Exhibit 10.9(b)
BOEING COMMERCIAL AIRPLANE GROUP
PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE. This Order is Xxxxx's offer to Seller, and acceptance is
strictly limited to its terms. Buyer shall not be bound by and
specifically objects to any term or condition whatsoever which is different
from or in addition to the provisions of this Order. Whether or not such
term or condition will materially alter this Order. Seller's commencement
of performance, or acceptance of this Order, in any manner shall
conclusively evidence agreement to this Order, as written.
2. DEFINITIONS. Whenever used in this Order, (a) "Customer" means any
customer of Buyer, any subsequent owner, operator or user of the Goods, and
any other individual, partnership, corporation or person or entity which
has or acquires any interest in the Goods from, through or under Buyer:
(b) "FAR" means the United States Government Federal Acquisition
Regulations: (c) "Goods" means all of the goods, services, documents, data,
software and other information or items furnished or to be furnished to
Buyer under this Order: and (d) "Order" means this purchase order,
including the provisions on its face, these Purchase Order Terms and
Conditions, and all of the specifications, technical descriptions,
statements of work, drawings, designs, documents, and other requirements
and provisions attached to, incorporated into or otherwise made a part of
this purchase order by Buyer.
3. SHIPMENT/DELIVERY. Shipments or deliveries, as specified in this Order,
shall be strictly in accordance with: the specified quantities, without
shortage or excess: the specified schedules, neither ahead of nor behind
schedule: and the other requirements of this Order. Seller shall promptly
notify Buyer in writing of any anticipated or actual delay, the reasons
therefor, and the actions being taken by Seller to overcome or minimize the
delay. If requested by Xxxxx, Seller shall, at Seller's expense, ship
Goods via air or other fast mode of transportation to avoid or minimize the
delay to the maximum extent possible.
4. PACKING AND SHIPPING. Seller shall prepare and pack the Goods to prevent
damage and deterioration, and shall comply with carrier tariffs. Charges
for preparation, packing, crating and cartage are included in the price
unless separately specified in the Order. Goods sold F.O.B. place of
shipment shall be forwarded collect. Seller shall make no declaration
concerning value of Goods shipped, except for Goods on which tariff
rating is dependent upon released or declared value, in which event Seller
shall release or declare such value at maximum value within the lowest
rating.
5. INVOICE AND PAYMENT. Seller shall issue a separate invoice for each
delivery and shall not issue any invoice prior to the Order schedule date
or actual delivery date, whichever is later. Payment will be made after
receipt of Goods and correct invoice. Unless freight or other charges are
itemized, any discount may be taken on the full amount of invoice. Payment
due date, including discount periods, shall be computed from the date of
receipt of Goods or correct invoice (whichever is later) or the date
Buyer's check is mailed or otherwise tendered. Seller shall promptly repay
to Buyer any amounts paid in excess of amounts due Seller.
6. EXAMINATION OF RECORDS. Seller shall maintain complete and accurate
records showing the sales volume of all Goods. Such records shall support
all services performed, allowances claimed and costs incurred by Seller in
the performance of the 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 Xxxxx and shall be
available to Buyer at Seller's facility for Buyer's examination and audit at
all reasonable times from the date of the Order until three (3) years after
final payment under the Order. Seller shall provide assistance to
interpret such data if required by Xxxxx. 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
Goods (including but not limited to negotiation of equitable adjustments
pursuant to Clause 11, "CHANGES," and Clause 12, "TERMINATION FOR
CONVENIENCE"). Buyer shall treat such information as confidential.
7. INSPECTION. Buyer's acceptance of Goods shall be subject to Buyer's final
inspection within a reasonable time after receipt at destination,
notwithstanding any payment or prior test or inspection. In addition,
Buyer and the Federal Aviation Administration (if nondomestic an equivalent
government agency) may inspect and evaluate Seller's plant, including but
not limited to facilities, systems, equipment, testing, data, personnel and
all work-in-process and completed goods manufactured for installation on
Buyer's airplanes. No inspection, test or prior approval or acceptance,
and no delay or failure to inspect, test or give prior approval or
acceptance, or failure to discover any defect or other noncompliance, shall
relieve Seller of any of its obligations nor impair any rights or remedies
of Buyer or Customers.
8. REJECTION. Buyer may reject or revoke acceptance ("rejection" herein) of
any or all Goods, including any tender thereof which are not strictly in
conformance with all of the requirements of this Order, and shall notify
Seller of such rejection by notice, rejection tag or other communication.
At Seller's risk and expense, all such Goods will be returned to Seller for
immediate Seller repair, replacement or other correction and redelivery to
Buyer: provided, however, that with respect to any or all such Goods, at
Buyer's election and at Seller's risk and expense, Buyer may: (a) hold,
retain or return such Goods, without permitting any repair, replacement or
other correction by Seller: (b) hold or retain such Goods for repair by
Seller or, at Buyer's election, for repair by Xxxxx with such assistance
from Seller as Buyer may require: (c) hold such Goods until Seller has
delivered conforming replacements for such Goods: (d) hold such Goods until
conforming replacements are obtained from a third party: or (e) return such
Goods with instructions to Seller as to whether the Goods shall be repaired
or replaced and as to the manner of redelivery. All repair, replacement
and other correction and redelivery shall be completed within such time as
Buyer may require. All costs and expenses and loss of value incurred as a
result of or in connection with nonconformance and repair, replacement or
other correction may be recovered from Seller by equitable price reduction,
setoff or credit against any amounts which may be owed to Seller under this
Order or otherwise.
9. WARRANTIES. Seller warrants to Buyer and Customers that Goods shall: (a)
conform in all respects to all of the requirements of this Order: (b) be
free from all defects in materials and workmanship: and (c) to the extent
not manufactured pursuant to detailed designs furnished by Buyer, be free
from all defects in design and be fit for the intended purposes.
10. INDEMNITY/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 those exceeding
actual damages and/or including attorneys' fees), 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 of documents) and arising out of the manufacture, sale or use
of Goods 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 clause with
regard to any infringement arising from: (a) Seller's compliance with
formal specifications issued by Buyer where infringement could not be
avoided in complying with such specifications or (b) use or sale of Goods
in combination with other items when such infringement would not have
occurred from the use or sale of those Goods solely for the purpose for
which they were designed or sold by Seller. For purposes of this Clause
10 only, the term Customer shall not include the U.S. 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 subsidiary.
11. CHANGES. Xxxxx's Materiel Representative may from time to time direct
changes in writing within the general scope of this Order in any one or
more of the following: (a) technical requirements and descriptions,
specifications, statements of work, drawings or designs: (b) shipment or
packing methods: (c) place of delivery, inspection of acceptance: (d)
reasonable adjustments in quantities or delivery schedules or both: and (e)
amount of Buyer-furnished property. Seller shall comply immediately with
such direction and avoid unnecessary costs related thereto. If any such
change causes an increase or decrease in the cost of or the time required
for performance of this Order, an equitable adjustment in the prices and
schedules of this Order shall be made to reflect such increase or decrease,
and this Order shall be modified in writing accordingly. Unless otherwise
agreed in writing, any Seller claim for adjustment must be delivered to
Buyer in writing within thirty (30) days after Xxxxxx's receipt of such
direction. Seller shall make available for Buyer's examination relevant
books and records to verify Seller's claim for adjustment. Failure of
Buyer and Seller to agree upon any adjustment shall not excuse Seller from
performing in accordance with such direction. If Xxxxxx considers the
conduct of any of Buyer's employees to have constituted a change hereunder:
Seller shall notify Buyer immediately in writing as to the nature of such
conduct and its effect upon Seller's performance. Pending direction from
Xxxxx's Materiel Representative, Seller shall take no action to implement
any such change.
12. TERMINATION FOR CONVENIENCE. Buyer may terminate this Order in whole or
from time to time in part, effective as of the date specified by Xxxxx, in
accordance with the provisions of FAR 52.249-2 (APR 1984: without
Alternates), which provisions are incorporated herein by reference. In FAR
52.249-2, "Government" and "Contracting Officer" shall mean Buyer:
"Contractor" shall mean Seller and "this Contract" and "the Contract"
shall mean this Order. All references to one (1) year in paragraph (d) of
such clause are changed to six (6) months, and all references to a
"Disputes" clause are deleted.
13. CANCELLATION FOR DEFAULT. Buyer may cancel this Order in whole or from time
to time in part, effective as of the date specified by Buyer. In
accordance with the
(CONTINUED ON REVERSE SIDE)
provisions of FAR 52.249-8 (APR 1984: without Alternates), which provisions
are incorporated herein by reference, in the event of any Seller default,
or in the event of Seller's suspension of business, insolvency,
reorganization or arrangement or liquidation proceedings, assignment for the
benefit of creditors or Seller's trustee in bankruptcy or Seller as debtor
in possession not assuming this Order pursuant to a Federal Bankruptcy
Court's approval within sixty (60) days after the bankruptcy petition was
filed, or appointment or a receiver for Seller's property. In FAR
52.249-8, "Government" and "Contracting Officer," shall mean Buyer except
in paragraph (e). "Contractor" shall mean Seller, "this Contract" and
"the Contract" shall mean this Order, and all references to a "Disputes"
clause are deleted. If Buyer and Seller fail to agree 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 shall not
exceed that portion of the price of this Order which is reasonably
allocable to such materials.
14. RESPONSIBILITY FOR PERFORMANCE. Xxxxx's issuance of this Order is based
in part on Buyer's reliance on Seller's ability, expertise and awareness
of the intended use of Goods, and Seller's continuing compliance with all
applicable laws and regulations during the performance of this Order.
Further, Seller shall not, by contract, operation of law, or otherwise,
assign any of its rights or interest in this Order (including but not
limited to any right to monies due or to become due), delegate any of its
duties or obligations under this Order, or subcontract all or
substantially all of its performance of this Order to one or more third
parties, without Xxxxx's prior written consent. No assignment,
delegation or subcontracting by Seller with or without Xxxxx's consent
shall relieve Seller of any of its obligations under this Order. Buyer
may unilaterally assign any rights or title to property under this Order
to any wholly owned subsidiary of The Boeing Company. Seller shall have
a continuing obligation to promptly notify Buyer of any violation of or
deviation from Seller's approved inspections quality control system and
to advise Buyer of the quantity and specific identity of any Goods
delivered to Buyer during the period of any such violation or deviation.
15. PUBLICITY. Seller shall not, and shall require that its subcontractors
and suppliers (of any tier) shall not, cause or permit to be released any
publicity, advertisement, news release, public announcement, or denial or
confirmation of same, in whatever form, regarding any aspect of this
Order or the Goods or program to which they pertain without Buyer's prior
written approval.
16. COMPLIANCE WITH LAWS. Seller 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
Order. Seller further agrees (1) to notify Buyer of any obligation under
this Order which is prohibited under any applicable environmental law, at
the earliest opportunity but in all events sufficiently in advance of
Seller's performance of such obligation so as to enable the identification
of alternative methods of performance, and (2) to notify Buyer at the
earliest possible opportunity of any aspect of its performance which
becomes subject to additional environmental regulation or which Seller
reasonably believes will become subject to additional environmental
regulation during performance of this Order.
17. RESPONSIBILITY FOR PROPERTY. Unless otherwise specified, upon delivery to
Seller or manufacture or acquisition by Seller of any materials, parts,
tooling, data or other property, title to which is in Buyer. Seller
assumes the risk of and shall be responsible for any loss thereof or damage
thereto. In accordance with the provisions of this Order, but in any event
upon 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 for such property as has been reasonably consumed in the performance
of this Order.
18. CONFIDENTIAL, PROPRIETARY, AND/OR TRADE SECRET INFORMATION AND ITEMS.
Buyer and Seller shall each keep confidential and protect from disclosure
all (a) confidential, proprietary, and/or trade secret information: (b)
tangible items containing, conveying, or embodying such information: and (c)
tooling obtained from and/or belonging to the other in connection with this
Order (collectively referred to as "Proprietary Materials"). Buyer and
Seller shall each use Proprietary Materials of the other only in the
performance of and for the purpose of this Order. Provided, however, that
despite any other obligations or restrictions imposed by this Clause 18,
Buyer shall have the right to use and disclose Seller's Proprietary
Materials for purposes of testing, certification, use, sale, or support of
any item delivered under an Order or any airplane including such an item:
and any such disclosure by Buyer shall, whenever appropriate, include a
restrictive legend suitable to the particular circumstances. The
restrictions on disclosure or use of Proprietary Materials by Seller shall
apply to all materials derived by Seller or others from Buyer's Proprietary
Materials. Upon Xxxxx's request at any time, and in any event upon the
completion, termination or cancellation of this Order. Seller shall return
all of Buyer's Proprietary materiels, and all materials derived from
Xxxxx's Proprietary Materials, to Buyer unless specifically directed
otherwise in writing by Buyer. Seller shall not, without the prior written
authorization of Buyer, sell or otherwise dispose of (as scrap or
otherwise) any materials containing, conveying, embodying, or made in
accordance with or by reference to any Proprietary Materials of Buyer.
Prior to disposing of such materials as scrap, Seller shall render the
materials unusable. Buyer shall have the right to audit Seller's
compliance with this Clause 18. Seller may disclose Proprietary Materials
of Buyer to its subcontractors as required for the performance of this
Order, provided that each such subcontractor first assumes, by written
agreement, the same obligations imposed on Seller under this Clause 18
relating to such Proprietary Materials; and Seller shall be liable to
Buyer for any breach of such obligation by such subcontractor. The
provisions of this Clause 18 are effective in lieu of, and will apply
notwithstanding the absence of, any restrictive legencs or notices
applied to Proprietary Materials: and the provisions of this Clause 18
shall survive the performance, completion, termination or cancellation of
this Order. This Clause 18 supersedes and replaces any and all prior
agreements and understandings between the parties to the extent that such
agreements or understandings cover confidential, proprietary, and/or trade
secret information, or tangible items containing, conveying, or embodying
such information, related to any Goods, regardless of whether disclosed
to the receiving party before or after the effective date of these Purchase
Order Terms and Conditions.
19. INTEGRITY IN PROCUREMENT. Buyer's policy is to maintain high standards of
integrity in procurement. Buyer's employees must ensure that no favorable
treatment compromises their impartiality in the procurement process.
Accordingly, Buyer's employees must strictly refrain from soliciting or
accepting any payment, gift, favor, or thing of value which could
improperly influence their judgment with respect to either issuing a
purchase order or administering this Order. Consistent with this policy,
Xxxxxx agrees not to provide or offer to provide any employee of Buyer any
payment, gift, favor, or thing of value for the purpose of improperly
obtaining or regarding favorable treatment in connection with any purchase
order of this Order. Seller shall conduct its own procurement practices,
and shall ensure that its suppliers conduct their procurement practices,
consistent with these standards. If Seller has reasonable grounds to
believe that this policy may have been violated, Seller shall immediately
report such possible violation to the appropriate Director of Materiel or
Division Chief Counsel of Buyer.
20. NONWAIVER AND PARTIAL INVALIDITY. Any and all failure, delay or
forbearance of Buyer in insisting upon or enforcing at any time any of the
provisions of this Order, or in exercising any rights or remedies under
this Order, shall not be construed as a waiver or relinquishment of any
such provisions, rights or remedies in those or any other instances:
rather, the same shall be and remain in full force and effect. Further, if
any provision of this Order is or becomes void or unenforceable by law, the
remainder shall be valid and enforceable.
21. GOVERNMENT REQUIREMENTS. Within Seller's invoice or other form
satisfactory to Buyer, Seller shall certify that Goods covered by this
Order were produced in compliance with Sections 6, 7 and 12 of the Fair
Labor Standards Act as amended, and the regulations and orders of the
U.S. Department of Labor issued thereunder Paragraph (b) of the Equal
Opportunity clause set forth in FAR 52.222-26. FAR 52.222-35,
Affirmative Action for Special Disabled and Vietnam Era Veterans, and FAR
52.222-38, Affirmative Action for Handicapped Workers, are incorporated
herein by reference, except that "Contractor" shall mean Seller in such
FAR clauses. The appearance of a U.S. Government agency prime contract
number on the face of this Order incorporates into this Order, without
further notice of action, Boeing Form D1 4100 4050, entitled "Additional
Terms and Conditions-Government Contracts."
22. GOVERNING LAW. This Order and the performance thereof shall be governed by
the law of the State of Washington, U.S.A., exclusive of the choice of law
rules thereof.
23. ENTIRE AGREEMENT. This 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 this Order. No
amendment or modification of this Order shall be binding upon Buyer unless
set forth in a written instrument signed by Xxxxx's Materiel
Representative. The rights and remedies afforded to Buyer or Customers
pursuant to any provision of this Order are in addition to any other rights
and remedies afforded by any other provisions of this Order, by law or
otherwise.
