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GENERAL SUPPLIER TERMS & CONDITIONS

 

UPDATED: August 01, 2023

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TERMS AND CONDITIONS OF SALE

These General Supplier Terms and Conditions (“Terms”), along with the attached purchase order (“Order”), constitute the entire agreement (together, the “Agreement”) between Black Diamond Advanced Technology, LLC (“BDATECH”) and the party identified on the face of the Order with whom BDATECH is contracting (“Seller”) for the sale, lease, license, or provision of Seller’s products and/or services described in the Order (the “Products” or “Services”), and these Terms supersede any prior offers, negotiations, or contrary terms and conditions presented by Seller.  Any additional or differing terms or conditions proposed by Seller, whether on Seller’s quotes, invoices, acknowledgement forms or other documents, are objected to by BDATECH and shall be void and have no effect on BDATECH unless expressly and specifically agreed to in advance in writing by an authorized official of BDATECH.
BDATECH’s Supplier Requirements Manual (BDATECH Document DD-0219-00) and any specifications, drawings, instructions, designs, data, and schedules furnished to Seller in connection with this Agreement are incorporated into these Terms by reference.  Seller’s acknowledgement, acceptance of payment, or commencement of performance shall constitute Seller’s unqualified acceptance of the Agreement and all Terms herein.  


1.    Modification.  This Agreement contains all the agreements of the Parties with respect to the Products or Services described in the Order and no course of dealing or usage of the trade shall be applicable unless expressly incorporated in this Agreement.  The Terms contained in this Agreement may not be added to, modified, superseded, or otherwise altered except by a written instrument signed by an authorized officer of BDATECH and delivered by BDATECH to Seller.  


2.    Best Price.  BDATECH shall not be billed at prices higher than those stated in this Agreement unless authorized by a change order issued and signed by an authorized representative of BDATECH. Seller represents that the prices for the Products and Services are the lowest prices charged by Seller to buyers under conditions similar to those specified in this Agreement, and that such prices comply with applicable government regulations in effect at the time of quotation, sale, or delivery. Except as otherwise expressly provided in this Agreement, the prices for the Products and Services will be firm fixed prices and include all applicable federal, state, and local taxes.


3.    Rated Orders.  If the Order contains a Defense Priorities and Allocations System (“DPAS”) rating, this Agreement is a “rated order” certified for national defense, emergency preparedness, and energy program use, and Seller shall follow all the requirements of the Defense Priorities and Allocation System Regulation (15 C.F.R. Part 700).  In such case, Seller shall provide unqualified written acceptance or rejection to BDATECH’s authorized representative within fifteen (15) working days after receipt of a DO-rated order and within ten (10) working days after receipt of a DX-rated order. RATED ORDERS TAKE PRECEDENCE OVER ALL NON-RATED ORDERS AND ALL COMMERCIAL ORDERS YOU MAY HAVE.  Refer to Appendix A for DPAS Flow downs. See Section 28 regarding Notices.
 

4.    Delivery, Inspection, and Acceptance.  
(a)    BDATECH relies upon the dates for performance specified in this Agreement. Time is therefore of the essence and Seller shall use it reasonable best efforts to comply with delivery commit dates specified in the Order. Seller shall regularly inform BDATECH of changes to its delivery commit dates and factors causing such changes. Early shipments will not be accepted without prior authorization from BDATECH. If prior authorization is not received, early shipments may be returned at supplier’s expense. 
(b)    Title to any goods covered by this Order shall pass to BDATECH upon BDATECH’s final inspection and acceptance, regardless of when or where BDATECH takes physical possession.  Risk of loss or damage to articles shall remain with the Seller until:
(i)    Delivery of the Products or Services to an authorized carrier if delivery is F.O.B. Origin; or 
(ii)    Final acceptance by BDATECH or receipt of Products or Services by BDATECH at the destination specified in the Order, whichever is later, if transportation is F.O.B. Destination.
Notwithstanding the above, the risk of loss or damage to Products or Services that fail to conform to the Agreement shall remain with the Seller until cure or final acceptance.  
(c)    Unless otherwise specified, all Products shall 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 Order or Agreement number, item number or other identifier, dates of shipment, and the names and addresses of consignor and consignee.  Bills of lading shall include this Agreement or Order number.  If Seller is using BDATECH's shipping accounts, Seller shall not declare the value of the shipment or insure shipments in excess of the carrier’s stated standard liability without prior written authorization by BDATECH’s authorized representative. 
(d)    Prior to shipment, and without additional charge to BDATECH, all Products and Services may be inspected and tested by BDATECH, its customers, higher-tier contractors, and the U.S. Government at Seller’s facility and upon reasonable notice to Seller. Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests. Payment for Products or Services prior to inspection shall not constitute an acceptance thereof, and if Products or Services are rejected after inspection, any such prepayment will be promptly refunded. 
(e)    All of Seller’s records relating to the Products or Services shall be available to BDATECH during the performance of this Agreement, and for such periods as may be specified by BDATECH, but in all events no less than four (4) years. In no event shall any inspection relieve Seller of its obligations to furnish and warrant all Products and Services in accordance with the requirements of this Agreement.
(f)    If any Products or Services are found at any time not to conform to BDATECH’s specifications, or to any other requirements of this Agreement, BDATECH shall have the right to return such Products to Seller at Seller’s expense and, as to any Products not yet shipped or any Services not yet rendered, to purchase substitute items elsewhere and charge Seller for any loss incurred. BDATECH shall not be responsible for any commitments made by Seller in advance of any commitment required of Seller to meet the prescribed delivery schedule. Delivery schedule financial penalties may be applied by BDATECH on Seller of up to 1% of the Order value per business day up to 10% of the total Order value. The shipment of late deliveries will be at Seller’s expense; depending on delinquency, Next Day Air shipment may be required.
(g)    Further and notwithstanding the foregoing, Seller shall be excused for any delay solely caused by an occurrence beyond the control of Seller and without its fault or negligence such as acts of God, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, acts of terrorism, riots, civil unrest, quarantine restrictions, strikes, unusually severe weather, and unusual delays of common carriers (“Force Majeure Events”). Seller shall notify BDATECH’s authorized representative as indicated in the Order in writing as soon as it is reasonably possible after the commencement of any Force Majeure Event, setting forth the known particulars in connection therewith, shall make all reasonable efforts to remedy and mitigate such occurrence with all reasonable dispatch, and shall promptly give written notice to the BDATECH’s authorized representative of the cessation of such occurrence. If the inability to perform continue for longer than three (3) months, either party may terminate the affected Order by providing written notice to the other party’s authorized representative.

 

5.    Quality Management.  
(a)    Seller and its suppliers shall establish and maintain a quality management, inspection, and counterfeit parts program acceptable to BDATECH and consistent with current industry standards (e.g., ISO9001, AS9100, AS9115, AS9120, AS5553, AS6496, AS6174, etc.). Seller shall permit BDATECH to review procedures, practices, processes, and related documents to determine such acceptability.  Records of all quality control inspection work by Seller shall be kept complete and available to BDATECH and its customers for a minimum period of four (4) years (unless a longer period is specified elsewhere in this Agreement) after BDATECH’s acceptance of all goods delivered or services rendered under this Agreement. Seller shall have a continuing obligation to promptly notify BDATECH of any violation or deviation from Seller’s approved inspection/quality control system and to advise BDATECH of the quantity and specific identity of any Products or Services provided to BDATECH during the period of any such violation or deviation.
(b)    Seller shall require its suppliers and lower-tier subcontractors to comply with quality assurance requirements comparable to those contained in the Order and shall include this clause in all contracts with suppliers and lower-tier subcontractors providing items or components or performing work related to this Agreement, including this requirement to flow this clause down to their suppliers and lower-tier subcontractors.  Seller assumes responsibility for the workmanship of its suppliers and lower-tier subcontractors and for the quality of items, components, materials, and services it procures.
(c)    Unless otherwise specified in this Agreement, Seller and its suppliers and lower-tier subcontractors do not have authority to process “use-as-is,” “repair,” standard or nonstandard repair procedures, through their internal material review board or otherwise.  Such dispositions, as well as deviations and requests for waivers requiring similar disposition, shall be submitted to BDATECH for approval, excluding rework or scrap.  Seller shall utilize its appropriate nonconforming material disposition form and submit it to the BDATECH’s authorized representative for approval by BDATECH.  


6.    Warranty.  
(a)    In addition to any other standard, express, or implied warranties given by Seller or imposed by law, Seller warrants that all Products and Services furnished hereunder shall:
(i)    Conform fully with all requirements of this Agreement, including any and all specifications, drawings, and performance requirements;
(ii)    Conform to approve sample or samples, if any;
(iii)     Unless detailed designs have been furnished by BDATECH, be fit for the use intended by BDATECH whether expressed or reasonably implied;
(iv)     Be new and free from defects in material, workmanship, design and fabrication;
(v)    Be free from security interests, liens or encumbrances and be of good title; and
(vi)     Be performed with that degree of skill and judgment normally exercised by recognized professionals delivering or performing the same or similar Products or Services.  
(b)    All warranties shall run to the BDATECH, its successors, assigns, customers, and the users of the Products or Services.  
(c)    In addition to any other rights BDATECH may have, if any Products or Services delivered pursuant to this Agreement are found to be not as warranted, BDATECH may return any such Products or Services to Seller, at Seller’s expense, for correction, replacement, or credit, as BDATECH may direct. Any Products or Services repaired or replaced shall be subject to the warranty provisions herein to the same extent as Products or Services initially furnished.
(d)    If Seller, upon notice of any defect, fails promptly to correct or replace Products or Services as required herein, BDATECH may, without further notice, correct or replace such Products or Services, and Seller agrees to reimburse BDATECH for all costs incurred thereby. Products or Services that have been rejected, shall not thereafter be tendered for acceptance unless the former rejection and correction is identified, and such repaired or replacement Products or Services shall be subject to the provisions of this article to the same extent as the original supplies. All warranties shall then run from the latter delivery date.
(e)    At the BDATECH's option the non-compliant products shall be repaired or replaced by the Seller at no cost to the BDATECH.
(f)    The remedies provided in this Section are in addition to any other remedies BDATECH may be entitled to under applicable law or in equity, and will be cumulative rather than in the alternative.  
 

7.    Invoicing, Payment, Taxes and Duties.  
(a)    After each shipment made under this Agreement, Seller shall send a separate invoice, in duplicate, which shall include item numbers or other identifiers for the Products or Services and shall be accompanied by a bill of lading or express receipt. BDATECH's Order number and part number shall appear on all invoices, packages, crates or boxes, bills of lading, express receipts, correspondence, and other instruments used in connection with this Order. Invoices which do not agree with prices or other terms of the Order will be returned to the Seller for corrections.  All invoices shall be supported by such documents in such form as BDATECH requests and shall bear such certification as may be required by law, regulations, or this Agreement. 
(b)    Unless otherwise authorized by BDATECH, Seller shall not issue an invoice prior to the actual delivery date of products.
(c)    Unless otherwise provided, payment shall be made within thirty (30) days of the scheduled delivery date, the actual delivery date, or the date of receipt of a proper and compliant invoice, whichever is latest.   In the case of a disputed invoices, BDATECH and Seller shall use their reasonable best efforts to resolve such dispute within 15 days of BDATECH’s notice to Seller of a dispute. If such dispute is not resolved within such period, BDATECH may, at its sole discretion, elect to pay the amount not in dispute. In no case shall any late payment charges or penalties be imposed by Seller on any disputed amounts until 15 days after the parties have resolved such dispute and only from the date of such resolution. 
(d)    Payment shall be deemed to have been made on the date BDATECH's check is mailed or payment is otherwise tendered.  Payment of invoice shall not constitute acceptance of Products or Services and shall be subject to appropriate adjustment for failure of Seller to meet the requirements of this Agreement.
(e)    Any applicable discount period to BDATECH will run from the date of receipt of a compliant invoice (rather than the date of issuance), the actual date of acceptance of the Products or Services, or the delivery date specified in this Order, whichever is latest.  Unless freight and other charges are itemized, any discount shall be taken on the full amount of the invoice.
(f)    BDATECH may set off any amount owed by Seller to BDATECH against any amount owed by BDATECH in connection with this Agreement.
(g)    Unless otherwise specified, prices include all applicable federal, state, and local taxes, duties, tariffs, and similar fees imposed by any government, all of which shall be listed separately on the invoice.
(h)    Seller shall promptly, but no in case later than within 30 days of BDATECH’s last payment, repay BDATECH any amounts paid in excess of amount due Seller.  
 

8.    BDATECH Property.  Seller agrees that all dies, tools, jigs, fixtures, designs, drawings, patterns, and other special items, which are furnished by BDATECH without charge or funded by BDATECH as part of this Agreement, shall be the property of BDATECH.  Furthermore, the tangible medium storing copies of all reports, memoranda or other materials in written form including machine readable form, prepared by Seller and furnished to BDATECH pursuant to this Agreement shall become the sole property of BDATECH; provided that nothing in this Section assigns ownership of Seller’s intellectual property included on such medium to BDATECH.  
 

9.    Termination for Convenience.  
(a)    BDATECH reserves the right to terminate this Agreement, or any part hereof, for its convenience.  BDATECH shall terminate by delivering to Seller notice specifying the extent of termination and the effective date.  In the event of such termination, Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work.  
(b)    Within forty-five (45) days after the effective date of termination, Seller may submit to BDATECH a claim reflecting the percentage of the work performed prior to the effective date of termination, plus reasonable charges Seller can demonstrate to the satisfaction of BDATECH, using Seller’s standard recordkeeping system, have resulted from the termination.  Seller shall not be paid for any work performed or costs incurred which reasonably could have been avoided.
(c)    In no event shall BDATECH be liable for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the total Order price.
(d)    Seller shall continue all work not terminated.  The provision of this section shall not limit or affect the right of BDATECH to terminate this Agreement for default.
 

10.    Termination for Default.  
(a)    BDATECH, by written notice, may terminate this Agreement for default, in whole or in part, if Seller: 
(i)    Fails to comply with any of the terms of this Agreement;
(ii)    Fails to make progress so as to endanger performance of this Agreement;
(iii)     Fails to provide adequate assurance of future performance;
(iv)     Files or has filed against it a petition in bankruptcy; or
(v)    Becomes insolvent or suffers a material adverse change in financial condition.  
(b)    Prior to termination under this Section, Seller shall have ten (10) days (or such longer period as BDATECH may authorize in writing) to cure any such failure after receipt of notice from BDATECH, except that default involving delivery schedule delays, bankruptcy or adverse change in financial condition shall not be subject to this cure provision.  
(c)    Following a termination for default of this Agreement, Seller shall be compensated only for Products or Services actually delivered and accepted. BDATECH may require Seller to deliver to BDATECH any supplies and materials, manufacturing materials, and manufacturing drawings that Seller has specifically produced or acquired for the terminated portion of this Agreement. BDATECH and Seller shall agree on the amount of payment for these other deliverables. BDATECH shall not be liable for any penalties or charges associated with a termination for default.
(d)    Upon the occurrence and during the continuation of a default, BDATECH may exercise any and all rights and remedies available to it under applicable law and equity, including without limitation, cancellation of this Agreement. 
(e)    Seller shall continue all work not terminated.  
 

11.    Compliance with Laws.  Seller warrants that all Products or Services produced or furnished under this Agreement will have been produced or furnished in full compliance with all applicable laws and regulations, including, without limitation, the Fair Labor Standard Act, and the laws, rules, and regulations relative to equal employment opportunity, all of which are incorporated herein by this reference. In performing the obligations of this Agreement, Seller will comply with all applicable export, import, and sanctions laws, regulations, RoHs requirements, orders, and authorizations, as they may be amended from time to time, applicable to the export (including re-export) or import of goods, software, technology, technical data or services, including without limitation the United States Export Administration Regulations (“EAR”), the United States International Traffic in Arms Regulations (“ITAR”), the United States Foreign Corrupt Practice Act, the United States Arms Export Control Act and regulations and orders administered by the United States Treasury Department’s Office of Foreign Assets Control (collectively, “Export/Import Laws”). Seller shall obtain all export or import authorizations, permits and licenses at its expense, which are required under the Export/Import Laws to execute its obligations under the Agreement. Seller further agrees to indemnify and hold BDATECH and its customers harmless from any loss or damage that may be sustained by BDATECH for Seller’s failure, or alleged failure, to do so.  Seller certifies that neither Seller nor any of its principals are presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by the U.S. government.
 

12.    Country of Origin. Seller acknowledges that BDATECH’s contracts with its customers may require BDATECH to provide information regarding the country of origin of some Products and hereby warrants that all information provided by Seller to BDATECH regarding the origin of Products shall be true, correct, and complete. 

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13.    Indemnification.  
(a)    General. Seller shall indemnify, defend, and hold harmless BDATECH, its directors, officers, members, employees, contractors, consultants, agents, affiliates, successors, permitted assigns and customers from and against any and all losses, claims, causes of action, damages, demands, judgments, penalties, liabilities, and expenses, and costs of any kind whatsoever, including attorney’s fees, arising from any act or omission of Seller, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Agreement.
(b)    Infringement.  Seller warrants that the Products and Services performed or delivered under this Contract will not infringe or otherwise violate the intellectual property rights of any third party in the United States or any foreign country.  Seller further shall pay all royalties and license fees which may be payable on account of or related to the Products or Services or any part thereof. Seller shall defend, indemnify, and hold harmless BDATECH, its officers, directors, members, employees, contractors, consultants, agents, affiliates, successors, permitted assigns and customers from and against any and all losses, claims, causes of action, damages, judgments, penalties, liabilities, and expenses, and costs of any kind whatsoever, including attorney’s fees, arising out of any action by a third party that is based upon a claim that the Products or Services performed or delivered under this Agreement infringes or otherwise violates the intellectual property rights of any person or entity.  No other provision in this Agreement, including but not limited to paragraph (a) of this Section, shall be construed to limit the liabilities or remedies of BDATECH under this clause.
(c)    If any Products or Services involve operations by Seller on the premises of BDATECH or one of its customers, Seller shall take all necessary precautions to ensure that its work is carried out in a safe and proper manner. Seller shall also maintain such product liability, property damage and employee’s liability and compensation insurance as will protect BDATECH from risk and from any claims under all applicable laws and regulations. Seller shall indemnify, defend, and hold harmless BDATECH and its respective directors, officers, members, employees, contractors and agents from and against all losses, damages, expenses, claims, demands, suits, judgments, penalties and costs of any kind whatsoever, including attorney’s fees and expenses, for personal injury, death or damage to property arising out of any breach of this Agreement by Seller, or any act or omission of Seller, its employees, representatives, contractors, consultants or agents.
(d)    BDATECH shall indemnify, defend, and hold harmless Seller and its respective directors, officers, members, employees, contractors, and agents from and against all losses, damages, expenses, claims, demands, suits, judgments, penalties and costs of any kind whatsoever, including attorney’s fees and expenses, for personal injury, death or damage to property arising out of BDATECH’s intentional misuse of Products purchased pursuant to this Agreement.


14.    LIMITATION OF LIABILITY.  IN NO EVENT SHALL BDATECH BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES, OR ANY DAMAGE DEEMED TO BE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THE CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. TO THE EXTENT THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISION(S) OF THIS AGREEMENT, SAID PROVISION(S) SHALL BE REGARDED AS AMENDED TO WHATEVER EXTENT REQUIRED TO MAKE SUCH PROVISION(S) CONSISTENT WITH THIS PROVISION. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF BDATECH WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR THE PERFORMANCE OR BREACH OF THE CONTRACT OR ANYTHING DONE IN CONNECTION THEREWITH EXCEED THE ORDER PRICE, WHICH SHALL REPRESENT THE MAXIMUM LIABILITY BDATECH HAS TO THE SELLER.


15.    Intellectual Property.  In addition to the Government's rights in data and inventions, Seller agrees that BDATECH, in the performance of its prime or higher-tier contract obligations, shall have an irrevocable, nonexclusive, world-wide, royalty-free license to: (i) make, have made, sell, offer for sale, use, execute, reproduce, display, perform, distribute (internally or externally) copies of, transfer computer software to the Government and higher-tier contractors, and prepare derivative works of any inventions, discoveries, improvements, mask works and patents as well as any and all data, copyrights, reports and works of authorship delivered in performance of this Agreement, to the extent necessary for BDATECH to make use of the Products or Services performed or other items or deliverables delivered under this Agreement in the performance of its contract obligations with its customer(s); and (ii) authorize others to do any, some or all of the foregoing


16.    Prohibited Software.  This Section applies only to Orders that involve the delivery of Products or Services including software.  
(a)    As used herein, “Prohibited Software” means software that incorporates or embeds software in, or integrates software in connection with, as part of, bundled with, or alongside any:
(i)    Open source, publicly available, or “free” software, library, or documentation; or
(ii)    Software that is licensed under the General Public License (“GPL”), Lesser/Library GPL (“LGPL”), the Affero GPL (“AGPL”), the Apache license, the Berkeley Software Distribution (“BSD”) license, the MIT license, the Artistic License (e.g., PERL), the Mozilla Public License (“MPL”), or any variations thereof, including without limitation licenses referred to as “Free Software License,” “Open Source License,” “Public License,” or “GPL Compatible License” (collectively, “Prohibited Licenses”); or
(iii)     Software provided under a license that:
(1)    Subjects the delivered software to any Prohibited License;
(2)    Requires the delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge; or
(3)    Obligates BDATECH to sell, loan, distribute, disclose, or otherwise make available or accessible to any third party the delivered software, any Products or Services incorporating the delivered software, or any portion thereof, in object code or source code formats. 
(b)    Seller shall disclose to BDATECH in writing and shall obtain BDATECH’s written consent before using or delivering any Prohibited Software in connection with this Agreement.  Seller further warrants all Prohibited Software used or delivered in connection with this Agreement complies with any applicable license.  
(c)    Seller shall defend, indemnify, and hold harmless BDATECH, its customers and suppliers from and against any claims, damages, losses, costs, and expenses, including reasonable attorney's fees, relating to use in connection with this Agreement or the delivery of Prohibited Software. No other provision in this Agreement, including but not limited to the Indemnification clause, shall be construed to limit the liabilities or remedies of the parties for the use of Prohibited Software in connection with this Agreement or for the delivery of Prohibited Software under this Agreement.  
(d)    Seller warrants that any hardware, software, and firmware delivered under this Agreement do not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy, or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software or hardware.  


17.    Changes.  
(a)    BDATECH shall have the right at any time by written notice to Seller to make changes to the specifications, the quantity or amount of Products or Services, delivery dates, the delivery schedule, and any other requirements covering the Products or Services. If any such change causes an increase or decrease in the cost of the Products or Services, or the time required for performance under this Agreement, a corresponding adjustment will be made in the contract price or delivery date. Price increases or extensions of time for delivery shall not be binding on BDATECH unless agreed to in writing by an authorized representative of BDATECH.  Seller must assert its right to an equitable adjustment under this clause within thirty (30) days from the date of receipt of the written change order from BDATECH.  If Seller’s proposed equitable adjustment includes the cost of property made obsolete or excess by the change, BDATECH shall have the right to prescribe the manner of disposition of the property.  
(b)    Seller shall promptly notify BDATECH’s authorized representative in writing of any proposed modifications to the Order including, but not limited to, changes to the Product, proposed substitutions or alternatives, and delivery commitment dates. Seller’s notification shall include all relevant information to support any contract modifications. No adjustment to cost or delivery schedule shall be effective unless mutually agreed upon by the parties in writing. Seller shall continue performance while the parties negotiate any modification or adjustment, in accordance with BDATECH’s reasonable instructions (including, but not limited to, performing the Order as originally acknowledged by Seller subject to later adjustment of price and schedule). BDATECH shall have the right to cancel the Order without penalty if the parties are unable to agree on Seller's proposed changes.
 

18.    Communication with BDATECH’s Customer.  Seller shall not communicate with BDATECH’s customer or any higher-tier customer in connection with this Agreement, except as expressly permitted by BDATECH; provided that this clause does not prohibit Seller from communicating with the U.S. Government with respect to (1) matters Seller is required by law or regulation to communicate to the Government, (2) fraud, waste or abuse communicated to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information, (3) any matter for which this Agreement, including a FAR or FAR supplemental clause included in this Agreement, provides for direct communication by Seller to the Government, or (4) any material matter pertaining to payment or utilization. 


19.    Insurance.  
(a)    Seller and its suppliers and lower-tier subcontractors at any tier shall maintain, at its own expense, for the performance of this Agreement the following insurances: 
(i)    Workers’ compensation insurance meeting the statutory requirements where Seller’s work under the Agreement will be performed;
(ii)    Employer’s liability in the amount of $1 million per each accident or per each employee for disease;
(iii)     Commercial general liability including Products Liability and Completed Operations liability in the amount of $1 million per occurrence and $2 million in the aggregate annually, or in such higher amounts as BDATECH may require;
(iv)     When applicable to Seller’s performance on this Agreement, Professional Liability insurance covering the serviced provided by the Seller as well as Automobile liability insurance covering third party bodily injury and property damage with a minimum of $1 million per occurrence limit, or in such higher amounts as BDATECH may require; and
(v)    Such other insurance as BDATECH may require.
(b)    Seller shall provide BDATECH thirty (30) days advance writing notice prior to the effective date of any cancellation or change in the term or coverage of any of Seller’s required insurance, provided however that such notice shall not relieve Seller of its obligations to maintain the required insurance.  If requested by BDATECH, Seller shall have its insurers name BDATECH as an additional insured on the Commercial General Liability and Automobile Liability policies for the duration of this Agreement.  If requested, Seller shall provide a "Certificate of Insurance" evidencing Seller's compliance with these requirements. Insurance maintained pursuant to this clause shall be considered primary as respects the interest of BDATECH and is not contributory with any insurance which BDATECH may carry. Seller’s obligations herein for procuring and maintaining insurance coverage are freestanding and are not affected by any other language in this Agreement.


20.    Notices.  All notices relating to this Agreement shall be in writing and must be sent by either certified or registered mail, postage prepaid or by electronic mail to the address and authorized representative indicated in the Order. Such notice shall be deemed delivered when confirmed by the authorized representative indicated in the Order, or five calendar days after being sent by confirmed overnight or electronic mail to the address in the Order whichever is sooner. 


21.    Retention of Records.  Unless a longer period is specified in this Agreement or by law or regulation, Seller shall retain all records related to this Agreement for four (4) years from the date of final payment received by Seller. Records related to this Agreement include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall provide timely access to such records to BDATECH and to BDATECH’s customer(s), including the U.S. government, upon request.


22.    Governing Law.  This Agreement and any disputes arising out of Products or Services provided hereunder, shall be governed by and construed in accordance with the laws of the State of Delaware and the United States of America, without giving effect to any conflict of law provisions thereof, and all related controversies or disputes shall be heard in a federal or state court of appropriate jurisdiction located in New Castle County, Delaware.  The Parties specifically disclaim application to this Agreement of the United Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any international discovery and service of process conventions.


23.    Assignment.  Seller may not assign, novate, or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without the prior written approval of BDATECH.  In all events, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.  
 

24.    Interpretation.  The headings in this Agreement are inserted for convenience only and shall not be used in the interpretation hereof. 
 

25.    Non-Waiver.  No waiver of any provision of this Agreement, or of a breach hereof, whether express or implied, shall be effective unless in writing and signed by BDATECH.  No waiver of a breach of this Agreement, whether express or implied, shall constitute a waiver of any subsequent breach.  
 

26.    Severability.  All provisions of this Agreement are severable, and the unenforceability or invalidity of any provision shall not affect the validity or enforceability of the remaining provisions of this Agreement.  
 

27.    Order of Precedence.  The clauses of this Agreement shall be construed and interpreted as consistent whenever possible.  Any conflicts in this Agreement shall be resolved by giving precedence in the following order: (1) the Order; (2) these Terms; and (3) any statement of work, specifications, or other requirements incorporated into the Agreement. 


28.    Survivability.  All rights, obligations, and duties hereunder, which by their nature of by their express terms extend beyond expiration or termination of this Agreement, including but not limited to warranties, indemnifications, intellectual property (including rights to and protection of intellectual property and proprietary information), and product support obligations shall survive the expiration or termination of this Agreement.  


29.    Relationship of Parties.  Seller shall, at all times, be an independent contractor with respect to the operations and activities under this Agreement. Seller’s personnel are not and shall not be employees or agents of BDATECH for any purpose. Neither Party shall have any authority to act for or to bind the other party in any respect. Neither Party shall act as agent for or partner of the other Party, nor shall any Party have authority to bind the other Party except to the extent authorized herein or as otherwise provided by mutual written agreement. This Agreement is not intended to constitute or create a joint venture, pooling arrangement, partnership, or a formal business organization of any kind, and the rights and obligations of the Parties shall be only as expressly set forth herein.


30.    Government Contracts or Use.  
(a)    In the event the Products or Services covered by the Order are to be used in whole or in part for the performance of federal government contracts, governed by specific rules and regulations of the federal government, additional clauses may be attached and incorporated herein by reference and shall predominate in the event of conflict with any other provision of this Agreement unless specifically noted.
(b)    The referenced clauses are set forth or referred to in the Federal Acquisition Regulation (“FAR”) and Department of Defense Supplement to the FAR (“DFARS”).  In order to make the context of these clauses applicable to this Agreement, FAR clauses can be found at https://www.acquisition.gov/browse/index/far and DFARS clauses can be found at https://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html.
(c)    In the event BDATECH is required to flow-down any additional or different terms, conditions, and/or certification requirements as a requirement of its government contract, Seller agrees to negotiate in good faith with the BDATECH the incorporation of such terms, conditions, and/or certification requirements. 


31.    Notification of Equal Employment Opportunity/ Affirmative Action Obligations.  As part of BDATECH’s compliance with federal Equal Employment Opportunity and Affirmative Action regulations, we hereby notify all vendors that BDATECH is an equal opportunity employer that makes employment decisions without regard to race, religion, color, national origin, citizenship, sex, sexual orientation, gender identity, veteran’s status, age, or disability status and that BDATECH takes affirmative steps to employ and advance in employment qualified protected veterans and qualified individuals with disabilities. BDATECH further notifies all vendors that, as an entity supplying goods and/or services to BDATECH, your organization may be subject to, and required to take action pursuant to, the following laws and accompanying regulations:  Executive Order 11246 (and it’s implementing regulations); the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (and its implementing regulations); the Rehabilitation Act of 1973, as amended (and its implementing regulations); Executive Order 13496 Appendix A to Subpart A0.  The equal employment opportunity clauses within each of the above regulations, as applicable, are included by reference in all contracts between BDATECH and all its suppliers.
 

32.    Conflict Minerals.  All parts, components, and/or material that are made part of Products or Services delivered under this Agreement cannot contain conflict minerals originating in the Democratic Republic of the Congo or the adjoining countries of Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia (“Covered Countries”). Accordingly, Seller shall certify: whether the parts, components, and/or material that are part of the Products delivered under this Order contain conflict minerals – tantalum, tin, tungsten or gold; and, if such parts, components, and/or material contain conflict minerals: (1) the relevant identification number(s) of the parts and/or material that contain conflict minerals and which conflict minerals are incorporated in each item; (2) that the conflict minerals did not originate in a Covered Country; (3) the supplier from which Seller obtained the conflict minerals; and (4) the smelter used to produce the conflict minerals.  Seller shall include this clause or equivalent provisions in all contracts with suppliers or lower-tier subcontractors for the delivery of items that will be included in or furnished as Products or Services to BDATECH.  


33.    New Materials.  Unless expressly authorized in writing, all Products and Services to be delivered hereunder shall consist of new materials, as defined in FAR 52.211-5.


34.    Parts Obsolescence.  During Performance of this Agreement, Seller shall notify BDATECH of any planned obsolescence of the Products or Services or any parts or components of such Products or Services set out in this Order at least twelve (12) months prior to any such planned obsolescence. 

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35.    Counterfeit Parts.  
(a)    Seller shall not deliver any Counterfeit Part to BDATECH under this Agreement.  “Counterfeit Part” means an unlawful or unauthorized reproduction, substitution, or alteration that has been knowingly mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified part from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitution includes used parts represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics.
(b)    Seller shall maintain counterfeit risk mitigation processes in accordance with industry recognized standards and with any other specific requirements identified in this Agreement.  
(c)    Seller shall immediately notify BDATECH with the pertinent facts if Seller becomes aware that it has delivered a Counterfeit Part to BDATECH. When requested by BDATECH, Seller shall provide Original Component Manufacturer (OCM) or Original Equipment Manufacturer (OEM) documentation that authenticates traceability of the affected parts to the applicable OCM/OEM. Seller, at its expense, shall provide reasonable cooperation to BDATECH in conducting any investigation regarding the delivery of a Counterfeit Part under this Agreement.
(d)    This clause applies in addition to and is not altered, changed, or superseded by any quality provision, specification, statement of work, regulatory flowdown, or other provision included in this Agreement addressing the authenticity of Products or parts delivered by Seller to BDATECH.  
(e)    In the event that a Counterfeit Part has been delivered under this Agreement, Seller shall, at its expense, promptly replace such Counterfeit Part with genuine parts conforming to the requirements of this Agreement. Notwithstanding any other provision in this Agreement, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Parts, including without limitation BDATECH's costs of removing Counterfeit Part, of installing replacement parts and of any testing necessitated by the reinstallation of parts after a Counterfeit Part has been exchanged. The remedies contained in this paragraph are in addition to any remedies BDATECH may have at law, equity or under other provisions of this Agreement. 
(f)    Seller shall include this clause, including this paragraph, or equivalent provisions in all contracts with suppliers or lower-tier subcontractors for the delivery of parts or components that will be included in or furnished as Products or Services to BDATECH.


36.    Offset Credit/Cooperation.  If this Agreement has been entered into in direct support of BDATECH’s international offset programs, then all offset benefit credits resulting from this Agreement are the sole property of BDATECH to be applied to the offset program of its choice. Seller shall assist BDATECH in securing appropriate offset credits from the respective country government authorities.

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37.    Export Controls.  
(a)    Seller shall control the dissemination of and access to technical data, information and other items received under this Agreement in accordance with U.S. export control laws and regulations. If this Order involves the delivery of products, software, technical data or services (which includes design, assembly, testing, repair, maintenance, or modification to BDATECH products or technologies) subject to United States export control laws and regulations Seller shall comply with all applicable U.S. export and re-export control laws and regulations and any local government export regulations.
(b)    ITAR Control and Compliance.  Companies engaged in manufacturing or modification of Defense Articles or furnishing Defense Services (whether or not the Defense Articles or Services are intended for export) are required to register with the Department of State, Directorate of Defense Trade Controls (“DDTC”) in accordance with ITAR 22 C.F.R 122. If so engaged, Seller, buy its offer and/or acceptance of this Order, represents that it is registered with the DDTC. Proof of such registration will be promptly provided to BDATECH upon request.
(c)    Non-U.S. Companies.  Non-U.S. companies shall be registered as required under its local government export regulations. Canadian companies must be registered by the Canadian Federal or Provincial government authorities.
(d)    Seller shall maintain its registration throughout the complete period of performance of this Subcontract, including any warranty period, and shall immediately notify BDATECH in the event that any such registration and/or other required authorization is revoked, expired, or invalidated for any reason.
(e)    Where Seller holds an export license or export agreement (e.g., TAA, MLA), Seller shall provide prompt notification to the BDATECH Procurement Representative in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect the Seller’s performance under this Subcontract.
 

38.    Office of Foreign Asset Control. Seller represents and warrants that: (i) Seller has not been designated as a "specifically designated national and blocked person" on the most current list published by the Office of Foreign Asset Control of the U.S. Department of the Treasury (“OFAC”) (the "List"); (ii) Seller is currently in compliance with and will at all times during the term of this Order remain in compliance with the regulations of OFAC and any statute, executive order (including Executive Order 13224 - Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto; (iii) Seller will not transfer or permit the transfer of any controlling interest in Seller to any person or entity who is, or any of whose beneficial owners are, listed on the List; and (iv) to the best of Seller’s knowledge, representations (i), (ii), and (iii) are true for all sub-suppliers, vendors, and subcontractors on whose products or services Seller will rely for any part of Seller’s performance under this Agreement.

 

39.    Gratuities/Kickbacks. Seller warrants and certifies that neither it nor any of its employees, agents or representatives has offered or given any gratuities of any kind, nature, or amount, to BDATECH's employees, agents, or representatives for the purposes of securing this Agreement or securing favorable treatment with respect thereto in violation of FAR 52.203-3.  


Revised 1-August-2023


 APPENDIX A

DPAS – Defense Priorities & Allocations System for the Contractor

Defense Priority & Allocation System Regulation

  • Department of Commerce (DOC) is delegated authority, through Executive Order 13603.

  • Implements the priorities and allocations authority contained in Title 1 of the Defense Production Act of 1950 with respect to industrial resources.

    • President’s primary authority to mobilize resources and expedite critical industrial items for national defense.

    • Does not require an emergency declaration.

    • Require priority in acceptance.

    • Require priority in scheduling.

 

The purpose of DPAS

  • Assures timely availability and delivery of materials and services from private industry to meet current national defense needs and emergency preparedness program requirements.

  • Authority to order priority performance (delivery) on defense contracts and allocate materials to meet national security requirements (DO/DX ratings).

  • Provide an operating system to support rapid industrial response to Government procurement needs in times of emergency.

 

Objectives

  • Provides an operating system to support rapid industrial response in a national emergency.

  • Minimize disruption to normal commercial activities.

 

DPAS provides for the use of contract terms that specify a priority rating and delivery dates for materials and services. 

 

“Rated order” means a prime contract, a subcontract, or a purchase order in support of an approved program issued in accordance with the provisions of the DPAS regulation.

 

There are two DPAS priority ratings: 

  1. DX: ratings assigned at the Secretary Level and have the Highest National Defense urgency. DX-rated orders always take precedence over all orders. If two DX-rated orders are to be delivered on the same date and only one can be completed on-time, the date the order was accepted then determines which is completed first.

  2. DO: ratings assigned at the Under Secretary Level or delegated official and are critical to National Defense. DO-ratings take precedence over all other un-rated, government or commercial orders. If two DO-rated orders are to be delivered on the same date and only one can be completed on-time, they are prioritized the same way as the DX-rated orders.


Program identification symbols indicate which approved program is involved with the rated order. For example, A1 identifies defense aircraft programs and A7 signifies defense electronic programs. Note: the program identification symbols, in themselves, do not connote any priority. Program identification symbols do, however, need to be included on the flow down on Purchase Orders throughout the entire Procurement chain – including flow down to sub-tiers. All prime contracts, subcontracts, or Purchase Orders in support of an authorized program are given a priority rating. 

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Basic Provisions

1. Mandatory Acceptance or Rejection of Rated Orders 

  • A person shall accept every rated order received and must fill such orders regardless of any other rated or unrated orders. 

    • A person must accept or reject a rated order and transmit the acceptance or rejection in writing (hard copy or electronic format) within ten (10) working days after receipt of a DX-rated order and within fifteen (15) working days after receipt of a DO-rated order.

    • If the order is rejected, the person must also provide reasons for the rejection.

  • A person shall not discriminate against rated orders. 

  • A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made. 

    • If a person accepts a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give reasons for the delay and advise of a new shipment or performance date. Written or electronic confirmation must be provided within one working day.

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2. Preferential Scheduling

  • A person must schedule operations, including the acquisition of all needed production items, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met. 

  • IMPORTANT: These ratings are required to be flowed down from prime to sub throughout the Procurement chain.

  • Preferential Scheduling examples:

    • If a company receives a DO-rated order with a delivery date of June 1st and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed

    • If a DX-rated order is received requiring delivery on June 1st and a DO-rated order requires delivery on May 20th, the DX-rated order must be prioritized over the DO-rated order.

 

3. Extension of Priority Ratings 

  • A person must use rated orders with suppliers to obtain items needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise directed by the Department of Commerce.

    • For example, if a person is in receipt of a DO-rated order for a navigation system and needs to purchase semiconductors for its manufacture, that person must use a DO- rated order to obtain the needed semiconductors.

    • The priority rating must be included on each successive order placed to obtain items needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire Supply Chain. 

 

Compliance

  • Willful violation of any of the provisions of the Defense Production Act, or an official action of the Department of Commerce, is a criminal act, punishable as provided in the Defense Production Act.  

  • The Department of Commerce may take specific official actions (Ratings Authorizations, Directives, Letters of Understanding, Administrative Subpoenas, Demands for Information, and Inspection Authorizations) to implement or enforce the provisions of the DPAS.

 

Elements of a Rated Order

 

DPAS is a contract requirement in accordance DEFENSE PRIORITY AND ALLOCATION REQUIREMENTS APR/2008 
 

Code of Federal Regulation for implementation of DPAS Requirements 
 

Compliance with the provisions of this regulation and official actions is required by the Defense Production Act and the Selective Service Act and related statutes. Violators are subject to criminal penalties, (b) any person who places or receives a rated order should be thoroughly familiar with, and must comply with, the provisions of this regulation. 
 

All rated orders must be scheduled to the extent possible to ensure delivery by the required delivery date”. 

 

DPAS ratings and prime contract numbers are required compliance items that are subject to CPSR Analysts’ review. Procurement staff must ensure that every procurement issued in support of a U.S. Government prime contract/subcontract that contains a defense priority rating, also include a direct flow down of the same DO or DX rating symbol and a program or identification symbol to indicate the authorized program. In addition, all subcontractors and Purchase Orders that are DO or DX rated are required to contain the proper DPAS clauses.
 

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