writing (including, but not limited to, email) of the Purchase Order. No terms and conditions at variance with, or additional to, those contained herein shall be applicable hereto or to this Purchase Order unless specifically agreed to in writing by an authorized representative of Buyer. Any agreements, negotiations or understandings of the parties prior to the date of this Purchase Order, whether written or oral, are merged herein and superseded hereby. No modification of the provisions hereof shall result from Buyer’s acceptance of the Goods or receipt from Seller or an invoice or acceptance or other form containing terms and conditions in addition to, or inconsistent with, the provisions hereof. Buyer will not recognize or be liable for claims based on verbal orders.
3. Changes to Order and Overage.
Buyer shall have the right to make changes in this Purchase order. Such changes shall include, but not be limited to, changes in any drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation, upon which this Purchase Order is based. Should any change affect any prices (or delivery terms) contained in this Purchase Order, Seller shall, before proceeding, notify Buyer of any price changes (or changes in delivery terms) and receive Buyer’s written agreement thereto. No modification alteration amendment of this Purchase Order shall be effective unless in a written change order signed by Buyer and acknowledged by Seller (including, but not limited to, email). No charges for any changes that are not so authorized will be paid. Any over shipments shall be at Seller’s risk, and Buyer may delay payment therefor without loss of discount. All costs in returning over shipped items, if so desired by the Buyer, will be at Seller’s expense. Seller agrees to accept any such changes subject to this paragraph.
4. Assignment.
Seller shall not assign its rights or delegate or subcontract its performance under this Purchase Order in whole or in part without the prior written consent of Buyer. Any attempted assignment, delegation or subletting without Buyer’s prior written consent shall be void and shall constitute a material breach of this Purchase Order by Seller.
5. Nonconforming Goods.
All Goods furnished under this Purchase Order are subject to final inspection and approval at destination by Buyer. Any Goods not in compliance with any specifications or other requirements of this Purchase Order are subject to rejection by Buyer, and any or all of such Goods may be returned by Buyer at Seller’s expense. No goods returned as non-confirming shall be replaced unless authorized by Buyer. Any payments for Goods made prior to inspection shall not constitute an acceptance of said Goods or impair the remedies of Buyer hereunder and as provided by law. Payment for the goods delivered hereunder shall not constitute acceptance thereof. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Buyer's other rights, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Buyer receives goods whose defects or nonconformities are not readily apparent upon Buyer's visual examination; Buyer reserves the right to require replacement in addition to other remedies it may be entitled to. Nothing contained in this Purchase Order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
6. Delivery and Default.
Buyer may, at its election, by delivery to Seller of written notice of termination, cancel this Purchase Order or any part hereof (a) if Seller fails to deliver the Goods in accordance with any delivery or performance dates specified herein, of (b) if Seller fails to comply with any other provision of this Purchase Order and does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing, or (c) upon the occurrence of any of the following: the voluntary or involuntary liquidation or dissolution of Seller, the sale or other disposition of all or substantially all of the assets of Seller, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of Seller, or other similar proceeding affecting Seller or any of its assets, or any action taken by any trustee or receiver or by any court in any such proceeding, or the disaffirmance, rejection or postponement in any such proceeding of any of the Seller’s obligations pursuant to this order. In the event of any cancellation for the reasons described in (a) or (b) or (c) above. Buyer may purchase similar Goods and Seller shall be liable to Buyer for all loss or damage suffered or incurred by Buyer arising or resulting from such cancellation including without limitation, any additional cost or expense incurred in purchasing the Goods elsewhere. However, Seller shall not be so liable for failure to deliver the Goods in accordance with delivery or performance dates when such failure is due to causes beyond control and without the fault or negligence of Seller, and Seller has notified Buyer within forty-eight (48) hours of the commencement of the occurrence that caused such failure. Time is of the essence of this Purchase Order. If in order to comply with Buyer's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this Purchase Order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer. The price stated in this Purchase Order includes all charges for packaging, boxing, crating and special handling. No modification or adjustment of the stated price may be made without the signed written agreement of Buyer. If the price is not stated on this Purchase Order, the price shall be the lower of the price last quoted to or paid by Buyer, or the prevailing market price.
7. Choice of Freight.
Seller agrees to ship order using the shipping method indicated on the Purchase Order. If no instructions are included, Seller agrees to use the most cost-effective means for shipping the order and will charge Buyer actual charges incurred by vendor with no mark-up for shipping costs.
8. Partial Shipments.
Unless otherwise requested by Buyer in writing (either on the Purchase Order or in separate correspondence), Seller agrees to fill the order in full by the date indicated on the face of the Purchase Order. If Seller partially ships Purchase Order, Seller agrees to ship the remaining portion of the order on Seller’s shipping account and that no additional shipping charges will be charged to Buyer. If Seller partially ships an order without prior approval and charges shipping to Buyer’s shipping account, Buyer reserves the right to charge back to Seller, or set off against amounts owed to Seller, any excess shipping charges associated with the multiple shipments.
9. Title and Risk of Loss.
All Goods shall be shipped F.O.B. Destination, Freight Prepaid (or such other destination as Buyer has expressly stated herein) unless specified to the contrary in the Purchase Order, and title and risk of loss to and with respect to the Goods shall remain with the Seller until the Goods are delivered to Buyer at Buyer’s plant, Pooler, GA or such other destination. All goods must be suitably packed, marked and shipped in accordance with the requirements of applicable common carriers in a manner to secure the lowest transportation cost. Additionally, all goods must be packaged, marked and shipped as required by the Buyer. All Purchase Order pricing is to include any and all freight, packaging and handling cost and fees.
10. Payment.
Unless otherwise expressly stated herein, invoices dated prior to delivery of Goods will not be accepted. Buyer may withhold any payment due hereunder to such extent as may be necessary to protect Buyer from loss because of a reasonable doubt (a) that the Goods will meet the requirements of this Purchase Order, of (b) that the Goods will be delivered on the date or dates specified in this Purchase Order. Upon the submission of proper invoices, Buyer shall be paid the prices stipulated herein for Goods delivered and accepted, or services rendered ad accepted, less deductions, if any. Unless otherwise specified, payments will be made on partial deliveries accepted by Buyer if Buyer, in its sole discretion, determines that the amount due is sufficient to warrant such partial payments, in connection with any discount offered, time will be computed from date of delivery at destination or from the date a correct invoice is received, if the latter date is later than the date of delivery.
11. Price and Payment.
By filling this order, Seller agrees to the unit price reflected on the Purchase Order. If Seller’s price varies from Purchase Order, Seller agrees to request a written revision to the Purchase Order signed by Buyer prior to commencing work. If the order is commenced or filled without obtaining this written revision, Seller agrees to the unit price on the executed Purchase Order.
12. Invoicing and Statements.
All invoices should be submitted to Buyer’s mailing address: 166 Pine Barren Road, Pooler, GA 31322 or e-mailed to accounting@blueforcegear.com. Purchase Order numbers must be clearly indicated on each invoice. When Vendor is notified of invoice errors, Vendor agrees to issue a credit memo for the incorrect invoice and a new corrected invoice with a different number. At the end of the month, Vendor agrees to send Buyer a statement of account. To the extent payment terms are not otherwise stated on the Purchase Order, Buyer shall pay submitted invoices within thirty (30) days of the later of Buyer's receipt of all goods subject to the Purchase Order or the invoice for such order.
13. Warranty.
In addition to any other warranties, Seller warrants that the Goods shall be new unless otherwise specified, will conform to any specifications, drawings, samples or other descriptions furnished or specified by Buyer, will be merchantable and will be free from any defects in design, workmanship and materials for a period of one (1) year from date of initial use. Any replacement or repair of materials or correction to workmanship shall be additionally warranted for a period of one (1) year from the date the defect is remedied. Any replacement parts or other materials provided pursuant to this warranty shall be shipped F.O.B. Destination, Freight Prepaid (or other destination specified by Buyer). Seller acknowledges that, notwithstanding any drawings, specifications or other descriptions of the Goods set forth or referred to in this Purchase Order, Buyer is replying on Seller’s skill and judgment to furnish suitable Goods for the purposes described herein, and Seller warrants that the Goods will be fit and suitable for such purposes. Seller also expressly warrants title to all of the Goods is free and clear of any and all encumbrances of whatsoever nature and kind. All warranties shall survive any inspection, delivery, acceptance or payment.
14. Compliance with Laws.
(A) By accepting this Purchase Order, Seller acknowledges and warrants that all Goods furnished hereunder shall comply with all laws and regulations applicable to all applicable State and Federal regulations. Seller acknowledges and warrants that their company, subcontractors, representatives, designees, et al. are in compliance with all U.S. Department of Labor applicable laws and regulations, registered with DDTC (“Directorate of Defense Trade Controls”) in compliance with ITAR (“International Traffic in Arms Regulation”), and with the Alcohol, Tobacco and Firearms Bureau and have an FFL (“Federal Firearms License”) – if applicable.
(B) Seller acknowledges that all or some portion of the Goods may constitute “chemical substances” or “mixtures,” “hazardous substances” and/or “hazardous wastes” under the U.S. Toxic Substances Control Act (“TSCA”),” the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), the Resource Conservation & Recovery Act (“RCRA”), the Hazardous Materials Transportation Act (“HMTA”), Georgia Environmental Protection Division (“EPD”), Department of Health and Environmental Control of South Carolina (“DHEC”) or other similar federal, state, or local laws and regulations. By accepting this order Seller agrees and warrants that all goods including services furnished hereunder do and will comply with all applicable laws and regulations including, without limitation, TSCA, CERCLA, RCRA, HMTA, EPD, DHEC, and their implementing regulations.
(C) Seller acknowledges that in relation to Hazardous Materials, Substances, and Waste Packaging and Shipping seller shall be in compliance with Department of Transportation “49 CFR”.
(D) Seller shall indemnify buyer and hold buyer harmless from and against all fines, response and remedial costs, and other damages or injuries assessed against or costs incurred by Buyer resulting from noncompliance by Seller with applicable laws and regulations.
(E) Seller agrees that it has a policy of equal employment opportunity for all employees and applicants in compliance with all applicable federal and state laws, that it complies with the affirmative action provisions and implementing regulations (41 CFR Part 60) of Executive Order 11246, The Vietnam Era Veterans Readjustment Assistance Act of 1974, as well as the Rehabilitation Act of 1973, and that it requests the following appropriate actions on behalf of Seller. To the extent that goods or services furnished hereunder may be used directly or indirectly for performance under a government contract or subcontract covered by the above, the following terms are hereby incorporated by reference, and Seller certifies its compliance with each of these terms to which Seller may be subject as a subcontractor, vendor or supplier of Buyer: (1) The equal employment opportunity clauses appearing at 41 CFR 60-1.4(a)(1-8), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) [This Contractor shall abide by the requirements of 41 CFR 60-1.4(a)(1-8), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against women, minorities, qualified protected veterans, or qualified individuals on the basis of disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment women and minorities, qualified protected veterans, and qualified individuals with disabilities]; (2) 41 CFR 60-1.7 (EEO-1 reports); (3) 41 CFR 60-1.40, 60-300.44, and 741.44 (written affirmative action plans); (4) 41 CFR Section 60-1.8 (Certification of Non-Segregated Facilities); (5) 41 CFR 61-300 (VETS 4212 reports), and (6) 20 CFR Part 471, Appendix A to Subpart A (Notice of Employee Bargaining Rights).
(F) Berry Amendment Compliance: Buyer requires the use of materials complying with the Berry Amendment (USC, Title 10, Section 2533a), such that the goods provided hereunder, as well as the materials and components thereof, have been grown, reprocessed, reused, or produced in the United States. In filling Buyer’s orders, Seller agrees to use and provide only goods, materials and components that have been grown, reprocessed, reused, or produced in the United States. Seller will provide affidavits confirming compliance with this requirement from time to time and upon Buyer's request.
15. Cancellation by Buyer.
(A) Cancellation Due to Causes Beyond Buyer’s Control. Buyer may cancel this order in whole or in part or defer acceptance of any Goods purchased hereunder in the event of a shutdown of its plant or a substantial reduction in the operation of said plant due to strikes, floods, riots, accidents, acts or failures to act of any governmental entity or of Seller, major equipment breakdowns, or any other causes whatsoever, whether similar or dissimilar to those set forth above, provided that any such cause was beyond the reasonable control of Buyer. In the event of such a cancellation or deferral, Buyer shall pay to Seller, as Seller’s sole and exclusive remedy, a reasonable cancellation or deferral charge, which charge shall in no event exceed the actual damages incurred by Seller as a direct result of the cancellation or deferral.
(B) Cancellation for Convenience of Buyer. Buyer also reserves the right to cancel this order in whole or in part at any time, for its convenience, by written notice to Seller, immediately upon receipt of notice of such cancellation. Seller shall stop all performance hereunder except as otherwise directed by Buyer. If Seller is not in default of any of its obligations hereunder at the time of such termination, Buyer shall pay to Seller as its sole and exclusive remedy, an amount equal to those reasonable and documented costs incurred by Seller prior to termination. Provided, however, that the above amount plus any prior payments shall in no event exceed the purchase price of the Goods. All Goods completed or partially completed prior to termination shall become the property of Buyer, or at Buyer’s option, the salvage value of the Goods may be deducted from the amount due Seller by reason of the termination.
(C) Bankruptcy. In the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency by or against the Seller, including any proceeding under the United States bankruptcy laws, or in the event of the appointment, with or without Seller’s consent, of a receiver of an assignee for the benefit of creditors, Buyer shall be entitled to cancel any part of this Order which has not been filled or received without any liability whatsoever.
(D) Termination. In the event of a breach by Seller of any of the provisions of this contract, Buyer reserves the right to cancel and terminate this contract, upon giving oral or written notice to the Seller. Seller shall be liable for damages suffered by Buyer resulting from Seller’s breach of this contract.
16. Patent Infringement and Product Liability.
Seller hereby agrees to indemnify and hold harmless Buyer and its successors, assigns and customers and the users of its products against all costs whatsoever involved in any and all claims and suits for infringement or patent and patent rights or product liability claims arising from the purchase or use of the Goods. Buyer shall give Seller reasonable notice of any such claim or suit, and Seller agrees to undertake at its own expense the defense of any and all such claims or suits. In addition, upon notification by Buyer of an infringement claim or product liability claim, Seller shall do one of the following: (a) procure for Buyer the right to continue using the Goods on a permanent basis, without cost to Buyer and without any restrictions on the right of Buyer to use the Goods for the purpose for which they are intended, or (b) replace the same with non-infringing Goods satisfactory to Buyer, or (c) modify the goods in a manner satisfactory to Buyer so that they become non infringing and/or clear of any product liability claims.
17. Indemnification.
Seller shall defend, indemnify and hold harmless Buyer from and against all damages, claims, suits, judgments, liabilities and expenses (including reasonable attorneys' fees, costs and expenses and costs of litigation whether suit be brought or not, at trial and/or on appeal) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, or from any negligent or other wrongful act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller or any other rights or remedies which Buyer may have under contract, at law or in equity.
18. Nonwaiver of Remedies.
The remedies of Buyer provided for herein shall be cumulative and shall be in addition to any other or further remedies provided in law or equity. No delay in the exercise of, or failure to exercise any right, remedy or power of Buyer shall be construed to be a waiver thereof, and such right, remedy or power may be exercised from time to time as often as may be deemed expedient by Buyer.
19. Waiver.
Buyer's failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
20. Entire Agreement.
This Purchase Order, any Subcontractor Agreement between Buyer and Seller, and any other documents referred to on the face hereof constitute the entire agreement between the parties.
21. Inspection and Acceptance.
If this Purchase Order involves manufacture of the Goods, Seller shall provide all shop inspection required and corresponding quality inspection reports to ensure compliance with this order, and Buyer shall have the right at all reasonable times to inspect and test all work in process. Neither the presence nor the absence of an inspector or other personnel of Buyer in Seller’s facility shall relieve Seller of any requirements of this Purchase Order. Seller may request from Buyer, at the Seller’s discretion, to submit monthly (or more frequently if delivery requirements make it necessary) status reports and engineering production status reports if Buyer so specifies herein. Notwithstanding any prior inspection, the passage of title or any payments hereunder, all Goods furnished hereunder are subject to final inspection and acceptance by Buyer upon delivery.
22. Controlling Law and Severability.
The terms and conditions of this Purchase Order shall be construed and interpreted under, and all respect rights and duties of the parties shall be governed by, the laws of the state of Georgia and United States of America Federal law to the extent the same may apply. If any provision or requirement of this Purchase Order is declared or found to be unenforceable, the balance of this Purchase Order shall be interpreted and enforced as if the unenforceable provision or requirement had never been a part hereof.
23. Confidentiality.
Seller agrees and acknowledges that all schematics, blueprints, data, documents, and information (the “Confidential Information”) provided to Seller by or on behalf of Buyer, whether under or in connection with this or other Purchase Orders from Buyer, are the confidential and proprietary property of Buyer and shall not to be disclosed to third parties or used for any purpose other than fulfilling authorized Purchase Orders without the prior written consent of Buyer. Seller further agrees that any and all changes, modifications, or improvements to the Confidential Information shall belong solely to Buyer, and Seller hereby assigns the same to Buyer. Seller warrants and covenants that Seller will take all commercially reasonable steps to strictly protect and safeguard the Confidential Information, including, without limitation by restricting access to, Confidential Information and having Seller’s employees, contractors, and agents execute agreements not to disclose Confidential Information. This Purchase Order is expressly limited to and conditioned on Seller’s acceptance of the terms in this paragraph, and Seller agrees and acknowledges that any amendment or acceptance purporting to eliminate or alter the terms in this paragraph is ineffective. Upon request by Buyer, Seller agrees to execute Buyer’s Mutual Confidentiality and Nondisclosure Agreement.
24. Force Majeure.
Buyer may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller's direct additional costs in holding the goods or delaying performance of this agreement at Buyer's request. Causes beyond Buyer's control shall include government action or failure of the government to act where such action is required, strike or other labor trouble which includes health related labor shortages, fire, or severe weather.
25. Severability.
If any provision hereof or part thereof shall be found to be inoperable or in violation of any law or regulation, only that provision or part thereof shall be stricken from this order and the remainder of the order shall not be affected.
26. Purchase Order and Any Associated Subcontractor’s Agreement.
Generally, the Purchase Order prevails. For provisions ¶3, ¶5, ¶6, ¶9 and ¶15 of the present TERMS & CONDITIONS, a Subcontractor’s Agreement may be associated therewith, any conflict involving provisions ¶3, ¶5, ¶6, ¶9 and ¶15 related hereto are controlling in the Subcontractor’s Agreement.