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Terms & Conditions:
THE BOEING COMPANY GENERAL PROVISIONS
(Cost Reimbursement Contract Under Government Prime
Contract)
GP 4 02/01/2001
1. FORMATION OF
CONTRACT.
This proposed
contract is Buyer's offer to purchase the goods and services ("Goods")
described in this offer. Acceptance is strictly limited to the terms
and conditions in this offer. Unless specifically agreed to in writing
by Buyer's Authorized Procurement Representative, Buyer objects to,
and is not bound by, any term or condition that differs from or adds
to this offer. Seller's commencement of performance or acceptance of
this offer in any manner shall conclusively evidence acceptance of this
offer as written.
2. SCHEDULE
a. Seller shall strictly
adhere to the shipment or delivery schedules specified in this contract.
In the event of any anticipated or actual delay, Seller shall: (i)
promptly notify Buyer in writing of the reasons for the delay and
the actions being taken to overcome or minimize the delay; (ii) provide
Buyer with a written recovery schedule; and (iii) if requested by
Buyer, ship via air or expedited routing to avoid or minimize delay
to the maximum extent possible, unless Seller is excused from prompt
performance as provided in the "Excusable Delays" article
of this contract. The added premium transportation costs are to be
borne by Seller and are not considered as an allowable cost under
this contract.
b. Seller shall not deliver Goods prior to the scheduled delivery
dates unless authorized by Buyer.
3. PACKING AND SHIPPING
a. Seller shall pack
the Goods to prevent damage and deterioration. Seller shall comply
with carrier tariffs. Unless this contract specifies otherwise, the
price includes shipping charges for Goods sold F.O.B. destination.
Unless otherwise specified in this contract, Goods sold F.O.B. place
of shipment shall be forwarded collect. Seller shall make no declaration
concerning the value of the Goods shipped except on Goods where the
tariff rating is dependent upon released or declared value. In such
event, Seller shall release or declare such value at the maximum value
within the lowest rating. Buyer may charge Seller for damage to or
deterioration of any Goods resulting from improper packing or packaging.
b. Unless this contract specifies otherwise, Seller will ship the
Goods in accordance with the following instructions:
(i) Shipments by
Seller or its subcontractors must include packing sheets containing
Buyer's contract number, line item number, description and quantity
of Goods shipped, part number or size, if applicable, and appropriate
evidence of inspections. A shipment containing hazardous and nonhazardous
materials must have separate packing sheets for the hazardous and
nonhazardous materials. Seller shall not include vermiculite or
other hazardous substance in any packing material included with
the Goods. Items shipped on the same day will be consolidated on
one bill of lading or airbill unless Buyer's Authorized Procurement
Representative authorizes otherwise. The shipping documents will
describe the material according to the applicable classification
and/or tariff. The total number of shipping containers will be referenced
on all shipping documents. Originals of all Government bills of
lading will be surrendered to the origin carrier at the time of
shipment.
(ii) Seller will not insure any F.O.B. origin shipment unless authorized
by Buyer.
(iii) Seller will label each shipping container with the contract
number and the number that each container represents of the total
number being shipped (e.g., box 1 of 2, box 2 of 2).
(iv) Buyer will select the carrier and mode of transportation for
all shipments where freight costs will be charged to Buyer.
(v) Seller will include copies of documentation supporting prepaid
freight charges (e.g., carrier invoices or UPS shipping log/manifest),
if any, with its invoices.
(vi) If Seller is unable to comply with the shipping instructions
in this contract, Seller will contact Buyer's Traffic Management
Department referenced elsewhere in this contract or Buyer's Authorized
Procurement Representative.
4. QUALITY CONTROL.
Seller shall establish and maintain a quality control system acceptable
to Buyer for the Goods purchased under this contract. Seller shall permit
Buyer to review procedures, practices, processes and related documents
to determine such acceptability. Seller shall have a continuing obligation
to promptly notify Buyer of any violation of or deviation from Seller's
approved inspection/quality control system and to advise Buyer of the
quantity and specific identity of any Goods delivered to Buyer during
the period of any such violation or deviation.
5. RIGHTS OF BUYER'S
CUSTOMERS AND REGULATORS TO PERFORM INSPECTION, SURVEILLANCE AND TESTING.
Buyer's rights to perform inspections, surveillance and tests and to
review procedures, practices, processes and related documents related
to quality assurance, quality control, flight safety and configuration
control shall extend to the customers of Buyer that are departments,
agencies or instrumentalities of the United States Government and to
the United States Government Federal Aviation Administration and any
successor agency or instrumentality of the United States Government.
Buyer may also, at Buyer's option, by prior written notice from Buyer's
Authorized Procurement Representative, extend such rights to other customers
of Buyer and to agencies or instrumentalities of foreign governments
equivalent in purpose to the Federal Aviation Administration. Seller
shall cooperate with any such United States Government-directed or Buyer-directed
inspection, surveillance, test or review without additional charge to
Buyer. Nothing in this contract shall be interpreted to limit United
States Government access to Seller's facilities pursuant to law or regulation.
6. SELLER NOTICE
OF DISCREPANCIES.
Seller shall immediately notify Buyer in writing when discrepancies
in Seller's process or product are discovered or suspected regarding
Goods delivered or to be delivered under this contract.
7. INSPECTION OF
SUPPLIES.
(Applicable only if supplies will be delivered.) FAR 52.246-3, "Inspection
of Supplies - Cost Reimbursement,"is incorporated by reference.
"Contractor" means Seller, "Government" means Buyer
and in paragraph (f) "6 months" is revised to read "12months."
8. INSPECTION OF
SERVICES.
(Applicable only if services will be provided.) FAR 52.246-5, "Inspection
of Services - Cost-Reimbursement," is incorporated by reference.
"Contractor" means Seller and "Government" means
Buyer.
9. WARRANTY.
Seller warrants that any hardware, software and firmware delivered under
this contract shall be able to accurately process date/time data (including,
but not limited to, calculating, comparing and sequencing) from, into
and between the twentieth and twenty-first centuries, and the years
1999 and 2000 and leap year calculations to the extent that other information
technology, used in combination with the information technology being
acquired, properly exchanges date/time data with it. The duration of
this warranty and the remedies available to Buyer for breach of this
warranty shall be as defined in, and subject to, the other warranties
contained in this contract, provided that notwithstanding any provision
to the contrary in such warranties, the remedies available to Buyer
under this warranty shall include repair or replacement of any noncompliant
product discovered and made known to Seller in writing. Nothing in this
warranty shall be construed to limit any rights or remedies Buyer may
otherwise have under this contract with respect to defects other than
year-2000 performance.
10. LIMITATION OF
COST.
(Applicable if this
contract is fully funded.) FAR 52.232-20, "Limitation of Cost,"
is incorporated by reference. "Schedule" means this contract,
"Contractor" means Seller and "Government" and
"Contracting Officer" mean Buyer. The word "exclusive"
in the first sentence of paragraph (a) is revised to "inclusive"
and paragraph (d)(1) is revised to read:
"(1) Buyer is
not obliged to reimburse Seller for costs incurred and fee in excess
of (i) the estimated cost and fee specified in the contract or, (ii)
if this is a cost-sharing contract, the estimated cost to Buyer specified
in the Contract."
11. LIMITATION OF
FUNDS.
(Applicable if this
contract is incrementally funded.). FAR 52.232-22, "Limitation
of Funds," is incorporated by reference. "Schedule"
means this contract, "Contractor" means Seller "Government"
and "Contracting Officer" means Buyer. The word "exclusive"
in the second sentence of paragraph (b) is revised to "inclusive"
and subparagraph (f)(1) is revised to read:
"(1) Buyer is
not obliged to reimburse Seller for costs incurred and fee in excess
of the total amount allotted by Buyer to this contract; and"
12. TAXES.
Unless this contract specifies otherwise, the price of this contract
includes, and Seller is liable for and shall pay, all taxes, impositions,
charges and exactions imposed on or measured by this contract except
for applicable sales and use taxes that are separately stated on Seller's
invoice. Prices shall not include any taxes, impositions, charges or
exactions for which Buyer has furnished a valid exemption certificate
or other evidence of exemption.
13. INVOICE AND
PAYMENT
a. Unless otherwise
authorized by Buyer, Seller shall issue a separate original invoice
for each delivery, which shall include Buyer's contract number and
line item number. Seller shall not issue any invoice prior to the
scheduled or actual delivery date, whichever is later. Unless freight
or other charges are itemized, Buyer may take any offered discount
on the full amount of the invoice. Payment due date, including discount
periods, shall be computed from the later of the scheduled delivery
date, the actual delivery date or the date of receipt of a correct
invoice. Payment shall be deemed to have been made on the date Buyer's
check is mailed or payment is otherwise tendered. Seller shall promptly
repay to Buyer any amounts paid in excess of amounts due Seller.
b. Payment of fee will be made in monthly installments based upon
the percentage of completion of this contract, as determined by Buyer.
Payment will be deemed made on the date that Buyer's check is mailed
or otherwise tendered.
c. Except as provided in this article, payment will be made in accordance
with the following clauses of the Federal Acquisition Regulations
("FAR"), which are incorporated by reference. In each of
the following clauses, "Contractor" means Seller, "Contracting
Officer" and "Government" mean Buyer and "Disputes
Clause" means the Disputes Clause of this contract.
(i) FAR 52.216-7
Allowable Cost and Payment
(ii) FAR 52.216-8 Fixed Fee, if this is a cost-plus-fixed fee contract
(iii) FAR 52.216-10 Incentive Fee, if this is a cost-plus-incentive
fee contract. Paragraph (e) is set forth in full elsewhere in this
contract.
14. CHANGES
a. Buyer's Authorized
Procurement Representative may, without notice to sureties and in
writing, direct changes within the general scope of this contract
in any of the following: (i) technical requirements and descriptions,
specifications, statement of work, drawings or designs; (ii) shipment
or packing methods; (iii) place of delivery, inspection or acceptance;
(iv) reasonable adjustments in quantities or delivery schedules or
both; (v) amount of Buyer-furnished property; and, if this contract
includes services, (vi) description of services to be performed; (vii)
time of performance (e.g., hours of the day, days of the week, etc.);
and (viii) place of performance. Seller shall comply immediately with
such direction.Procurement
b. If such change increases or decreases the cost or time required
to perform this contract, the parties shall negotiate an equitable
adjustment in the price or schedule, or both, to reflect the increase
or decrease. Buyer shall modify this contract in writing accordingly.
Unless otherwise agreed in writing, Seller must assert any claim for
adjustment to Buyer's Authorized Procurement Representative in writing
within 25 days and deliver a fully supported proposal to Buyer's Authorized
Procurement Representative within 60 days after Seller's receipt of
such direction. Buyer may, at its sole discretion, consider any claim
regardless of when asserted. If Seller's proposal includes the cost
of property made obsolete or excess by the change, Buyer may direct
the disposition of the property. Buyer may examine Seller's pertinent
books and records to verify the amount of Seller's claim. Failure
of the parties to agree upon any adjustment shall not excuse Seller
from performing in accordance with Buyer's direction.
c. If Seller considers that Buyer's conduct constitutes a change,
Seller shall notify Buyer's Authorized Procurement Representative
immediately in writing as to the nature of such conduct and its effect
upon Seller's performance. Pending direction from Buyer's Authorized
Procurement Representative, Seller shall take no action to implement
any such change.
d. Notwithstanding the foregoing provisions of this article, the estimated
or target cost of this contract and, if this contract is incrementally
funded, the funds allotted for the performance thereof shall not be
increased or deemed to be increased except by specific written modification
of this contract indicating the new contract estimated cost and the
new amount allotted to this contract. Until such modification is made,
Seller shall not be obligated to continue performance or incur costs
beyond the point established in the "Limitation of Cost"
and "Limitation of Funds" Articles of this contract.
15. DISPUTES.
Any dispute that arises under or is related to this contract that cannot
be settled by mutual agreement of the parties may be decided by a court
of competent jurisdiction. Pending final resolution of any dispute,
Seller shall proceed with performance of this contract according to
Buyer's instructions so long as Buyer continues to pay amounts not in
dispute.
16. NOTICE TO BUYER
OF LABOR DISPUTES.
Whenever Seller has knowledge that any actual or potential labor dispute
is delaying or threatens to delay the timely performance of this contract,
Seller shall immediately give notice thereof, including all relevant
information, to Buyer.
17. EXCUSABLE DELAYS.
FAR 52.249-14, "Excusable Delays," is incorporated by reference.
"Contractor" means Seller and "Contracting Officer"
means Buyer.
18. TERMINATION/CANCELLATION
a. The performance
of work under this contract may be terminated in whole or in part
by Buyer in accordance with the Termination clause set forth in FAR
52.249-6, which provisions, except for subparagraphs (e) and (j),
are incorporated herein by reference. "Government" and "Contracting
Officer" mean Buyer and the phrase "1 year" is deleted
each place it occurs and "six months" is substituted in
its place.
b. By written notice, Buyer may cancel the whole or any part of this
contract in the event of Seller's default of any or all of the requirements
of this contract or in the event of suspension of Seller's business,
insolvency of Seller, institution of bankruptcy, liquidation proceedings
by or against Seller, appointment of a trustee or receiver for Seller's
property or business or any assignment, reorganization or arrangement
by Seller for the benefit of creditors.
19. ASSIGNMENT,
DELEGATION AND SUBCONTRACTING.
Seller shall not assign any of its rights or interest in this contract
or subcontract all or substantially all of its performance of this contract
without Buyer's prior written consent. Seller shall not delegate any
of its duties or obligations under this contract. Seller may assign
its right to monies due or to become due. No assignment, delegation
or subcontracting by Seller, with or without Buyer's consent, shall
relieve Seller of any of its obligations under this contract or prejudice
any of Buyer's rights against Seller whether arising before or after
the date of any assignment. This article does not limit Seller's ability
to purchase standard commercial supplies or raw materials.
20. PUBLICITY.
Without Buyer's prior written approval, Seller shall not, and Seller's
subcontractors at any tier shall not, release any publicity, advertisement,
news release or denial or confirmation of same regarding this contract
or the Goods, Services or program to which it pertains. Seller shall
be liable to Buyer for any breach of such obligation by any subcontractor.
21. BUYER'S PROPERTY.
Seller shall clearly mark, maintain an inventory of, and keep segregated
or identifiable all of Buyer's property and all property to which Buyer
acquires an interest by virtue of this contract. Seller assumes all
risk of loss, destruction or damage of such property while in Seller's
possession, custody or control. Upon request, Seller shall provide Buyer
with adequate proof of insurance against such risk of loss. Seller shall
not use such property other than in performance of this contract without
Buyer's prior written consent. Seller shall notify Buyer's Authorized
Procurement Representative if Buyer's property is lost, damaged or destroyed.
As directed by Buyer upon completion, termination or cancellation of
this contract, Seller shall deliver such property, to the extent not
incorporated in delivered end products, to Buyer in good condition subject
to ordinary wear and tear and normal manufacturing losses. Nothing in
this article limits Seller's use, in its direct contracts with the Government,
of property in which the Government has an interest.
22. GOVERNMENT-OWNED
PROPERTY.
FAR 52.245-5, "Government Property (Cost Reimbursement, Time-and-Material,
or Labor-Hour Contracts)," is incorporated by reference. "Contractor"
means Seller, "Government" and "Contracting Officer"
mean or include Buyer and paragraph (g) is revised to read as follows:
"(g) Risk of Loss.
Seller, upon the delivery to it or acquisition by it of any Government
property, assumes the risk of and shall be responsible for all loss
thereof or damage thereto. When such property is no longer needed for
the performance of this contract, or at such other time as may be directed
by Buyer pursuant to paragraph (i) of this clause, Seller shall return
such property to Buyer or the Government, as applicable, in as good
condition as when received, except for reasonable wear and tear, and
except for such property as has been reasonably consumed in the performance
of work hereunder."
23. PATENT, TRADEMARK
AND COPYRIGHT INDEMNITY.
Seller will indemnify, defend and hold harmless Buyer and its customer
from all claims, suits, actions, awards (including, but not limited
to, awards based on intentional infringement of patents known at the
time of such infringement, exceeding actual damages and/or including
attorneys' fees and/or costs), liabilities, damages, costs and attorneys'
fees related to the actual or alleged infringement of any United States
or foreign intellectual property right (including, but not limited to,
any right in a patent, copyright, industrial design or semiconductor
mask work, or based on misappropriation or wrongful use of information
or documents) and arising out of the manufacture, sale or use of products
by either Buyer or its customer. Buyer and/or its customer will duly
notify Seller of any such claim, suit or action; and Seller will, at
its own expense, fully defend such claim, suit or action on behalf of
indemnitees. Seller will have no obligation under this article with
regard to any infringement arising from (a) Seller's compliance with
formal specifications issued by Buyer where infringement could not be
avoided in complying with such specifications or (b) use or sale of
products in combination with other items when such infringement would
not have occurred from the use or sale of those products solely for
the purpose for which they were designed or sold by Seller. For purposes
of this article only, the term Buyer will include The Boeing Company
and all Boeing subsidiaries and all officers, agents and employees of
Boeing or any Boeing subsidiary.
24. CONFIDENTIAL,
PROPRIETARY, AND TRADE SECRET INFORMATION AND ITEMS.
Buyer and Seller shall each keep confidential and protect from unauthorized
use and disclosure all (a) confidential, proprietary and/or trade secret
information; (b) tangible items containing, conveying or embodying such
information; and (c) tooling identified as being subject to this article
and obtained, directly or indirectly, from the other in connection with
this contract or other agreement referencing this contract (collectively
referred to as a "Proprietary Information and Materials").
Buyer and Seller shall each use Proprietary Information and Materials
of the other only in the performance of and for the purpose of this
contract and/or any other agreement referencing this contract. However,
despite any other obligations or restrictions imposed by this article,
Buyer shall have the right to use, disclose and reproduce Seller's Proprietary
Information and Materials, and make derivative works thereof, for the
purposes of testing, certification, use, sale or support of any materials
delivered under this contract or any other agreement referencing this
contract. Any such use, disclosure, reproduction or derivative work
by Buyer shall, whenever appropriate, include a restrictive legend suitable
to the particular circumstances. The restrictions on disclosure or use
of Proprietary Information and Materials by Seller shall apply to all
materials derived by Seller or others from Buyer's Proprietary Information
and Materials. Upon Buyer's request at any time, and in any event upon
the completion, termination or cancellation of this contract, Seller
shall return to Buyer all of Buyer's Proprietary Information and Materials
and all materials derived therefrom, unless specifically directed otherwise
in writing by Buyer. Seller shall not, without the prior written authorization
of Buyer, sell or otherwise dispose of (as scrap or otherwise) any parts
or other materials containing, conveying, embodying or made in accordance
with or by reference to any Proprietary Information and Materials of
Buyer. Prior to disposing of such parts or other materials as scrap,
Seller shall render them unusable. Buyer shall have the right to audit
Seller's compliance with this article. Seller may disclose Proprietary
Information and Materials of Buyer to its subcontractors as required
for the performance of this contract, provided that each such subcontractor
first agrees in writing to the same obligations imposed upon Seller
under this article relating to Proprietary Information and Materials.
Seller shall be liable to Buyer for any breach of such obligation by
such subcontractor. The provisions of this article are effective in
lieu of any restrictive legends or notices applied to Proprietary Information
and Materials. The provisions of this article shall survive the performance,
completion, termination or cancellation of this contract.
25. GRATUITIES.
Seller warrants that neither it nor any of its employees, agents, or
representatives have offered or given, or will offer or give, any gratuities
to Buyer's employees, agents or representatives for the purpose of securing
this contract or securing favorable treatment under this contract.
26. OFFSET CREDITS
a. To the exclusion
of all others, Buyer or its assignees shall be entitled to all industrial
benefits or offset credits which might result from this contract.
Seller shall provide documentation or information that Buyer or its
assignees may reasonably request to substantiate claims for industrial
benefits or offset credits.
b. Seller agrees to use reasonable efforts to identify the foreign
content of goods or services that Seller either produces itself or
procures from subcontractors for work directly related to this contract.
Promptly after selection of a foreign subcontractor for work under
this contract, Seller shall notify Buyer of the name, address, subcontract
point of contact (including telephone number) and dollar value of
the subcontract.
27. UTILIZATION
OF SMALL BUSINESS CONCERNS.
Seller agrees to actively seek out and provide the maximum practicable
opportunities for small businesses, small disadvantaged businesses,
women-owned small businesses, minority business enterprises, historically
black colleges and universities and minority institutions, Historically
Underutilized Business Zone small business concerns and U.S. Veteran
and Service-Disabled Veteran Owned small business concerns to participate
in the subcontracts Seller awards to the fullest extent consistent with
the efficient performance of this contract.
28. RIGHTS AND REMEDIES.
Any failures, delays or forbearances of either party in insisting upon
or enforcing any provisions of this contract, or in exercising any rights
or remedies under this contract, shall not be construed as a waiver
or relinquishment of any such provisions, rights or remedies; rather,
the same shall remain in full force and effect. Except as otherwise
limited in this contract, the rights and remedies set forth herein are
cumulative and in addition to any other rights or remedies that the
parties may have at law or in equity. If any provision of this contract
is or becomes void or unenforceable by law, the remainder shall be valid
and enforceable.
29. COMPLIANCE WITH
LAWS.
Seller shall comply with all applicable statutes and government rules,
regulations and orders, including those pertaining to United States
Export Controls.
30. GOVERNING LAW.
This contract shall be governed by and construed in accordance with
the laws of the state of Washington. No consideration shall be given
to Washington's conflict of laws rules. This contract excludes the application
of the 1980 United Nations Convention on Contracts for the International
Sale of Goods.
31. GOVERNMENT CLAUSES.
Government clauses applicable to this contract are incorporated herein
either by attachment to this document or by some other means of reference.
32. EVIDENCE OF
CITIZENSHIP OR IMMIGRANT STATUS.
Buyer may be required to obtain information concerning citizenship or
immigrant status of Seller's personnel or Seller's subcontractor personnel
entering the premises of Buyer. Seller agrees to furnish this information
before commencement of work and at any time thereafter before substituting
or adding new personnel to work on Buyer's premises. Information submitted
by Seller shall be certified by an authorized representative of Seller
as being true and correct.
33. ACCESS TO PLANTS
AND PROPERTIES.
Seller shall comply with all the rules and regulations established by
Buyer for access to and activities in and around premises controlled
by Buyer or Buyer's customer.
34. ENTIRE AGREEMENT.
This contract contains the entire agreement of the parties and supersedes
any and all prior agreements, understandings and communications between
Buyer and Seller related to the subject matter of this contract. No
amendment or modification of this contract shall bind either party unless
it is in writing and is signed by Buyer's Authorized Procurement
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