Terms & Conditions
1. Definitions
"Buyer" means TIBERIUS AEROSPACE, INC. "Order" means the purchase order or subcontract issued by Buyer to Seller. "Seller" means the person, firm, or corporation executing the Order with Buyer who will furnish the supplies or services provided for herein.
2. Independent Contractor
Seller is an independent contractor and not an agent or employee of Buyer. The Order does not constitute a joint venture, partnership, or permanent relationship. Seller exclusively controls and directs its employees' work, free from Buyer's control.
3. Packing and Shipment
Deliveries must be made as specified without additional charges for boxing or storage unless stated otherwise. Goods must be suitably packaged to prevent damage. Buyer's Order number must be marked on all invoices, packages, and shipping orders.
4. Inspection
Buyer may inspect Seller's facilities as reasonably necessary to verify compliance. Inspections do not relieve Seller from responsibility for quality assurance. Rejected work may be removed by Seller at Seller's expense.
5. Delivery
Time of delivery is essential. If Seller fails to meet the delivery schedule, Seller is liable for expedited transportation cost differences. Over-deliveries may be retained by Buyer at no cost or returned at Seller's expense.
6. Title and Risk of Loss
Title passes to Buyer at the specified destination. Seller assumes and bears risk of loss or damage until delivery. Seller bears all risks regarding rejected items after notice of rejection.
7. Warranty
All supplies are warranted to be free from material defects and conform to Order requirements. Items are warranted merchantable and free from material defect for one year after delivery and acceptance. Warranties survive inspection, test, acceptance, and payment. Warranties exclude items that have been abused, misused, altered without approval, or used with unapproved products. During the warranty period, Buyer must notify Seller within ten business days of discovering alleged defects. "Sole and exclusive remedy" applies to warranty breaches.
8. Special Tools
Dies, tools, and patterns acquired by Seller for the Order are identified as Special Tools. Title passes to Buyer upon payment. Seller must hold Special Tools in good condition and hand them over at Order completion unless directed otherwise.
9. Buyer-Furnished Property and Material
Property furnished by Buyer must be held by Seller and properly accounted for. Seller will pay for damaged or unaccounted materials, excluding normal wear and tear. Each party must mark and account for the other party's property.
10. Payment
Payment date is calculated from Buyer's receipt of a conforming invoice.
11. Acceptance
Acceptance occurs through written acknowledgement or delivery of items or services. Acceptance creates a binding contract. Seller's conditions in acknowledgement that conflict with the Order are not binding on Buyer unless expressly accepted in writing. Rights and obligations survive completion and final payment.
12. Changes
Buyer's authorized representative may issue written directions for additional or omitted work. Material changes require equitable adjustment to Order price and terms. Claims for adjustment must be asserted within fifteen business days of receiving the change notification. Changes are not binding unless agreed to in writing by authorized representatives of both parties.
13. Writings Required
No notice, order, or approval is effective unless in writing. No oral statement modifies the Order. Extra charges or price changes require written agreement from authorized representatives of both parties.
14. Records
Seller's manufacturing facilities, books, documents, papers, and records related to Order performance are subject to examination and audit by Buyer's designated person. Records must be maintained for no less than two years after final payment unless longer retention is required by law or agreement.
15. Stop Work Order
Buyer may require Seller to stop work for no more than thirty days by written notice. Within thirty days, Buyer must either withdraw the notice and direct work resumption (entitling Seller to equitable adjustment) or terminate the work and Order.
16. Termination for Convenience
Buyer may terminate the Order in whole or part for convenience with no less than thirty days' written notice. Seller must stop work, place no further orders, and protect property in which Buyer has interest. Within three months, Seller must submit a claim for reimbursement of costs directly resulting from termination. Buyer will pay for completed articles at Order price, actual costs properly allocable to terminated portions, reasonable settlement expenses, and reasonable profit on work performed. Payments cannot exceed the aggregate Order price. Seller cannot recover costs incurred after termination effective date except as specified, including no recovery of anticipatory profits or unabsorbed overhead.
17. Termination for Default
Buyer may terminate if Seller materially breaches terms or fails to make adequate progress, after ten business days' notice to cure. Seller may terminate if Buyer materially breaches, including non-payment, after ten business days' notice. Upon default termination, Buyer may procure similar supplies elsewhere and Seller is liable for excess costs. Seller is not liable if failure arises from causes beyond Seller's control and without Seller's fault. Buyer may require transfer of completed Work Product and partially completed Work Product to Buyer. If termination is later determined improper, it is treated as termination for convenience.
18. Work Product; Seller Background IP; Government Rights
For research, development, or experimental work, all data, notes, drawings, designs, and memoranda specifically developed for Buyer ("Work Product") are Buyer's property. "Seller Background IP" means inventions, works of authorship, software, and other materials developed by Seller prior to or independent of the Order. Seller grants Buyer a non-exclusive, perpetual, royalty-free license to use Seller Background IP as incorporated into the Work Product for intended purposes. Buyer cannot use Seller Background IP separately. If the Order is subject to a U.S. Government prime contract, parties must comply with applicable government data rights and invention provisions.
19. Proprietary Information; Buyer Background IP
Each party holds the other's Confidential Information in confidence and uses it only for the stated purpose. Buyer may reproduce and distribute Seller's Confidential Information to customers, subcontractors, and suppliers as necessary. Seller may disclose Buyer's Confidential Information to its directors, officers, employees, agents, and advisors who need access. Each party protects the other's information with measures equal to protecting its own. Buyer Background IP rights are reserved to Buyer, and Seller's use is restricted to the Order work. Neither party has obligation regarding Confidential Information that was rightfully possessed, publicly known through no fault of the receiving party, obtained from a third person with right to disclose, or independently developed. If an NDA exists, it governs confidentiality obligations; clause 31 governs disputes.
20. Reserved
Reserved.
21. Advertising, Use of Name
Seller shall not advertise or publish that it has furnished supplies or services to Buyer without written consent from Buyer's Purchasing Department authorized representative. Seller shall not use Buyer's name or logo without Buyer's prior written consent in each instance.
22. Indemnity
Seller agrees to defend, indemnify, and hold harmless Buyer against loss, liability, damage, claim, action, judgment, and associated costs arising from third-party claims alleging trademark, copyright, or patent infringement from Seller's work or provision of items (except where items conform to Buyer's detailed design and Seller gives prompt notice), breach of Seller's warranty, damages from Seller's willful misconduct or negligent acts, or breach by Seller's personnel of agreements required under Additional Terms.
23. Precautions, Indemnity, and Insurance
Seller shall procure and maintain insurance during the Order term at its expense, including automobile liability insurance with limits of at least $1,000,000 per person and occurrence for bodily injury and property damage; commercial general liability insurance with limits of $1,000,000 per occurrence and $2,000,000 aggregate; professional liability coverage of at least $1,000,000 per claim for engineering services; and workers' compensation insurance as required by law. For service work at Buyer's or third-party premises, policies shall name Buyer as additional insured. Seller shall furnish certificates of insurance with thirty days' prior notification of termination or reduction. Insurance purchase does not release Seller's obligations. If Seller fails to maintain insurance, Buyer may arrange insurance at Seller's cost. If Seller's work is on Buyer's premises, Seller agrees to take precautions against injury or property damage, comply with workplace safety procedures, and hold Buyer harmless. Neither party is liable for claims caused solely by the other party's acts or omissions. Neither party is liable for liquidated, special, indirect, incidental, or consequential damages, and each party's aggregate liability does not exceed the lesser of fees paid or insurance proceeds received.
24. Property Insurance
Seller shall secure and maintain all-risk insurance for Buyer's benefit covering property in which Buyer has interest, at replacement cost value.
25. Taxes
I. Domestic (U.S.): Buyer bears all applicable sales, use, or similar taxes unless Buyer furnishes a valid exemption certificate. Seller shall notify Buyer promptly of proposed tax assessments. Seller shall take steps to secure applicable refunds when taxes are deemed inapplicable.
II. Foreign (Non-U.S.): The Order price does not include foreign taxes or duties. Buyer shall arrange tax exemption. If Seller must pay foreign taxes, Buyer agrees to reimburse Seller upon presentation of valid documentation.
26. Subcontracting
Seller shall obtain Buyer's written approval before subcontracting the Order or any substantial portion thereof. Purchasing raw materials or standard commercial articles is not a subcontract. Seller understands that subcontracting does not alter its obligations, representations, warranties, or indemnification duties.
27. Force Majeure
Neither party is liable for failure or delay in performance due to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood, epidemics, unusually severe weather, or similar causes beyond their control that are not reasonably foreseeable.
28. Compliance with Laws and Regulations
Seller agrees to conduct itself in strict adherence to all applicable laws, rules, and regulations. Seller represents that it will not provide or use certain telecommunications equipment produced by specified Chinese entities or any entity owned or controlled by the People's Republic of China government. Seller must contact Buyer immediately if unable to comply with this representation. Buyer reserves the right to modify this representation based on regulatory changes.
29. Export Controls
The parties acknowledge information may be subject to U.S. export control laws. Each party shall comply with ITAR, Export Administration Regulations, and Department of Energy regulations. Parties shall not export, disclose, or transfer articles, technical data, or technology without proper U.S. government authorization. Seller shall convey export control requirements to sub-tier suppliers and subcontractors. Seller shall immediately notify Buyer if required approvals cannot be obtained or maintained.
30. Assignment
Seller shall not assign or transfer the Order or payments without Buyer's prior written consent. Purported assignment in violation of this clause is null and void. Assignment does not relieve Seller of obligations. Payment to an assignee is subject to Buyer's set-off or recoupment rights.
31. Disputes
Any dispute arising out of or in connection with the Order shall be subject to these procedures. Either party may provide written notice of dispute. During the following thirty days, senior management representatives of each party shall meet in good faith to attempt resolution. Seller shall not suspend performance while disputes are pending. If unresolved after thirty days:
(i) If Seller is located in the United States, either party may seek rights in a court of competent jurisdiction, with exclusive jurisdiction in the United States District Court for the Southern District of California, or if federal jurisdiction does not attach, in Superior Court of California in San Diego, California. Each party accepts jurisdiction and waives objections.
(ii) If Seller is located outside the United States, disputes shall be decided by arbitration under International Chamber of Commerce Arbitration Rules before a panel of three arbitrators. The arbitration shall be seated in San Diego, California, conducted in English, and is confidential. The arbitration is final and binding.
Notwithstanding the foregoing, if a dispute could lead to irreparable harm, including disputes involving ownership or disclosure of confidential information, either party may seek equitable relief from a court of competent jurisdiction.
32. Applicable Law
The Order shall be governed by California substantive and procedural law, except California's choice of law provisions shall not apply. The 1980 U.N. Convention on Contracts for the International Sales of Goods shall not apply.
33. Attorney Fees
If either party obtains legal representation to enforce the Order, the non-prevailing party agrees to bear court costs and attorney fees of the prevailing party.
34. Non-Waiver
Buyer's failure to insist upon strict performance or exercise rights shall not waive or relinquish Buyer's right to assert or rely upon such terms or rights on any future occasion.
35. Precedence
If Order provisions conflict, the order of precedence is: (a) typed provisions on the Order face, (b) Additional Terms referenced or attached and Buyer's other attachments excluding these terms, (c) these terms and conditions, (d) other specifications or documents incorporated by reference, and (e) Seller's proposal or other documents only when specifically referenced. Seller shall promptly notify Buyer of conflicting provisions.
36. Orders with Assignment of Certain Personnel
If the Order contains a key personnel clause and designated employees become unavailable, a replacement with comparable abilities and qualifications shall be promptly assigned. Seller shall furnish resumes and information Buyer reasonably requests.
37. Seller's Obligations for "Not-to-Exceed" Orders
If the Order is not-to-exceed, Seller agrees to perform within the NTE price. If incurred costs plus estimated completion costs exceed the NTE price, Seller shall immediately notify Buyer. Seller has no obligation to continue if the NTE price is exceeded, and Buyer is not obligated to pay more than the NTE price unless authorized in writing. When incurred costs equal seventy-five percent of the NTE price, Seller shall promptly notify Buyer of total incurred costs and projected completion costs.
38. Payments Under Cost Reimbursable Line Items
(a) For cost reimbursement or fixed hourly rate orders, monthly statements or invoices shall be sent to Buyer's Accounts Payable Department, showing monthly expenditure rates by labor classification and other allowable costs. Delays, errors, and omissions in statements are just cause for deferring payment without losing discount privilege.
(b) Seller shall promptly notify Buyer of any overpayment. Overpayments identified by either party shall be refunded as Buyer directs.
(c) Seller shall submit a final invoice within ninety days after Order completion. If Seller fails to submit within the specified time, Buyer may determine the total amount due and issue a unilateral modification. Amounts paid in excess shall be refunded within forty-five days of Seller receiving the modification.
(d) Seller agrees to maintain books, records, documents, and evidence necessary to reflect all costs for which reimbursement is claimed. Records shall be available at Seller's office during the Order duration and until no less than two years after final payment for inspection, audit, or reproduction by Buyer's authorized representative. Buyer may extend or shorten retention by written amendment.
39. Accounting System
By accepting the Order, Seller certifies that its accounting system can segregate costs adequately to allow sufficient audit of costs incurred by line-item detail.
40. Credit
Seller shall credit to Buyer, as a cost reduction or cash refund, the applicable portion of any income, rebate, allowance, or other credit related to costs for which Seller has been reimbursed.
41. Travel Costs
Unless otherwise noted, travel costs shall be reimbursed at cost, provided airfare does not exceed coach fare cost and meals and incidental expenses do not exceed amounts in the current Federal Travel Regulation prescribed by the General Services Administration. All travel costs must be approved by Buyer in advance as a condition for reimbursement.
42. Reporting of Defects and Noncompliance
If the Order indicates that procurement is for a basic component or materials for a nuclear reactor facility licensed by the Nuclear Regulatory Commission, the provisions of 10 CFR 21 apply and are incorporated by reference. If the Order fails to specify nuclear use and Seller has knowledge that items will be used in an NRC-licensed facility, the provisions of 10 CFR 21 apply and are incorporated by reference.
43. Notices
All notices and communications shall be in writing and are deemed given upon receipt of hand delivery, registered mail return receipt requested, national overnight courier service, or facsimile transmission with confirmation receipt followed by overnight courier delivery. Notices shall be delivered to addresses or facsimile numbers specified on the Order.
44. Severability
If any aspect of these terms and conditions is declared invalid, illegal, or unenforceable by a court or arbitrator, the Order's validity is not affected, and rights and obligations are construed as if the Order did not contain such term.
45. Additional Terms
An Order may refer to or attach additional terms and conditions in Exhibit A, including "Additional Terms and Conditions for Research and Development Orders." Any Additional Terms referenced or attached are incorporated into the Order by reference.
Entire Agreement
These terms and conditions and those on the Order face, including other specifications, attachments, or incorporated documents, constitute the complete and exclusive agreement between parties and supersede all previous negotiations, discussions, communications, representations, agreements, or understandings, whether written or oral. No agreement varying or extending Order terms is binding on Seller unless executed in writing by an authorized Seller representative, or binding on Buyer unless executed in writing by an authorized Buyer Purchasing Department representative.