STANDARD TERMS AND CONDITIONS

ACCEPTANCE

This order is Buyer’s offer to Seller. Acceptance of this offer is strictly limited to the terms and conditions in this offer. Modifications hereto, to be binding, must be in writing and signed by Buyer’s authorized purchasing representative. Seller’s acknowledgment, acceptance of payment, or commencement of performance, shall conclusively evidence acceptance of this offer as written. Buyer hereby objects to any additional or different terms contained in Seller’s acceptance.

ORDER OF PRECEDENCE

In the event of any inconsistency between any parts of this order, the inconsistency shall be resolved by giving precedence in the following order:

  1. Change Order Document
  2. Purchase Order Document
  3. Purchase Order Terms and Conditions
  4. ITAR/FAR/DFAR Clauses
  5. Statement of Work
  6. Specification/Drawing
  7. Other Referenced Documents

DELIVERY

  1. All Deliveries shall be strictly in accordance with the applicable quantities and schedules set forth in the order. Buyer reserves the right to return over shipments and early shipments at Seller’s expense. Seller shall be liable for all storage/handling charges incurred as a result of over shipments and early shipments.
  2. Whenever it appears Seller will not meet the delivery schedule, Seller shall immediately notify buyer of the reason and estimated length of the delay. Seller shall make every effort to avoid or minimize the delay to the maximum extent possible including the expenditure of premium time and most expeditious transportation. Any additional cost caused by these requirements shall be borne by Seller.
  3. If Seller is unable to meet the required delivery schedules for any reason, other than a change directed by Buyer, Buyer shall have the option to (1) terminate this order, or (2) fill such order or any portion thereof from sources other than Seller, and reduce Seller’s order quantities accordingly at no increase in unit price and without any penalty to Buyer. This condition shall not limit Buyer’s right under the default clause contained herein.
  4. All parties expressly agree that time is and shall remain a crucial element of this Order and no acts of Buyer, including without limitation, modifications to this Order or acceptance of late deliveries, shall constitute a waiver of this provision.

PACKING AND SHIPPING

Seller shall be responsible for ensuring the proper packaging and shipping of Product hereunder in accordance with Buyer’s Purchase Order Terms and Conditions. Damage resulting from improper Product packaging will be charged to seller.

INSPECTION AND ACCEPTANCE

Work performed for HyperKelp must adhere to quality control requirements set forth in purchase orders or as otherwise communicated, which may be periodically witnessed, inspected or audited by HyperKelp representatives.  Unless otherwise specified Buyer’s final inspection and acceptance shall be at destination. Failure to inspect and accept or reject products shall not relieve the Seller from responsibility for compliance with Order requirements nor impose liability on buyer.

NONCONFORMING GOODS AND LOSS OF 3RD PARTY CERTIFICATIONS

  1. Seller shall notify Buyer of any nonconforming product on company letterhead to Buyer’s purchasing representative.
  2. Seller shall obtain Buyer approval prior delivery of nonconforming product.
  3. In the event nonconformity is discovered after the product has been delivered seller shall immediately notify the Buyer on company letterhead to Buyer’s purchasing representative.
  4. If Seller fails to deliver, or delivers defective or nonconforming Products, Buyer may:
    1. Accept all or part of the defective or nonconforming Products at an equitable price reduction; or
    2. Reject all or any part of the delivery of defective or nonconforming Products, and demand delivery of conforming Products. All rejected products shall be shipped to Seller at Seller’s expense; or
    3. Make, or have a third party make, all repairs, modifications, or replacements necessary to enable such Product to comply in all aspects with order requirements and charge the expense incurred to Seller; or
    4. Terminate this Order for default in whole or in part.
  5.  Seller shall also promptly notify Buyer in the event of the loss of any applicable 3rd party certification.

WARRANTY

  1. Seller warrants that all Products delivered under this order will: be free from defects in materials, workmanship, and manufacturing processes; conform to all requirements of this Order; and be free of all liens and encumbrances. To the extent Products are manufactured pursuant to detailed design and specifications furnished by Buyer, Seller warrants that the Product shall be free from design and specifications defects.
  2. If any Product fails to comply in any respect to the warranty set forth above, Seller, at Buyer’s option, shall promptly repair or replace the Product. Transportation of replacement Product and return of nonconforming Product shall be at Seller’s expense. If repair or replacement of Product is not timely, Buyer may elect to return, repair, replace, or reproduce the nonconforming Product at Seller’s expense. All warranties shall run to Buyer and its customers.
  3. Buyer’s approval of any documentation prepared by Seller or Buyer’s participation in design reviews or first article approval process or similar reviews shall not relieve Seller of any obligation under his warranty.
  4. Buyer’s rights under this clause shall, at Buyer’s option, be assignable to and enforceable by its successors and customers.
  5. The rights of Buyer set forth in this clause shall be in addition to, and not in lieu of, any other right Buyer may have under this Order, or in law or equity.

CHANGES

  1. Seller shall notify Buyer prior to any changes to product, processes, suppliers, and facilities on company letterhead to Buyers purchasing representative.
  2. Buyer’s authorized representative may at any time, by written order, and without notice to sureties or assignees, if any, make changes within the general scope of the Order in (1) drawings, designs, specifications, planning, and/or other technical documents; (2) method of shipment, packaging, or packing; (3) place of delivery; (4) reasonable adjustments in quantities or delivery schedules or both; (5) place of inspection; and (6) place of acceptance.
  3. If the change causes an increase or decrease in the cost or time required to perform this Order, Buyer and Seller shall negotiate an equitable adjustment in the price or schedule, or both, to reflect the increase or decrease. Buyer shall modify this Order in writing accordingly.
  4. Any claim for adjustment shall be unconditionally waived unless: (i) asserted in writing and delivered to Buyer within 15 days of the date of the written change order; and (ii) a fully supported proposal is delivered to Buyer’s authorized representative within 45 days after Seller’s receipt of such direction.
  5. If Seller claims the cost of any Property made obsolete or in excess, Buyer shall have the right to prescribe the manner of disposition of the property to include the right to acquire that property for the cost claimed.
  6. Buyer has the right to examine any of Seller’s pertinent books and records for the purpose of verifying Seller’s claim.
  7. Failure to agree to any adjustment shall be a dispute within the meaning of the “Disputes” clause hereof. However, seller shall not be excused from proceeding with the order as changed.

BUYER AUTHORIZATION

  1. The Buyer’s Authorized Purchasing Representative has sole authority to make contractual commitments on behalf of the Buyer, to provide contractual direction, and to change contractual requirements as defined in the Order.
  2. Buyer’s engineering, technical personnel and other representatives may from time to time render assistance or give technical advice or discuss or effect an exchange of information with Seller’s personnel concerning the Product hereunder. No such action shall be deemed to be a change under the “Changes” clause of this Order and shall not be the basis for an equitable adjustment.

BUYER’S PROPERTY

  1. Seller shall be responsible for all Buyer-furnished property (e.g. dies, molds, jigs, tools, materials, etc.) in accordance with 10-B.
  2. During the term of the Order, Seller shall, at its sole cost and expense, maintain a policy or policies of insurance covering the loss or destruction of or damage to all Buyer materials, tools, and equipment, special or otherwise, in which Buyer has an interest, in the amount of the full replacement value thereof providing protection against all perils normally covered in an “all-risk” policy, including but not limited to fire, windstorm, hurricane, tornado, sandstorm, explosion, riot, civil commotion, aircraft, earthquake, flood or other acts of nature during such time as they remain in Seller’s possession.

GOVERNMENT PROPERTY

Seller shall maintain and administer a program for the maintenance, repair, protection, and preservation of Government property in accordance with FAR Subpart 45.5. Upon Buyer’s request, Seller shall submit inventory schedules in acceptable form covering all Government Property pertaining to this Order. Nothing herein will be deemed to contravene the rights of the Government under FAR 52.245-2, paragraph (b).

RIGHTS OF ACCESS

Buyer may periodically require access to Seller’s facilities for the purpose of verification or validation activities.  Seller shall provide right of access by the Buyer, the Buyer’s customer, and regulatory authorities to all facilities involved in the order and to all applicable records.

FLOW DOWN OF REQUIREMENTS AND SUBCONTRACTOR MANAGEMENT

Seller shall flow down all applicable requirements to suppliers including special, critical, key characteristics, qualification of personnel, and/or customer specific requirements and regulatory requirements (ITAR/FAR/DFAR).  Seller shall monitor Seller’s external providers for configuration, quality and schedule performance as appropriate in order to ensure all customer specific requirements and regulatory requirements are met.

CONTROL OF DOCUMENTED INFORMATION AND RECORDS RETENTION

Seller shall make every reasonable effort to maintain secure transfer and storage of sensitive (copyrighted or proprietary) documentation.  Seller shall maintain all records relating to the order for a period of five years unless stated otherwise in the contract.

COUNTERFEIT PARTS AND MATERIALS

Seller shall make every reasonable effort to establish a policy and procedure for the detection and prevention of counterfeit parts and materials as appropriate (this is an industry specific condition).  Notification of escapes or suspected escapes shall be sent to Buyer immediately upon discovery of such an event.

PERSONNEL COMPETENCE AND IMPACT AWARENESS

Seller shall, as deemed appropriate by Seller, ensure the assignment of competent/qualified personnel for the production of parts and materials per Buyer order.  Seller shall also ensure that personnel are aware of their individual contribution to product safety, product conformity, and of the importance of ethical behavior.

MONITORING OF SELLER’S PERFORMANCE

Buyer may periodically produce internal reports evaluating Seller’s quality and delivery performance, which may be used in making decisions regarding the award of future work.

REASSIGNMENT

For orders manufactured to Buyer’s specified engineering or designs, no portion of the order may be reassigned or transferred without Buyer’s prior written consent, except for any portion(s) of the specified engineering, design or Purchase Order that Buyer and Seller have agreed may be subcontracted to a specified third party.

DISCRIMINATION

All subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.