Purchase Order General Terms and Conditions

  1. Assignment
    Neither this order nor any right or obligation hereunder shall be transferred or assigned by the Seller without the express written approval of the Buyer.

  2. Change Orders
    No change, modification or extension of this order shall be effective against either Buyer or Seller unless it is made in writing in the form of a Purchase Order Change Order signed by the ARA Corporate Buyer and accepted by the seller.

  3. Compliance with Applicable Federal, State and Local Laws
    Seller shall, at its own expense, comply with and assume all obligations imposed by any one or more of any Federal, State, and Local laws and regulations that may be applicable to this Order, including but not limited to all statutes, applicable standards, required permits, licenses, and taxes. In addition, Seller shall provide certifications of such compliance and sufficient data to support such certifications, either generally or specifically, upon request of the Buyer.

  4. Confidentiality and Disclosure of Information
    Except to the extent required by the Open Records Act, Seller shall not disclose information concerning work under this Agreement to any third party, unless such disclosure is necessary for the performance of work under this effort. Information disclosed by Buyer to Seller marked as 'Confidential Information' shall be treated as such by Seller for a period of five (5) years and returned to Buyer upon request. To the extent that information disclosed by Buyer: (a) is or becomes part of the public domain, (b) is known to Seller prior to any disclosure by Buyer, its associates, customer, or (c) is subsequently rightfully received by Seller from a third party as non‐confidential information, the obligation(s) contained herein will not be operative.

    No news releases, public announcement, denial or confirmation of any part of the subject matter of this Agreement or any phase of any program hereunder shall be made without prior written consent of Buyer. The restrictions of this paragraph shall continue in effect upon completion or termination of this Agreement for such period of time as may be mutually agreed upon in writing by the parties. In the absence of a written established period, no disclosure is authorized. Failure to comply with the provisions of this Clause may be cause for termination under this Agreement.

  5. Conflict of Terms
    These Terms and Conditions are hereby agreed, between Buyer and Seller, to be operative under this order. Proposed Seller Terms and Conditions are not operative unless any conflicting or additional terms are accepted in writing and signed by both Buyer and Seller.

  6. Controlling Law
    This agreement is to be governed by the laws of the state of New Mexico.

  7. Correction of Defects
    If Seller's original deliverable under this purchase order does not meet Buyers specification(s), by mutual agreement between Buyer and Seller, Seller shall provide Buyer with revised deliverable(s) which corrects the defect(s) at no additional cost to Buyer.

  8. Counterfeit
    1. For purposes of this clause, Work consists of those parts delivered under this Contract that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). “Counterfeit Work” means Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
    2. SELLER shall not deliver Counterfeit Work to ARA under this Contract.
    3. SELLER shall only purchase products to be delivered or incorporated as Work to ARA directly from the Original Manufacture or through an authorized distributor chain.

  9. Disputes
    Any controversy, claim or litigation under this Contract, if commenced by Seller, shall be brought in a court of competent jurisdiction governed by the laws of the State of New Mexico. Pending the resolution of any dispute under this Contract, the Seller shall proceed as directed by the Buyer.

  10. Excusable Failure or Delay
    Neither Buyer nor Seller shall be held responsible for the failure or delay in delivery or acceptance of services and/or reports sold hereunder where such failure or delays are due to any act of God, or the public enemy, war, compliance with laws, governmental acts or regulations, fire, flood, quarantine, embargo, epidemic, strikes and labor interruption, accident, unusually severe weather or other causes similar to the forgoing beyond their reasonable control, but the party seeking to avail itself of any foregoing excuses shall promptly notify the other party of the reasons for any failure or delay in delivery or acceptance and shall exert its best efforts in avoiding further delay.

  11. Export Control
    1. The Seller agrees to comply with all U.S. Export control laws and regulations, specifically including but not limited to the requirements of the Arms Export Control act, 22 U.S.C2751‐2751‐2794, the Government regulations, as found in 22 CFR 120‐130, International Traffic in Arms Regulations (ITAR), and 15 CFR 730‐774, Export Administration Regulations (EAR). Whenever granting access to Export Controlled equipment or technology to a foreign vendor/Subcontractor, or before assigning any Foreign Person (as defined in 22 CFR 120.16) to perform Export Controlled work under this Contract, the Seller also agrees to notify ARA in writing prior to assigning or granting access to a Foreign Person to any Export Controlled work, equipment, technology or technical data in performance of this Contract. No transfer of Export Controlled equipment, technology, or technical data will take place without the authority of an export license or applicable exemption or exception.
    2. Seller agrees to notify ARA if any deliverable under this Contract is restricted by export control laws or regulations.
    3. Seller shall immediately notify ARA Procurement if Seller is, or becomes, listed in any Denied Parties List or if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.
    4. Seller’s failure to comply with the terms of this clause may be deemed a material failure to perform under this Contract or Purchase Order and shall subject Seller to termination.
    5. Seller shall indemnify and hold ARA harmless from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any Seller’s noncompliance with export control regulations.

  12. Fair Labor Standards
    Seller certifies that in the production of the goods and/or performance of the services covered by this invoice that the Seller has complied with all applicable requirements of Sections 6, 7, and 12 of the U.S. Fair Labor Standards Act, as amended and regulations and orders of the United States Department of Labor issued under Sections 14 thereof.

  13. FAR Flowdown Requirements for Federal Contract Acquisitions
    Federal Acquisition Regulations 52.212‐4 Contract Terms and Conditions—Commercial Items and 52.213.4 Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) are applicable for all Federal Contract procurements and are hereby incorporated by reference. The full text of a clause may be accessed electronically at http://acquisition.gov/far/index.html.

  14. Gratuities/Kickbacks
    Seller shall not offer or give a kickback or gratuity (in the form of entertainment, gifts, or otherwise) for the purpose of obtaining or rewarding favorable treatment as an ARA supplier.

  15. Inspection and Acceptance
    All goods, services and/or reports sold under this order shall be subject to inspection and acceptance by Buyer after delivery and before final payment.

  16. Insurance Requirements ‐ Onsite Services
    If required, the Seller certifies submission to the Buyer of a certificate of insurance attesting to the existence of Workmen's Compensation and Employer's Liability Insurance with a minimum amount of $100,000; Comprehensive General Liability Insurance with a comprehensive form of coverage for at least $1,000,000 per occurrence; Comprehensive Automobile Liability Insurance with a minimum amount of $500,000/person, $1,000,000/accident for bodily injury, and $50,000/accident for property damage. Seller further certifies annual submission thereafter for the life of this subcontract. Seller shall notify Buyer no less than 30 days prior to cancellation of this policy. This language shall be included on the certificate that is provided to the Buyer.

  17. Invoice and Payment
    Seller will invoice in accordance with the requirements of the order. Payments terms are net 30 days after receipt of an acceptable invoice. Invoices will reference:
    • Seller's unique invoice number
    • Date of invoice
    • ARA's Purchase Order Number
    • Period of Performance for which the invoice is submitted (as applicable)
    • Invoices will be submitted to:
      Applied Research Associates, Inc.
      In care of the Billing Address specified in this Order

  18. Limitation of Liability
    Notwithstanding anything to the contrary herein, each party’s total liability for any claim under this order shall not exceed the value of the PO. Neither party shall be liable to the other party for special, indirect, incidental, nor consequential damages arising from the use of the products delivered under this Agreement.

  19. Non‐Discrimination Policy
    It is the policy of ARA to comply with the regulations of Title VI of the Civil Rights Act of 1964, as amended, and other nondiscrimination laws and authorities that include regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (DOT) Title 49, Code of Federal Regulations (CFR) and the Federal Highway Administration’s Title 23 Code of Federal Regulation 200. ARA does not discriminate on the grounds of race, religion, color, sex, national origin, age or disability in the selection and retention of subconsultants, including procurements of materials and leases of equipment.

  20. Occupational Safety and Health Act
    Incorporated in this purchase order by reference thereto are all laws, interim and permanent standards, rules and regulations of the U.S. Occupational Safety and Health Act and all state and federal laws and regulations relating to safety and health standards and regulations. Seller accepts any responsibility arising from the failure of such purchased supplies, articles or services to comply with such laws, standards and regulations.

  21. Packing and Shipping
    Unless otherwise specified, all work is to be packed in accordance with good commercial practice. A complete packing list shall be enclosed with all shipments. Seller shall mark containers or packages with necessary lifting, loading, and shipping information, including the Buyer's Order Number, item number (if any), dates of shipment, and, if applicable, the names and addresses of consignor and consignee. Bills of lading shall include Buyer's Order Number. Unless otherwise specified, delivery shall be FOB Destination.

  22. Patents and Data
    The Seller shall notify the Buyer immediately upon becoming aware of any invention or technical data conceived or first actually reduced to practice during the performance of this order subject to or that may become subject to the provisions of U.S. Patents or Copyright laws. Such notification shall include sufficient information for the Buyer to determine whether or not the general provisions of this order are sufficient to protect the Customer’s interest in such invention or technical data as it relates to the performance of the work hereunder.

  23. Precedence
    Any inconsistencies in this Contract shall be resolved in accordance with the following descending order of precedence: (1) Face of the Purchase Order and /or Task Order, release document or schedule, (including any continuation sheets), as applicable, including any special terms and conditions,: (2) Terms and Conditions, (3) Specification/Statement of Work document, (4) Vendors Quote or Terms and Conditions.

  24. Price
    The price for the goods or services sold hereby, including cost for labor, materials, equipment, licenses, taxes, and any other related costs, shall not be higher than that appearing on the face of this order, and the seller's proposal.

  25. Records Retention
    Documents received/generated shall remain on file at Seller's facility for at least three (3) years from the conclusion of the contract to aid in answering any future questions that might develop.

  26. Termination
    Buyer may terminate this purchase order at any time and for any reason by written notice to Seller. Any termination by Buyer shall be without prejudice to any claims for damages or other rights of Buyer against Seller. Buyer shall have the right to audit all elements of any termination claim and Seller shall make available to Buyer on request all books, records and documents relating thereto.
    • Termination for Buyer's Convenience: In the event termination is not for cause, then Seller shall be entitled to receive only reasonable costs and expense incurred in performance of this purchase order to the date of termination, provided Seller submits notice of the costs and expense incurred to Buyer within 60 days after the date of termination. The reimbursement to Seller will be costs of materials and direct labor expended by it in reasonable anticipation of its fulfillment of this order which are not recoverable by Seller, provided that no allowance shall be made to Seller for any anticipated effort or fee not already expended or earned. Any unused deposits or advanced payments will be refunded immediately, or, if applicable, will be deducted from the final payment to the Seller.
    • Termination for Cause: In the event of termination for cause, Buyer shall have no liability whatsoever to Seller. The Buyer may, by written notice of default to the Seller, terminate the whole or any then remaining part of this effort if Seller fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or if Seller fails to perform any of the other provisions of this Agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 days (or such longer period as Buyer may authorize in writing) after receipt of notice from the Buyer specifying such failure; or Seller becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due. Any unused deposits or advanced payments will be refunded immediately, or, if applicable, will be deducted from the final payment to the Seller.

  27. Time and Delivery
    Time shall be of the essence. Unless otherwise agreed in writing Seller shall deliver on the proposed schedule. If a mutually agreed extension is arrived at for the final delivery date, the Buyer will document any such changes to the original order.

  28. Waiver
    The failure of the Buyer to insist in any one or more instances upon the full performance of any of the terms, covenants of this order or to exercise and rights hereunder shall not be construed as a waiver of any legal rights the Buyer has with respect to such nonperformance or be construed as Buyer's condoning further nonperformance of such terms, covenants or conditions.

  29. Warranty
    All services and/or reports sold and delivered by Seller to Buyer shall be in full conformity with buyer's specifications set forth or referred to on the face hereof or if none are set forth or referred to, shall be in conformity with Seller's published specifications or proposal provided to the Buyer and will be fit and sufficient for the use intended by Buyer if known to Seller and will be of good quality and workmanship and free from defects. The foregoing warranty shall survive any acceptance of the services and/or reports. If a non‐conformity is presented to Seller by Buyer and Seller concurs, Seller will replace or correct the final deliverable at a mutually agreeable schedule.