TERMS AND CONDITIONS OF PURCHASE
M.S. Aerospace, Inc.
Terms and Conditions of Purchase
- The Seller shall provide the Goods in conformance with the design and production specifications provided.
- The Seller shall sell, assign, transfer, convey and deliver to M.S. Aerospace, Inc. all rights, title and interest in and to the goods and M.S. Aerospace, Inc. shall purchase such goods from the Seller. Title shall be free and clear of any liens or encumbrances and shall be marketable.
- Delivery shall be FOB, M.S. Aerospace, Inc.’s place of business, with risk of loss passing upon acceptance by M.S. Aerospace, Inc.
- Seller warrants that the workmanship, goods, and materials provided by Seller and its subcontractors shall be free from defects and deficiencies for a period of one (1) year, or longer if agreed by the parties, after the delivery date and acceptance by M.S. Aerospace, Inc.
- The Seller shall indemnify and hold harmless M.S. Aerospace, Inc., its affiliates, officers, directors, employees, agents and representatives, and any person claiming by or through any of them, against and in respect of any and all claims, costs, expenses, damages, liabilities, losses, or deficiencies (including, without limitation, attorneys’ fees and other costs and expenses incident to any suit, action, or proceeding) arising out of, resulting from, or incurred in connection with personal injury, death, or property damage resulting from the use or operation of the goods that are defective, except if such personal injury, death, or property damage is the result of M.S. Aerospace, Inc.’s gross negligence or willful misconduct. To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend M.S. Aerospace, Inc., its affiliates and their respective employees, officers, agents, and representatives, from and against any and all damages arising out of, resulting from, or related to third-party claims (including without limitations, claims file directly against M.S. Aerospace, Inc. or its affiliates, and their employees, consultants, or other persons acting under the direction or control of M.S. Aerospace, Inc.), for any damage to, or destruction of, third-party property, or death of, or bodily injury to, any person (whether such person, consultant, or other person working under the direction of control of Seller is an employee of Seller, or any subcontractor of Seller, or is a person unaffiliated with the seller), caused or contributed to, or claimed to because or contributed to, by actions, inactions, tort, negligence or liability, including strict liability, of Seller (and its employees, agents, consultants, or others working under their direction or control), in the performance of Seller’s obligations under this Agreement.
- This Agreement is deemed to have been made and entered into in the State of California. This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of the conflict or choice of laws principles thereof. Any legal action, suit, or other proceeding arising out of or in any way connected with, this Agreement must be brought in the courts of the County of Los Angeles, State of California. With respect to any such proceeding: (a) each Party generally and unconditionally submits itself and its property to the exclusive jurisdiction of such court; (b) each Party waives, to the fullest extent permitted by law, any objection it has or hereafter may to the venue of such proceeding, as well as any claim it has or may have that such proceeding is in an inconvenient forum; and (c) process may be served on a Party anywhere in the world, by the same methods as are required for service in California. The prevailing party in any action brought shall be entitled to reasonable attorneys’ fees and all allowable costs.
- This Agreement between Seller and M.S. Aerospace, Inc. is deemed an agreement between Merchants, and acceptance by M.S. Aerospace, Inc. is made conditional on assent to the terms herein.
- Any insolvency or other default of Seller which includes the failure to delivery any or all of the goods to be delivered hereunder, if declared by M.S. Aerospace, Inc., shall entitle M.S. Aerospace, Inc. to a full and immediate return of payment actually made. M.S. Aerospace, Inc. until such time as payment has been returned shall be deemed a secured creditor of Seller and shall maintain a security interest in all assets of Seller now owned or hereafter acquired, including any proceeds thereof.
- Authorized representatives of the Government of the United States (“U.S.G”) shall have access to and the right to examine for a period of three (3) years following the final payment to a foreign government recipient of U.S.G financing under the relevant Prime Contract, and of the Seller’s directly pertinent books, documents, papers, or other records involving transactions related to the Order.
- U.S.G funds may be used to finance the order from the Prime Buyer, and acceptance of this order by Seller constitutes acknowledgement of notification of the possible U.S.G financing.
- Acceptance and implementation of this subcontract constitutes a declaration and agreement of the principal executive officers of the Seller that no bribes, rebates, gifts, kickbacks, or gratuities to secure this order, or for favorable treatment under such agreements, or for any other purpose relating to the agreement have been or will be directly or indirectly offered or given to, or have been or will be arranged with officers, officials, or employees of M.S. Aerospace, Inc. by Seller, its employees, or agents.
- Seller certifies that it has not paid or agreed to pay any commission, contingent fees, or any similar compensation (to include payments to a bona fide employee or a bona fide commercial or selling agency), whether in cash or in kind, directly or indirectly related to the order hereunder or the Prime Contract, unless the Seller notifies M.S. Aerospace, Inc. to the contrary. If Seller notifies M.S. Aerospace, Inc. of such payments, Seller agrees to the following:
- Seller certifies that the order price does not include commissions, contingent fees, or similar compensation paid or promised to any person for the purpose of soliciting or securing the order, unless such payments have been identified and approved in writing by the Prime Contractor prior to the order being made to Seller or for payment with repayable Foreign Military Finance credit or with the Prime Contractor’s national funds;
- Seller certifies that any commissions, contingent fees, or similar compensation paid or promised by Seller to any person in relation to soliciting the order were not in violation of U.S. law or regulations.
- Seller agrees that no suspended or debarred firms will be used as a source of any supplies or as a subcontractor for this order.
- M.S. Aerospace, Inc. may, at any time by written order, require Seller to stop all or any part of the work under this order for as long as M.S. Aerospace, Inc. deems necessary in its sole discretion. Immediately upon receipt of such stop order Seller shall comply with its terms and take all reasonable steps to minimize the incurring of costs allocable to such work stoppage. At any time during such period, M.S. Aerospace, Inc. may, either in whole or in part, cancel the stop work order or terminate further work on the order. To the extent the stop work order is cancelled or expires, Seller shall resume work.