TERMS AND CONDITIONS OF PURCHASE ORDER

1. DEFINITIONS

“VIDARR” means VIDARR Incorporated.

“VIDARR Purchasing Representative” means the VIDARR buyer responsible for issuing the Purchase Order (as defined below) and any modifications thereto and does not include VIDARR sales personnel.

“Products” mean the products, parts, and/or equipment included on VIDARR’s Purchase Order to Seller.

“Purchase Order” means the order issued by VIDARR to Seller, and to which these Terms and Conditions of Purchase apply.

“Seller” means the entity to which VIDARR’s Purchase Order is issued.

“Services” means services to be rendered by Seller included on VIDARR’s Purchase Order to Seller.

“Ship By Date” means the date stated on the Purchase Order in the column labeled “SHIP BY DATE.”

2. ACCEPTANCE OF ORDER

Seller’s written acknowledgment of the Purchase Order, commencement of performance pursuant to the Purchase Order, or acceptance of any payment under the Purchase Order shall each, independently, constitute Seller’s acceptance of the Purchase Order subject to these Terms and Conditions of Purchase. Additional terms proposed by Seller or included with Seller’s Purchase Order acknowledgment are expressly rejected by VIDARR unless accepted in writing by the VIDARR Purchasing Representative.

 

3. PACKAGING, MARKING, AND SHIPMENT

Seller shall follow all shipping instructions sent with the Purchase Order.

Shipments must equal the exact quantities shown on the Purchase Order unless otherwise agreed to by the VIDARR Purchasing Representative.

If Seller ships the Products to an address other than the shipping address listed on the Purchase Order, VIDARR, in its sole discretion, reserves the right to require Seller to ship replacement Products to the shipping address listed on the Purchase Order and to (i) reduce any payment due to Seller by the amount of the costs incurred by VIDARR due to Seller’s use of an incorrect shipping address or (ii) demand payment of the same amount by Seller.

If Seller is utilizing VIDARR’s shipping accounts, Seller shall not declare the value of the shipment or insure VIDARR’s shipments in excess of the carrier’s stated standard liability without prior written authorization by the VIDARR Purchasing Representative. If Seller declares the value of the shipment or insures the shipment in excess of the carrier’s standard liability without prior written authorization, VIDARR reserves the right, in its sole discretion, to (i) reduce any payment due to Seller by the cost incurred by VIDARR due to such declaration of insurance or (ii) demand payment of the same amount from Seller.

4. DELIVERY

Seller shall comply with the Ship By Date specified in the Purchase Order. Only a written modification of the Purchase Order by the VIDARR Purchasing Representative will constitute a waiver of this provision. If Seller cannot meet the Ship By Date, Seller shall inform VIDARR in writing not later than two days from the date it receives the Purchase Order of Seller’s proposed shipping date, and VIDARR may modify the Purchase Order to reflect the proposed shipping date. VIDARR’s receipt of this notice will not constitute a waiver of VIDARR’s right to timely performance.

If Products and Services are not provided by the Ship By Date, VIDARR reserves the right to cancel the Purchase Order, and VIDARR may require Seller to pay to VIDARR the difference between Seller’s price and the price VIDARR is charged to procure the Products and/or Services elsewhere in addition to any other remedies VIDARR may have available to it, including consequential damages. If Products and Services are not provided by the Ship By Date and VIDARR does not cancel the Purchase Order, VIDARR, in its sole discretion, may (i) charge Seller a fee in the amount of 0.1% of the value of the Products or Services that are not provided by the Ship By Date per day, which shall not exceed 5% of the value of the affected Products or Services, and may reduce any payment due to Seller by the fee amount or (ii) demand payment of such fee amount from Seller.

If the seller ships goods or renders services to VIDARR prior to the mutually agreed upon delivery date specified in the purchase order, VIDARR shall not be held responsible for making any payments prior to the originally stipulated payment terms. Additionally, VIDARR reserves the right to return the shipped products to the vendor at the vendor’s expense. The seller shall be liable for all associated shipping fees incurred as a result of the early shipment.

5. ACCEPTANCE OF PRODUCTS OR SERVICES

All Products and Services provided by Seller under the Purchase Order shall be in accordance with the Purchase Order, including applicable instructions and attachments.

All Products provided under the Purchase Order shall be in new condition.

All Products and Services shall be subject to inspection and testing by VIDARR and/or VIDARR’s customer.

VIDARR reserves the right to reject nonconforming Products or Services and require Seller to promptly remove the rejected Products or reperform the rejected Services at Seller’s sole expense. VIDARR shall have the option, in its sole discretion, to either (i) require Seller to replace the rejected Products or reperform the rejected Services at Seller’s expense or (ii) terminate the Purchase Order pursuant to section 12(c) below.

6. PRICES

Unless otherwise listed on the face of the Purchase Order, prices are FOB origin. Except as may be otherwise provided in the Purchase Order, the price includes all applicable federal, state, and local taxes in effect on the date of the Purchase Order.

7. PAYMENT TERMS

Seller’s invoice shall contain all required certifications and evidence of shipment.

Payment terms are net thirty (30) days from the date of VIDARR’s acceptance of Seller’s invoice unless otherwise indicated on the Purchase Order.

8. MODIFICATIONS TO PURCHASE ORDER

VIDARR shall have the right to modify the Purchase Order, provided that such modifications must be made in writing by the VIDARR Purchasing Representative. If any change requested by VIDARR causes an increase or decrease to the cost or delivery schedule, Seller shall notify VIDARR of such change in cost or delivery schedule within five (5) calendar days after receipt of VIDARR’s change request. Any adjustment to cost or delivery schedule shall be mutually agreed upon by the parties in writing.

9. CHANGES TO PRODUCTS OR SERVICES

Seller shall not make any changes to the Products or Services to be provided under the Purchase Order without VIDARR’s prior written consent.

10. RETURNS

VIDARR shall have the right to return Products within sixty (60) days of delivery. In the event of a return, VIDARR shall not be liable for any restocking fees or like charges without the prior written consent of the VIDARR Purchasing Representative.

11. WARRANTY

Seller warrants to VIDARR and VIDARR’s customer that all Products and Services delivered hereunder are free from defects in material or workmanship for a period of one (1) year from the date of delivery or for the period of Seller’s standard warranty for the Products and Services, whichever is greater, and conform strictly to the published specifications or the specifications listed on the Purchase Order or furnished pursuant thereto. This warranty shall survive any inspection, delivery, acceptance of, or payment by VIDARR for the Products or Services.

12. TERMINATION

VIDARR shall have the right to terminate all or any portion of the Purchase Order.

If the Purchase Order is terminated as a result of a termination for convenience of VIDARR’s underlying contract with the U.S. government, the rights, duties, and obligations of the parties shall be as determined in accordance with the applicable FAR provision governing termination for convenience.

If the Purchase Order is terminated by VIDARR due to Seller’s default, Seller shall not be entitled to any compensation except for the price of the Products and Services delivered and accepted by VIDARR prior to the termination and which meet the warranty and other requirements herein.

The rights and remedies in this section are in addition to any other rights and remedies provided by law or in equity, or otherwise under the Purchase Order.

13. INDEPENDENT CONTRACTOR

Seller is an independent contractor, and its employees and agents are not employees or agents of VIDARR for any purpose. Seller shall not have any right, power, or authority to create any obligation, express or implied, on behalf of VIDARR and shall not have any authority to represent itself as an agent of VIDARR.

14. INDEMNIFICATION

Seller shall defend, indemnify, and hold harmless VIDARR, its officers, directors, employees, consultants, agents, affiliates, successors, assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, fees, and expenses, including, but not limited to, reasonable attorneys’ fees, all expenses of litigation and/or settlement, and court costs, arising from (i) any act or omission of Seller, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under the Purchase Order; (ii) any representation or warranty made by Seller hereunder; and (iii) arising from or related to any action by a third party that is based upon a claim that the Products delivered under this Purchase Order infringe or otherwise violate the intellectual property rights of any person or entity. If an injunction is obtained against VIDARR’s use of the Products or a portion thereof as a result of infringement or misappropriation of the intellectual property of any third party, Seller shall, in VIDARR’s sole discretion, either (i) procure for VIDARR and VIDARR’s customer the right to continue using the Products, (ii) replace or modify the Products so they become non-infringing, or (iii) refund all amounts paid to Seller for the infringing Products.

15. ASSIGNMENT

Seller shall not delegate any duties nor assign any rights or claims under the Purchase Order without the prior written consent of VIDARR, and any such attempted delegation or assignment shall be void.

16. HANDLING OF INFORMATION

All drawings, specifications, technical data, and other information furnished to Seller by VIDARR or VIDARR’s customer in connection with the Purchase Order are and shall remain the property of VIDARR or VIDARR’s customer and shall not be copied or otherwise reproduced or used in any way except in connection with the performance of the Purchase Order and in accordance with applicable laws.

Seller agrees not to generate advertising or publicity or cause any announcements with VIDARR’s name or trademarks or VIDARR’s customer’s name or information regarding this Purchase Order without securing the prior written approval of VIDARR.

Any information provided by Seller to VIDARR may be used by VIDARR for the purposes of VIDARR’s contract with its customers.

17. COMPLIANCE WITH LAWS AND REGULATIONS

Seller and its employees, agents, consultants, suppliers, or subcontractors shall comply with the applicable provisions of all applicable federal, state, and local laws and regulations in performance of the Purchase Order, specifically including those laws applicable to the ship-to location on the Purchase Order (such as California’s Safe Drinking Water and Toxic Enforcement Act (Prop 65) and/or other applicable state laws). If VIDARR incurs any costs as a result of a violation of any applicable laws or regulations by Seller or its employees, agents, consultants, suppliers, or subcontractors, VIDARR may, in its sole discretion and in addition to any rights or remedies available at law or in equity, (i) make a corresponding reduction of any amounts due under the Purchase Order or (ii) demand payment thereof from Seller.

18. EQUAL EMPLOYMENT OPPORTUNITY

VIDARR and Seller shall comply with all applicable laws, regulations, and executive orders concerning nondiscrimination in employment. The following are incorporated herein by reference, as applicable: (i) Executive Order 11246, as amended; (ii) Executive Order 13496 (and its implementing regulations at 29 C.F.R. Part 471); (iii) 41 C.F.R. Part 60-1.4(a); (iv) 29 C.F.R Part 471, Appendix A to Subpart; (v) 41 C.F.R. 60-300.5(a); and (vi) 41 C.F.R. 60-741.5(a).

VIDARR and Seller shall abide by the requirements of 41 C.F.R 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.

VIDARR and Seller shall abide by the requirements of 41 C.F.R 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.

19. OFFICE OF FOREIGN ASSET CONTROL

Seller (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the Office of Foreign Asset Control of the U.S. Department of the Treasury (“OFAC”) (the “List”); (ii) is currently in compliance with and will at all times during the term of this Purchase Order remain in compliance with the regulations of OFAC and any statute, executive order (including the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto; and (iii) will not transfer or permit the transfer of any controlling interest in Seller to any person or entity who is, or any of whose beneficial owners are, listed on the List.

20. EXPORT COMPLIANCE

Seller shall comply with all applicable U.S. export control laws and regulations, to include the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; the Arms Export Control Act, 22 U.S.C. 2751-2794; and the Export Administration Regulations, 15 C.F.R. 730-774.

Seller agrees to notify VIDARR if any Product or Service on the Purchase Order is restricted by export control laws or regulations. Seller shall provide the classification upon request by VIDARR and notify VIDARR if the provided classification changes prior to shipment of the Product or performance of the Service.

If Seller is engaged in exporting, manufacturing, or brokering defense articles or furnishing defense services, Seller represents that it is and will continue to be registered with the Directorate of Defense Trade Controls (DDTC), and it maintains an effective export compliance program. Seller will provide a copy of such DDTC registration on request by the VIDARR Purchasing Representative.

Seller shall notify VIDARR immediately if its export privileges are otherwise denied, suspended, or revoked in whole or in part by any U.S. government entity.

Seller represents that neither it nor its directors, officers, or majority equity owners are listed on any excluded or denied party lists maintained by the U.S. Government. Seller shall promptly notify VIDARR if any such party becomes listed on any such lists.

21. INSURANCE

Seller agrees to maintain general liability insurance at its own expense, including products liability and completed operations liability, that is acceptable to VIDARR and, at a minimum, commercially adequate. If any Product includes unmanned aerial vehicles, weapons, or ammunition, Seller agrees to name VIDARR as an additional named insured on such policies. Certificates of insurance for all applicable policies shall be provided to VIDARR upon request.

22. GOVERNING LAW

The Purchase Order, including these Terms and Conditions of Purchase, shall be governed by and construed in accordance with the laws of the Commonwealth of New Hampshire, without regard to conflicts of law provisions.

23. JURISDICTION AND VENUE

For all claims brought under the Purchase Order, each party hereby irrevocably submits to the exclusive jurisdiction of the state courts located in New Hampshire, and the U.S. District Court for the ______ District of New Hampshire.

 

24. AMENDMENT

No amendment to these Terms and Conditions of Purchase shall be binding unless set forth in a written instrument signed by the VIDARR Purchasing Representative and Seller.

25. ORDER OF PRECEDENCE

In case of any inconsistencies in the Purchase Order, resolution shall be in accordance with the following descending order of precedence: (i) the Purchase Order, including its attachments; (ii) these Terms and Conditions of Purchase; (iii) the Statement of Work, if any; and (iv) specifications provided in writing by VIDARR.

26. WAIVER

Waiver of a breach of any provision of the Purchase Order by the non-breaching party shall not operate or be construed as a waiver of any other or subsequent breach.

27. SEVERABILITY

If any provision of the Purchase Order becomes void or unenforceable by operation of law, the remaining provisions shall remain valid and enforceable.

28. SURVIVAL

The provisions of sections 7, 10-17, and 20-29 of these Terms and Conditions shall survive completion or termination of the Purchase Order and continue in full force and effect thereafter.

29. ENTIRE AGREEMENT

The Purchase Order, including attachments and documents incorporated by reference, along with these Terms and Conditions of Purchase, constitute the entire agreement between VIDARR and Seller. This agreement supersedes all prior representations, agreements, understandings, and communications between VIDARR and Seller related to the subject matter of the Purchase Order.