GENERAL TERMS AGREEMENT
between
THE BOEING COMPANY
and
XXXXXXX/S METAL, INC,
GENERAL TERMS AGREEMENT
TABLE OF CONTENTS
CLAUSE TITLE PAGE
1.0 DEFINITIONS 2
2.0 ISSUANCE OF PURCHASE ORDERS
AND APPLICABLE TERMS 5
2.1 Issuance of Purchase Orders 5
2.2 Acceptance of Purchase Orders 5
2.3 Written Authorization to Proceed 6
2.4 Formation of Contract 6
2.5 Rejection of Purchase Orders 6
3.0 TITLE AND RISK OF LOSS 6
4.0 DELIVERY 6
4.1 Requirements 6
4.2 Delay 7
5.0 ON-SITE REVIEW AND RESIDENT 7
REPRESENTATIVES
5.1 Review 7
5.2 Resident Representatives 7
6.0 INVOICE AND PAYMENT 8
7.0 PACKING AND SHIPPING 8
8.0 QUALITY CONTROL, INSPECTION
REJECTION AND ACCEPTANCE 8
8.1 Controlling Document 8
8.2 Inspection and Rejection 9
8.3 Sale of Spare Parts to Third Parties 10
8.4 Right of Entry 10
8.5 Certification 10
8.6 Federal Aviation Administration or
Equivalent Government Agency Inspection 10
8.7 Retention of Records 11
8.8 Source Inspection 11
9.0 EXAMINATION OF RECORDS 11
10.0 CHANGES 12
10.1 General 12
10.2 Obsolescence 13
10.3 Model Mix 13
11.0 PRODUCT ASSURANCE 13
12.0 TERMINATION/CANCELLATION 13
12.1 Termination-Convenience 13
12.2 Cancellation-Default 14
12.3 Excusable Delay 14
12.4 Other 14
12.4 Seller Termination 14
13.0 RESPONSIBILITY FOR PROPERTY 15
14.0 LIMITATION OF SELLER'S RIGHT TO
ENCUMBER ASSETS 15
15.0 PROPRIETARY INFORMATION AND ITEMS 15
16.0 COMPLIANCE WITH LAWS 17
17.0 INFRINGEMENT 18
18.0 BUYER'S RIGHTS IN SELLER'S INVENTIONS 19
19.0 BUYER'S RIGHTS IN SELLER'S WORK PRODUCT 19
20.0 BUYER'S RIGHTS IN SELLER'S, PATENTS
COPYRIGHTS, TRADE SECRETS AND TOOLING 20
21.0 NOTICES 22
21.1 Addresses 22
21.2 Effective Date 22
21.3 Approval or Consent 22
21.3 Approval or Consent 22
22.0 PUBLICITY 22
23.0 FACILITIES 23
24.0 SUBCONTRACTING 23
25.0 NOTICE OF LABOR DISPUTES 23
26.0 ASSIGNMENT 24
27.0 RELIANCE 24
28.0 NON-WAIVER 24
29.0 HEADINGS 25
30.0 PARTIAL INVALIDITY 25
31.0 APPLICABLE LAW 25
32.0 AMENDMENT 25
33.0 LIMITATION 25
34.0 TAXES 26
34.1 Inclusion of Taxes in Price 26
34.2 Litigation 26
34.3 Rebates 26
34.2 Litigation 26
34.3 Rebates 26
34.4 Payment of Taxes on Tooling 26
35.0 FOREIGN PROCUREMENT OFFSET 26
36.0 ENTIRE AGREEMENT/ORDER OF PRECEDENCE 27
36.1 Entire Agreement 27
36.2 Incorporated By Reference 27
36.3 Order of Precedence 27
36.4 Disclaimer 28
REVISION
REV
SYM SCRIPTION DATE APPROVAL
1 INCORPORATE NEW CONTRACT LANGUAGE 09-15-92
L-71 (03-13-91 REV C OF PRO FORMA)
TO EXISTING CONTRACT LANGUAGE
-NOTE-EXCEPTIONS TO PREVIOUS
CONTRACT INCORPORATED INTO NEW
REVISION FOR XXXXXXX'X
GENERAL TERMS AGREEMENT
RELATING TO
BOEING MODEL AIRCRAFT
THIS GENERAL TERMS AGREEMENT ("Agreement") is entered into as of August
30, 1990 and amended as of September 15, 1992, by Xxxxxxx'x Metal, Inc, a
Missouri corporation, with its principal office in St. Xxxxxxx, Missouri,
("Seller"), and Boeing Commercial Airplane Group, a Division of The Boeing
company, a Delaware corporation with its principal office in Seattle, Washington
("Buyer"),
RECITALS
A. Buyer is currently producing commercial aircraft.
B. Seller manufactures and sells certain goods and services for use in the
production and support of commercial aircraft.
C. Seller desires to sell and Buyer desires to purchase certain of
Seller's goods and services for the production and support of
commercial aircraft,
D. Seller and Buyer desire to enter into an agreement for the sale by
Seller and purchase by Buyer of Products as defined herein.
Now therefore, in consideration of the mutual covenants set forth herein, the
parties agree as follows:
AGREEMENTS
1.0 DEFINITIONS
The definitions set forth below shall apply to the following terms as
they are used in any order issued pursuant to this General Terms
Agreement.
(a) The term "Product" shall mean (a) goods purchased and described
on any purchase order except for Rotating Use Tools and (b)
services purchased and described on any purchase order.
(b) The term "FAR" shall mean the Federal Acquisition Regulations in
effect on the date of this Agreement.
(c) The term "FAA" shall mean the United States Federal Aviation
Administration or any successor agency of the Federal Aviation
Administration.
(d) The term "Computer-Aided design" (CAD) shall mean (1) any
computer system or program that supports the design process or,
(2) the use of computers to assist engineering design in
developing, producing, and evaluating design, data, and drawings.
(e) The term "Computer-Aided Manufacturing" (CAM) shall mean the use
of computers and computer data in the development of a Product,
including fabrication, assembly, and installation.
(f) The term "Computer-Aided Design/Computer-Aided Manufacturing"
(CAD/CAM) shall mean engineering/Manufacturing applications
released as datasets in a digital format and provided by the
Buyer to the Seller to be utilized in the Manufacturing process,
(g) The term "Dataset" means any compilation of data or information
(including, without limitation, numerical data, geometric
definitions, program instructions or coded information) which may
be used directly in, integrated with or applied to, a computer
program for further processing. A Dataset may be a composite of
two or more other Datasets or an extract of a larger Dataset.
(h) The term "Drawing" shall mean an automated or manual depiction of
graphics or technical information representing a Product
including parts list and specifications relating thereto.
(i) Words importing the singular number shall also include the plural
number and vice versa.
(j) The term "Tooling" shall mean all tooling, as defined in Boeing
Document M31-24, "Boeing Suppliers Tooling Manual," described on
any purchase order, including but not limited to Boeing-Use
Tooling, Supplier-Use Tooling and Common-Use Tooling as defined
in Boeing Document D6-49004, "Operations General Requirements for
Suppliers," and Rotating-Use Tooling as defined in Boeing
Document M31-13, "Accountability of Inplant/Outplant Special
(Contract) Tools." For purposes of this Agreement, in the
documents named in this subparagraph, the term "Supplier Use
Tooling" shall be changed to Seller Use Tooling and the term
"Boeing Use Tooling" shall be changed to Buyer Use Tooling.
(k) The term "Shipset" shall mean the total quantity of a given part
number necessary for installation on one airplane.
(1) The term "Derivative" shall mean any model airplane developed
from the existing Model airplane which has a new model
designation and which satisfies all of the following criteria:
(1) has the same number of engines as the existing Model
airplane;
(2) utilizes essentially the same aerodynamic and propulsion
design, major assembly components, and systems and the existing
Model airplane and
(3) achieves other payload/range combinations by changes in body
length, engine thrust, or variations in certified gross weight.
(m) The term "End Item Assembly" shall mean any Product which is
described by a single part number and which is comprised of more
than one component part.
(n) The term "Spare" shall mean any Product, regardless of whether
the product is an End Item Assembly or a Purchased on Assembly
Production Detail part, which is to be used other than in the
initial production of the airplane.
(o) The term "Purchased on Assembly Production Detail Part (POA)"
shall mean a component part of an End Item Assembly.
(p) "Material Representative" shall mean the employee and his/her
management designated as such by Buyer from time to time, or in
the absence of such designation, Buyer's employee and his/her
management primarily responsible for dealing with Seller in
connection with administration of an applicable Order.
2.0 ISSUANCE OF PURCHASE ORDERS AND APPLICABLE TERMS
2.1 Issuance of Purchase Orders
Buyer may issue purchase orders to Seller from time to time. Each
purchase order shall contain a description of the Products ordered, a
reference to the applicable specifications and drawings, the quantities
and prices, the delivery schedule, the terms and place of delivery, any
special conditions and the following notation:
"This Order is subject to and incorporates by this reference the
General Terms Agreement PLR-1289 between The Boeing Company and
Xxxxxxx'x Metal, Inc. dated August 30, 1990."
Each purchase order bearing such notation shall be governed by and be
deemed to include the provisions of this Agreement. Purchase Order
Terms and Conditions, Form Dl-4100-4045, Rev. 4/83, as revised from
time to time, does not apply to such purchase orders.
2.2 Acceptance of Purchase Orders
Each purchase order is Buyer's offer to Seller and acceptance is
strictly limited to its terms. Buyer will not be bound by and
specifically objects to any term or condition which is different from
or in addition to the provisions of the purchase order, whether or not
such term or condition will materially alter the purchase order.
Seller's commencement of performance or acceptance of the purchase
order in any manner shall conclusively evidence Seller's acceptance of
the purchase order as written. Buyer may revoke any purchase order
prior to the earlier of Buyer's receipt of Seller's written acceptance
or Seller's commencement of performance.
2.3 Written Authorization to Proceed
Buyer may give written authorization to Seller to commence performance
before Buyer issues a purchase order. If Buyer in its written
authorization specifies that a purchase order will be issued, Buyer and
Seller shall proceed as if a purchase order had been issued. This
Agreement, the applicable Special Business Provisions and the terms
stated in the written authorization shall be deemed to be a part of
Buyer's offer and the parties shall promptly agree on any open purchase
order terms. If Buyer does not specify in its written authorization
that a purchase order shall be issued, Buyer's obligation is strictly
limited to the terms of the written authorization.
If Seller commences performance (a) before a purchase order is issued
or (b) without receiving Buyer's prior written authorization to
proceed, such performance shall be at Seller's expense.
2.4 Formation of Contract
Each purchase order accepted by Seller is a contract between Buyer and
Seller and shall be referred to herein as an "Order."
2.5 Rejection of Purchase Order
Any rejection by Seller of a purchase order shall specify the reasons
for rejection and any changes or additions that would make the purchase
order acceptable to Seller; provided, however, that Seller may not
reject any purchase order for reasons inconsistent with the provisions
of this Agreement or the applicable Special Business Provisions.
3.0 TITLE AND RISK OF LOSS
Title to and risk of any loss of or damage to the Products shall pass
from Seller to Buyer at the F.O.B. point specified in the applicable
Order, except for loss or damage thereto resulting from Seller's fault
or negligence. Passage of title on delivery does not constitute Buyer's
acceptance of Products.
4.0 DELIVERY
4.1 Requirements
Deliveries shall be strictly in accordance with the quantities, the
schedule and other requirements specified in the applicable Order.
Seller may not make early deliveries without Buyer's prior written
authorization.
4.2 Delay
Seller shall notify Buyer immediately, of any circumstances that may
cause a delay in delivery, stating the estimated period of delay and
the reasons therefore. If requested by Buyer, Seller shall use
additional effort, including premium effort, and shall ship via air or
other expedited routing to avoid or minimize delay to the maximum
extent possible. All additional costs resulting from such premium
effort or premium transportation shall be borne by Seller except when
(i) such additional costs result from delays caused by an act or
omission of Buyer, or (ii) such additional costs result from a delay
that is an "excusable delay." For purposes of this clause and this
clause only, "excusable delay" means a delay which arises from causes
beyond the control and without the fault or negligence of the Seller.
Examples of such causes include (i) acts of God or of the public enemy,
(ii) acts of the Government in either its sovereign or contractual
capacity, (iii) fires, (iv) floods, (v) epidemics, (vi) quarantine
restrictions, (vii) strikes, (viii) freight embargoes and (ix)
unusually severe weather. Nothing herein may be construed to prejudice
any of the rights or remedies provided to Buyer in the applicable Order
or by law.
5.0 ON-SITE REVIEW AND RESIDENT REPRESENTATIVES
5.1 Review
At Buyer's request, Seller shall provide at Buyer's facility, or at a
place designated by Buyer, a review explaining the status of the Order,
actions taken or planned to be taken relating to the Order and any
other relevant information. Nothing herein may be construed as a waiver
of Buyer's rights to proceed against Seller because of any delinquency.
5.2 Resident Representatives
Buyer may in its discretion and for such periods as it deems necessary
assign at its expense, resident personnel at Seller's facilities in
addition to the resident Quality Control personnel provided for in
Section 8.4, "Right of Entry." The resident team will function under
the guidance of Buyer's manager who will provide program coordination
within the scope of the work authorized by the Order. The resident team
will provide communication and coordination to ensure timely
performance of the Order. Buyer's resident team shall be allowed access
to all work areas, Order status reports and management review necessary
to assure timely coordination and conformance with the requirements of
each Order. Seller, however,remains fully responsible for performing in
accordance with each order except where (i) Seller has given Buyer
written notice that Seller objects to a particular requirement and
states the specific reasons for such objection, and (ii) Buyer, in its
sole discretion, determines that the objection is valid, and not
withstanding such validity, requests Seller to go forward with the
requirement. If the Product fails to conform to the Order for the
reasons stated in the Seller's written objection, Seller shall not be
in default under the terms of this Agreement as a result of such
failure.
6.0 INVOICE AND PAYMENT
Unless otherwise provided in the applicable Order, a separate invoice
in duplicate shall be issued for each shipment of Products and no
invoice shall be issued prior to shipment of the Products. Payment
shall be in accordance with the Section identified as "Payment," of the
Special Business Provisions.
7.0 PACKING AND SHIPPING
Seller shall (a) prepare for shipment and suitably pack all Products to
prevent damage or deterioration, (b) secure lowest transportation
rates, (c) comply with the appropriate carrier tariff for the mode of
transportation specified by Buyer and (d) comply with any special
instructions stated in the applicable Order.
Buyer shall pay no charges for preparation, packing, crating or cartage
unless stated in the applicable Order. All shipments forwarded on one
day via one route must be consolidated. Each container must be
consecutively numbered and marked with the applicable Order and part
numbers. Container and Order numbers must be indicated on the
applicable Xxxx of Lading. Two copies of the packing sheets, showing
the applicable Order numbers, must be attached to the No. 1 container
of each shipment. Products sold F.O.B. place of shipment must be
forwarded collect. Seller may not make any declaration concerning the
value of the Products shipped, except on Products where the tariff
rating or rate depends on the released or declared value, and in such
event the value shall be released or declared at the maximum value for
the lowest tariff rating or rate.
8.0 QUALITY CONTROL, INSPECTION, REJECTION, & ACCEPTANCE
8.1 Controlling Document
The controlling Quality Control Document for orders under this contract
shall be identified on the individual purchase orders. Said orders
shall identify the document in accordance with one of the following:
8.1.1 All work performed under this Order shall be in accordance with
Document Dl-8000A, "Quality Control Requirements for Boeing Suppliers,"
Revision F as said Document may be amended from time to time; or
8.l.2 All work performed under this Order shall be in accordance with
Document D1-9000, "Advance Quality System for Boeing Suppliers," as
said Document may be amended from time to time.
NOTE: In the event that Buyer fails to identify the controlling
document on the Order then Section 8.1,2, as outlined above, shall
govern the order.
8.2 Inspection and Rejection
Products shall be subject to final inspection and acceptance by Buyer
at destination, notwithstanding any payment or prior inspection. Buyer
may reject any or all of the Products which do not strictly conform to
the requirements of the applicable Order. Buyer shall by notice,
rejection tag or other communication notify Seller of such rejection.
At Seller's risk and expense, all such Products will be returned to
Seller for immediate repair, replacement or other correction and
redelivery to Buyer; provided, however, that with respect to any or all
of such Products and at Buyer's election and at Seller's risk and
expense, Buyer may: (a) hold, retain or return such Products without
permitting any repair, replacement or other correction by Seller; (b)
hold or retain such Products for repair by Seller or, at Buyer's
election, for repair by Buyer with such assistance from Seller as Buyer
may require; (c) hold such Products until Seller has delivered
conforming replacements for such Products; (d) hold such Products until
conforming replacements are obtained from a third party; or (e) return
such Products with instructions to Seller as to whether the Products
shall be repaired or replaced and as to the manner of redelivery. All
repair, replacement and other corrections and redelivery shall be
completed within such time as Buyer may require. All costs and
expenses, loss of value and any other damages incurred as a result of
or in connection with nonconformance and repair, replacement or other
correction may be recovered from Seller by an equitable price
reduction, set-off or credit against any amounts that may be owed to
Seller under the applicable Order or otherwise. Buyer may revoke its
acceptance of any Products and have the same rights with regard to the
Products involved as if it had originally rejected them.
8.3 Sale to Third Parties
All Products shall be considered as Buyer-designed Products and may
only be sold to third parties by Buyer. Seller shall respond to any
inquiry concerning the purchase of Products received from such a third
party by directing such inquiry to Buyer and informing Buyer of such
inquiry.
8.4 Right of Entry
Buyer's authorized representatives may enter Seller's plant at all
reasonable times to conduct preliminary inspections and tests of the
Products and work-in-process. Seller shall include in its subcontracts
issued in connection with an Order a like provision giving Buyer the
right to enter the plants of Seller's subcontractors. Buyer may assign
representatives at Seller's plant on a full-time basis. Seller shall
furnish, free of charge, all office space, secretarial service and
other facilities and assistance reasonably required by Buyer's
representatives at Seller's plant.
8.5 Certification
A certification that materials and/or finished Products have been
controlled and tested in accordance with and will meet specified Order
requirements and applicable specifications and that records are on file
subject to Buyer's examination shall be included on or with the packing
sheet accompanying shipments.
In the case of Spares, the drawing or specification revision level will
be noted on the packing sheet. The packing sheet shall note if Buyer
has provided materials. Copies of manufacturing planning, test and
inspection results or certifications shall be furnished to Buyer on its
request.
8.6 Federal Aviation Administration or Equivalent Government
Agency-Inspection
Representatives of Boeing or the FAA may inspect and evaluate Seller's
plant including, but not limited to, Seller's facilities, systems,
data, equipment, personnel, testing, and all work-in-process and
completed Products manufactured for installation on Boeing Commercial
Airplanes. The Seller's costs for such inspection and evaluation are
included in the Order price.
GENERAL TERMS AGREEMENT
8.7 Retention of Records
Quality Control records shall be maintained on file and available to
Buyer's authorized representatives. Seller shall retain such records
for a period of not less than seven years from the date of final
payment under the applicable Order. Prior to disposal of any such
records, Buyer shall be notified and Seller shall transfer such records
as Buyer may direct.
8.8 Source Inspection
If an Order contains a notation that 100% Source Inspection" is
required, the Products shall not be packed for shipment until they have
been submitted to Buyer's quality Control representative for inspection
said inspection and approval shall not be unreasonably withheld or
delayed. Both the packing list and Seller's invoice must reflect
evidence of this inspection.
9.0 EXAMINATION OF RECORDS
Seller shall maintain complete and accurate records showing the sales
volume of all Products. Such records shall support all services
performed, allowances claimed and costs incurred by Seller in the
performance of each Order, including but not limited to those factors
which comprise or affect direct labor hours, direct labor rates,
material costs, burden rates and subcontracts, Such records and other
data shall be capable of verification through audit and analysis by
Buyer and be available to Buyer at Seller's facility for Buyer's
examination and audit at all reasonable times from the date of the
applicable Order until three (3) years after final payment under such
Order. Seller shall provide assistance to interpret such data if
required by Buyer. Such examination shall provide Buyer with complete
information regarding Seller's performance for use in price
negotiations with Seller relating to existing or future orders for
Products (including but not limited to negotiation of equitable
adjustments for changes and termination/obsolescence claims pursuant to
Section 10.0, "Changes." Buyer shall treat such information as
confidential.
10.0 CHANGES
10.1 General
Buyer's Materiel Representative may at any time by written change order
make changes within the general scope of an Order in any one or more of
the following: (a) drawings, designs, or specifications; (b) shipping
or packing; (c) place of inspection, delivery or acceptance; (d)
adjustments in quantities and delivery schedules, or both; and (e) the
amount of Buyer-Furnished Material. Seller shall proceed immediately to
perform the Order as changed. If any such change causes an increase or
decrease in the cost of or the time required for the performance of any
part of the work, whether changed or not changed by the change order,
an equitable adjustment shall be made in the price of or the delivery
schedule for those Products affected, and the applicable Order shall be
modified in writing accordingly. Any claim by Seller for adjustment
under this Section 10.0 must be received by Buyer in writing within one
hundred eighty (180) days from the date of receipt by Seller of the
written change order or engineering drawing requirement, whichever is
later, or within such further time as the parties may agree in writing
or such claim shall be deemed waived. Nothing in this Section shall
excuse Seller from proceeding with an Order as changed, including
failure of the parties to agree on any adjustment to be made under this
Section.
If Seller considers that the conduct of any of Buyer's employees has
constituted a change hereunder, Seller shall immediately notify Buyer
in writing as to the nature of such conduct and its effect on Seller's
performance. Pending direction from Buyer's Materiel Representative,
Seller shall take no action to implement any such change.
10.2 Obsolescence
Claims for obsolete or surplus material and work-in-process created by
change orders issued pursuant to this Section shall be subject to the
procedures set forth in Section 12.1, "Termination-Convenience," except
that Seller may not submit a claim for obsolete or surplus material
resulting from the issuance of one or more change orders unless and
until the aggregate value of all such claims of Seller equal or exceed
Two Thousand Five Hundred Dollars ($2,500), whereupon the entire amount
of such unpaid claim or claims shall become due and payable under this
Agreement. Payment for obsolete or surplus materials shall be made by
check deposited as first class mail in the United States Postal Service
to the address designated by Seller in Section 21.1, "Addresses."
Payment will be made on the tenth (loth) day of the month following the
month of the obsolescence claim settlement.
10.3 Model Mix
In the event any Derivative aircraft(s) is introduced by Buyer, Buyer
may (but is not obligated to) direct Seller within the scope of the
applicable Order and in accordance with the provisions of Section 10.0,
"Changes," to supply Buyer's requirements for Products for such
Derivative aircraft(s) which correspond to those Products being
produced under the applicable Order.
11.0 PRODUCT ASSURANCE
Buyer's acceptance of any Product does not alter or affect the
obligations of Seller or the rights of Buyer and its customers under
the document referenced in the Section identified as "Product
Assurance," in the Special Business Provisions or as provided by law.
12.0 TERMINATION/CANCELLATION
12.1 Termination-Convenience
Buyer may terminate an Order in whole or in part for convenience in
accordance with the provisions of FAR 52.249-2, and such clause is
incorporated herein by this reference subject to the following
modifications. In FAR 52.249-2 "Government" and "Contracting Officer"
shall mean Buyer, "Contractor" shall mean Seller and "this Contract"
and "the Contract" shall mean such Order. All references to one year in
paragraph (d) of such clause are changed to six (6) months, and all
references to a "Disputes" clause are deleted. Any termination
settlement proposal submitted by Seller shall be limited to work
covered by such Order.
12.2 Cancellation - Default
Buyer may cancel the whole or any part of an Order for default in
accordance with the provisions of FAR 52.249-8, which is incorporated
herein by this reference subject to the following modifications. In FAR
52.249-8 "Government" and "Contracting Officer," except in paragraph
(c), shall mean Buyer, "Contractor" shall mean Seller, "this Contract"
and "the Contract" shall mean such Order, and all references to a
"Disputes" clause are deleted. If the parties fail to agree pursuant to
paragraph (f) of FAR 52.249-8 on the amount to be paid for
manufacturing materials referred to in paragraph (e) of FAR 52-249-8,
the amount shall be the reasonable value thereof, but not to exceed
that portion of the Order price which is reasonably allocable to such
materials.
12.3 Excusable Delay
If delivery of any Product cannot be made within one (1) month after
the delivery date stated in the applicable Order due to a delay for
which Seller would not be liable for excess costs under FAR 52.249-8
(c) (an "excusable delay"), Buyer may, at anytime after Buyer becomes
aware of such delay, cancel such Order with respect to any or all
Products in accordance with FAR 52.249-8 as modified in Section 12.2
above, but without any liability on Buyer's part except to pay the
Order price for delivered and accepted Products.
12.4 Other
Buyer may give written notice to Seller to cancel the whole or any part
of an Order in the event of: (a) the suspension of Seller's business;
(b) the insolvency of Seller; (c) the institution of reorganization,
arrangement or liquidation proceedings by or against Seller; (d) the
appointment of a trustee or receiver for Seller's property or business;
(e) an assignment for the benefit or creditors of Seller, or (f)
Seller's trustee in bankruptcy or Seller as debtor in possession not
assuming such Order pursuant to a Federal Bankruptcy Court's approval
within sixty (60) days after the bankruptcy petition was filed. Such
cancellation shall be for default and the rights and obligations of the
parties shall be determined as provided in Section 12.2, "Cancellation
- Default."
12.5 Seller Termination
Promptly after Seller receives an Order and all applicable
specifications, engineering drawings and the tools (or specifications
for such tools if Seller is to manufacture or re-work the tools) needed
to produce the Products specified in the Order, if Seller determines
that any Product cannot physically be produced in accordance with the
applicable Order by using those tools and machines in its possession
then Seller may request Buyer's consent to cancel such order without
liability on Seller's part. Said consent shall not be unreasonably
withheld or delayed.
13.0 RESPONSIBILITY FOR PROPERTY
On delivery to Seller or manufacture or acquisition by it of any
materials, parts, tooling or other property, title to any of which is
in Buyer, Seller shall assume the risk of and shall be responsible for
any loss thereof or damage thereto. In accordance with the provisions
of an Order, but in any event on completion thereof, Seller shall
return such property to Buyer in the condition in which it was received
except for reasonable wear and tear and except to the extent that such
property has been incorporated in Products delivered under such Order
or has been consumed in the normal performance of work under such
Order.
14.0 LIMITATION OF SELLER'S RIGHT TO ENCUMBER ASSETS
Seller warrants to Buyer that it has good title to all inventory,
work-in-process, tooling and materials to be supplied by Seller in the
performance of its obligations under any Order ("Inventory"), and that
pursuant to the provisions of such Order, it will transfer to Buyer
title to such Inventory, whether transferred separately or as part of
any Product delivered under the Order, free of any liens, charges,
encumbrances or rights of others. Seller further agrees that it shall
not sell, assign, lease, transfer possession of, grant a security
interest in, allow to be attached or seized on execution or otherwise,
allow a financing statement describing the Inventory to be filed in
favor of anyone other than Buyer, or in any other way dispose of or
encumber any item of Inventory or any part thereof without the prior
written approval of Buyer.
15.0 PROPRIETARY INFORMATION AND ITEMS
Each party hereto agrees to keep confidential and not disclose to any
other person, corporation, or business organization all confidential,
proprietary, and/or trade secret information received from the other
party in connection with any Order (hereinafter Proprietary
Information). Each party hereto further agrees to use Proprietary
Information only for purposes necessary to the performance of an Order,
provided that Buyer shall also have the right to use and disclose
Proprietary Information for any purpose necessary to the testing,
certification, use, sale, or support of any item delivered under an
Order or any airplane including such an item, and provided further that
any such disclosure by Buyer shall, whenever appropriate, include a
restrictive legend suitable to the particular circumstances. For
purposes of this Section, Proprietary Information shall:
(a) not include information already in the public domain, or known to
(as evidence by written records) and under the unrestricted
control of the receiving party, when first received from the
other party;
(b) lose its status as Proprietary Information if, and as of the date
when, it becomes part of the public domain through no wrongful or
negligent act of the receiving party, is received by the
receiving party without restriction from another who had the
right to so disclose it, or is developed by the receiving party
entirely independently of any disclosure from the other party;
and
(c) include only (i) information disclosed in written or other
physically tangible form with an appropriate restrictive legend
and (ii) information disclosed orally where the receiving party
is notified of the proprietary nature of the information prior to
such disclosure and the proprietary status of the orally
disclosed information is confirmed to the receiving party by the
other party within ten (10) working days of such disclosure in a
writing which identified the person(s) making the disclosure and
the place and date thereof, lists the names of the receiving
party's employee(s) receiving such disclosure, and describes the
information so disclosed.
All documents and other tangible media (excluding Products) containing
or conveying Proprietary Information and transferred in connection with
an Order, together with any copies thereof, are and remain the property
of the transmitting party and shall, except to the extent that they are
needed by Buyer for the purpose of testing, certifying, using, selling,
or supporting an item delivered under an Order or an airplane
containing such an item, be promptly returned, or at the option of the
transmitting party destroyed, upon the written request of the
transmitting party. Neither the existence of this Agreement nor the
disclosure of Proprietary Information or any other information
hereunder shall be construed as granting expressly, by implication, by
estoppel, or otherwise a license under any invention or patent.-now or
hereafter owned or controlled by the transmitting party. No disclosure
or receipt of Proprietary Information or any other information by
either party under this Agreement will constitute or be construed as a
representation, warranty, assurance, guarantee or inducement by either
party to the other with respect to any infringement of the patent
rights of another.
The obligations of each of the parties hereto with respect to
Proprietary Information disclosed hereunder prior to the completion,
termination, or cancellation of this Agreement shall not, except as
expressly set forth herein, be affected by such completion,
termination, or cancellation.
Notwithstanding the restrictions on disclosure set forth hereinabove,
either party to this Agreement may disclose Proprietary Information to
its lower tier subcontractors as necessary in connection with Orders,
provided that each such subcontractor first assumes by written
agreement all of the obligations imposed on a receiving party under
this Agreement relative to such Proprietary Information.
16.0 COMPLIANCE WITH LAWS
Contractor shall be responsible for complying with all laws, including,
but not limited to, any statute, rule, regulation, judgment, decree,
order, or permit applicable to its performance under this Contract and
agrees to indemnify and to hold harmless Boeing from any failure by
Contractor to comply with any provisions of such laws. Contractor
further agrees (1) to notify Boeing of any obligation under this
contract which is or may be prohibited under applicable law, at the
earliest opportunity but in all events sufficiently in advance of
Contractor's performance of such obligation so as to enable the
identification of alternative methods of performance, (2) to notify
Boeing at the earliest possible opportunity if Contractor's performance
of any aspect of its obligations under the Contract will subject Boeing
to liability under applicable laws, and (3) to notify Boeing at the
earliest possible opportunity of any aspect of its performance which
becomes subject to additional regulation after the date of execution of
this Contract or which Contractor reasonably believes will become
subject to additional regulation during the period of this Contract.
17.0 INFRINGEMENT
Seller shall indemnify, defend, and save Buyer and Customers harmless
from all claims, suits, actions, awards (including but not limited to
awards based on intentional infringement of patents known to Seller at
the time of such infringement and exceeding actual damages and/or
including attorneys' fees and costs), liabilities, damages, costs and
attorneys' fees related to the actual or alleged infringement of any
United States or foreign intellectual property right (including but not
limited to any right in a patent, copyright, industrial design or
semiconductor mask work, or based on misappropriation or wrongful use
of information or documents) and arising out of the manufacture, sale
or use of Products by Buyer or Customers. Buyer and/or Customers shall
duly notify Seller of any such claim, suit or action; and Seller shall,
at its own expense, fully defend such claim, suit or action on behalf
of Buyer and/or Customers. Seller shall have no obligation under this
section with regard to any infringement arising from: (i) Seller's
compliance with formal specifications issued by Buyer where
infringement could not be avoided in complying with such specifications
or (ii) use or sale of Products in combination with other items when
such infringement would not have occurred from the use or sale of those
Products solely for the purpose for which they were designed or sold by
Seller. For purposes of this section only, the term Customer shall not
include the United States Government; and the term Buyer shall include
The Boeing Company (Boeing) and all Boeing subsidiaries and all
officers, agents, and employees of Boeing or any Boeing subsidiaries.
18.0 BUYER'S RIGHTS IN SELLER'S INVENTIONS
As a part of this Order and without any additional compensation to
Seller, Buyer shall own all right, title, and interest in and to all
inventions, discoveries, and improvements (hereinafter "Inventions"),
whether or not patentable, which are conceived, developed, or first
reduced to practice by Seller's agents, employees, or independent
contractors (hereinafter "Personnel") on behalf of Seller, either alone
or with others, provided such Inventions relate directly to the subject
matter with which Seller's work for Buyer hereunder is concerned and
are made while Seller's Personnel are assigned to perform services
under this Order, and irrespective of whether or not such Inventions
are conceived, developed, or first reduced to practice during working
hours. Seller and Seller's Personnel shall (1) disclose such Inventions
to Buyer promptly and in written detail, (2) assist Buyer in obtaining
patent protection for all such Inventions in the United States and any
foreign countries specified by Buyer, (3) assign all patent rights in
such Inventions to Buyer or its designee forthwith and without charge,
and (4) execute all instruments and render all such assistance as may
reasonably be required in order to protect the rights of Buyer or its
designee in such inventions. Seller shall also require its Personnel
who are to perform services under this Order to execute appropriate
agreements which obligate such Seller Personnel to Buyer with respect
to such Inventions to the same extent that Seller is obligated to Buyer
under this paragraph, and copies of such agreements shall be furnished
to Buyer upon request.
19.0 BUYER'S RIGHTS IN SELLER'S WORK PRODUCT
Upon payment of equitable compensation to Seller, Buyer shall own all
right, title and interest in and to all work product generated by
Seller in the performance of this Order including, without limitation,
all designs, drawings, data, models, prototypes, reports,
specifications, and computer programs. Subject to the foregoing, copies
of such work product shall be made available to Buyer upon request at
any time, and all tangible embodiments of such work product shall, at
the option of Buyer, be delivered to Buyer upon the completion or
termination of this Order.
20.0 BUYER'S RIGHTS IN SELLER'S PATENTS, COPYRIGHTS, TRADE SECRETS, AND
TOOLING
Seller hereby grants to Buyer an irrevocable, nonexclusive, free,
paid-up license to practice and/or use, and license others to practice
and/or use on Buyer's behalf, all of Seller's patents, copyrights,
trade secrets (including, without limitation, designs, processes,
drawings, technical data and tooling), and tooling (hereinafter
"Licensed Property") related to the development, production,
maintenance or repair of Products. Buyer hereafter retains all its
rights to use Licensed Property, but Buyer hereby covenants not to
exercise such rights except in connection with the making, having made,
using and selling of Products or products of the same kind, and then
only in the event of any of the following:
a. Seller discontinues or suspends business operations or the
production of any or all of the Products;
b. Seller is acquired by or transfers any or all of its rights to
manufacture any Product to any third party, without first
obtaining written consent from Buyer, said consent shall not be
unreasonably withheld or delayed;
c. Buyer cancels this Agreement or any Order for cause;
d. Seller breaches this Agreement or any Order;
e. Seller fails to deliver Products in accordance with this
Agreement or any Order;
f. in Buyers judgement it becomes necessary, in order for Seller to
comply with the terms of this Agreement or any Order, for Buyer
to provide support to Seller (in the form of design,
manufacturing, or on-site personnel assistance) substantially in
excess of that which Buyer normally provides to its suppliers;
g. Seller's trustee in bankruptcy (or Seller as debtor in
possession) fails to assume this Agreement and all Orders by
formal entry of an order in the bankruptcy court within sixty
(60) days after entry of an order for relief in a bankruptcy case
of the Seller, and/or Buyer elects to retain its rights to
Licensed Property pursuant to section 365(n)(1)(B) of the United
States Bankruptcy Code (the "Bankruptcy Code"), 11 U.S.C.
101-1330;
h. Seller is at any time insolvent (whether measured under a balance
sheet test or by the failure to pay debts as they come due) or
the subject of any insolvency or debt assignment proceeding under
state or nonbankruptcy law; or
i. Seller voluntarily becomes a debtor in any case under the
Bankruptcy Code or, in the event an involuntary bankruptcy
petition is filed against Seller, such petition is not dismissed
within thirty (30) days,
As a part of the license granted under this section, Seller shall, at
the written request of Buyer and at no additional cost to Buyer,
promptly deliver to Buyer any and all Licensed Property considered by
Buyer to be necessary to satisfy Buyer's production requirements for
Products and products of the same kind.
21.0 NOTICES
21.1 Addresses
Notices and other communications shall be given in writing by personal
delivery, United States mail, telex, Teletype, telegram, facsimile, or
cable addressed to the respective party as follows:
To Buyer: BOEING COMMERCIAL AIRPLANE GROUP MATERIEL
DIVISION
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Buyer:
Mail Stop:
To Seller: Xxxxxxx'x Metals Inc.
0000 Xxxxxxx 00
Xx. Xxxxxxx, XX 00000
Attention:Contracts
21.2 Effective Date
The date on which any such communication is received by the addressee
is the effective date of such communication.
21.3 Approval or Consent
With respect to all matters subject to the approval or consent of
either party, such approval or consent shall be requested in writing
and is not effective until given in writing. With respect to Buyer,
authority to grant approval or consent is limited to Buyer's Materiel
Representative.
22.0 PUBLICITY
Seller may not, and shall require that its subcontractors and suppliers
of any tier may not, cause or permit to be released any publicity,
advertisement, news release, public announcement, or denial or
confirmation of the same, in whatever form, regarding any aspect of any
Order without Buyer's prior written approval.
23.0 FACILITIES
Seller shall bear all risks of providing adequate facilities and
equipment to perform each Order in accordance with the terms thereof.
If any contemplated use of government or other facilities or equipment
is not permitted by the government or is not available for any other
reason, Seller shall be responsible for arranging for equivalent
facilities and equipment at no cost to Buyer. Any failure to do so does
not excuse any deficiencies in Seller's performance or affect Buyer's
right to cancel under Section 12.2, "Cancellation- Default," or under
any provision of law.
24.0 SUBCONTRACTING
Seller may not procure any Product, as defined in the applicable Order,
from a third party in a completed or a substantially completed form
without Buyer's prior written consent.
No raw material may be incorporated in a Product (a) unless procured
from a Buyer approved source or (b) unless Buyer has surveyed and
qualified Seller's receiving inspection personnel and laboratories to
test the specified raw materials. Seller may request in writing, that
Buyer survey and qualify additional sources of raw materials. No waiver
of survey and qualification requirements will be effective unless
granted by Buyer's Engineering and Quality Control Departments,
Utilization of a Buyer-approved raw material source does not constitute
a waiver of Seller's responsibility to meet all specification
requirements.
25.0 NOTICE OF LABOR DISPUTES
Seller shall immediately notify Buyer of any actual or potential labor
dispute that may disrupt the timely performance of an Order. Seller
shall include the substance of this Section, including this sentence,
in any subcontract relating to an Order if a labor dispute involving
the subcontractor would have the potential to delay the timely
performance of such Order, Each subcontractor, however, shall only be
required to give the necessary notice and information to its next
higher-tier subcontractor.
26.0 ASSIGNMENT
Each order shall inure to the benefit of and be binding on each of the
parties hereto and their respective successors and assigns, provided
however, that no assignment of any rights or delegation of any duties
under such order is binding on Buyer unless Buyer's written consent has
first been obtained. Notwithstanding the above, Seller may assign
claims for monies due or to become due under any Order provided that
Buyer may recoup or setoff any amounts covered by any such assignment
against any indebtedness of Seller to Buyer, whether arising before or
after the date of the assignment or the date of this Agreement, and
whether arising out of any such Order or any other agreement between
the parties.
Buyer may settle all claims arising out of any Order, including
termination claims, directly with Seller. Buyer may unilaterally assign
any rights or title to property under the Order to any wholly-owned
subsidiary of The Boeing Company.
27.0 RELIANCE
Seller acknowledges that Seller is an expert in all phases of the work
involved in producing and supporting the Products, including but not
limited to the designing, testing, developing, manufacturing,
improving, overhauling and servicing of the Products. Seller agrees
that Buyer and Buyer's customers may rely on Seller as an expert, and
Seller will not deny any responsibility or obligation hereunder to
Buyer or Buyer's customers on the grounds that Buyer or Buyer's
customers provided recommendations or assistance in any phase of the
work involved in producing or supporting the Products, including but
not limited to Buyer's acceptance of specifications, test data or the
Products, except where (i) Seller has given Buyer written notice that
Seller objects to a particular requirement and states the specific
reasons for such objection, and (ii) Buyer, in its sole discretion,
determines that the objection is valid, and not withstanding such
validity, requests Seller to go forward with the requirement. If the
Product fails to conform to the Order for the reasons stated in the
Seller's written objection, Seller' shall not be in default under the
terms of this Agreement as a result of such failure.
28.0 NON-WAIVER
The failure of either party at any time to enforce any provision of an
Order does not constitute a waiver of such provision or prejudice such
party's right to enforce such provision at any subsequent time.
29.0 HEADINGS
Article and Section headings used in this Agreement are for convenient
reference only and do not affect the interpretation of the Agreement.
30.0 PARTIAL INVALIDITY
If any provision of any Order is or becomes void or unenforceable by
force or operation of law, the other provisions shall remain valid and
enforceable.
31.0 APPLICABLE LAW; JURISDICTION
Each Order, including all matters of construction, validity and
performance, shall in all respects be governed by, and construed and
enforced in accordance with, the law of the State of Washington as
applicable to contracts entered into and to be performed wholly within
such State between citizens of such State, without reference to any
rules governing conflicts of law. Seller hereby irrevocably consents to
and submits itself to the jurisdiction of the Superior Court for King
County, State of Washington and to the jurisdiction of the United
States District Court for the Western District of Washington for the
purpose of any suit, action or other judicial proceeding arising out of
or connected with any Order or the performance or subject matter
thereof, Seller hereby waives and agrees not to assert by way of
motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that (a) Seller is not personally subject to the
jurisdiction of the above-named courts, (b) the suit, action or
proceeding is brought in an inconvenient forum or (c) the venue of the
suit, action or proceeding is improper.
32.0 AMENDMENT
Oral statements and understandings are not valid or binding. Except for
the provisions of Section 10.0, "Changes," of this Agreement and
Section 5.0, "Changes," of the Special Business Provisions, any Order
may not be changed or modified except by
a writing signed by both parties.
33.0 LIMITATION
Seller may not (except to provide an inventory of Products to support
delivery acceleration and to satisfy reasonable replacement and Spares
requirements) manufacture or fabricate Products or procure any goods in
advance of the reasonable flow time required to comply with the
delivery schedule in the applicable Order. Notwithstanding any other
provision of an Order, Seller is not entitled to any equitable
adjustment or other modification of such Order for any manufacture,
fabrication, or procurement of Products not in conformity with the
requirements of the Order, unless Buyer's written consent has first
been obtained. Nothing in this Section shall be construed as relieving
seller of any of its obligations under the order.
34.0 TAXES
34.1 Inclusion of Taxes in Price
Subject to the provisions of Section 33.4 herein, and unless otherwise
provided herein, all taxes, including but not limited to federal, state
and local income taxes, value added taxes, gross receipt taxes,
property taxes, and custom duties taxes are deemed to be included in
the Order price, except applicable sales or use taxes on sales to Buyer
("Sales Taxes") for which Buyer has not supplied a valid exemption
certificate and personal property taxes.
34.2 Litigation
In the event that any state or local taxing authority has claimed or
does claim payment for Sales Taxes, property or other/taxes, (other
than income) not included in the invoice price for the Order, Seller
shall promptly notify Buyer, and Seller shall take such action as Buyer
may direct to pay or protest such taxes (including all penalties,
interest and other additions to such taxes) or to defend against such
claim. The actual and direct expenses (including all professional fees
and expenses incurred by Seller), without the addition of profit and
overhead, of such defense and the amount of such taxes (including all
penalties, interest and other additions to such taxes) as ultimately
determined as due and payable shall be paid directly by Buyer or
reimbursed to Seller. If Seller or Buyer is successful in defending
such claim, the amount of such taxes recovered by Seller, which had
previously been paid by Seller and reimbursed by Buyer or paid directly
by Buyer, shall be refunded to Buyer.
34.3 Rebates
If any taxes paid by Buyer are subject to rebate or reimbursement,
Seller shall take the necessary actions to secure such rebates or
reimbursement and shall promptly refund to Buyer any amount recovered
less the actual and direct expenses of obtaining such rebate or
reimbursements.
34.4 Payment of Taxes on Tooling
Any taxes applicable to the tooling being acquired by Buyer under this
Order will be paid by Seller to the appropriate government taxing
authority except that Buyer shall reimburse Seller for all personal
property taxes applicable to the Tooling after receipt by Buyer of
Seller's invoice for such taxes from Seller for the amount of tax
imposed by the state or local taxing authority.
35.0 FOREIGN PROCUREMENT OFFSET
With respect to work covered by the Order, Seller shall use its best
efforts to cooperate with Buyer in the fulfillment of any foreign
offset program obligation that Buyer may have accepted as a condition
of the sale of Buyer's product. In the event that Seller solicits bids
and/or proposals for, or procures or offers to procure any goods or
services relating to the work covered by an Order form any source
outside of the United States, Buyer shall be entitled, to the exclusion
of all others, to all industrial benefits and other "offset" credits
which may result from such solicitations, procurements or offers to
procure. Seller agrees to take any actions that may be required on its
part to assure that Buyer receives such credits. Seller further agrees
to report to Buyer any such foreign procurement activity if and when
required by the Section identified as "Foreign Procurement Report," of
the Special Business Provisions, as revised from time to time by Buyer.
36.0 ENTIRE AGREEMENT/ORDER OF PRECEDENCE
36.1 Entire Agreement
The Order sets forth the entire agreement, and supersedes any and all
other agreements, understandings and communications between Buyer and
Seller related to the subject matter of an Order.
36.2 Incorporated by Reference
In addition to the documents previously incorporated herein by
reference, the documents listed below are by this reference made a part
of this Agreement:
A. Engineering Drawing by Part Number and Related Outside
Production Specification Plan (SPCO),
B. Any other exhibits or documents agreed to by the parties
to be a part of this Agreement,
36.3 Order of Precedence
In the event of a conflict or inconsistency between any of the terms of
the following documents, the following order of precedence shall
control:
A. Special Business Provisions (Excluding E below)
B. General Terms Agreement (Excluding the documents listed in
D and F below)
C. Order (Excluding references to A and B above)
D. Engineering Drawing by Part Number and Related Outside
Production Specification Plan (SPCO),
E. Administrative Agreement (If Required)
F. Any other exhibits or documents the parties agree shall be
part of the Agreement.
36.4 Disclaimer
Unless otherwise specified on the face of the applicable Order, any
CATIA Dataset or translation thereof (each or collectively "Data)
furnished by The Boeing Company is furnished as an accommodation to
Seller. It is the Seller's responsibility to compare such Data to the
comparable two dimensional computer aided design drawing to confirm the
accuracy of the Data.
BUYER HEREBY DISCLAIMS, AND SELLER HEREBY WAIVES, ALL WARRANTIES AND
LIABILITIES OF BUYER AND ALL CLAIMS AND REMEDIES OF SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN ANY
CATIA DATASET OR TRANSLATION THEREOF, INCLUDING, WITHOUT LIMITATION,
ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A
PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED UPON TORT,
WHETHER OR NOT ARISING FROM BUYER'S NEGLIGENCE, AND (D) ANY RECOVERY
BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON DAMAGED PROPERTY,
OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
EXECUTED in duplicate as of the date and year first written above by the duly
authorized representatives of the parties.
THE BOEING COMPANY XXXXXXX'X METAL, INC.
by and through its division
Boeing Commercial Airplane Group
/s/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxx
Name: Xxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Manager Title: President
Date: 3-12-93 Date: 3-8-93
SPECIAL BUSINESS PROVISIONS
between
THE BOEING COMPANY
and
XXXXXXX'X METALS, INC.
Number DP-PLR-1131A
TABLE OF CONTENTS
1.0 Definitions........................................................ 2
2.0 Purchase order note................................................ 2
3.0 Prices............................................................. 3
3.1 Firm Fixed Prices.................................................. 3
3.2 Manufacturing Configuration Baseline............................... 3
3.3 Packaging.......................................................... 3
3.4 Tool Storage....................................................... 3
4.0 Purchase Order Issuance............................................ 4
5.0 Changes............................................................ 4
5.1 Changes At No Cost................................................. 4
5.2 Changes Subject to An Equitable Adjustment......................... 5
5.3 Changes to the Statement of Work................................... 6
5.4 Computation of Equitable Adjustment................................ 6
5.5 Planning Schedule.................................................. 6
6.0 Termination Liability.............................................. 6
7.0 Expenditure Authorization.......................................... 7
8.0 Payment............................................................ 7
8.1 Recurring Costs.................................................... 7
8.2 Non-Recurring Costs................................................ 7
9.0 Product Assurance.................................................. 7
9.1 Governing Document................................................. 7
10.0 Cost Performance Visibility........................................ 8
11.0 Grant Of License................................................... 8
11.1 Licensed Property.................................................. 8
11.2 Consideration...................................................... 8
2
TABLE OF CONTENTS
(Continued)
11.3 Title Transfer..................................................... 8
12.0 Spares and Shortflow Production Pricing............................ 8
12.1 Aircraft On Ground (AOG)/Critical Spares, Short Flow............... 9
12.2 Expedite Spare (Class 1) and Short Flow Production................. 9
12.3 Special Handling................................................... 9
13.0 Buyer Furnished Material (where applicable)........................ 10
14.0 Foreign Procurement Report......................................... 10
15.0 Status Reports..................................................... 10
Attachment 1 Work Statement and Pricing 14
Attachment 2 Planning Schedule 15
Attachment 3 Foreign Procurement Report 16
Attachment 4 Rates and Factors 17
Attachment 5 Termination Liability Curve 18
Attachment 6 Incremental Lot Release 19
Schedule Plan
3
SPECIAL BUSINESS PROVISIONS
THESE SPECIAL BUSINESS PROVISIONS ("SBP") are entered into as of August 30, 1990
by Xxxxxxx'x Metals, Inc. a Missouri corporation with its principal office in
St. Xxxxxxx, Missouri ("Seller"), and Boeing Commercial Airplane Group, a
division of The Boeing Company, a Delaware corporation with its principal office
in Seattle, Washington ("Buyer").
RECITALS
A. Buyer and Seller entered into a General Terms Agreement (the
"Agreement") dated August 30, 1990 for the sale by Seller and purchase
by Buyer of Products.
B. Buyer and Seller desire to enter into another agreement to include
these Special Business Provisions relating to the sale by Seller and
purchase by Buyer of the Products.
Now, therefore, in consideration of the mutual covenants set forth herein, the
parties agree as follows:
SPECIAL BUSINESS PROVISIONS
1.0 DEFINITIONS
The definitions used herein shall be the same as used in the Agreement.
In addition, the term "Rate Tool Capacity" shall mean the quantity of
tooling required to support a production rate not to exceed 21 shipsets
per month on the 737, 10 shipsets per month on the 747, 14 shipsets per
month on the 757, 10 shipsets per month on the 767, 7 shipsets per
month on the 777, and the term "Initial Order" shall mean the order as
it first exists, prior to Amendment or Change.
2.0 PURCHASE ORDER NOTE
The following note shall be contained in any Order to which these
Special Business Provisions are applicable:
This Order is subject to and incorporates by this reference the Special
Business Provisions DP-PLR-1131A between The Boeing Company and
Xxxxxxx'x Metals, Inc. dated August 30, 1990.
4
Each Order bearing such note shall be governed by and be deemed to
include the provisions of these Special Business Provisions.
3.0 PRICES
3.1 Firm Fixed Prices
Except as otherwise provided herein, the prices and period of
performance of Products to be delivered under this contract are listed
in Attachment 11111 which by this reference are incorporated herein and
are firm fixed prices in United States dollars, F.0.B. Seller's Plant.
In addition, the pricing for all "curtain track" and "hammer form"
Products reflect a minimum buy quantity for all orders excluding AOG,
The minimum order buy quantity for "curtain track" Products is five (5)
each. The minimum buy quantity for "hammer form" Products is ten (10)
each.
3.2 Manufacturing Configuration Baseline
Unit pricing for each part number shown in Attachment reflects the
latest revisions of the Engineering Drawings and outside Production
Specification Plans (OPSP's) at the time of the signing of these
Special Business Provisions.
3.3 Packaging
The prices shown in Attachment 1 do include packaging costs. Packaging
shall be furnished by the Seller. If necessary, Seller may repair or
furnish additional packaging upon approval by Buyer of Seller's price
proposal for such repair or additional packaging. Separate purchase
orders shall be released by Buyer to cover such expense (if
applicable).
3.4 Tool Storage
Seller shall be entitled to a tool storage fee of Six Hundred Dollars
($600.00) for each Hammer Die used on packages 08-115, 08-120 and
08-122 and stored at Seller"s facility in which Buyer fails to issue an
Order for Products utilizing said die(s) on or before December 31,
1993. In addition, Seller shall be entitled to a tool storage fee as
detailed above for each Hammer Die used on the aforementioned packages
and stored at Seller's facility in which Buyer fails to issue an Order
utilizing said die(s) during the period January 1, 1994 through
December 31, 1998.
5
4.0 PURCHASE ORDER ISSUANCE
Buyer and Seller agree that, in addition to other provisions of the
order and in consideration of the prices set forth under Section 3.1,
"Firm Fixed Prices," Buyer shall issue purchase orders for the Products
listed in Attachment I'll' from time to time to Seller for Buyer's
requirements, to be shipped at any scheduled rate of delivery, as
determined by Buyer, but not to exceed the Rate Tool Capacity, and
Seller shall sell to Buyer Buyer's requirements of such products,
provided that, without limitation on Buyer's right to determine its
requirements, Buyer shall not be obligated to issue any purchase orders
for any given Product if:
A. Any of Buyer's customers specify an alternate product;
B. Such Product is, in Buyer's reasonable judgment, not
technologically competitive at any time. "Technologically
competitive" shall be defined as significant changes to Product
design, including materials, specifications or manufacturing
processes which result in a reduced price or weight.
C. Buyer gives reasonable notice to Seller of a change in any of
Buyer's aircraft which will result in Buyer's no longer requiring
such Product for such aircraft;
D. Seller has materially defaulted in any of its obligations under
any order, provided that Buyer has given Seller written notice of
default and Seller has not cured said default within 10 days
after receipt of Buyer's notice specifying the default; or
E. Buyer reasonably determines that Seller cannot support Buyer"s
requirements for Products in the amounts and within the delivery
schedules Buyer requires.
5.0 CHANGES
5.1 Changes At No Cost
Not withstanding the provision for an equitable adjustment in Section
10.0, "Changes," of the Agreement, Buyer may make the changes set forth
in subsections 5.1.1, 5.1.2, and 5.1.3 without cost or change in the
unit price stated in the applicable order.
5.1.1 Changes in the delivery schedule, including firing order and rate
changes, if (a) the delivery date of the Product under such order is on
or before the last date of the applicable period of performance as
identified in Attachment "1" and (b) Buyer provides Seller with written
notice of the changes.
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A. At least four (4) months prior to the first day of the month in
which any acceleration in the delivery schedule is to take
effect; and/or
B. At least four (4) months prior to the first day of the month in
which any deceleration in the delivery schedule is to take
effect.
5.1.2 Changes in the Tooling required to support delivery schedule
adjustments, including but not limited to production rate changes, that
are in accordance with the Rate Tool Capacity.
5.1.3 Engineering change to incorporate Seller initiated production facility
requirements to facilitate or improve Seller's manufacturing processes.
5.2 Changes Subject to An Equitable Adjustment
An equitable adjustment in the price of any Product shall be made in
accordance with Section 10.0, "Changes," of the Agreement if Buyer
makes a change in the delivery schedule of such product under an order
and:
A. Such Product, although originally scheduled for delivery during
the period of performance for the applicable package under such
order as identified in Attachment "1", is delivered after the
period of performance in accordance with such Order as changed;
or
B. Such products monthly rate exceeds the Rate Tool Capacity as
stated in Section 1.0; or
C. Such change does not meet the notice requirements of Section
5.1.1 above; and,
Seller submits to Buyer a written request for an equitable adjustment within 180
days of receipt of the written change notice.
For purposes of this Section, the amount of the price adjustment for each
product shall be determined by multiplying the original unit price plus any
negotiated changes which are incorporated into the individual product price,
excluding items such as amortization of tooling, amortization of schedule
slides, amortization of set-up charges, etc. by three tenths of one percent (.3
of 1%) then multiplying that factor by the cumulative balance of the number of
products previously scheduled in each successive month that falls outside the
changes at no cost periods set forth in Section 5.1.1 above. No price adjustment
shall be made for that portion of any delivery schedule change which falls
inside the changes at no cost periods set for in Section 5.1.1.
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5.3 Changes to the Statement of Work
Buyer may direct Seller within the scope of the applicable order and in
accordance with the provisions of Section 10.0, "Changes," of the
Agreement to increase or decrease the work to be performed by the
Seller in the manufacture of any Product. The equitable adjustment, if
any, to be paid by Buyer to Seller for such change shall be computed in
accordance with the provisions of Section 5.4.
5.4 Computation of Equitable Adjustment
The Rates and Factors set forth in Attachment "4", which by this
reference is incorporated herein, shall be used to determine the
equitable adjustment, if any, (including equitable adjustments, if any,
in the prices of Products to be incorporated in Derivative Aircraft),
to be paid by Buyer pursuant to Section 10.0, "Changes," of the
Agreement.
5.5 Planning Schedule
The planning schedule, attached hereto as Attachment 11211 and by this
reference incorporated herein, is a schedule to be used for planning
production following the initial purchase order release. Such planning
schedule shall not constitute a limitation on Buyers right to issue
purchase orders to Seller for greater or lesser quantities or to
specify different delivery dates as necessary to meet Buyers
requirements for the products listed on Attachment "1". Such planning
schedule shall be subject to adjustment from time to time. Any such
adjustment shall not be deemed to be a change under Section 10.0,
"Changes," of the Agreement.
6.0 TERMINATION LIABILITY
When required by Buyer, Seller shall submit a time-phased Termination
Liability Curve per Attachment 11511 attached hereto and by this
reference incorporated herein. Notwithstanding any other provisions of
this Agreement, Buyer's termination liability pursuant to Section 12 of
the Agreement shall not exceed the amount established by the
Termination Liability Curve for the date of termination, reduced by the
amount of all payments made by Buyer for delivered Products, tooling or
other goods or services furnished by the Seller pursuant to the Order
or made by Buyer in settlement of any other claim made by Seller or any
other party in connection with the performance of the order.
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At any point in time, whether or not Buyer requires Seller to submit a
Termination Liability Curve, Buyer's termination liability shall be
limited to the maximum value of scheduled production deliveries for
twelve (12) months.
7.0 EXPENDITURE AUTHORIZATION
When requested by Buyer, Seller shall submit a Lot Release Schedule
Plan for approval, Seller's Lot Release Schedule Plan is included as
Attachment 11611 hereto and is by this reference incorporated herein.
Buyer's written authorization must be obtained prior to release of any
lots. Expenditures incurred by Seller exceeding those authorized by the
Lot Release Schedule shall be at Seller's risk and expense.
8.0 PAYMENT
8.1 Recurring Costs
Payment shall be net thirty (30) days, Payment due dates, including
discount periods, shall be computed from (a) the date of receipt of the
Product, (b) the date of receipt of a correct invoice or (c) the
scheduled delivery date of such Product, whichever is last, up to and
including the date Buyer's check is mailed. Unless freight and other
charges are itemized, any discount shall be taken on the full amount of
the invoice. All payments are subject to adjustment for shortages,
credits and rejections.
8.2 Non-Recurring Costs
The total non-recurring price shall be paid by Buyer within the term
discount period or thirty (30) calendar days (whichever is later) after
receipt of both acceptable Products by Buyer and receipt of an
acceptable invoice accompanied by a properly prepared Certified Tool
List as specified in the M31-24 Document, "Boeing Supplier Tooling
Manual." Invoices received with incorrect, improperly prepared or
incomplete certified tool lists will be returned for correction prior
to payment. Invoices shall be dated concurrent with, or subsequent to,
shipment of the Products.
9.0 PRODUCT ASSURANCE
9.1 Governing Document
Seller acknowledges that Buyer and the owner or operator of each
aircraft manufactured by Buyer incorporating the Products must be able
to rely on each Product performing as specified and that Seller will
provide the required support services. Accordingly, the provisions of
the Boeing Document X0-0000-0, "Xxxxxx Designed, Sub-Contracted
Products Manufacturers Warranty" are incorporated herein and by this
reference are made a part hereof.
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10.0 COST PERFORMANCE VISIBILITY
Seller's Program Manager shall be responsible to provide all necessary
cost support data, source documents for direct and indirect costs, and
assistance at the Seller's facility for cost performance reviews
performed by Buyers pursuant to any order referencing these Special
Business Provisions. Copies of such data are to be made available
within 72 hours of any request by Buyer. This data is required in
addition to the cost data provided pursuant to Section 9.0 of the
Agreement. All such information so obtained shall be treated as
confidential in accordance with Section 15.0 of the Agreement.
11.0 GRANT OF LICENSE
11.1 Licensed Property
For purposes of this Section, "Licensed Property" shall be deemed to
mean all patents (including divisions, continuations or substitutions
thereof), designs, specifications processes, tooling drawings,
technical data and other information used in the development or
production of Products.
11.2 Consideration
In consideration for Buyer's agreement to pay and subsequent payment of
certain non-recurring tooling, design, development and certification
costs for the Products. Seller hereby grants to Buyer a present,
royalty-free, nonexclusive license to use Licensed Property to make,
have made, use and sell Products. Buyer shall have the right to
exercise said license at no additional cost to Buyer: (a) upon
termination of this Order for any reason; or (b) at any time after five
years from the date of this order.
11.3 Title Transfer
At any time following the exercise of the license granted herein, Buyer
shall have the right to require Seller at no additional cost to Buyer
to transfer to Buyer the title to and possession of all tooling,
fixtures, die and jigs used by Seller or Seller's subcontractors in the
development or production of Products.
12.0 SPARES AND SHORTFLOW PRODUCTION PRICING
Except as set forth in subsections 12.1 and 12.2 below, the price for
Spare(s) shall be the same as the production price for the Products as
listed on Attachment "1" in effect at the time the Spare(s) are
ordered. POA parts shall be priced so that the sum of the prices for
all POA parts of an End Item Assembly equals the 10 applicable
recurring portion of the price of the End Item Assembly.
12.1 Aircraft On Ground (AOG)/Critical Spares, Short Flow
Production Requirements less than or equal to 4 Weeks Leadtime
The AOG is the highest priority category utilized by Buyer for spare
parts procurement. This classification will be assigned part
requirements for actual grounded aircraft. The Seller will provide
delivery commitments within one (1) hour after receipt of the
requirements. The Critical priority classification is assigned spares
requirements which are urgently needed by a customer or Buyer although
no actual AOG condition exists, an AOG condition is imminent or a work
stoppage may result from this Critical condition. The Seller will
provide delivery commitments within one (1) working day after receipt
of the requirements.
The Seller is required to support AOG/Critical Spares on a twenty-four
(24) hour day basis, seven (7) day week and with maximum use of
overtime. Premium transportation is authorized. The price for Aircraft
On Ground (AOG)/Critical Spares and short flow production requirements
as defined herein shall be the price for such Products listed on
Attachment "1" in effect when such Spares are ordered multiplied by a
factor of 1.07 plus outside processing costs. For Hammer Form parts,
Seller shall be entitled to an additional $250.00/lot expedite fee. In
addition, Seller shall be entitled to a $200.00/lot charge to pour a
lead top, as required.
12.2 Expedite Spare (Class 1) and Short Flow Production
Requirements with Leadtime of Greater than 4 Weeks but Less
Than or Equal to 8 Weeks
The Expedite Spare classification is used to identify spares
requirements that require delivery in less than normal reorder lead
time (ROLT). Manufacturing efforts will be based on a two (2) shift day
basis, six (6) day week. The price for Expedite Spares and short flow
production requirement, as defined herein, shall be the price for such
Products listed on Attachment "1" in effect when such Spares are
ordered multiplied by a factor of 1.05 plus outside processing costs.
Expedite action will be taken only if necessary to meet Buyer's
required date.
12.3 Special Handling
The price for all effort associated with the production handling and
delivery of Spare(s) is deemed to be included in the price for such
Spare(s). When Buyer directs delivery of Spare Parts to an F.O.B. point
other than Seller's plant, however, Buyer shall reimburse Seller for
shipping charges, including insurance, paid by Seller from the plant to
the designated F.O.B. point. Such charges shall be shown separately on
all invoices.
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13.0 BUYER FURNISHED MATERIAL (WHERE APPLICABLE)
It is the responsibility of the Seller to provide notice to the Buyer
of required on-dock dates for all raw material to ensure production
continuity, Seller's notice shall provide Buyer with sufficient time to
allow Buyer to competitively bid the raw material if so desired.
Material furnished to Supplier shall be administered per the Bonded
Stores Agreement between the parties. Updates on the status of all
Buyer furnished raw material shall be submitted quarterly by the Seller
to Buyer.
14.0 FOREIGN PROCUREMENT REPORT
The Foreign Procurement Report to Buyer required by Section 35.0,
"Foreign Procurement offset," of the Agreement is to be provided on the
Foreign Procurement Report form, Attachment "3" hereto, in accordance
with instructions provided therein. Such document is by this reference
made a part hereof. The semi-annual reporting periods shall be January
1 to June 30 and July 1 to December 31. The reports shall be submitted
on the 1st of August and the 1st of February respectively.
15.0 STATUS REPORTS
Seller shall update and submit, as a minimum, monthly status reports
using a method mutually agreed upon by the Buyer and Seller. Seller
shall also submit monthly status reports using Boeing's Vendor
Follow-Up Report.
For all first run programs, Seller shall provide to Buyer a milestone
chart identifying the following:
(a) Raw material schedule, including;
(i) purchase order number and date,
(ii) order quantity and delivery schedule
(b) Planning and Programming start and completion;
(c) Tooling manufacture start and completion;
(d) Machining start and completion by operation;
(e) outside processing by operation and subcontractor;
(f) First article completion date; and,
(g) Production lot release plan.
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EXECUTED in duplicate as of the date and year first set forth above by the duly
authorized representatives of the parties.
THE BOEING COMPANY XXXXXXX'X METALS, INC.
By and Through its Division
Boeing Commercial Airplane Group
/s/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxx
Name: Xxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Manager Title: President
Date: 3-12-93 Date: 3-8-93
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ATTACHMENT "1" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
WORK STATEMENT AND PRICING
The price and period of performance for Products to be delivered under this
contract shall be as follows:
NOTE: ALL PRODUCTS, CORRESPONDING PRICING AND THE APPLICABLE PERIOD OF
PERFORMANCE FOR SAID PRODUCTS, TO BE PURCHASED BY THE SHEET METAL/OFFLOAD GROUP
ARE IDENTIFIED AND MAINTAINED IN A SHEET METAL PRICING CATALOG IDENTIFIED AS
XXXXXXX'X METALS, INC. ATTACHMENT TO SBP DP-PLR-1131A WHICH IS HEREBY
INCORPORATED AND MADE A PART HEREOF BY THIS REFERENCE. SAID CATALOG SHALL BE
AMENDED AS DEEMED NECESSARY BY THE PARTIES BUT NO LESS THAN SEMIANNUALLY. ALL
PRICING IN THE AFOREMENTIONED CATALOG IS FIRM FIXED PRICE FOR DELIVERIES THROUGH
THE APPLICABLE TIME FRAME, EXCEPT AS NOTED HEREIN IN SECTION 3.0 "PRICES".
PLEASE NOTE: THE EXTENDED AMOUNTS SHOWN IN THIS ATTACHMENT ARE BASED UPON
ESTIMATED USAGE RATES AND ARE USED AS A GUIDE ONLY. ANY ESTIMATE OF PRESENT OR
FUTURE REQUIREMENTS PROVIDED TO SELLER BY BUYER IS NOT TO BE CONSIDERED AS A
COMMITMENT OF BUYER'S ACTUAL PURCHASE REQUIREMENTS. EXTENDED AMOUNTS ARE NOT
GUARANTEED TO BE ACTUALLY AWARDED, IN WHOLE OR IN PART, BY BUYER TO SELLER.
14
ATTACHMENT "2" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
PLANNING SCHEDULE
The following Airplane model mix and rate are forecasted for year 1992-1996.
Model Mix 1992 1993 1994 1995 1996
737 14 14 17 17 17
747 5 5 5 5 5
757 8.5 8.5 8.5 7.0 7.0
767 5 5 5 5 5
777 1 2 3 5 5
TOTAL 33.5 34.5 38.5 39.0 39.0
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ATTACHMENT "3" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
FOREIGN PROCUREMENT REPORT FORM
(Seller to Submit)
(Reference Section 14.O)
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ATTACHMENT "4" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
RATES AND FACTORS
The following Rates and Factors, which are reflective of the proposed values
identified in Attachment "1" of this document, shall contribute to the
determination of equitable pricing for engineering changes, derivative aircraft,
and option or follow-on pricing.
Tool Fab
Production & Rework
Direct Labor Rate $ 8.00/HR $13.00/HR
Manufacturing Burden $33.11/HR $33.11/HR
G&A (Gen. Admin. Exp.) $10.07/HR $10.07/HR
Profit $ 5.82/HR $ 6.82/HR
TOTAL $57.00 $63.00
17
ATTACHMENT "5" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
TERMINATION LIABILITY CURVE
(Seller to Submit)
(Reference Section 6.0)
In the event of termination or cancellation pursuant to Article 12.0 of the
Agreement, Buyer shall not be obligated to pay Seller more than the Cumulative
total amounts set forth below less payments previously made, for the
month/quarter in which the termination notice is issued, as the amounts shall be
amended from time to time.
($000 Omitted)
Nonrecurring Nonrecurring
Year/Quarter Cost Cost Total
------------ ---- ---- -----
_____ First $ $
_____ Second
_____ Third
_____ Fourth
_____ First $ $
_____ Second
_____ Third
_____ Fourth
_____ First $ $
_____ Second
_____ Third
_____ Fourth
TOTAL $____________ $_____________
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ATTACHMENT "6" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
INCREMENTAL LOT RELEASE SCHEDULE PLAN
(Seller to Submit)
(Reference Section 9.0)
A Authorization Summary
Non-recurring releases authorized in conjunction with the execution
of the Contract are as summarized below. The non-recurring Price
represents the baseline value to be used to determine change pricing
adjustment per section 5.2 "Changes Subject to an Equitable
Adjustment."
To Support
Production Authorization Dollar
Item Rate Of Date Amount
Contractor Use ____S/S per Execution of ______
Tooling month Contract
Common Use Tools ______
Forging Dies ______
Other Non-Recurring ______
Work
Total Non-Recurring
Baseline Value ______
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ATTACHMENT "6" TO
SPECIAL BUSINESS PROVISIONS
(REQUIREMENTS)
Recurring releases authorized in conjunction with execution of this Contract are
herein summarized in shipset quantities.
Material Quantity S/S
Metallic Raw Material
Non-Metallic Raw Material
Purchased Parts
Extrusions
Fabrication
Detail Parts
Assembly
B. Lead Times
Lead times for material, fabrication and assembly authorizations are as
tabulated below in months prior to delivery of the first Shipset
affected.
Material Months
Metallic Raw Material TBD
Non-Metallic Raw Material TBD
Castings/Forgings TBD
Purchased Parts TBD
Extrusions TBD
Fabrication
Detail Parts TBD
Assembly TBD
Rate Tooling
(Greater than the Baseline Shipsets per Month) TBD
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REVISIONS
REV.
SYM DESCRIPTION DATE APPROVAL
1 INCORPORATE NEW CONTRACT 09-15-92
LANGUAGE L-71 (03-13-91)
TO SHEET METAL OFFLOAD
CONTRACTS
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