FLUOR FEDERAL PETROLEUM OPERATIONS, LLC
GENERAL TERMS AND CONDITIONS FOR COMMERCIAL ITEMS AND SERVICES
1. DEFINITIONS
The following terms shall have the meanings below:
1.1 ”Owner” or “Government” means the United States of America and includes the U. S. Department of Energy (DOE) or any duly authorized representative thereof.
1.2 “Contractor,” “Seller” and “Subcontractor” means the person or organization that has entered into Order.
1.3 “FFPO”, “means Fluor Federal Petroleum Operations, LLC.
1.4 “Company” means Fluor Federal Petroleum Operations, LLC.
1.5 Item includes any “commercial item” and “commercial component”, as defined in Federal Acquisition Regulation (FAR) 52.202-1.
1.6 Order means a Purchase Order or Subcontract or Contract issued by Fluor Federal Petroleum Operations, LLC.
1.7 Subcontract Manager means the applicable Fluor Federal Petroleum Operations, LLC procurement representative.
1.8 Except as otherwise provided in this contract, the term "subcontract" and/or {Basic Order Agreement (BOA)] includes, but is not limited to, this contract, second tier subcontracts, and purchase orders/BOAs and changes and modifications to purchase orders/BOAs under this contract or second tier subcontracts.
2. ORDER OF PRECEDENCE
Any inconsistencies shall be resolved in accordance with the following descending order of precedence: (1) item description, (2) face of the Order, (3) general terms and conditions for commercial items, and (4) other terms and conditions, if any. (5) specifications and/or scope of work,
3. TITLE AND ADMINISTRATION
All property rights and interests resulting from this Order shall pass directly from Seller to the Government. Company shall make payments under Orders from funds advanced by the Government and agreed to be advanced by DOE, and not from its own assets. Orders may be assigned by the Company to DOE or its designee, and in case of such transfer and notice thereof to Seller, Company shall have no further responsibilities hereunder.
4. ACCEPTANCE OF TERMS AND CONDITIONS
Seller, by signing or acknowledging the Order or delivering the items identified therein, agrees to comply with all the terms and conditions and all specifications and other documents that this Order incorporates by reference or attachment. Company hereby objects to any terms and conditions contained in any acknowledgment of the Order that are different from or in addition to those mentioned in this document. Failure of Company to enforce any of the provisions of the Order shall not be construed as evidence to interpret the requirements of the Order, nor a waiver of any requirement, nor of the right of Company to enforce each and every provision. All rights and obligations shall survive final performance of the Order.
5. GUARANTEES
5.1 Contractor guarantees Company that the Work shall comply strictly with the provisions of this Contract and all specifications, drawings and standards referred to in this Contract or thereafter furnished by Company, and that the Work shall be first-class in every particular and free from defects in materials and workmanship and in any design or engineering furnished by Contractor. Contractor further guarantees Company that all materials, equipment and supplies furnished by Contractor for the Work shall be new, merchantable, of the most suitable grade and fit for their intended purposes. Without limitation of any other rights or remedies of Company, if any defect in the Work in violation of the foregoing guarantees arises within the period set forth below, Contractor shall, upon receipt of written notice of such defect, promptly furnish, at no cost to Company design and engineering, labor, equipment and materials necessary to correct such defect and cause the Work to comply fully with the foregoing guarantees.
5.2 Contractor's guarantees set forth in Section 5.1 shall be: (1) the manufacturer’s warranty period or six months, whichever is longer, if Seller is not the manufacturer and has not modified the item, or, (2) one year or the manufacturer’s warranty period, whichever is longer, if Seller is the manufacturer of the item or has modified it. Any period wherein the Work is not available for use due to defects in materials, workmanship or engineering furnished by Contractor shall extend the guarantee period by an equal period of time.
5.3 Design and engineering, labor, equipment and materials furnished by Contractor pursuant to Section 5.1 to correct defects shall be guaranteed by Contractor in accordance with the guarantees set forth in Section 5.1 for a period of twelve (12) months from the date of completion of the correction, or for the remainder of the guarantee period set forth in Section 5.2 above, whichever is longer.
5.4 In the event Contractor has been notified of any defects in the Work in violation of Contractor's foregoing guarantees and fails to promptly and adequately correct such defects, Company shall have the right to correct or to have such defects corrected for the account of Contractor, and Contractor shall promptly pay Company or Owner the costs incurred in correcting such defects.
5.5 Contractor shall include, at a minimum, the foregoing guarantee requirements in any subcontract that it places.
6. ASSIGNMENT
Contractor shall not assign this Contract wholly or in part, voluntarily, by operation of law or otherwise, without first obtaining the written consent of Company. Any assignment of this Contract in violation of the foregoing shall be, at the option of Company, void. Subject to the foregoing, the provisions of this Contract shall extend to the benefit of and be binding upon the successors and assigns of the parties hereto. Company reserves the right at its sole option to assign this Contract to Owner or any company that succeeds FFPO as contractor on the Department Of Energy Strategy Petroleum Reserve during performance of this contract.
7. TRANSPORTATION
Transportation shall be “DAP (Delivered At Place)” unless specified otherwise in the Order and no insurance cost shall be allowed unless authorized in writing on the specific Order. If the shipment is “FOB Origin” the bill of landing shall indicate that the transportation is for the Government and is subject to the standard Government bill of lading terms and any special rates or charges. If Seller will transport and deliver the items to Company at a Strategic Petroleum Reserve (SPR) facility by truck or other vehicle, Seller is hereby notified that the driver of all delivery vehicles attempting to enter an SPR site must be a U.S. Citizen or advance approval is obtained for entry by a non U.S. citizen. In addition, the driver must furnish proof that the vehicle operator has a currently valid driver’s license and must produce proof of vehicle liability insurance in the minimum amount required by local law. In the event that Seller fails to satisfy citizenship requirements for entry or furnish proof of a valid drivers license and legally required liability insurance, then the delivery vehicle shall be denied entry to the SPR site and the Seller shall remain obligated to deliver the items purchased by Company in a proper manner and failure to so deliver shall constitute a breach hereof.
8. RISK OF LOSS\
Unless this order specifies that the materials or supplies are f.o.b. origin, risk of loss or damage to supplies provided under this order shall remain with the seller until delivery of the supplies to company at the destination specified in this order.
9. EXCUSABLE DELAYS
The Seller shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Seller and without its fault or negligence such as: acts of God or the public enemy, Acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine, restrictions, strikes, unusually severe weather, and delays of common carriers. The Seller shall notify the Subcontract Manager in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Subcontract Manager of the cessation of such occurrence.
10. INSPECTION/ACCEPTANCE
The Seller shall only tender for acceptance those items that conform to the requirements of this order. The Company reserves the right to test or inspect any supplies or services that have been tendered for acceptance. The Company may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in price. If repair/replacement or re-performance will not correct the defects or is not possible, the Company may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Company must exercise its post acceptance rights: (1) within a reasonable time after the defect was discovered or should have been discovered, and; (2) before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.
11. PAYMENT (N/A FOR TIME AND MATERIAL or LABOR/HOUR)
Unless otherwise provided, terms of payment shall be net 30 days from the latter of (1) receipt of Seller’s proper invoice, if required, or (2) delivery of items/completion of work. Any offered discount shall be taken if payment is made within the discount period that Seller indicates. Payments may be made either by check or electronic funds transfer, at the option of Company. Payment shall be deemed to have been made as of the date of mailing or the date on which an electronic funds transfer was made. Notwithstanding anything herein, the Company shall be entitled at any and all times to set off against any amounts payable by the Company hereunder any amount owing from Seller to the Company under Orders with Seller.
12. COMPLIANCE WITH LAWS
Seller shall comply with all applicable federal, state, and local laws and ordinances and all pertinent lawful orders, rules, and regulations and such compliance shall be a material requirement of the Order. Seller warrants that each chemical substance constituting or contained in items furnished is on the list of substances published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act as amended. With the Order Seller shall provide Company any applicable Material Safety Data Sheet as required by the Occupational Safety and Health Act and applicable regulations including, without exception 29 CFR 1910.1200.
13. TERMINATION FOR DEFAULT (N/A FOR TIME AND MATERIAL or LABOR/HOUR)
13.1 In the event Contractor shall file a petition in bankruptcy, or shall make a general assignment for the benefit of its creditors, or if a petition in bankruptcy shall be filed against Contractor, or a receiver shall be appointed on account of its insolvency, or if Contractor shall default in the performance of any express obligation to be performed by Contractor under this Contract, and shall fail to correct (or if immediate correction is not possible, shall fail to commence and diligently continue action to correct) such default within ten (10) days following written notice thereof from Company, Company may, without prejudice to any other rights or remedies Company or Owner may have, hold in abeyance further payments to Contractor and/or terminate this Contract by written notice to Contractor specifying the date of termination. In the event of such termination by Company, Company may take possession of and finish the Work by whatever method Company may deem expedient.
13.2 If the sum of the total cost to Company of completing the Work, plus all amounts previously paid to Contractor for the Work, shall exceed the Contract Price for the Work, Contractor shall promptly pay the difference to Company. A waiver by Company of one default of Contractor shall not be considered to be a waiver of any subsequent default of Contractor, nor be deemed to waive, amend, or modify any term of this Contract.
13.3 If the Contractor enters into any proceeding relating to bankruptcy, it shall give written notice via certified mail to the Subcontract Manager within five days of initiation of the proceedings. The notification shall include the date on which the proceeding was filed, the identity and location of the court and a listing of the Contract number for which final payment has not been made.
14. SUSPECT/COUNTERFEIT ITEMS
14.1 Not withstanding any other provision of the agreement the subcontractor warrants all items provided to FFPO are genuine and meet the requirements of 18 U.S.C. 2320 Trafficking in counterfeit goods or services. The subcontractor’s warranty also extends to labels and or trademark logos affixed or designed to be affixed to items supplied or delivered to FFPO. In addition, falsification of information or documentation may constitute criminal conduct; FFPO may reject or retain such information at no cost, and identify, segregate and report such information to Department of Energy Officials.
14.2 Subcontractor further warrants that all items used during performance of work at or for any SPR site include items that meet the specifications of the subcontract/purchase order. The subcontractor shall compensate FFPO, its agent and 3rd parties for any financial loss, injury, or property damage resulting directly or indirectly from material components that are not in compliance with the subcontract/purchase order specifications. This includes, but is not limited to, materials that are suspect or counterfeit, materials that have been provided under false pretenses and material or items that are altered, deteriorated or the use of which results in failure of other components.