GOVERNMENT (CR-100)
1. Definitions / 23. Disputes2. Acceptance / 24. Fair Labor Standards Act
3. Precedence / 25. Foreign Sales
4. Changes / 26. Export of Technical Data
5. Packaging and Shipment / 27. Compliance with OSHA
6. Delivery / 28. Bankruptcy
7. Force Majeure / 29. Stop Work
8. Notice of Labor Disputes / 30. Gratuities
9. Quality Control / 31. Hazardous Materials List
10. Confidential or Proprietary Information / 32. Dangerous Goods and Hazardous Material
11. Buyer Approvals and Reviews / 33. Hazardous Material - Material Safety Data Sheet (MSDS)
12. Taxes / 34. News Releases and Public Announcements
13. Work on Buyer’s or the Government’s Premises / 35. Notice and Assistance
14. Drawings and Specifications / 36. Waiver
15. Buyer Property / 37. Rights and Remedies
16. Government Property / 38. Assignments
17. Insurance / 39. Effect of Invalidity
18. Intellectual Property Indemnity / 40. Utilization of Small Business Concerns
19. Compliance with Laws / 41. Counterfeit Parts
20. Choice of Law / 42. Contractual Direction
21. Competition in Subcontracting / 43. Entire Agreement
22. Price Reduction for Defective Cost and Pricing Data / 44. Clauses Incorporated
1. DEFINITIONS
As used in order, the following terms shall have the meanings set forth below:
(a) “Buyer” means Ball Aerospace & Technologies Corp. as represented by an authorized representative.
(b) “Contracting Officer” means the person executing the Prime Contract on behalf of the Government, and any other person who is properly designated Contracting Officer. The term includes the authorized representative of a Contracting Officer acting within the limits of his authority.
(c) “Government” means the United States of America or its authorized representative.
(d) “Prime Contract” means the contract, if any, between Buyer and the Government or the contract between Buyer and a higher tier Seller.
(e) “Seller” means the addressee of this order or inquiry.
(f) “Supplies” means the material, articles, services, or other items ordered by this order.
2. ACCEPTANCE
This order is Buyer’s offer to Seller, and acceptance by Seller is limited to the terms of this offer. Buyer objects to any additional terms stated in Seller’s acceptance. Acceptance may be by prompt written acknowledgment or by beginning performance. Seller’s acceptance of this order creates a binding order between Seller and Buyer (“this order”), which shall be governed by the terms and conditions of this order.
3. PRECEDENCE
All documents in this order shall be read so as to be consistent. In the event of conflict, the order of precedence is:
(a) the Schedule
(b) the Terms and Conditions
(c) the Buyer Specification, if any
(d) any documents incorporated therein by reference. Seller will not use any specification in lieu of those in this order without the written consent of Buyer’s authorized representative.
4. CHANGES
(a) Buyer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this order in any one or more of the following:
(1) Drawings, designs, or specifications
(2) Method of shipment or packing.
(3) Place of delivery.
(4) Description of services to be performed
(5) Time of performance
(6) Place of performance
(7) Delivery schedule
(b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of work under this order, Buyer shall make an equitable adjustment in the
(1) estimated cost, the delivery or completion schedule, or both
(2) amount of any fixed fee
(3) other affected terms and the order shall be modified accordingly.
(c) The Seller must submit any “proposal for adjustment” (hereinafter referred to as “proposal”) under this clause within twenty (20) days from the date of receipt of the written order. However, if Buyer decides that the facts justify it, Buyer may receive and act upon a proposal submitted before final payment of the order.
(d) If the Seller’s proposal includes the cost of property made obsolete or excess by the change, Buyer shall have the right to prescribe the manner of the disposition of the property.
(e) Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause shall excuse the Seller from proceeding with the order as changed.
(f) Notwithstanding the terms and conditions of parts (a) and (b) above, the estimated cost of this order and, if this order is incrementally funded, the funds allotted for the performance of this order shall not be increased or considered to be increased except by specific written modification of the order indicating the new order estimated cost and, if this order is to be incrementally funded, the new amount allotted to the order. Until this modification is made, the Seller shall not be obligated to continue performance or incur costs beyond the original estimated cost of the order and, if this order is incrementally funded, beyond the amount of funds originally allotted for the performance of this order.
(g) When costs are a factor in any determination of an equitable adjustment, such costs shall be in accordance with Part 31 of the Federal Acquisition Regulation as in effect on the date of the order.
5. PACKAGING AND SHIPMENT
(a) Unless otherwise specified herein, the Products required under this order shall be packed in accordance with the best available commercial practices and in compliance with transportation regulations.
(b) The Seller shall identify the line item number and the serial number of the Product on the Packing List.
(c) All Products shall be prepared for shipment and suitably packed to prevent damage or deterioration. the Seller is solely liable for packaging design, and all changes for design, boxing, drayage, bundling, dunnage, containers, preparation, packing, crating or cartage shall be included in the order price.
(d) The Seller shall ship all Products to the destination specified by Buyer in this order. Interior and exterior containers shall be marked with the order number. Also, each package and Bill of Lading shall be marked with the order number.
(e) All shipping documents, shipping labels and packing sheets must show full and completed information as to the appropriate consignee and the order number. A complete packing list shall be enclosed with all shipments.
(f) Buyer reserves the right to specify the mode of shipment.
(g) Any expense incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipping shall be reimbursed by the Seller.
(h) If any transportation charges paid by the Seller are subject to reimbursement, the Seller shall show such charges on its invoice as a separate line item with the freight bill receipt attached accordingly.
6. DELIVERY
Time is of the essence. Deliveries are to be made both in quantities and at times specified in Buyer’s schedules. Buyer may, from time to time, change or direct temporary suspension of delivery schedules. Seller will notify Buyer in advance of any actual or potential delay in meeting the delivery schedule. If, for any reason, Seller does not comply with Buyer’s delivery schedule, Buyer may, at its option and without liability, either approve a revised delivery schedule or cancel this Order. If Seller is late, Seller shall pay the difference between the shipping rate specified and the actual expedited rate.
7. FORCE MAJEURE
Neither party shall be liable for damages for delay in delivery arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God or of the public enemy, acts of any Government authority, fires, floods, epidemics, quarantine restrictions, strikes, embargoes, or unusually severe weather. If the delay is caused by the delay of a subcontractor of Seller and if such delay arises out of causes beyond the reasonable control of both Seller and the subcontractor, and without fault or negligence of either of them, Seller shall not be liable to Buyer in damages unless the articles or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery schedule. Seller will notify Buyer in writing within ten (10) days after the beginning of any such cause.
8. NOTICE OF LABOR DISPUTES
Whenever the Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, the Seller shall immediately give notice thereof, including all relevant information relating thereto, to the Buyer’s Procurement Administrator.
9. QUALITY CONTROL
Seller will provide and maintain a quality control system acceptable to Buyer or the Government, where applicable, for the goods and services purchased under this order, and Seller will permit Buyer or the Government, where applicable, to review procedures, practices, processes, and related documents to determine such acceptability. Buyer’s Quality Assurance Procurement Control System is approved by our customers and may require on-site quality assurance system survey as part of the supplier approval process.
10. CONFIDENTIAL OR PROPRIETARY INFORMATION
Seller shall keep confidential and otherwise protect from disclosure all information obtained from Buyer in connection with this Order and identified as confidential or proprietary. Unless otherwise expressly authorized herein or by Buyer, Seller shall use such information, and any other information provided by Buyer thereunder, only in the performance of and for the purpose of this Order.
(a) Upon Buyer’s request, and in any event upon the completion, or cancellation of this Order, Seller shall return all such information to Buyer or make such other disposition thereof as directed by Buyer. In all subcontracts and purchase orders issued by Seller for performance of work related to this Order, Seller shall, with the prior written approval of Buyer, be permitted to disclose Buyer information under the same obligations as are contained in this clause.
(b) Seller shall be liable to Buyer for any loss of the information.
(c) Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale, or use of the articles covered by this Order shall be deemed to have been disclosed as part of the consideration for this Order, and Seller shall not assert any claim against Buyer by reason of Buyer’s use thereof.
(d) The ownership of any information disclosed by a party hereunder shall remain in that party.
11. BUYER APPROVALS AND REVIEWS
The review or approval by Buyer of any work hereunder or of any designs, drawings, specifications or documents prepared hereunder shall not relieve Seller of any of its obligations under this Order, nor excuse or constitute a waiver of any defects or nonconformities in any articles furnished under this Order, nor change, modify or otherwise affect any of the provisions of this Order, including but not limited to, the prices and delivery schedules contained herein.
12. TAXES
Unless otherwise stated in this Order, estimated costs specified herein include all federal, state, and local taxes and all charges for packing, shipping, hauling, storage, and transportation to the point of delivery.
13. WORK ON BUYER’S OR THE GOVERNMENT’S PREMISES
If this order involves operations by Seller on Buyer’s or the Government’s premises, Seller shall take all necessary precautions to prevent the occurrence of any damage to persons or property during the process of such work. Seller shall indemnify and hold harmless Buyer and the Government against all liability, damage or loss resulting in any way from any act, or omission on the part of Seller, its agents, employees or subcontractors. Seller shall also indemnify and hold harmless Buyer and the Government against any liability for any injury to any employee of Seller or any damage to any property of Seller which arises out of, or in connection with the performance of work under this order. Seller shall maintain Public Liability, Property Damage and Employer’s Liability and Compensation Insurance to fully protect Buyer and the Government from said risks and from any claims under any applicable Workman’s Compensation and Occupation Disease Act and shall, upon request, furnish certificates of such Insurance to Buyer.
14. DRAWINGS AND SPECIFICATIONS
Upon completion of work under this order, Seller shall promptly return to Buyer all drawings, specifications and other data furnished by Buyer in connection herewith, together with all copies or reprints then in Seller’s possession and control, and Seller shall thereafter make no further use of nor disclose to others, any such drawings, specifications, data or documents or any information derived therefrom without Buyer’s prior written consent.
15. BUYER PROPERTY
Seller will clearly mark, maintain an inventory of and keep segregated or identifiable all Buyer property and all property to which Buyer acquires an interest by virtue of this order. Seller assumes all risk of loss, destruction, or damage to such property while in Seller’s possession, custody, or control, and will not use such property other than in performance of this order without Buyer’s written consent. Seller will notify Buyer if Buyer property is lost, damaged, or destroyed. As directed by Buyer, upon completion, termination, or cancellation of this order, Seller will deliver such property, to the extent not incorporated in delivered end products, to Buyer in good condition subject to ordinary wear and tear and normal manufacturing losses. Nothing in this Article limits Seller’s use, in direct dealing with the Government, of property in which the Government has a vested interest. At the request of the Buyer, Seller shall execute any documents, including but not limited to financial statement, required by Buyer to protect its interest in its property.