INTERNATIONAL TRANSACTIONS COMPLIANCE
TERMS & CONDITIONS
- General Terms
- Terms of Sale
- Terms and Conditions of Purchase
WARRANTIES AND DISCLAIMERS
The information contained on this web site, www.CTG123.com, CTG123.com, www.CTGNOW.com or CTGnow.com, may be out of date or include omissions, inaccuracies or other errors. Except where expressly provided otherwise in an agreement between you and CTG, all information is provided “as is” without any warranty or condition whatsoever, expressed or implied.
CTG HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THIS INFORMATION WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
IN NO EVENT SHALL CTG BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSENSUAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THIS WEB SITE. CTG RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THIS WEB SITE OR PRODUCTS OR PROGRAMS DESCRIBED IN THIS WEB SITE AT ANY TIME WITHOUT NOTICE.
- Solely to enable CTG or entities related or unrelated to CTG to use User’s Information with which you supply to us, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in User’s Information, in any media now known or not currently known, with respect to User’s Information.
- You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.
- Breach of Agreement. CTG may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership if we are unable to verify or authenticate any information you provide to us.
- All purchase orders submitted to CTG are subject to prior sales and availability of parts.
- All purchase orders placed with CTG are subject to terms and conditions found at www.ctg123.com/terms-of-sale.
- All quotes submitted by CTG are subject to change due to market conditions, availability, circumstances foreseen and unforeseen without notice
- Compliance with laws. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our service and your purchase and sale of items.
- No Agency. You and CTG are independent contractors, and no agency, partnership, joint- venture, employee-employer or franchiser-franchisee relationship is intended or created by this agreement in any way what so ever.
- CTG honors requests from users of its website for verification of their own account information and will correct, or enable correction of, any such information which may be inaccurate. Users may verify that appropriate corrections have been made.
- You agree that CTG, in its sole discretion, shall have the right to terminate your access to this site at any time, for any reason, and that CTG shall not be obligated to disclose such reason to you.
- You agree that any passwords supplied to you are non-transferable and may only be used by those parties expressly named in this agreement.
- By registering, you grant CTG permission to send emails, faxes, and mailings regarding quotes, orders, pricing or availability, information requests, customer service, feedback requests, membership information, advertisements, offers, solicitations and any relevant information concerning CTG or its web sites. This permission will remain in effect even after membership has been cancelled, terminated or suspended either voluntarily by member or by CTG. A member may choose not to receive direct marketing communications from CTG in connection with CTG or www.CTG123.com, CTG123.com, www.CTGNOW.com or CTGnow.com, online services. Upon such choice, CTG will not use registration and usage information obtained from that member or supplier’s registration to contact that member with marketing messages about any CTG products or services. A member or supplier may choose not to receive such messages by notifying CTG via e-mail, fax or mail or use the automatic remove feature located at the bottom of emails sent from CTG.
This agreement shall be governed in all respects by the laws of the state of New York. Both parties submit to jurisdiction in New York and further agree that any cause of action arising under this agreement shall be brought exclusively in a court in Westchester County, New York.
CTG does not guarantee continuous, uninterrupted or secure access to its services, and operation of its site may be interfered with by numerous factors outside of its control.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain valid, survive and be enforced.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
CTG’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
This agreement sets forth the entire understanding and agreement between the parties hereto with respect to the subject matter herein.
TERMS OF SALE
1. TERMS AND CONDITIONS
These terms and conditions of sale apply to (i) the quote provided by Crestwood Technology Group (“CTG” or “Seller”) to the Purchaser, (ii) the order from the Purchaser to CTG (including any order amendments thereafter), and (iii) any order confirmation that may be sent from CTG to Purchaser. These terms and conditions of sale apply to transactions between CTG and Purchaser. Any order is expressly subject to and conditioned upon Purchaser’s acceptance of CTG’s terms and conditions. CTG objects to any different or additional terms. To the extent Purchaser’s requirements are for a U.S. Government Contract, CTG will abide by FAR 52.244-6 and FAR 52.212-4. However, if there is any conflict between the terms and conditions below and these FAR clauses, the terms and conditions below shall take precedence and control.
Unless otherwise expressly agreed between the parties in writing, all quotations, order acknowledgements, deliveries, and purchase agreements entered into by Seller and Purchaser are made in accordance with and subject to these terms and conditions. By submitting an order for goods or services, you indicate your acceptance of and agreement to be bound by these terms and conditions. These terms and conditions may be changed by CTG at any time in the future. Purchaser is responsible for reviewing the terms and conditions for amendments. The amendments shall take effect immediately upon posting on CTG’s website without further notice to you. Purchaser’s order or Seller’s receipt of an electronic or other form of order does not signify Seller’s acceptance of Purchaser’s order or Purchaser’s terms and conditions, nor does it constitute confirmation of CTG’s offer to sell. CTG reserves the right at any time after receipt of your order to accept or decline your order. Terms and conditions set forth in any document or order provided by Purchaser which differ from, conflict with or are not included in these terms and conditions shall not become a part of the order or any other agreement between Seller and Purchaser unless such terms and conditions are specifically accepted by Seller in a written instrument that specifically references this Section as being overridden. To the extent that Seller’s delivery may constitute an acceptance by Seller of any purchase order or other document submitted by Purchaser, such acceptance is expressly conditioned on Purchaser’s assent to any terms and conditions set forth herein that are inconsistent with or in addition to the terms of such purchase order or other document. Seller objects to any additional or inconsistent terms proposed or introduced by Purchaser in any other instrument or communication, including (without limitation) in any purchase order of Purchaser with respect to the goods or services. Seller’s failure to subsequently object to any such terms contained in any instrument or communication from Purchaser shall not be deemed a waiver of any of these terms and conditions.
All prices shall be as specified by Seller and shall be Seller’s price in effect at the time of order acceptance by Seller. Seller’s price includes standard commercial packaging at standard pack levels and orders shall be shipped accordingly, unless separately delineated in writing. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind on any amounts payable by Purchaser. Unless otherwise stated in Seller’s quote, Seller’s quoted pricing is contingent upon Purchaser ordering all quoted quantities and line items as presented in Seller’s quote. In the event the Purchaser seeks to order different quantities and/or line items than those quoted by Seller, then Seller reserves the right to re-quote. Unless otherwise agreed in writing, all prices published or quoted by Seller may be changed by Seller at any time and for any reason upon prior written (including email) notice to Purchaser. If a price is increased by Seller prior to delivery of goods or services, than these terms and conditions shall be construed as if the increased price were originally inserted herein, and Purchaser shall by billed by Seller on the basis of such increased price. Except as otherwise provided herein, no such pricing change or surcharge shall give Purchaser the right to cancel, suspend or modify the order. If Purchaser is quoted any price that includes a quantity or volume discount but Purchaser fails to accept or otherwise take delivery of a quantity of such goods or services that would qualify for such quantity or volume discount price, then the price for such goods or services shall be adjusted to reflect the applicable non-discounted price. If such adjustment is made after Purchaser has paid the originally quoted price, Purchaser shall be back-billed, and shall immediately pay, the additional amount due for such goods or services. Purchaser agrees to pay all charges incurred by authorized users of Purchaser’s account and credit card or other payment mechanism at the prices in effect when such charges are incurred.
Unless otherwise expressly provided in the Contract, the amount of any sales, revenue, use, excise or other similar taxes, duties or other fees or similar charges of any nature, imposed by any governmental authority applicable to the manufacture, sale, purchase, shipment, export or import of goods (excluding any taxes on the net income of Seller) shall be added to the invoiced price for the goods or services, or in lieu thereof, Purchaser shall provide Seller with a tax exemption certificate and number acceptable to the applicable taxing authority so as to relieve Seller of its obligation to collect such taxes, duties or other fees or charges.
5. TERMS OF PAYMENT
Unless otherwise expressly agreed to by Seller, payment terms are net cash 30 days from the date of delivery FOB point of origin of goods or services in accordance with Section 6 below. Seller reserves the right at any time to require full or partial payment in advance or to revoke any credit or other payment terms previously extended if, in Seller’s sole discretion, Purchaser’s financial condition does not warrant proceeding on the payment terms specified or if Purchaser is delinquent in any amounts payable to Seller. Acceptance and performance of all orders is subject to CTG’s credit decisions in CTG’s sole discretion. If goods or services are delivered in installments, Purchaser shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for goods without regard to whether Purchaser has made or may make any inspection of the same. Overdue payments shall be subject to interest computed at a periodic rate equal to the lesser of (i) 1.5% per month (18% per year), or (ii) the highest rate of interest permitted under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred by Seller in collecting any late payments, including (without limitation) attorneys’ fees and expenses. Seller shall be entitled to suspend the delivery of any goods or services if Purchaser fails to pay any amounts when due to Seller in a timely manner. Amounts owed by Purchaser to Seller with respect to which there is no dispute shall be paid without set-off. All credit card transactions are subject to a 3% flat fee charge for each transaction.
Unless otherwise expressly agreed to by Seller, all goods or services sales are EXW (Ex works, INCOTERMS 2010), Seller’s point of origin FOB (shipping paid by Purchaser). For goods, the time of delivery shall be the time when the goods are: (1) placed into the possession of the designated carrier for delivery to Purchaser, or (2) delivered FOB point of origin in accordance with Ship in Place (SIP) provisions. For services, the time of delivery shall be when the services are rendered. Shipping dates represent Seller’s reasonable estimates and are approximate. Failure to meet these dates shall not constitute a default by Seller nor shall Seller be liable for damages, losses or expenses incurred by Purchaser in the event that any estimated delivery date is not met.
For Ship in Place (SIP) programs, at Purchaser’s written request, goods may be delivered pursuant to a SIP arrangement. All SIP goods will be deemed delivered FOB origin. For any such SIP goods, Purchaser agrees that: (a) Purchaser has made a fixed commitment to purchase the goods in accordance with the applicable order, (b) title and risk of loss for such SIP goods passes to Purchaser upon delivery FOB origin and Purchaser shall be required to maintain adequate insurance in an amount no less than the greater of the purchase price or replacement cost of the goods (proof of which shall be provided upon request), (c) such goods shall be on a SIP basis for legitimate business purposes, (d) Purchaser shall identify a fixed date for shipment of the goods to the Purchaser or ultimate customer, and (e) Purchaser agrees to be invoiced upon delivery FOB origin and to pay such invoice in accordance with the payment terms set forth in these terms and conditions.
Unless specific instructions to the contrary are supplied by Purchaser, methods and routes of shipment shall be selected by Seller but Seller shall not assume any liability in connection with shipment or constitute any carrier as Seller’s agent. Seller may, in its sole discretion, without liability or penalty, make partial shipments of goods to Purchaser. Each shipment shall constitute a separate sale, and Purchaser shall pay for the units upon delivery FOB origin whether shipment is in whole or partial fulfillment of an order. Purchaser shall be responsible for initiating any proof of delivery request and/or making all claims with carriers, insurers, warehousemen and others for missed delivery, loss, damage, or delay. The quantity of any installment of goods as recorded by Seller on dispatch from Seller’s delivery point is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary. Any liability of Seller for non-delivery of goods shall be limited to replacing such goods within a reasonable time or adjusting the invoice respecting such goods to reflect the actual quantity delivered. Seller reserves the rights to ship in the most practical and safe manner regardless of special instructions.
8. INSPECTION; NON-CONFORMING DELIVERIES
All orders for goods are complete at the time goods ship from CTG’s premises. All orders for services are complete at the time services are rendered. All sales are non-cancelable, non-returnable, and non-refundable, and not to be rescheduled. Except for 6081 transactions, Purchaser shall have seven (7) business days from the date of its receipt of any goods shipment to inspect such goods (the “Inspection Period”). For 6081 transactions, Purchaser shall have thirty (30) days from the date of its receipt (the “Inspection Period”) of any goods shipment to inspect such goods. Purchaser shall be deemed to have accepted such shipment of goods unless Purchaser notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as may be reasonably requested by Seller. “Nonconforming Goods” means only the following: (i) goods shipped are different than identified in the order; or (ii) goods labels or packaging incorrectly identify their contents. If requested by Seller, Purchaser shall ship the Nonconforming Goods to Seller’s origin of shipment, at Seller’s cost, but with risk of loss passing to Seller only upon delivery to Seller’s original point of shipment. If Purchaser timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming goods, or (b) credit or refund the applicable portion of the Contract price for such Nonconforming Goods, together with any reasonable shipping expenses incurred by Purchaser in connection therewith. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Purchaser’s shipment of Nonconforming Goods, ship the applicable replacement goods to Purchaser, EXW (Ex works, INCOTERMS 2010), Seller’s point of origin, but with shipping costs paid by Seller. CTG may charge a 50% re-stocking fee for all parts returned at its sole discretion. Except as provided in Section 12 and hereof, this Section 8 contains Purchaser’s sole and exclusive remedy for the delivery of Nonconforming Goods. Except as provided under this Section 8 and in Section 12 hereof, all sales of goods to Purchaser are made on a one-way basis and Purchaser has no right to return goods to Seller.
9. TITLE AND RISK OF LOSS
Subject to Seller’s right to stop delivery of goods in transit in the event of Purchaser’s nonpayment therefor, changes in credit terms imposed by Seller, or other Purchase defaults, title to and risk of loss of goods shall pass to Purchaser upon delivery in accordance with Section 6 above.
10. SECURITY INTEREST
Seller reserves and Purchaser grants to Seller a lien on and a security interest in and to all of the right, title and interest of Purchaser in, to and under all goods and all proceeds thereof (including insurance proceeds) to secure the full payment by Purchaser of the purchase price therefor. Such security interest constitutes a purchase money security interest under the New York Uniform Commercial Code. This document may be filed with the appropriate authorities as a financing statement or Seller may file other financing statements in respect of such security interest in any applicable jurisdiction, and Purchaser agrees to execute and deliver such other documents and take such other actions as Seller may reasonably request in order to perfect Seller’s security interest in the goods.
Purchaser may reschedule delivery of the goods or services only upon Seller’s prior written agreement to update the delivery schedule. Such agreement must include any price changes attributable to the Purchaser’s new schedule.
12. CANCELLATION, TERMINATION AND RETURNS
Purchaser may terminate the order for goods or services, in whole or in part, only upon Seller’s prior written agreement to terminate the order for goods or services. If Seller’s quote specifies that goods or services are “non-cancellable, non-returnable” (or “NCNR”), then Purchaser may not cancel or otherwise terminate its order, or any part thereof.
For US Government related purchases, Purchaser may terminate its order only if the Purchaser’s prime contract with the US Government has been terminated for convenience by the US Government. In such case, the parties shall observe the termination requirements specified in Federal Acquisition Regulation (FAR) 52.212-4(l). Otherwise, in the event of a requested termination, the parties shall agree to terminate the order and Purchaser shall immediately pay Seller (i) previously agreed-upon prices for any goods or services already delivered or completed but not yet delivered (including capital, tooling, and facility costs) and (ii) termination settlements costs related to Seller’s subcontracts. For goods or services not yet completed, Purchaser shall indemnify and immediately pay Seller for any and all (i) labor, material, capital, tooling, and facility costs incurred in the performance of the work terminated; (ii) Seller’s costs of settling and paying termination settlement proposals under terminated subcontracts; (iii) profit as agreed between the parties; (iv) accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals; (v) costs for termination of subcontracts; and (vi) storage, transportation, and other costs incurred (including attorney’s fees), reasonably related to the preservation, protection, or disposition of the termination inventory.
Seller reserves the right to make substitution and modifications in the specifications or part numbers of any goods without prior notification to or approval from Purchaser provided that such substitutions or modifications do not materially affect the performance of the goods or the purposes for which they can be used.
14. WARRANTY AND CLAIMS
CTG warrants goods in accordance with the manufacturer’s standard warranty, only to the extent that such warranty exists and is transferrable to Purchaser. CTG warrants that CTG’s services will be performed in a workmanlike manner by someone with the necessary skills and experience to perform the services.
For AS 6081 transactions only and so long as Purchaser complies with Sections 7 and 8, CTG warrants that for a period of one (1) year following delivery of the product to the Purchaser, the goods will be free from defects in material and workmanship and will function in substantial compliance with the manufacturer’s written specifications thereof.
THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE BY SELLER WITH RESPECT TO THE PRODUCTS. THIS WARRANTY COMPRISES CTG’S SOLE AND ENTIRE WARRANTY OBLIGATION TO YOU, YOUR CUSTOMERS AND ASSIGNS IN CONNECTION WITH THE EQUIPMENT, GOODS, PRODUCTS, COMPONENTS OR OTHER ITEMS SOLD, ASSIGNED, LEASED OR OTHERWISE DEALT WITH BY CTG.
THIS WARRANTY EXCLUDES ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. PURCHASER ACKNOWLEDGES THAT ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY OF THE GOODS DESCRIBED HEREIN IS PROVIDED SOLELY BY THE OWNER, ADVERTISER, MANUFACTURER OR SUPPLIER OF THAT GOOD AND NOT BY CTG.
PURCHASER AGREES THAT CTG AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SPONSORS, CONSULTANTS OR OTHER REPRESENTATIVES (“SERVICE PROVIDERS”) SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR INTERRUPTION OF BUSINESS) WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO PURCHASER WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CTG WILL NOT BE LIABLE FOR ANY LACK OF AVAILABILITY OF GOODS YOU MAY ORDER. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID TO SELLER FOR THE GOODS OR SERVICES SOLD UNDER THE CONTRACT.
For any warranties extended by CTG, CTG shall make the final determination as to warranty coverage and any resulting repair, replacement, or refund. Purchaser warrants that it possesses adequate financial means to support the contractual obligations agreed upon pursuant to these terms and conditions and that they possess adequate industry and product liability insurance and third party professional insurance, as applicable.
15. INTELLECTUAL PROPERTY
Seller assumes no obligation or liability of any kind for any infringement of patents, copyrights, trademarks, industrial designs or other third party intellectual property rights arising out of Purchaser’s purchase, use, possession, sale or delivery of any goods or services. Purchaser’s exclusive remedy shall be against the manufacturer of the goods. Purchaser shall indemnify and hold Seller harmless from any and all claims, liabilities, damages, costs and expenses (including, without limitation attorneys’ fees and expenses) resulting from any actual or alleged infringement (direct or contributory) by Seller of patents, copyrights, trademarks, industrial designs or other third party intellectual rights arising from compliance by Seller with any designs or specifications provided by Purchaser or from Purchaser’s sale or use of any good in any other device or process. Ownership is retained by Seller of any patent, copyright, trade secret, design right or other intellectual property right, including but not limited to, any technical information, know-how, drawings and specifications supplied by Seller or relating to the goods. Seller shall retain all right, title and interest in and to, and possession of, any know-how, technical information, drawings, specifications or documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of Seller and supplied by Seller under any Contract. All such information shall be kept confidential by Purchaser and shall not be disclosed to any third party. Nor shall any such information be used by Purchaser for any purpose other than for the purpose of using the goods or services without Seller’s prior written consent. In addition, Seller’s trademarks and names and those of its associated companies shall not be used otherwise than as applied by Seller to the goods or services.
No sale of any good or service shall be construed as granting to Purchaser any license or other right (including any Federal Acquisition Regulation (FAR) or Defense Federal Acquisition Regulation Supplement (DFARS) rights related to Technical Data or Computer Software) to (a) the good, data, or service, (b) any apparatus, system or circuit in which such good, or any part thereof may be used, (b) any process, machine or other device in connection with which such good or service may be used, or (c) any process for such good’s manufacture, installation or use. Purchaser acknowledges that the copyrights in all documents, designs and plans supplied by Seller with the goods or services belong exclusively to Seller, and Purchaser’s possession of any such documents, designs and plans does not convey to Purchaser any license thereof or other right therein. For clarity, Purchaser has no rights to any underlying data or software, of any kind, for the purpose of re-manufacture or competition.
16. FORCE MAJEURE
Seller shall not be liable for any loss or damage to Purchaser resulting from any delay in the production or delivery of the goods or services to the extent due to any cause beyond Seller’s reasonable control, including (without limitation) (a) unavailability of supplies or sources, (b) riots, wars, invasions, hostilities (whether war is declared or not), acts or threats of terrorism, riots or civil disturbances, (c) telecommunications failures, (d) fires, floods or storm, (e) acts of God, (f) epidemics or pandemics, (g) lockouts, strikes, labor stoppages or slowdowns, (h) delays in delivery by Seller’s suppliers, (i) actions or inactions of the Government (such as the issuance of licenses or permits related to the sale), (j) embargoes or blockades, (k) national or regional emergency and other similar events beyond the control of Seller or (l) acts or omissions of Purchaser. In the event of any such delay due to any such event beyond Seller’s reasonable control, time for delivery shall be extended for a period of time approximately equal to the duration of the delay and Purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of such delay.
Purchaser shall not delegate or subcontract any of its duties or obligations or assign any of its rights or claims without Seller’s prior written consent, and any attempted delegation, subcontracting or assignment without such consent shall be void. The contract is for the sole benefit of Seller and Purchaser and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the contract.
18. COMPLIANCE WITH LAWS
Purchaser shall carry out the transactions contemplated by this sale and shall otherwise deal with the goods or services sold in conformity with all applicable laws, rules, and regulations of all governmental authorities, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment or use of any goods or services. Without limiting the foregoing, all applicable import and export control laws, regulations, orders and requirements, including (without limitation) those of the United States, United Kingdom, and the European Union, and the jurisdictions in which Seller and Purchaser are established, or from which goods or services may be supplied, shall apply to their receipt and use or are legally necessary or commercially advisable to its performance hereunder. Purchaser shall at all times abide by all local, regional and international laws, rules and regulations applicable its activities including, but not limited to (1) the United States Foreign Corrupt Practices Act of 1977, as amended, (2) U.S. Export Administration Regulations, (3) International Traffic in Arms Regulation, (4) the USA Patriot Act, as amended, (5) U.S. Treasury regulations, (6) anti-dumping laws, and (7) all other U.S. or international laws and regulations relating to international trade and investment activities. In no event shall Purchaser use, transfer, release, re-sell, import or export, any goods or any technical data related thereto in violation of such applicable laws, regulations, orders or requirements. Upon request, Purchaser agrees to provide CTG an End-Use Statement in a form required by CTG. Purchaser agrees this is a material term of the contract. Purchaser agrees that it will immediately notify and provide a revised End-Use Statement to CTG should any information provided on this End-Use Statement change and/or should the Purchaser become aware of any violation or suspected violation of the terms of this End-Use Statement. If a party is provided notice, correspondence, subpoena, or other contact that a governmental investigation has been initiated related to the contract, the party shall immediately notify the other party in writing of the investigation or inquiry. The parties agree to assist one another in responding to or defending against any governmental inquiry into the parties’ compliance with the applicable laws. A breach of this warranty shall be considered a material breach of the contract and may result in CTG’s termination of the contract.
19. STANDARDS OF CONDUCT
Purchaser represents that neither it nor any of its officers, directors, employees, agents or other representatives has performed or will perform any of the following acts in connection with the Contract, any compensation paid or to be paid hereunder, any payment made or to be made hereunder, or any other transactions involving the business interests of either the CTG or Purchaser: offer or promise to pay, or authorize the payment of, any money, or give or promise to give, or authorize the giving of, any services or anything else of value, either directly or through a third party, or any kickback to any official or employee of a public international organization or of any government, or of any agencies or subdivisions thereof, or of any public international organizations or governmental instrumentalities, or to any political party or official thereof or to any candidate for political office for the purpose of (i) influencing any act or decision of that person in his official capacity, including a decision to fail to perform his official functions with such government or instrumentalities, (ii) inducing such person to use his influence with such government or instrumentalities to affect or influence any act or decision thereof or (iii) securing any improper advantage. Purchaser warrants and represents that it will maintain its books and records under “generally accepted accounting principles”, and in a proper, responsible and honest manner, in order for CTG and Purchaser to comply with applicable laws. Purchaser warrants and represents that it has not been convicted of, or pleaded guilty to, an offense involving fraud, corruption, or moral turpitude, and it is not now listed by any Government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in Government procurement programs or other Government contracts. Purchaser represents and warrants that, to the best of its knowledge and belief, neither it nor any of its officers, directors, employees or agents, are presently, nor does it have any reason to believe that it or they may become, the subject of any investigation by any agency or other law enforcement body in connection with a government procurement matter that could materially impact its ability to perform its obligations under the contract. Further, in the event that either Purchaser (i) becomes the subject of such an investigation, (ii) has reason to believe that it might become the subject of such an investigation, or (iii) has credible evidence that a principal, employee, agent, or subcontractor of Seller has committed a violation of law involving false claims, fraud, conflict of interest, bribery, kickbacks, or gratuity violations during the performance of the contract, it shall immediately notify CTG and promptly provide the latter with a detailed written explanation of all the material facts and circumstances of such actual or potential investigation, except to the extent restricted by a governmental agency. Purchaser represents it does not have any organizational conflict of interest identified by applicable regulation or prime contract term related to the Contract. Purchaser agrees that should CTG determine, in its sole discretion, that either Party has a recognized organizational conflict of interest exists or may exist as a result of its further performance of the contract, Purchaser will provide notice of the matter in full detail for an understanding of the conflict of interest and an assessment of the same under the obligations and regulations governing the contract within five business days. If such conflict cannot reasonably be mitigated through good faith negotiations, the contract or order may be terminated at the request of CTG without liability to CTG. A breach of this warranty shall be considered a material breach of the contract and may result in CTG’s termination of the contract and/or notification to third parties of such breach.
Any additional or different terms or conditions which may appear in any communication from Purchaser are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by CTG, regardless of whether such additional terms incorporate applicable government procurement regulations or contractual terms that are incorporated by reference.
21. NO AGENCY
CTG and Purchaser are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by a Contract or purchase.
22. DISPUTE RESOLUTION
All dispute, controversy or claim arising out of or related to the contract or any dispute thereof shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or relating to the Purchase Order or these terms and condition for purchase shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. For disputed matters and claims involving U.S. Government customers, the matter will be resolved in accordance with the statutory, regulatory, and common law of the U.S. as they apply to procurements of goods and services by the United States, to the extent applicable.
The contract is governed by and interpreted, construed and enforced in accordance with the laws of the State of New York, without reference to conflicts of law principles that would require the application of any other law. Any suit, action or proceeding arising between Seller and Purchaser in connection with the contract shall be subject to the exclusive jurisdiction of the state or federal courts of New York and each of Seller and Purchaser irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the order or the sale of goods or services thereunder. If any term or provision of the contract (including any of these terms and conditions) is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the contract or invalidate or render unenforceable such term or provision in any other jurisdiction. The contract (including these terms and conditions) constitutes the entire agreement of Seller and Purchaser with respect to the subject matter thereof and supersedes all prior, agreements, understandings, communications between the parties with respect to such subject matter. The contract may only be amended by written instrument signed by Seller and Purchaser.
24. ATTORNEY’S FEES
If any action or proceeding relating to these terms and conditions or the enforcement of any provision of the Purchase Order or these terms and conditions is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
All notices, requests, consents and waivers hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other addresses that may be designated. All notices shall be delivered by (i) email (if provided) and (ii) personal delivery, nationally recognized overnight courier, facsimile or certified or registered mail. A notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the notice has complied with the requirements of this section.
Form 803-21 REVISION 6 8/31/21
TERMS AND CONDITIONS OF PURCHASE
Your sale to Crestwood Technology Group (CTG) is governed by these terms and conditions of purchase. These terms and conditions are incorporated into all CTG Purchase Orders in addition to any other terms set forth on the face of the Purchase Order and any terms or other documents incorporated by reference, unless otherwise stated in the Purchase Order. Also, you agree that any terms and conditions required by CTG’s customer are hereby incorporated herein by this reference, a copy of which will be provided to you upon request. By tendering Goods or Services or commencing performance, you indicate your acceptance of and agreement to be bound by these terms and conditions. These terms and conditions may be changed by CTG at any time in the future. The amendments shall take effect immediately upon posting on CTG’s website without further notice to you and the amendments will be applied to sales occurring after such amendment. If there is any conflict between these terms and conditions of purchase and the Purchase Order, the Purchase Order shall take precedence and control. If there is any conflict between these terms and conditions of purchase and government contract clauses incorporated by reference, these terms and conditions of purchase take precedence and control.
Words, as employed in this Agreement, shall have their normally accepted meanings. The following terms shall have the described meaning:
- “CTG” shall mean Crestwood Technology Group and/or the entity identified as CTG in the Purchase Order.
- “Contract” or “Purchase Order” shall mean the Purchase Order, these general terms and conditions, and any special conditions appended hereto or documents incorporated herein.
- “Goods” shall mean those Goods identified in the Purchase Order.
- “Purchase Order” shall mean the Purchase Order between CTG and the Seller for the purchase of Goods or Services to which these terms and conditions of purchase are attached or are incorporated by reference.
- “Seller” shall mean the party identified as the Seller in the Purchase Order
- “Services” shall mean those Services identified in the Purchase Order.
- “Authorized/Franchised Seller” shall mean the Seller is authorized by the Original Contract/Equipment Manufacturer to distribute Goods or Services within the terms of a contractual agreement, including, but not limited to, distribution region, distribution products or lines, and warranty flow-down from the manufacturer.
2. Price and Payment:
(a) Unless otherwise specified, the prices established by the Purchase Order are firm fixed prices. (b) Seller warrants that any unit prices charged herein do not exceed the unit prices charged by Seller to other customers in substantially similar transactions. (c) All prices are in U.S. Dollars. (d) All duties, taxes, and other charges payable in the country of manufacture due under the laws of that country shall be borne by the Seller. Seller is liable for and shall pay all taxes, impositions, charges and exactions imposed on or measured by the Purchase Order except those CTG specifically agrees to pay or is required by law to pay. Prices shall include any and all taxes, including without limitation Value Added Tax (VAT). (e) Payment shall be made in U.S. Dollars. Payment shall be in the exact U.S. Dollar amount(s) listed on the Purchase Order. (f) Unless stated otherwise in the Purchase Order, CTG will pay Seller thirty (30) days after the receipt of a proper invoice or after Seller’s delivery of product, whichever is later.
CTG is entitled to set-off any amount owed to Seller by CTG. CTG is entitled to set-off any amount claimed against Seller.
4. Purchase Order Confirmation:
The Purchase Order must be confirmed in writing by Seller. In the event CTG does not receive a confirmed copy of the Purchase Order, CTG reserves the right to cancel the Purchase Order without liability to CTG. Notwithstanding CTG’s non-receipt of a signed confirmation of the Purchase Order, Seller’s commencement of performance also implies acceptance with the terms and conditions of CTG’s Purchase Order. Any additional or different terms and conditions which may appear in any communication from Seller are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by CTG’s head of Contracts and Procurement.
5. Drug Testing:
On or before acceptance of this Purchase Order and to the extent required by applicable law, Seller warrants and agrees that it will establish and thereafter maintain a drug testing program for those personnel if so employed by the Seller who perform sensitive safety related and security related functions as defined by the FAA’s Anti-Drug Program for Personnel Engaged in Specified Aviation Activities. Seller agrees that such program will comply with all requirements set forth by the FAA. Seller further agrees that it will furnish evidence of compliance with such program upon CTG’s request.
(a) By written order, CTG may from time to time direct changes for: (i) technical requirements; (ii) shipment or packing methods; (iii) place of delivery, inspection or acceptance; (iv) reasonable adjustments in quantities, delivery schedules, or both; (v) amount of CTG–furnished property; (vi) time of performance; and, (vii) place of performance. (b) If any such change causes an increase or decrease in the price or in the time required for its performance, Seller shall promptly notify CTG thereof and assert its claim for equitable adjustment with supporting documentation within thirty (30) days after such change is directed. The parties shall then negotiate an equitable adjustment for final amendment to this Purchase Order. However, nothing in this provision shall excuse Seller from proceeding immediately with the directed change(s). Changes shall not be binding upon CTG unless specifically confirmed in a CTG written Purchase Order or CTG written Change Order or other communication from CTG’s head of Contracts and Procurement. (c) CTG’s acceptance of Goods or Services shall not be considered acceptance of any additional or different terms or conditions from Seller.
7. Schedule and Delivery; Notice of Delay:
(a) Seller shall strictly adhere to all Purchase Order schedules. Time is and shall remain of the essence in the performance of the Purchase Order. Seller shall notify CTG, in writing, immediately of any actual or potential delay to the performance of the Purchase Order. Such notice of delay shall include a revised schedule and shall not constitute a waiver to CTG’s rights and remedies hereunder, including but not limited to CTG’s right to terminate the Purchase Order. (b) Seller’s late deliveries or deliveries of Goods or Services that fail to meet Purchase Order requirements may cause damages, costs, claims against and/or business disruption to CTG. CTG reserves the right to recover any expenses related to such damages, costs, and/or business disruption from the Seller and Seller shall indemnify CTG against any such losses, claims, damages and reasonable costs and expenses (including reasonable attorney’s fees and costs) directly attributable to Seller. (c) The order must not be shipped more than one week in advance of the time specified herein, without prior approval from CTG. (d) When more than one shipment is made against any order, indicate “Final Shipping” on shipping paper and invoice accompanying the last shipment in the order.
8. Representations, Insurance, and Financial Assurance Warranty:
(a) Seller represents and warrants that the Goods or Services to be delivered pursuant to CTG’s purchase order did not originate from prohibited sources, such as the People’s Republic of China (PRC), Cuba, Iran, Sudan, Burma or North Korea, unless otherwise agreed upon in writing by CTG. (b) Seller warrants all Goods against defects in design, manufacture, and performance for a period of one year following CTG’s acceptance. Seller warrants that Services will be performed in a workmanlike manner by someone with the necessary skills and experience to perform the Services. Seller’s standard warranties are available to, and for the benefit of, CTG and CTG’s customers and end users of Seller’s Goods or Services. (c) If the Purchase Order is for delivery of Goods, Seller shall observe, comply with and afford CTG all applicable Uniform Commercial Code express and implied warranties contained in the New York Consolidated Laws, and Seller hereby acknowledges that CTG does not waive or accept any disclaimer of any such warranties or damages resulting from Seller’s breach of warranty. (d) Seller represents and warrants that it possesses the financial means to support any and all of the contractual obligations that Seller has agreed upon pursuant to these terms and conditions and that Seller will make, upon reasonable notice, whatever financial records that Seller has in its possession available to CTG for CTG’s inspection to verify the aforementioned representation and warranty. (e) Seller further represents and warrants that Seller possesses adequate product liability insurance and third-party professional insurance to satisfy any claim of damages that CTG might incur as a result of the Goods or Services that Seller provides to CTG. Seller will make, upon reasonable notice from CTG, whatever insurance policies that a Seller has in its possession and control available to CTG for CTG’s inspection to verify the aforementioned representation and warranty. Seller agrees to adhere to any insurance requirements separately referenced in the Purchase Order.
9. Industry Alerts:
Seller must maintain a closed-loop process to use Industry Alerts/Government Industry Data Exchange Program (GIDEP) to identify, control and correct potential nonconforming material or Goods, including: timely review and notification of Industry Alerts for potential impact to all commodities; documenting impact assessment/disposition of Industry Alerts to evaluate for program impact (determination of actual usage of an alerted item); purging/quarantining of all affected stock, including work in process (WIP) and finished Goods; customer notification of impact to already shipped stock, impact to delivery schedules, etc.; submittal of program Bill of Material (BOM) to GIDEP Operations Center for evaluation; and establishing process for handling GIDEP notifications that a submitted bill of material (BOM) contains an alerted item.
10. Notification of Nonconforming Product:
Seller shall notify CTG of any nonconforming product detected by the Seller prior to shipment or at any time after delivery to CTG and obtain CTG approval for nonconforming product disposition. Upon receipt of notice of any non-conforming product by Seller, CTG shall have the right, at its sole discretion, to cancel this Purchase Order and, if CTG has already paid for the non-conforming product, Seller shall be required to fully reimburse CTG for the amount paid for the non-conforming product.
11. Notification of Changes in Product/Process Definition:
Seller shall notify CTG of any changes in product and/or process definition, changes of suppliers, and changes of manufacturing facility location that affects or could affect product inspection or acceptance.
(a) All charges for boxing, packing, crating, and storage are included in the price stated herein. Goods shall be suitably packaged and packed to secure the most economical transportation costs and to conform to the requirements of common carriers and any applicable specifications. (b) All packages must bear CTG’s Purchase Order number. (c) Goods received must be new, unused, and in original packaging. (d) Electrostatic Discharge sensitive (ESD) items are to be handled and shipped in accordance to an ESD Program, with a preference for ANSI/ESD S20.20. (e) Moisture Sensitive (MSD) parts are to be handled and shipped according to IPC/JEDEC J-STD-033B.1 (f) Date Codes, quantity, manufacturer, and description must be exactly as indicated on CTG’s Purchase Order without substitution. (g) If ordered Goods have a shelf life, the shelf life must be clearly indicated on the individual Goods shipped and such shelf life shall not be less than ninety (90) percent of full life or an alternative agreed on between the parties.
13. Shipping, Transfer of Title, and Risk of Loss:
(a) Unless otherwise specified in the Purchase Order, all Goods are to be shipped Freight Collect. Transfer of title occurs upon acceptance of Goods pursuant to the determined Incoterms of CTG’s Purchase Order. Where terms have not been explicitly listed on the Purchase Order, terms shall be EXW (Ex Works, INCOTERMS 2010), Seller’s point of origin (shipping paid by Purchaser). (b) DO NOT CHARGE INSURANCE except upon CTG’s written request (CTG insurance binder available upon request). (c) Regardless of F.O.B. point, Seller agrees to bear all risk of loss, injury, or destruction until CTG accepts the Goods. (d) No such loss, injury, or destruction shall release Seller from any obligations hereunder.
14. Inspection and Acceptance:
(a) CTG’s acceptance of Goods or Services is subject to CTG’s final inspection within sixty (60) days after receipt at CTG’s facility or such other place as may be designated by CTG, notwithstanding any payment or prior test or inspection. (b) Seller must supply traceability to the Original Contract/Equipment Manufacturer with the shipment. (c) All material or Goods or Services purchased from Seller shall pass IDEA-STD-1010 inspection standards or any other applicable aerospace standards prior to acceptance. (d) Seller is responsible for all costs associated with Restriction of Hazardous Substances (RoHS) noncompliance returns and will accept a full return for all parts not meeting RoHS compliance criteria if necessary. Seller is 100% responsible for all monetary and/or rework costs associated with Goods or Services failures in addition to any further cost associated with Goods or Services failures. (e) All electronic components will be inspected per the IDEA-STD-1010 inspection process guidelines. (f) CTG reserves the right to reject and return any Goods, at the vendor’s expense, that do not comply with the IDEA-STD-1010 standard, AS5553 Requirements, and the American Society of Quality (ASQ) Requirements. (g) Unless otherwise agreed upon in writing and noted on CTG’s Purchase Order, all Goods must be new, unused, in good condition and in original packaging. (h) Refurbished electronic components that are programmed or have bent, formed, or oxidized leads, test dots or test marks will be rejected. (g) Seller shall certify whether all aircraft parts supplied were or were not subjected to conditions of extreme stress, heat, or environment. Seller shall disclose whether aircraft parts supplied were or were not obtained from any government or military services. Seller shall also meet the requirements that are set forth in ASA-100, ATA Specification 106, and FAA AC 00-56. (h) CTG and CTG’s representatives shall have the right of access, on a non-interference basis, to any area of Seller or Seller’s supply chain sub-tier premises where any part of the Purchase Order is being performed. Seller shall flow this requirement down to its sub tier supply chain suppliers as a condition of the Purchase Order. Seller shall, without additional costs to CTG, provide all reasonable in-plant accommodations, facilities, and assistance for the safety and convenience of CTG and CTG representatives in the performance of their duties. (i) Seller acknowledges and agrees that the CTG Supplier Quality requirements are incorporated herein by this reference. (j) Seller is responsible for delivering the specified order quantity per the purchase order. Any excess quantities delivered will be treated as for the convenience of the Seller. Seller is not entitled to an increase in price or additional payments for the delivery of excess quantities. Buyer may retain excess quantities without compensating Seller and Seller waives all rights, title, and interest therein. Seller may contact Buyer within ten (10) days of shipment if Seller believes it has over-shipped to Buyer and Buyer will attempt to coordinate a return or other disposition, where possible, to Seller at Seller’s expense. Buyer maintains authority to disposition excess quantities as determined by Buyer. Buyer is not liable to Seller if it has already dispositioned the goods.
15. Suspect Parts/Counterfeit Parts:
Seller shall not deliver suspect parts/counterfeit Goods to CTG. Seller understands and agrees that counterfeit Goods have no value to CTG and pose the risk of consequential damages to CTG (including CTG’s reasonable attorney’s fees), for which Seller shall be liable. All Goods deemed by CTG in its sole discretion suspect counterfeit or counterfeit will be dispositioned and mitigated per AS5553 and AS6081, at Seller’s cost. Seller agrees and acknowledges that Goods rejected by CTG due to the fact that they are considered either counterfeit or suspect counterfeit shall be held, transported, and/or stored by CTG at Seller’s sole expense. Seller shall promptly reimburse CTG for any such expenses. Unless the Goods that are considered suspect counterfeit or counterfeit are deemed acceptable by an independent testing laboratory chosen jointly by the Parties, the subject Goods shall not be returned to Seller. Defective Goods purchased Cash on Delivery (COD) will be returned COD to Seller or the COD check will be cancelled, at CTG’s discretion. CTG reserves the right to send such Goods to the appropriate manufacturer and appropriate authorities for investigation. Seller shall be liable for all costs and expenses (including CTG’s reasonable attorney’s fees) relating to impound, investigation, removal, test, and inspection or replacement of suspect/counterfeit Goods. Seller shall be liable for the prevention, detection, and removal of foreign objects from products per NAS412 or similar practices to ensure product conformity. Seller must ensure their personnel are aware of their obligations and contributions to product conformity, products safety, and ethical behavior.
16. Hazardous Materials:
Seller certifies that all Goods sold to CTG are free of hazardous materials, unless otherwise specified on CTG’s Purchase Order. If Seller is providing hazardous material to CTG, a current safety data sheet for all hazardous Goods must be on file with Seller’s Environmental Health and Safety Department. If Seller changes manufacturing for the Good or is shipping the Good for the first time, a current safety data sheet must be provided by Seller to CTG’s Environmental Health and Safety Department prior to shipment. Additionally, all initial shipments of hazardous materials must include a copy of the current safety data sheet.
17. Conflict Minerals:
Seller certifies that none of the Goods sold to CTG contain any conflict minerals and none of the Goods sold to CTG are sourced from any country identified in 17 C.F.R.§ 240.13p-1.
If Seller delivers nonconforming or defective Goods or Services, CTG may, at its option and Seller’s expense: (i) return the Goods for refund or credit; (ii) require Seller to promptly correct or replace the Goods or Services; (iii) correct the nonconformance or defect; or (iv) obtain conforming Goods or Services from another source. If CTG selects option (iv), then Seller shall bear responsibility for the difference in price between the Goods or Services provided by Seller and the Goods or Services provided by the other source. If CTG selects option (ii) and Seller fails to timely deliver replacement Goods or Services, then CTG may replace them with goods from a third party supplier and charge Seller the cost thereof. CTG shall specify the reason for any return or rejection of nonconforming Goods or Services and/or shall describe the action taken. Seller shall be liable for any increase in costs, including procurement costs, attributable to CTG’s rejection of the nonconforming Goods or Services.
19. Force Majeure:
The following events, and only the following events, shall constitute Force Majeure under the Purchase Order: (a) acts of God or of a public enemy; (b) acts of Government (including government law or order); (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) freight embargoes; (i) terrorism, and (j) unusually severe weather. In each case, the failure to perform must be entirely beyond the control and without the fault or negligence of the Seller. Each party shall give the other party prompt notice in writing of any event that such party claims is a Force Majeure Condition that would prevent the party from performing its obligations hereunder, and of the cessation of the condition. A party’s notice under this Section shall include the party’s good faith estimate of the likely duration of the Force Majeure Condition. In the event of Force Majeure, CTG reserves the right to cancel this Purchase Order without any liability to Seller. Upon conclusion of a Force Majeure, Seller shall resume performance as soon as reasonably practicable.
20. Stop Work:
CTG may at any time, by written notice to Seller, require Seller to stop all or any part of the work called for by the Purchase Order for a period of up to ninety (90) business days after the notice is delivered to Seller (“Stop Work Order”). Upon receipt of the Stop Work Order, Seller shall immediately comply and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order. Within a period of ninety (90) business days after a Stop Work Order is delivered to Seller, or within any extension of that period to which the parties have agreed, CTG shall either cancel the Stop Work Order, or terminate the work for default or convenience, whichever may be deemed appropriate in CTG’s sole discretion. Seller shall resume work immediately upon cancellation or expiration of any Stop Work Order. If Seller delivers to CTG a request for equitable adjustment to the Purchase Order’s delivery schedule or price (or both) within the period set forth in the Changes section, CTG may agree to an adjustment if the Stop Work Order has resulted in an increase in the time required for the performance of the Purchase Order or in Seller’s costs properly allocable to the Purchase Order. The amount of any adjustment in the Contract price shall be determined as provided in the Section 6. Seller shall commence work once a Stop Work Order is lifted, even if the Parties have not finalized agreement on the final price or schedule (or both) impacts.
21. Termination for Convenience:
(a) CTG may, by notice in writing, direct Seller to terminate work under the Purchase Order in whole or in part, at any time, and such termination shall not constitute default. In such event, CTG shall have all rights and obligations accruing to it either at law or in equity, including CTG’s rights to title and possession of the Goods and materials paid for. CTG may take immediate possession of all work so performed upon notice of termination. (b) Seller shall immediately stop work and limit costs incurred on the terminated work. (c) If such termination is for the convenience of the CTG, CTG, after deducting any amount(s) previously paid, shall reimburse Seller for the actual, reasonable, substantiated, and allowable costs as determined by CTG. Seller is required to submit such proposed costs and supporting documentation within ten (10) days of notice of termination for convenience.
22. Termination for Default:
(a) CTG may, by written Notice of Default to Seller, terminate the Purchase Order in whole or in part, or, at CTG’s sole discretion, require the Seller to post such financial assurance as CTG deems reasonably necessary, if the Seller delivers suspect counterfeit Goods or counterfeit Goods or used Goods represented as new or if the Seller fails to: (i) deliver the Goods or perform the Services within the time specified in the Purchase Order or any extension; (ii) make progress, so as to endanger performance of the Purchase Order; or, (iii) perform any of the other provisions of the Purchase Order. (b) CTG may require Seller to transfer title and deliver to CTG, in the manner and to the extent directed by CTG, any partially completed Goods or raw material, parts, tools, dies, jigs, fixtures, plans, drawings, Services, information and contract rights (Materials) as Seller has produced or acquired for the performance of the Purchase Order, including the assignment to CTG of Seller’s subcontracts. Seller further agrees to protect and preserve property in the possession of Seller in which CTG has an interest. Payment for completed Goods or Services delivered to and accepted by CTG shall be at the Contract price. Payment for unfinished Goods or Services, which have been delivered to and accepted by CTG, shall be at a price determined in the same manner as provided in the Termination for Convenience provision hereof but said price shall be no greater than Seller’s cost. CTG may withhold from Seller money otherwise due Seller for completed Goods and/or Materials in such amounts as CTG determines necessary to protect CTG against loss due to outstanding liens or claims against said Goods and Materials. (c) Seller shall promptly notify CTG if Seller is the subject of any petition in bankruptcy. In the event of Seller’s bankruptcy, CTG may require Seller to post such financial assurance, as CTG, in its sole discretion, deems necessary. Failure to post such financial assurance upon ten (10) days written notice shall constitute a default. The rights and remedies of CTG in this clause are in addition to any other rights and remedies provided by law.
23. Products, Methods, and Processes:
Any knowledge or information which the Seller shall have disclosed or may hereafter disclose to CTG incident to the placing and filling of this Purchase Order shall not, unless otherwise specifically agreed upon in writing by CTG, be deemed to be confidential or proprietary information, and accordingly shall be acquired free from any restrictions (other than restrictions which may derive from a valid patent). Seller shall be solely responsible for alerting CTG to any confidential or proprietary information and obtaining CTG’s agreement in writing to utilize such information, failing which all such information shall be deemed acquired by CTG free from any restrictions.
24. CTG’s Property:
Any materials, drawings, tools, jigs, dies, fixtures, or any other property supplied or paid for by CTG will remain the property of CTG and must be returned to CTG upon CTG’s request. Seller shall not duplicate, reverse-engineer, or otherwise use CTG’s property except for performance of work under the Purchase Order or as authorized in writing by CTG’s Authorized Procurement Representative. CTG’s’ property, while in Seller’s possession or control, shall be kept in good condition, shall be held at Seller’s risk, and shall be kept insured by Seller, at Seller’s expense, in an amount equal to the replacement cost with loss payable to CTG. If CTG’s property has been damaged, stolen, destroyed, or is malfunctioning, Seller shall notify CTG in writing within two (2) business days. Seller must clearly mark CTG’s property, maintain inventory, and keep the property segregated. Any scrap generated from or by CTG furnished property shall be segregated from Seller’s property and placed in a separate area or container. Before removal of the container or its contents, Seller shall request directions from CTG’s Operations Department. Seller will prepare shipping documents denoting date, contents, weight, and recipient of the scrap material. Shipping documents shall be sent directly to CTG’s Operations Department. Under no circumstances shall scrap material be removed from Seller’s premise without CTG’s Operations Department approval.
25. Release of Information to Public:
Seller shall not, without the prior written consent of CTG, release information concerning this Purchase Order or release any other information related to CTG (other than release of information to Seller’s employees, consultants, contractors, and subcontractors required for the performance of the Purchase Order). Seller shall not use the name of CTG in any advertising or publicity, except as may be necessary to comply with proper legal demand or as authorized by CTG in writing prior to any such use.
Seller shall not assign or delegate performance of this Purchase Order with CTG’s express written consent. Seller shall not assign or delegate or any of the Purchase Order’s rights or obligations without CTG’s express written consent. CTG may treat Seller’s violation of this Section as a material breach by Seller.
27. Record Retention:
Seller shall keep and maintain inspection, certification, test, quality, supplier, and related records for a minimum of 10 years from the date of shipment unless otherwise specified in the Purchase Order. Seller shall make such records available to CTG or CTG’s representative upon reasonable notice. Seller shall allow CTG or CTG’s representative to make copies of records and keep such records. Seller shall furnish all information required by CTG or CTG’s representative.
28. Standards of Conduct:
(a) Seller represents that neither it nor any of its officers, directors, employees, agents, contractors or other representatives has offered or shall offer or promise to pay, or authorize the payment of, any money or services or anything else of value, either directly or indirectly through a third party, or via any kickback to any political official or employee of a public agency or government entity for the purpose of (i) influencing any act or decision of that person in his official capacity(ii) inducing such person to use his influence to affect or influence any act or decision thereof or (iii) securing any improper advantage. Seller warrants and represents that it will maintain its books and records under “generally accepted accounting principles”, and in a proper, responsible and honest manner, in order for CTG and the Seller to comply with applicable United States and International laws. (b) Seller warrants and represents that it has not been convicted of, or pleaded guilty to, an offense involving fraud, corruption, or moral turpitude, and it is not now listed by any Government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in Government procurement programs or other Government contracts. (c) Seller represents and warrants that, to the best of its knowledge and belief, neither it nor any of its officers, directors, employees or agents, are presently, nor does it have any reason to believe that it or they may become, the subject of any investigation by any agency or other law enforcement body in connection with a government procurement matter that could materially impact its ability to perform its obligations under the Purchase Order. (d) Further, in the event that either Seller (i) becomes the subject of such an investigation, (ii) has reason to believe that it might become the subject of such an investigation, or (iii) has credible evidence that a principal, employee, agent, or subcontractor of Seller has committed a violation of law involving false claims, fraud, conflict of interest, bribery, kickbacks, or gratuity violations, it shall immediately notify CTG and promptly provide CTG with a detailed written explanation of all the material facts and circumstances of such actual or potential investigation, except to the extent restricted by a governmental agency. (e) Seller represents it does not have any organizational conflict of interest identified by applicable regulation or prime contract term related to this Agreement. If CTG determines that an actual or potential conflict of interest exists and that such conflict cannot reasonably be mitigated through good faith negotiations, CTG may terminate the Purchase Order without liability to CTG. (f) Seller’s breach of this Section shall be considered a material breach of the Purchase Order and may result in CTG’s termination of Seller for default.
29. Government Regulations:
Seller shall have in effect all licenses, permits and authorizations, and cyber security standards that are legally necessary or commercially advisable to perform the Purchase Order, including any obligations post delivery of Goods or Services. Seller shall at all times abide by all local, regional and international laws, rules and regulations applicable to its activities including, but not limited to (1) the United States Foreign Corrupt Trade Practices Act of 1977, as amended, (2) U.S. Export Administration Regulations, (3) International Traffic in Arms Regulations, (4) USA Patriot Act, as amended, (5) U.S. Treasury regulations, (6) anti-dumping laws, and (7) all other U.S. or international laws and regulations related to Seller’s requirements under this Purchase Order. Seller shall notify CTG, in writing, immediately of any seizures by the U.S. Customs and Border Protection (U.S. Customs or CBP). If a party to this Purchase Order is provided notice, correspondence, subpoena, or other contact that a governmental investigation has been initiated related to this Purchase Order, the party shall immediately notify the other party in writing of the investigation or inquiry. The parties agree to assist one another in responding to or defending against any governmental inquiry into the parties’ compliance with the applicable laws or regulations. Seller’s breach of this Section shall be considered a material breach of the Purchase Order and may result in CTG’s termination of this Purchase Order for default. Seller shall be responsible for notifying CTG in Seller’s proposal or quota of any intellectual property restrictions, including but not limited to, Limited Rights, Government Purpose Rights, or Restricted Rights assertion relating to the Goods or Services and requesting that CTG make such assertion to appropriate governmental authorities. However, the responsibility for ensuring that the appropriate assertion is made to appropriate governmental authorities shall remain with Seller. Seller will provide an appropriate license to CTG related to any such intellectual property assertions so CTG can comply with its obligations to governmental authorities. Section 889 compliance: Seller represents and warrants that it will not provide covered telecommunications equipment or services (as defined in FAR 52.204-25 and 52.204-26) to CTG or the Government in the performance of this order. Seller further warrants that it does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. If Seller will provide or does use such equipment or services, Seller will immediately contact CTG for appropriate disclosures pursuant to applicable Federal Acquisition Regulations.
Seller shall indemnify, defend and hold harmless CTG, its subsidiaries, successors, assigns, and its affiliates, and their respective directors, officers, shareholders, employees, agents, and CTG’s customers (collectively the “Indemnified Parties” and individually an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, deficiencies, actions, judgments, fines, awards, civil penalties, costs and expenses of any kind or nature whatsoever (including but not limited to interest, court costs, reasonable attorney’s fees and the cost of enforcing any right to indemnification hereunder) which in any way arise out of or result from any Services or Goods sold to CTG by Seller (or anyone directly or indirectly employed by Seller or anyone for whose acts Seller may be liable) in connection with any defect or deficiency in the Services or Goods sold to CTG, or Seller’s failure to perform the Services or provide the Goods, including injury to or death of any person, damage to or destruction of any property(real or personal (including but not limited to property owned, leased or under the control of CTG)), and liability or obligations under or with respect to any violation of international, federal, state or local laws, regulations, rules, codes and ordinances (including but not limited to those concerning environmental protection). This Section shall apply regardless of whether or not the damage, loss or injury complained of arises out of or relates to the negligence, willful misconduct or the breach of these terms and conditions (whether active, passive or otherwise) of, or was caused in part by, an Indemnified Party. Nothing contained in this Section shall be construed as a release or indemnity by Contractor of an Indemnified Party from or against any loss, liability or claim arising from the sole negligence or willful misconduct of that Indemnified Party. This Section shall not be construed to negate, abridge or otherwise reduce any other right to indemnity which would otherwise exist in favor of any Indemnified Party, or any other obligation of Seller to indemnify an Indemnified Party. Seller’s obligations under this Section shall not be limited in any way by any limitations on the amount or type of damages, compensation or benefits paid or payable by Seller under Workers Compensation Acts, disability benefits acts or other employee benefit laws or regulations. The indemnification obligations of this Section shall survive termination or expiration of this Purchase Order. Seller agrees, in any instance where claims, suits, actions or legal proceedings are brought against the Seller and in any way affect CTG’s interests under this Order or otherwise, that (i) Seller shall notify CTG in a timely manner (not to exceed five (5) business days) after learning of any actual or threatened claims, suits, actions of legal proceedings, and shall not at any time consummate any settlement without CTG’s prior written consent; and (ii) without releasing any obligation, liability or undertaking of Seller to indemnify CTG hereunder, CTG shall have the right to (1) cooperate in the defense of such claim, (2) with permission of the court, intervene in any such action, and (3) supersede Seller in the defense of any such claim.
31. Intellectual Property:
Seller agrees to defend, indemnify, and hold harmless CTG, its customers and its agents against any liability, including without limitation costs, expenses and reasonable attorney’s fees, for or by reason of any actual or alleged infringement of the intellectual property rights of any third party, including, without limitation, any patent, trademark or copyright arising out of the manufacture, use, sale, delivery or disposal of Goods or Services furnished pursuant to Purchase Order, except to the extent attributable solely to Seller’s compliance with specific written instructions issued by CTG’s Authorized Procurement Representative. This provision shall apply to each notice or claim of patent, copyright or other type of infringement relating to the performance of the Purchase Order of which Seller has knowledge, regardless of whether or not CTG has given Seller notice of such claim.
32. Independent Contractor Relationship:
The relationship between the parties is that of independent contractors and not that of principal and agent, employer and employee, joint employers or legal partners. Neither party will represent itself as the agent or legal partner of the other party nor perform any action that might result in another party believing that it has any authority to bind or enter into commitments on behalf of the other.
33. Electronic Information Transactions:
The parties may carry out business electronically, including Purchase Order placement or modification/amendment. Unless the security, authenticity, or integrity of an electronic Purchase Order or EDI message is compromised, the parties intend to be legally bound by electronic Purchase Orders or EDI messages created, sent and received pursuant to these terms and conditions. The parties expressly waive any rights to contest the validity of Purchase Orders and amendments/modifications on the sole ground that they were performed electronically or by EDI. The parties agree to give to electronic Purchase Orders and EDI messages the same probative value as exchanges by registered mail. Neither party shall contest the admissibility as evidence of EDI messages, provided they are created and exchanged in accordance with the provisions of these terms and conditions. The parties shall adopt applicable security measures for password and access protection for Purchase Orders issued in an electronic transaction.
34. Governing Law, Jurisdiction and Disputes:
All matters arising out of or related to the Purchase Order or these terms and condition for purchase shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or relating to the Purchase Order or these terms and condition for purchase shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. For disputed matters and claims involving U.S. Government customers, the matter will be resolved in accordance with the statutory, regulatory, and common law of the U.S. as they apply to procurements of goods and services by the United States, to the extent applicable.
35. Attorneys’ Fees:
If any action or proceeding relating to the Purchase Order or these terms and conditions or the enforcement of any provision of the Purchase Order or these terms and conditions is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
36. Confidential and Proprietary Information:
If the parties have a valid non-disclosure agreement, proprietary information agreement, or confidential information agreement, then the terms of such agreement shall apply to this Purchase Order. In the event such agreement does not exist, the parties agree that CTG’s Confidential Information (work product, business operations and marketing data, CTG’s customer or vendor information, computer software, technical data, patents, trade secrets, etc.) is and shall remain the sole property of CTG , and CTG is and shall be the sole owner of all rights, title and interest in connection therewith, and that no license is granted to Seller as a result of disclosures made pursuant to this Purchase Order. Confidential Information includes information designated as confidential or proprietary information by CTG , or from all the relevant circumstances should reasonably be assumed by the Seller to be confidential and proprietary. Seller agrees to hold in confidence and to maintain as confidential all Confidential Information, and to promptly notify disclosing party of any unauthorized disclosure or release of any Confidential Information to any third party. Seller agrees not to disclose any Confidential Information to any third party without the prior written consent of CTG Seller further agrees not to make use of any Confidential Information except to fulfill its obligations to CTG pursuant to this Purchase Order. Specifically, Seller agrees (a) not to use Confidential Information to solicit any CTG customer or otherwise compete against CTG for sales to CTG customers now of in the future, (b) not to reverse engineer or analyze in any way products or samples received from under this Purchase Order, (c) to maintain any products or samples received from CTG under this Purchase Order in confidence, (d) not to cause or allow any third party to reverse engineer or analyze in any way any products or samples received from CTG under this Purchase Order, and (e) not to use Confidential Information to solicit any of CTG’S customers or suppliers. In furnishing any information or materials relating to the Purchase Order, whether Confidential Information or otherwise, CTG (a) makes no warranty, guarantee, or representation, either expressed or implied (i) as to its adequacy, accuracy, sufficiency, or freedom from defects; or (ii) that use or reproduction of any such information or data shall be free from any patent, trade secret, trademark or copyright infringement, and (b) shall not be liable in damages, of whatever kind, as a result of Seller’s receipt or use of, or reliance on, any such information or data furnished hereunder. Upon CTG’s request, Seller shall immediately return or destroy, at CTG’s option, all Confidential Information in its possession. In addition to any other remedies available to CTG, CTG shall be entitled to injunctive relief for any violation of this section.
37. Compliance with Law:
Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller shall comply with all anti-corruption, export, and import laws of all countries involved in the sale of Goods or Services. By accepting this purchase order: (1) Seller affirms that it is not debarred, suspended, proposed for debarment, or otherwise ineligible from doing Government business. Seller shall immediately disclose to Purchaser if it is debarred, suspended, proposed for debarment, or otherwise ineligible. (2) Seller affirms that for Government business, its latest representations and certifications are complete in the System for Award Management (SAM). (3) To the extent Seller is subject to NIST 800-171 requirements in accordance with DFARS 252.204-7012, Seller represents it has completed a basic NIST assessment and submitted or will submit such assessment to the Government’s Supplier Performance Risk System. (4) Seller affirms it abides by applicable laws that prohibit discrimination against qualified individuals based on status as protected veterans, disabilities, race, color, religion, sexual orientation, sex, gender identity, or national origin.
All notices, requests, consents and waivers hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other addresses that may be designated. All notices shall be delivered by (i) email (if provided) and (ii) personal delivery, nationally recognized overnight courier, facsimile or certified or registered mail. A notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the notice has complied with the requirements of this section.
39. Product Warranties:
Seller extends any and all Seller or Original Equipment Manufacturer (OEM) warranties to Purchaser and Purchaser’s customers and end users for a period of one year from the acceptance of goods or services by Purchaser’s customers or end users.
40. Complete Agreement:
The Purchase Order, which includes these terms and conditions as well as any supplementary sheets, schedules, exhibits, and/or attachments provided by CTG to Seller, is the complete and entire agreement between the parties with respect to the subject matter of the Purchase Order, when accepted by Seller’s confirmation, commencement of performance, or performance. The Purchase Order supersedes any other communications, representations or agreements between the parties whether verbal or written. The Purchase Order may be accepted only on all the terms and conditions herein stated.
Additional Terms and Conditions for Government Orders
Where this Purchase Order is in support of a U.S. Government contract (including U.S. Government Foreign Military Sales (FMS)) at any tier, the Commercial Item provisions of Federal Acquisition Regulations, including but not limited to, (FAR) 52.204-16 and FAR 52.244-6 are incorporated herein by reference, with the same force and effect as if they were provided in full text. Seller shall include the applicable terms of these clauses in subcontracts or purchase orders awarded under this Purchase Order (full text can be found at https://www.acquisition.gov/far/. Seller agrees to comply with other U.S. Government contract requirements and flow-down provisions, as applicable, including but not limited to, Buy American Act provisions and the Defense Priorities and Allocations System (15 CFR 700, FAR 52.211-15), FAR and Defense Federal Acquisition Regulation Supplement (DFARS) flow-down provisions applicable to this Purchase Order, which can be found here.
FORM 803-08 REVISION 8 8/31/21