TERMS AND CONDITIONS OF PURCHASE

 

  1. ARTICLES ORDERED – From time to time PathFinder Digital LLC (Buyer) may deliver Purchase Orders to the party designated in the Purchase Order (Seller) setting forth descriptions of goods and/or services to be purchased at specified quantities and prices. Upon acceptance of the Purchase Order by Seller, Seller agrees to sell to Buyer the quantities of goods and services ("Articles") specified at the prices specified and to deliver the same on or before the delivery date(s) specified. Time is of the essence of this contract.

 

  1. PRICES AND TAXES - The prices include all associated boxing, crating and other packaging unless otherwise specified. The prices stated include all federal, state and local taxes in effect on the date of the order from which Seller cannot obtain exemption, and the amount of any such taxes shall be shown separately on Seller’s

 

  1. DELIVERY and RISK OF LOSS – Unless stated otherwise in the Purchase Order, delivery shall be F.O.B. Destination Sanford FL. Seller assumes the following risks, in addition to other risks Seller assumes by law: (a) all risks of loss or damage to Articles until their delivery to and acceptance by Buyer, (b) in the event the Articles are rejected by Buyer or Buyer revokes its acceptance of the Articles, all risks of loss or damage shall be deemed to have rested with the Seller from the

 

  1. TERMINATION FOR DEFAULT - (a) Any of the following circumstances shall, among others, be deemed a default by the Seller; (i) if Seller fails to make any delivery in the specified quantity within the time specified in the order or any extensions thereof which are agreed to in writing by a member of the Buyer’s Purchasing Dept. (or within a reasonable time if no time is specified); (ii) if Seller breaches or fails to perform any material term or condition of this agreement or the Purchase Order; (iii) if, in Buyer’s sole judgement, Seller so fails to make progress as to endanger performance of the Purchase Order in accordance with its terms and conditions and does not cure such failure within a period of ten (10 ) days after the date of the notice from Buyer specifying such failure; (iv) if any proceeding in bankruptcy or insolvency is initiated against Seller, or if Seller makes an assignment for the benefit of creditors, or if a trustee or receiver is appointed for Seller, regardless of whether Seller consents to any to any of the

 

(b) In the event of a default by the Seller, Buyer, in addition to its other remedies, may pursue at any time any one  or more or all of the following remedies: (i) Buyer may require Seller to indemnify Buyer and hold it harmless from all liability (including liability to Buyer’s customers and others), loss, damage, expense and/or claims (including all Buyer’s attorney’s fees and costs of investigating and litigating claims) resulting, directly or indirectly, from Seller’s default; (ii) Buyer may cancel its obligations under all or any part of this order, including any executed portion of this order; (iii) Buyer may elect to reject for full credit or retain any or all of the Articles which have been delivered to Buyer, paying Seller the fair value of Articles retained, as determined by Buyer; (iv) Buyer may require Seller to deliver to Buyer any or all of the Articles not previously delivered by Seller or previously delivered and rejected to Buyer, and Buyer shall pay the fair value, as determined by Buyer, of the Articles so requested after their delivery to Buyer; (v) Buyer may re-procure the same or similar Articles elsewhere and/or manufacture itself the same and charge the costs of doing so to Seller (including transportation and insurance charges). In the event Buyer elects to reject any or all of the Articles for full credit, Seller shall promptly repay to Buyer any part of the price previously paid for the rejected Articles, plus Buyer’s inspection costs with respect to rejected Articles, and Buyer shall thereupon deliver the rejected Articles to Seller after prepayment by Seller of all transportation and insurance charges for such delivery. Seller shall continue performance of any part of this order which is not canceled in accordance with its terms. Responsibilities of the Parties following such termination shall be in accordance with FAR clause 52.249-8.

 

  1. WARRANTIES - (a) Seller, in addition to its other warranties, warrants that all Articles will be new, will exactly conform to the samples, models, specifications, drawings, and/or descriptions furnished by Buyer or furnished by Seller and accepted by Buyer, and will be merchantable, free of all liens and encumbrances, and free from defective workmanship, material, design and other defect. Seller warrants that all the Articles which are recommended by Seller for a purpose revealed to Seller by Buyer, or are in accordance with Seller’s specifications, will be fit and sufficient for the purposes intended by Buyer. Seller warrants that the Articles will operate in accordance with specifications during the entire warranty period specified in subparagraph 5(b).

 

  • All warranties, express and implied, shall survive inspection, tests, acceptance and payment by Buyer and shall apply for as long as Seller’s standard warranty but for no less than a period of one (1) year from the date of acceptance by Buyer of the particular Article or a correction or replacement thereof if accepted later. All warranties of Seller, express and implied, shall extend to and be jointly and severally enforceable by Buyer, its successor, assigns, customers and all third parties to whom any of the Articles may be sold or transferred, regardless of whether such Articles remain in the same form or are owned by the enforcer of the warranty at the time of

 

  • Seller shall replace all defective Articles within five (5) days of receipt of such Articles. Seller shall bear all warranty costs such as labor, material, inspection and shipping to and from Buyer’s

 

  • In the event of any breach of any warranties as to any of the Articles, Buyer, in addition to all its other remedies (including remedies arising on Seller’s default) may require prompt correction and/or replacement of any or all of the Articles by Seller, at Seller’s sole expense (including transportation and insurance charges to and from Seller). In the event Seller does not promptly make any correction and/or replacement within the time requested by Buyer or refuses to do so, in addition to its other remedies, Buyer may pursue at any time any one or more or all of the following remedies. (i) Buyer may pursue any or all remedies arising in labor equity on Seller’s default; (ii) Buyer may rework any or all of the Articles or parts thereof at Seller’s sole expense; (iii) Buyer may procure correction of any or all of the Articles or parts thereof, holding Seller liable for all costs of such correction; (iv) Buyer may accept and retain any of the Articles, or parts thereof, at a reduction in price corresponding to the quantities retained and the decreased value, as solely determined by Buyer, of what is retained. Seller agrees to reimburse Buyer for any loss of good will resulting, directly or indirect, from any breach of warranty. Buyer shall have no obligation or liability whatsoever to Seller in any of the foregoing events except as to Articles, or parts thereof, which Buyer elects to retain pursuant to this clause or requires Seller to deliver pursuant to clause 4

 

  1. ARTICLE CHANGES or OBSOLESCENCE - Seller shall not make changes to form, fit, function, design, marking, appearance, maintainability, documentation reliability, manufacturing process or process controls, place or manufacture or packing and packaging of the Articles without Buyer’s prior written approval. Seller shall provide Buyer written notice of planned Article obsolescence at least one year prior to discontinuing manufacture of any Article. Said notice shall include, as a minimum a) start and completion dates of last production, b) effective date for last purchase orders, with unlimited quantity order capability c) delivery dates for end of life purchases, and d) alternative component or source recommendations. In addition, Seller shall provide technical data and reasonable consultation assistance to help Buyer evaluate and qualify alternative components or sources. Upon Buyer’s request, Seller shall consider all reasonable options such as the sale or transfer of technology and tooling, and the establishment of wafer or die banks to support ongoing

 

  1. TERMINATION FOR CONVENIENCE - Buyer may terminate all or any part of this Contract by written notice to Seller. In the event of such termination, Seller shall immediately cease all work terminated hereunder and cause any and all of its suppliers and subcontractors to cease work. Seller must submit all claims within thirty (30) days after the effective date of termination. Buyer shall determine the amount due Seller on the Termination in accordance with FAR 52.249-2. In no event shall Buyer be obligated to pay Seller any amount in excess of the Contract price. Seller shall continue work not

 

  1. SUSPENSION OF WORK - Buyer may, by written order only, suspend part or all of the work to be performed under this Contract for a period not to exceed ninety (90) calendar days unless the parties mutually agree to an extension. Within this ninety (90) day period of work suspension, the Buyer shall (i) cancel the suspension of work order; (ii) terminate this Contract in accordance with the “Termination for Convenience” Article of this Contract; (iii) terminate this Contract in accordance with the “Termination for Default” Article of this Contract; or (iv) extend the stop work period.

 

If the Buyer cancels the suspension of work order by written notification, Seller shall resume work. The Buyer and Seller shall negotiate an equitable adjustment in the price or schedule or both if (i) the suspension results in a change in Seller’s cost of performance or ability to meet the Contract delivery schedule; and (ii) Seller submits a claim for adjustment within twenty (20) days after the suspension is canceled.

 

If this Contract is terminated, then either the “Termination for Convenience” or the “Termination for Default” Article of this Contract, whichever is applicable, shall be followed.

 

 

  1. CHANGES - Buyer may, at any time, by written order make changes, within the general scope of this order, in any one or more or all of the following: (a) Drawing, design, specifications, and other data incorporated in this order; (b) Method of shipment or packing; (c) Place of delivery, inspection or acceptance; (d) Time(s) or dates(s) of delivery; (e) Quantities. Upon receipt of any such written order, Seller shall proceed promptly, and in any event, within ten (10) days from the date of Buyer’s written order, to deliver a statement to Buyer showing the effect of any such change on delivery date(s) and/or prices, and, in the absence of such statement within said ten (10) days, all Seller’s claims for adjustment as a result of the change shall be deemed waived. Seller shall not put such changes into effect unless and until a written agreed upon adjustment shall have been made in the terms of this order, or (if sooner), when Seller’s claims for adjustment have been

 

  1. CONFIDENTIALITY - Seller acknowledges that information supplied by Buyer to Seller is Buyer's confidential and proprietary property. Seller agrees to hold such property and the concepts and methods used therein in confidence and to use its best efforts to maintain the confidentiality thereof for Buyer's benefit. Seller agrees that it shall not make any disclosure of such property to anyone except those employees of Seller to whom such disclosure is necessary for the use granted by this order. Seller shall appropriately notify each employee to whom such disclosure is made that it is made in confidence and shall be kept in confidence by him/her for Buyer's benefit. Seller acknowledges that such property is vital to Buyer, that monetary damages will not adequately protect Buyer's interests in for any actual or threatened violation of this provision and that Buyer is entitled to injunctive relief for the enforcement of the confidentiality requirements of this

 

  1. PATENT INDEMNITY - Seller represents and warrants that the Articles provided will not violate any domestic or foreign patents (including letters patents) copyrights or trademarks. Seller shall indemnify Buyer for and hold Buyer harmless from all liability, loss, damage, expense, and/or  claims  of  infringement  of  any domestic or foreign patents  (including  letters  patents)  copyrights  or  trademarks (including  all attorney’s  fees and costs of investigating and litigating claims)  resulting,  directly  or  indirectly,  from  the manufacture, use  and/or sale of the

 

  1. COUNTRY OF ORIGIN/DUTY DRAWBACK – At Buyer’s option, Seller shall furnish Buyer with a signed certification stating the Country of Origin (Manufacture) upon delivery of Articles, by quantity and part number (Buyer’s and Seller’s). “Country of Origin” shall be as set forth in the U.S. Customs Rules and Regulations.

 

  1. AUTHORITY TO EXECUTE DOCUMENTS - No modification, amendment, rescission, discharge, abandonment or waiver of these Terms and Conditions of Purchase shall be binding upon Buyer unless set forth in writing and signed by an authorized representative of

 

  1. GENERAL CONDITIONS - No delay or failure on the part of Buyer in exercising any right or remedy under this order, and no partial or single exercise thereof, shall constitute a waiver of such right or remedy or any other right or remedy. This agreement, and any orders issued pursuant hereto, and the performance of the parties thereunder shall be construed in accordance with and governed by the laws of the State of New York, and any contract resulting here from shall be deemed made in that state as though fully performed

 

  1. TERMS TO GOVERN – Orders placed by Buyer which incorporate these terms by reference shall be governed by the terms of this Agreement. Any additional or different terms contained in Seller’s acknowledgement of or confirmation of an order shall have no

 

  1. NOTICE - Any notice or other communication made or given by any party in connection with this Agreement shall be made by registered or certified mail, postage prepaid, return receipt requested, or by courier service addressed to the other party at its address set forth on the face of the Purchase O

 

  1. HAZARDOUS ACTIVITIES, WAIVER, AND INSURANCE - Seller acknowledges that the international nature of the Item required under this Order may subject Seller and its employees and lower-tier subcontractors to increased personal safety and property risks and other risks, hazards, and potential liabilities. Seller knowingly and voluntarily accepts sole responsibility, financially, and otherwise, for all risks, hazards, and liabilities associated with any international performance under this Order. Seller also hereby releases and waives all claims of any sort that it may have in the future against Buyer or its successors, assigns, affiliates, parents, subsidiaries, or agents arising from or related to risks, hazards, or liabilities associated with any international performance under this Order. In addition to its other indemnification obligations under this Order, Seller agrees that it shall indemnify and hold harmless Buyer from and against any and all liability, damages, costs, and expenses (including defense costs and attorneys' fees) arising from or related to any suit, action, claim, or proceeding filed against Buyer by one or more of Seller's employees or lower tier subcontractors related to any risk, hazard, or liability addressed in this Article 17. Seller also agrees that, in addition to the foregoing indemnification agreement and any insurance required elsewhere in this Order, Seller, at its sole expense, shall, during the term of this Order, provide and maintain at reasonably adequate levels, workmen's compensation, comprehensive general liability, bodily injury, and any other insurance necessary to fully and adequately cover all reasonably foreseeable risks, hazards, and potential liabilities of any kind related to Seller's performance of this Order wherever performed. All such insurance must be primary and non-contributory and required to respond and pay prior to any other insurance or self-insurance available. If specifically requested by Buyer, Seller and Seller's subcontractors shall furnish, prior to the start of Item, certificates or adequate proof of the foregoing insurance, including, without limitation, endorsements and policies. The policies evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the interest of Buyer or Buyer's Customer shall not be effective until thirty calendar days after the insurer or Seller gives written notice to Buyer, whichever period is longer. Insurance companies providing coverage under this Order must be rated by A. M. Best with at least an A-rating. Seller's obligation to obtain the foregoing insurance does not waive or release Seller's liabilities or duties to indemnify under this Order.

 

Taxes and Fees: Seller shall have sole responsibility for, and pay without reimbursement from Buyer, all foreign sales, value added, employment, transportation, business, income and any other taxes, duties, levies, tariffs, fees, and assessments of any sort applicable or related to any Item delivered under this Order unless this Order specifically states otherwise.

 

Effect on Other Provisions: Nothing in this Article shall relieve Seller from complying with any other Article of this Order.

 

  1. WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 - (a) Seller shall post notice of employees’ rights and remedies for whistleblower protections provided under section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5). (b) Seller shall include the substance of this clause including this paragraph (b) in all

 

  1. RECOVERY ACT - For the purpose of this paragraph, “subcontract” refers to the Purchase Order issued hereby, and “contractor” refers to Buyer and “subcontractor” refers to Seller. For any first-tier subcontract funded in whole or in part under the Recovery Act, that is over $25,000 and not subject to reporting under paragraph 9, the contractor does hereby require the subcontractor to provide the information described in (i), (ix), (x), and (xi) below to the contractor for the purposes of the quarterly report. The contractor does hereby advise the subcontractor that the information will be made available to the public as required by section 1512 of the Recovery Act. The subcontractor shall provide contractor detailed information on these first-tier subcontracts as follows:

 

  • Unique identifier (DUNS Number) for the subcontractor receiving the award and for the subcontractor’s parent company, if the subcontractor has a parent
  • Name of the

 

  • Amount of the subcontract

 

  • Date of the subcontract

 

  • The applicable North American Industry Classification System (NAICS)

 

  • Funding

 

  • A description of the products or services (including construction) being provided under the subcontract, including the overall purpose and expected outcomes or results of the

 

  • Subcontract number (the contract number assigned by the prime contractor).

 

  • Subcontractor’s physical address including street address, city, state, and country. Also include the nine-digit zip code and congressional district if

 

  • Subcontract primary performance location including street address, city, state, and country. Also include the nine-digit zip code and congressional district if

 

  • Names and total compensation of each of the subcontractor’s five most highly compensated officers, for the calendar year in which the subcontract is awarded if—

 

  • In the subcontractor’s preceding fiscal year, the subcontractor received—

 

  • 80 percent or more of its annual gross revenues in Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

 

  • $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

 

  • The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of

 

  1. FORCE MAJEURE - Neither Party shall be liable for any excess costs or other damages if the failure to perform arises out of causes beyond the reasonable control and without the fault or negligence of the party alleging an event of Force Majeure. Force Majeure causes may include, but are not limited to (a) acts of God or of the public enemy, (b) war (whether an actual declaration thereof or not), (c) acts of terrorism or threats thereof, (d) acts of the U. S. Government in either its sovereign or contractual capacity, (e) sabotage, (f) insurrection, (g) riot or other act of civil disobedience, (h) atmospheric disturbances, (i) fires, (j) floods, (k) plagues or epidemics, (l) quarantine restrictions, (m) labor disputes or strikes, (n) failure or delay in transportation due to transportation workers strike or freight embargoes, (o) worldwide parts shortage(s) or rationing allocations, (p) shortage of labor, fuel, raw material or machinery, or (q) violent storms or unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the party. If the delay is caused by a delay of Seller or Seller’s subcontractors and if such delay arises out of causes beyond the reasonable control of either, and without the fault or negligence of either, Seller shall not be liable for any delay in performance, excess costs or other damages unless the Product to be furnished by the Seller or Seller’s subcontractors were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedules. Seller shall notify Buyer in writing within ten calendar days after it becomes aware of any such cause. If the original delivery schedule is overcome by the Force Majeure event, then the Parties agree to negotiate in good faith a revised delivery schedule.

Should either Party be unable to fulfill a material part of its obligations under an Order for a period in excess of sixty calendar days due to circumstances beyond its reasonable control as described above, the other Party may at its sole discretion terminate the Order by written notice. Upon either resolution of the Force Majeure event or termination as described, the Parties shall proceed in good faith to negotiate a termination settlement proposal covering the performance of the Order performed prior to the effective date of the termination.

  1. GOVERNING LAW AND VENUE- Buyer and Seller agree that this Purchase Order shall be deemed to have been executed and delivered within the State of New York and the rights and obligations of the Parties shall be construed and enforced in accordance with and governed by the laws of the State of New York without regard to conflict of laws rules. The United Nations Convention on the International Sale of Goods shall not apply. All claims or disputes arising under or in any way related to this Purchase Order, including those relating to the validity of this Purchase Order, which cannot be resolved by the Parties through negotiations within thirty calendar days or such longer period of time as may be mutual agreed in a written document that is signed by a duly authorized representative of each Party shall be resolved by the state or federal courts. Venue for any action brought under or relating to this Purchase Order shall exclusively be in a state or federal court of competent jurisdiction in the State of New York. The parties hereby irrevocably waive any right to challenge such venue on the basis of forum non conveniens or otherwise. The Parties further agree and consent to accept service of process by certified or registered United States mail, return receipt requested, addressed as provided herein. In the event that an action is commenced by either Party with respect to this Purchase Order, the substantially prevailing Party shall be entitled to recover its costs and attorneys’ fees from the other Party. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER. Buyer and Seller also agree that the provisions of the New York Uniform Commercial Code shall apply to this Purchase Order and all Disputes, regardless of whether the subject matter of this Purchase Order relates to the provision of services, the lease of rental equipment or material, or the license of software.

 

  1. DISPUTE RESOLUTION- "Dispute" as used herein shall mean (i) any and all claims or disputes that in any way arise out of or relate to this Order, the negotiation or execution thereof, its performance, or the breach or enforcement thereof; (ii) any claims or disputes that in any way concern the conduct of any party in connection with this Order or the relationship or duties of the parties contemplated under this Order; or (iii) claims or disputes concerning the validity or scope of the terms and conditions of this Order (including, but not limited to, this Article 22). Buyer and Seller intend that the definition of "Dispute" shall have the broadest scope permitted by law and that, without limiting the generality of the foregoing, shall be deemed to include all claims between the parties, including, but not limited to, any claims for fraud, misrepresentation, negligence, libel and slander, misuse or theft of trade secrets or other confidential information, unfair competition, unfair trade practices, or other tort law claims.

 

The parties agree that any Dispute between them or against any agent, employee, successor, or assign of the other shall be settled, to the extent possible by good faith negotiations. Any Dispute which the parties cannot resolve by good faith negotiations within thirty calendar days or such longer period as the parties may mutually agree to shall be submitted and finally resolved by a court of competent jurisdiction.

 

Until final resolution of any Dispute hereunder, Seller shall proceed diligently with the performance of this Order unless otherwise directed by Buyer in writing.

 

Buyer's rights under the terms and conditions of this Order are cumulative and in addition to any other rights available at law or equity.

 

  1. DISCONTINUANCE OF MANUFACTURE - Should Seller decide to discontinue manufacture of the supplies purchased by Buyer under this contract, Seller: (1) shall provide written notice to Buyer of the intended supply discontinuance; and (2) shall provide Buyer a minimum of twelve (12) months from the written notification date to allow Buyer to place final “lifetime buy” purchase orders for the supplies at a unit price to be negotiated, but in no event higher than the unit price provided in this contract. In the event one or more “lifetime buy” purchase orders are made during such twelve (12) month period, Seller shall deliver the purchased supplies to Buyer no later than six (6) months after the end of the “lifetime buy” Seller’ obligations under this clause shall extend for two

(2) years beyond the effective date of this Contract, irrespective of whether the contract is completed/terminated within the two (2) year period.

 

  1. CERTIFICATION OF AUTHENTICITY and TRACEABILITY - Supplier certifies to Buyer that all material furnished under this purchase order is genuine, new and unused. Supplier certifies that all material is traceable to the point of manufacture and that complete material pedigree is known and can be furnished to Buyer upon

 

  1. CONFLICT MINERALS - Seller represents that, regardless of whether Seller is publicly traded or not, Seller does not procure Conflict Minerals from Covered Countries, as those terms are defined by and consistent with the Securities and Exchange Commission’s final rule on Conflict Minerals, 17 CFR Parts 240 and 249(b), promulgated pursuant to Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. (the “Rule”).

 

Seller represents and warrants that all Items that will be delivered to Buyer by Seller under this Order are Democratic Republic of the Congo (DRC) Conflict Free, as defined by and consistent with the Rule.

 

Seller agrees that, if required by the Rule, it has made, and will continue to make, good faith inquiries reasonably designed to determine whether any Conflict Mineral that is included in any product delivered to Buyer pursuant to this Order originated in the DRC or an Adjoining Country, or is from Recycled or Scrap Sources, as defined in the Rule. Seller further agrees that, if required by the Rule, it has performed, and will continue to perform, due diligence on the source and chain of custody of any Conflict Mineral that is included in any product delivered to Buyer pursuant to this Order, and that such due diligence conforms to a nationally or internationally recognized due diligence framework, if such a framework is available for the Conflict Mineral. Seller agrees that all inquiries and diligence performed shall be consistent with the requirements of the Rule.

 

Seller agrees that it shall require its own subcontractors and suppliers (at any tier in the supply chain for a product delivered to Buyer under this Order) to furnish information to Seller necessary to support Seller’s obligations under this Article 25.

 

Seller will maintain records reviewable by Buyer to support its certifications above.

 

Seller acknowledges that Buyer may utilize and disclose Conflict Minerals information provided by Seller in order to satisfy its disclosure obligations under the Rule.

 

If Buyer determines that any certification made by Seller under this Article 25 is inaccurate or incomplete in any respect, then Buyer may terminate this Order pursuant to the provision per the “TERMINATION FOR CAUSE” section above.

 

  1. COUNTERFEIT PARTS PREVENTION - Authentic shall mean (1) genuine; (2) purchased from the Original Equipment Manufacturer ("OEM"), Original Component Manufacturer ("OCM") or through the OEM's/OCM's authorized dealers; and (3) manufactured by, or at the behest and to the standards of, the manufacturer that has lawfully applied its name and trademark for that model/version of the material.

 

Authorized Dealer — A dealer or distributor that purchases directly from the OEM or OCM and is authorized or franchised by the OEM or OCM to sell or distribute the OEM's/OCM's Items.

 

Counterfeit Part — A part that is an unauthorized copy or substitute that has been identified, marked, and/or altered by a source other than the item's legally authorized source and has been misrepresented to be an authorized part of the legally authorized source. This definition includes used parts represented as new parts.

 

Original Component Manufacturer (OCM), Original Equipment Manufacturer (OEM) — An organization that designs and/or engineers a part or equipment and is pursuing or has obtained the intellectual property rights to that part or equipment.

 

Non-Franchised Source — Any source that is not authorized by the OEM or OCM to sell its product lines. Non-franchised sources may also be referred to as brokers or independent distributors.

 

Suspect Counterfeit Part — A part that Buyer becomes aware, or has reason to suspect, meets the definition of "counterfeit part", as defined above. For purposes of this document, the terms "counterfeit part" and "suspect counterfeit part" will be used interchangeably.

 

If any individual part from a lot is determined to be counterfeit or suspect counterfeit, the entire lot of parts will be considered to be suspect counterfeit.

 

Seller represents and warrants that only new and authentic materials (including embedded software and firmware) are used in Items required to be delivered to Buyer and that the Items delivered contains no Counterfeit Parts. No material, part, or component other than a new and authentic part is to be used unless approved in advance in writing by Buyer. To further mitigate the possibility of the inadvertent use of Counterfeit Parts, Seller shall only purchase authentic parts/components directly from the Original Equipment Manufacturers ("OEMs"), Original Component Manufacturers ("OCMs") or through the OEM's/OCM's authorized dealers. Seller represents and warrants to Buyer] that all parts/components delivered under this Order are traceable back to the OEM/OCM. SELLER must maintain and make available to Buyer at Buyer’s request, OEM/OCM documentation that authenticates traceability of the parts/components to the applicable OEM/OCM. Purchase of parts/components from NonFranchised Sources is not authorized unless first approved in writing by Buyer. Seller must present complete and compelling support for its request and include in its request all actions to ensure the parts/components thus procured are legitimate parts. Buyer’s approval of Seller request(s) does not relieve Seller's responsibility to comply with all Order requirements, including the representations and warranties in this Article 25.

 

Seller shall maintain a documented system (policy, procedure, or other documented approach) that provides for prior notification and Buyer’s approval before parts/components are procured from sources other than OEMs/OCMs or the OEM's/OCM's authorized dealers. Seller shall provide copies of such documentation for its system for Buyer’s inspection upon Buyer’s request.

 

Seller must maintain a counterfeit detection process that complies with SAE standard AS5553, Counterfeit Electronic Parts, Avoidance, Detection, Mitigation, and Disposition.

 

If it is determined that counterfeit parts or suspect counterfeit parts were delivered to Buyer by Seller, the suspect counterfeit parts will not be returned to the supplier. Buyer reserves the right to quarantine any and all suspect counterfeit parts it receives and to notify the Government Industry Data Exchange Program (GIDEP) and other relevant government agencies. Seller shall promptly reimburse Buyer for the full cost of the suspect counterfeit parts and Seller assumes responsibility and liability for all costs associated with the delivery of suspect counterfeit parts, including, but not limited to, costs for identification, testing, and any corrective action required to remove and replace the suspect counterfeit parts. The remedies in this Article 26 shall apply regardless of whether the warranty period or guarantee period has ended, and are in addition to any remedies available at law or in equity.

 

If the procurement of materials under this Order is pursuant to, or in support of, a contract, subcontract, or task order for delivery of Items to the Government, the making of a materially false, fictitious, or fraudulent statement, representation or claim or the falsification or concealment of a material fact in connection with this Order may be punishable, as a Federal felony, by up to five years' imprisonment and/or substantial monetary fines. In addition, trafficking in counterfeit Items, to include military Items, constitutes a Federal felony offense, punishable by up to life imprisonment and a fine of fifteen million dollars.

 

Seller shall flow the requirements of this Article 26 ("COUNTERFEIT' PARTS PREVENTION") to its subcontractors and suppliers at any tier for the performance of this Order.

 

 

  1. LIMITATION OF LIABILITY - IN ADDITION TO ANY OTHER LIMITATIONS ON BUYER'S LIABILITY SET FORTH HEREIN, IN NO EVENT SHALL BUYER, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE BY REASON OF BUYER'S BREACH OR TERMINATION OF THIS ORDER OR FOR ANY BUYER ACTS OR OMISSIONS IN CONNECTION WITH THIS ORDER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, WORK INTERRUPTION, OR ANY CLAIMS OR DEMANDS AGAINST SELLER BY ANY OTHER ENTITY, WHETHER SUCH REMEDY IS SOUGHT IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL BUYER'S LIABILITY FOR DAMAGES IN ANY CIRCUMSTANCES SET FORTH IN THIS CLAUSE EXCEED THE PRICE PAYABLE FOR THE WORK TO BE PERFORMED BY SELLER UNDER THE ORDER. THIS ORDER SHALL NEITHER CREATE FOR NOR GIVE TO ANY THIRD PARTY ANY CLAIM OR RIGHT OF ACTION AGAINST SELLER OR BUYER WHICH WOULD NOT OTHERWISE ARISE WITHOUT THIS

 

  1. REQUIRED U. S. GOVERNMENT CLAUSES - The following Federal Acquisition Regulation (FAR) and Department of Defense FAR Supplement (DFARS) clauses are incorporated herein by reference. The date of the FAR/DFARS clause in effect as of the date of the Prime Contract execution shall apply unless otherwise specified. In all FAR/DFARS clauses below, the term “Contractor” shall mean “Seller”, the term “Contract” shall mean this Agreement and the terms “Government”, “Contracting Officer” and equivalent phrases as used in the FAR/DFARS clauses below mean Buyer and Buyer’s authorized procurement representative, respectively. It is intended that the referenced clauses shall apply to Seller in such manner as is necessary to reflect the position of Seller as a subcontractor to Buyer, to ensure Seller’s obligations to Buyer and to the United States Government, and to enable Buyer to meet its obligations under its Prime Contract or Subcontract. The extent and scope of applicability to this Contract shall be in accordance with the terms, requirements, guidelines, and limitations stated in each clause. DFARS 227.7202, entitled Commercial Computer Software and Commercial Computer Software Documentation, shall govern the acquisition of Commercial Computer Software.

 

If the Government Contracting agency is other than the Department of Defense, the applicable clauses of such Contracting agency that supplement the FAR clauses cited below are hereby incorporated by reference, and the DFARS clauses cited below would be deemed deleted.

 

Exceptions to the clauses below are noted as follows:

 

Note 1 - This clause applies only if the Seller is supplying an item that is an end product under the Buyer’s prime Contract or Subcontract.

Note 2 - “Contracting Officer” mean only “U.S. Government Contracting Officer”. Note 3 - “Government” as used in the clause means only “U. S. Government”

 

 

FEDERAL ACQUISITION REGULATION (FAR) / DEPARTMENT OF DEFENSE FEDERAL ACQUISITION

REGULATION SUPPLEMENT CLAUSES

(a) The following clauses are incorporated herein by reference:

 

SELLER SHALL INCLUDE IN EACH LOWER-TIER SUBCONTRACT THE APPROPRIATE FLOW DOWN CLAUSES AS REQUIRED BY THE FAR AND DFARS. THE MOST CURRENT VERSIONS OF THE FOLLOWING CLAUSES APPLY UNLESS OTHERWISE STATED.

 

FAR/DFARS Clauses - Applicable to Solicitation Only

 

52.222-56 Certification Regarding Trafficking in Persons Compliance Plan (Applicable if at least $500,000 of the value of the

Subcontract will be performed outside the United States; and the acquisition is not entirely for commercially

available off-the-shelf items).

252.204-7008 Compliance with Safeguarding Covered Defense Information Controls

252.225-7003 Report of Intended Performance Outside the United States and Canada – Submission with Offer.

252.239-7009 Representation of Use of Cloud Computing

 

FAR/DFARS Clauses Applicable to This Order Irrespective of the Amount of the Order (Exceptions as noted).

52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions. (If the contract

exceeds $150,000).

52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions (applicable if the awards exceeds $150,000): By accepting our purchase order, the offeror certifies to the best of its knowledge and belief that no Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of this contract.

52.203-12 Limitation on Payments to Influence Certain Federal Transactions. (If the contract exceeds $150,000)

52.203-13 Contractor Code of Business Ethics and Conduct (if this contract exceeds $5,000,000 and the performance period is 120 days or more. All disclosures of violation of the civil False Claims Act or of the Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.)

52.203-15 Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 if the Order is funded under the Recovery Act

52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements

52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards (If the order exceeds $30,000)

52.204-21 Basic Safeguarding of Covered Contractor Information Systems

52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Jul 2018)

52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment

52.219-8 Utilization of Small Business Concerns (If the Order exceeds $150,000. Service contracts are excluded.)

52.222-17 Non displacement of Qualified Workers (applies to Services Order only)

52.222-21 Prohibition of Segregated Facilities

52.222-26 Equal Opportunity

52.222-35 Equal Opportunity for Veterans (if the Order exceeds $150,000)

52.222-36 Affirmative Action for Workers with Disabilities (if the Order exceeds $15,000)

52.222-37 Employment Reports on Veterans (if FAR 52.222-35 applies)

52.222-40 Notification of Employee Rights under the National Labor Relations Act (Applies if this Order exceeds $10,000)

52.222-41 Service Contract Labor Standards (if subject to the Labor Standards and the Order exceeds $2,500)

52.222-50 Combating Trafficking in Persons

52.222-51 Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements

52.222-53 Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services Requirements

52.222-54 Employment Eligibility Verification (if contract exceeds $3,500) (Does not apply to COTS Items)

52.222-55 Minimum Wages Under Executive Order 13658 (Applicable if FAR 52.222-41 applies and the work will be performed, in whole or in part, in the United States)

52.222-62 Paid Sick Leave Under Executive Order 13706 (Jan 2017)

52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving

52.224-3 Privacy Training

52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Applies if SELLER is a small business concern. This clause does not apply if General Dynamics does not receive accelerated payments under the prime contract. Not all agencies provide accelerated payments.)

52.247-64 Preference for Privately Owned U. S. Flag Commercial Vessels, (Applies only if ocean transport maybe involved.)

 

DFARS

 

252.203-7995 Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements –(DEVIATION 2017-O0001) (NOV 2016)

252.204-7004 Antiterrorism Awareness Training for Contractors

252.204-7009 Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information

252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting (Include this clause in subcontracts, or similar contractual instruments, for operationally critical support, or for which subcontract performance will involve a covered contractor information system, including subcontracts for commercial items, without alteration, except to identify the parties; and In reading the clause, the Seller shall rapidly report cyber incidents directly to DoD at  http://dibnet.dod.mil and the Buyer. The Seller shall provide the Buyer with the incident report number, automatically assigned by DoD, as soon as practicable.)

 

In accordance with DFARS 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting (OCT 2016), DoD contractors must meet the security requirements specified in the National Institute of Standards and Technology Special Publication 800-171 "Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations" as soon as practical, but no later than December 31, 2017, except for those contracts solely for the acquisition of COTS items. DFARS 252.204-7012 is a required flow-down for operationally critical support or subcontractor performance that involves covered defense information, including subcontracts for commercial items.

252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support

252.204-7016 Covered Defense Telecommunications Equipment or Services—Representation

252.204-7017 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation

252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services. In the event the Seller identifies covered defense telecommunications equipment or services used as a substantial or

essential component of any system, or as critical technology as part of any system, during contract

performance, the Seller shall report at https://dibnet.dod.mil and the Buyer the information contained in

(d)(2) of this clause within one business day from the date of such identification or notification. The

Seller shall also provide the information required in (d)(2)(ii) of the clause to the Government and the

Buyer within 10 business days of submitting the initial report required in (d)(2)(i).

252.223-7008 Prohibition of Hexavalent Chromium

252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals (if the Order exceeds $150,000)

252.239-7010 Cloud Computing Services

252.239-7018 Supply Chain Risk

252.246-7007 Contractor Counterfeit Electronic Part Detection and Avoidance System

252.246-7008 Sources of Electronic Parts

 

Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (FAR 52.204-25) and Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services (DFARS 252.204-7018) It is PATHFINDER’s position that it will not procure or use items or services (including software) from  the prohibited sources identified in FAR 52.204-25 and DFARS 252.204-7018, respectively. The FAR clause prohibits procuring telecommunications equipment or services from Huawei or ZTE and telecommunications equipment from Hytera, Hikvision, and Dahua, including their subsidiaries and affiliates, that are a “substantial or essential component of any system, or as critical technology of any part of a system.”  The DFARS clause prohibits the procurement of any equipment, system, or service to carry out the DoD nuclear deterrence or homeland defense missions that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as a critical technology as a part of any system, unless a waiver is granted. The DFARS prohibition applies to certain Chinese entities that the Secretary of Defense reasonably believes to be owned or controlled by or otherwise connected to, the government of the People’s Republic of China or the Russian Federation.

 

There are specific waiver processes for each clause.

 

FAR 52.204-25 and DFARS 252.204-7018 are required flowdowns to all PATHFINDER’s suppliers and subcontractors, and PATHFINDER is required to obtain the following required certifications:

52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment,

DFARS 252.204-7016, Covered Defense Telecommunications Equipment or Services - Representation, and

DFARS 252.204-7017, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services - Representation.

 

(b) In the event it is determined that the Item to be delivered under this Order is not a Commercial Item as defined at FAR 2.101, then Seller agrees that Buyer’s General Provisions - Fixed Price (In Support of a U. S. Government Contract) SCM-TMP005 and the corresponding agency flowdowns shall be applicable to this Order, in lieu of these commercial terms and conditions, effective as of the date of this Order. Seller agrees to comply with all applicable laws, orders, rules, regulations, and ordinances.

 

If Buyer’s contract price is reduced because of a non-commercial item determination for Item(s) provided by the Seller; then the Buyer may make a corresponding reduction, excluding Buyer added G&A, and profit or fee, in the price of this Contract or may demand payment of the corresponding amounts. Seller shall promptly pay amounts so demanded.