Terms & Conditions
1. ACCEPTANCE: This Purchase Order (“Order”) is Danner Corporation’s (“Buyer”) offer to the seller (“Seller”) listed on this Order, and acceptance is strictly limited to its terms. Buyer shall not be bound by and specifically objects to any term or condition whatsoever which is different from or in addition to the provisions of this Order, whether or not such term or condition will materially alter this Order. Seller commencement of performance or acceptance of this Order in any manner shall conclusively evidence agreement to this Order as written.
2. PRICE: Seller shall furnish the Product(s) (“Goods” and/or “Services”) covered by this Order in accordance with the prices and delivery schedule stated on the face of this Order. All prices shall include applicable taxes, except sales taxes, which are to be shown separately, where applicable. Seller warrants that the prices charged for the Product(s) ordered will be as low as the lowest prices charged by the Seller to any customers purchasing similar Product(s) in the same or smaller quantities and under like circumstances. Neither signing a receipt for Product(s), nor payment to Seller, shall constitute either an acceptance by Buyer or waiver of any of Seller's warranties. The time allowable for payment shall begin after both: (a) Buyer’s receipt of Seller’s invoice and (b) delivery of acceptable Product(s), Product‐related supplies or performance of satisfactory Service(s).
3. REFUSAL OF ACCEPTANCE/REJECTION/REVOCATION: If the Product(s) are defective or otherwise not in conformity with the requirements of this Order, Buyer may reject, refuse acceptance of or revoke acceptance of any or all of the Product(s) which are not strictly in conformance with all of the requirements of this Order and shall notify Seller of such rejection in a timely manner. At Buyer's election and at Seller's risk and expense, all such Product(s) may be returned to Seller for immediate (at Buyer's election) refund, repair, replacement or other correction and redelivery to Buyer. Buyer may (i) hold or retain such Product(s), without permitting any repair, replacement or other correction by Seller; (ii) hold or retain such Product(s) for repair by Seller as Buyer may require; (iii) hold such Product(s) until Seller has delivered conforming replacements for such Product(s); (iv) hold such Product(s) until conforming replacements are obtained from a third party; (v) return such Product(s) with instruction to Seller as to whether the Product(s) shall be repaired or replaced and as to the manner of redelivery; or (vi) terminate this Order for cause as provided in Section 17 hereof. All repair, replacement and other correction and redelivery shall be completed within such time as Buyer may require. All costs and expenses (including Freight) and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction, set off or credit against any amounts which may be owed to Seller under this Order or otherwise. Rights granted to Buyer under this section are in addition to any other rights or remedies provided elsewhere in this Order or by law.
4. REQUESTS FOR MRB DISPOSITIONS: Seller is not authorized to disposition nonconforming Product(s). Requests for Buyer MRB dispositions (Use as is, Repair) shall be submitted to the Buyer’s Quality Management.
5. WORK TRANSFER: (As defined in AS9100D, 8.1…Note: For the control of work transfer from the organization to an external provider, or from an external provider to another external provider) Subject to Danner Corporation Quality Requirements: QR14 Non‐US Country: Seller shall not relocate or subcontract to a non‐US country (e.g. US to Non‐US, Non‐US to Non‐US) any contracted part, assembly or component(s) thereof without prior written consent of Buyer.
US Country: Seller shall not relocate or subcontract to a US country (e.g. US to US, Non‐US to US) any contracted part, assembly or component(s) thereof, that includes Category 1 and/or 2 parts as listed and/or acknowledgement from the Buyer.
Note: See the FAA’s website, www.faa.gov, for Category Parts List.
Notifications shall be prior to the manufacturing start date of the first part associated with the work transfer.
6. MATERIALS: If Buyer furnishes any material(s) (e.g. extrusions, fasteners, bearings, bushings, etc.) for fabrication hereunder Seller agrees (i) not to substitute any other material(s) in such fabrication without Buyer’s written consent; (ii) title to such material(s) shall not be affected by incorporation in or attachment to any other property; and (iii) all such material(s) (except that which becomes normal industrial waste or is replaced at the sellers expense) will be returned in the form of Product(s) or unused material to Buyer. In addition, Seller shall inspect any Buyer furnished material(s) and shall have the right to reject any nonconforming material(s), but in the event of losses or attrition thereafter, Seller shall be responsible for replacing such material(s) at Seller’s expense. Inaccuracies, out of tolerance conditions or inadequacies in quantity of material(s) accepted by the Seller shall not excuse performance in strict accordance with the applicable specifications and/or drawings.
7. TOOLS: If Buyer furnishes Seller equipment (e.g. special dies, molds, jigs, tools, test equipment, masks, etc.) or pays for such equipment, title thereto shall remain or vest in Buyer, and Seller shall identify, maintain and preserve such equipment and shall dispose of it in accordance with Buyer's direction. Unless otherwise authorized in writing by Buyer, Seller shall use such equipment solely in the performance of Orders for Buyer. Seller shall be responsible for any loss, damage, or destruction to such equipment, but Seller shall not include any insurance cost therefore or cost to store in the prices charged under this Order. Buyer also reserves the right to request and receive list of Buyers' owned tools in Supplier's possession and to audit said list against actual tools at Supplier's facility. Buyer reserves the right, at its sole discretion, to remove any Buyer owned tooling, if Buyer feels work is in jeopardy.
8. PACKING AND SHIPPING: Seller shall prepare and pack the Product(s) to prevent damage and deterioration, in accordance with good commercial practices to obtain lowest shipping rates and in accordance with all applicable federal, state and local packaging and transportation laws and regulations, and any special requirement(s) listed in this Order. Charges for preparation, packing, etc. are included in the price, unless separately specified in the Order.
9. SHIPMENT/DELIVERY: Time is of the essence in this Order. Shipments or deliveries, as specified in this Order, shall be strictly in accordance with (i) the specified quantities, without shortage or overage in excess of agreed tolerance; (ii) the specified schedules, neither ahead nor behind schedule; and (iii) any other requirements of this Order. Seller shall promptly notify Buyer in writing of any anticipated or actual delay, the reasons therefore, and the actions being taken by Seller to overcome or minimize the delay. If requested by Buyer, Seller shall, at Seller's expense, ship via air or other fast transportation to minimize the delay to the maximum extent possible.
10. BILLING: A separate, itemized invoice shall be rendered in duplicate to the address shown on the face of the Order to the attention of the Buyer’s Accounts Payable Department. The invoice should contain the Purchase Order number, a description of Product(s), Goods and/or Service(s) furnished, quantity, unit price(s) and total price. Buyer may set off any amount owed by Seller or any of its affiliated companies to Buyer against any amount owed by Buyer to Seller under this Order. All original invoices are to be mailed and not shipped with Product(s). A valid Purchase Order number and packing slip number must appear on the invoices. Payment of any invoice may be delayed pending correction of any errors or omissions. Buyer shall pay all undisputed amounts within the terms of the date Buyer receives the invoice from Seller per the Purchase Order.
11. CONFIDENTIAL OR PROPRIETARY INFORMATION AND PROPERTY: (a) Seller shall keep confidential and otherwise protect from disclosure all information and property obtained from Buyer. In any event upon the completion, termination or cancellation of this Order, Seller shall return all such information and property to Buyer or make such other disposition thereof as is directed by Buyer. Seller shall not sell or dispose of as scrap or otherwise any completed or partially completed or defective proprietary property before receiving written authorization from Buyer and before rendering such property unsuitable for use. In all lower tier subcontracts and purchase orders issued by Seller and involving subcontractor receipt of such information or property, Seller shall provide the Buyer the same rights and protections as contained in this clause. The Seller shall not release to anyone outside the Seller’s organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this Order or any program related to this Order, unless: (i) The buyer has given prior written approval; or (ii) The information is otherwise in the public domain before the date of release. Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Seller shall submit its request to the Buyer at least 50 days before the proposed date for release. The information covered by this section shall include any information of third parties provided by Buyer to Seller. The Seller agrees to include a similar requirement in each subcontract under this Order. Subcontractors shall submit requests for authorization to release through the Seller to the Buyer. (DFARS 252.204‐7000)
12. SECURITY INTEREST AND LIEN WAIVERS: To the extent that Buyer pays for the Product(s) procured herein before delivery, Buyer takes a security interest in monies paid, their proceeds, Seller's inventory and Product(s) identified in this Order. Buyer reserves the right to file all necessary financing statements to perfect such security interests. Seller agrees to execute such further documents and instruments as may be reasonably necessary to carry out the purposes and intent of this section.
13. BANKRUPTCY: If Seller becomes subject to bankruptcy, receivership, insolvency, or institutes or has instituted against it a proceeding for any of the foregoing, or if Seller's assets are attached or assigned to creditors, and does not cure such failure within ten (10) days after notice from the Buyer, Buyer may (in addition to any other right or remedy provided by this order or by law) terminate all or any part of this Order by written notice to Seller without liability and purchase substitute Product(s) elsewhere, and Seller shall be liable to Buyer for any excess cost to Buyer. Seller shall continue performance of this Order to the extent not terminated pursuant to this section. If this Order is terminated, as provided in this section, the Buyer, in addition to any other rights provided herein, may require the Seller to transfer title and delivery to the Buyer (i) any completed Product(s), and (ii) such partially completed Product(s) and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as the Seller has specifically produced or specifically acquired for the performance of this Order.
14. EXCUSABLE DELAY: Seller shall be excused for delay or failure to deliver hereunder if such delay or failure results from an unforeseeable cause beyond Seller’s reasonable control and without the fault or negligence of Seller, including and without limitation; Government embargoes, blockades, seizure or freeze of assets, delays or refusals to grant an export license or the suspension or revocation thereof, or other acts of the Government, fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots, strife, insurrection, civil disobedience, war, or industry‐wide material shortages (an “Excusable Delay”). Seller shall promptly notify the Buyer in writing of any such delay or failure and the cause thereof. If Seller’s performance is delayed as a result of an Excusable Delay for more than 20 days, Buyer may terminate this Order.
15. NOTICE OF LABOR DISPUTES: Whenever an actual or potential labor dispute delays, or threatens to delay, the timely performance of this Order, Seller shall immediately notify Buyer in writing of all relevant information with respect to such dispute.
16. CHANGES TO CONTRACT/ORDERS:
A. Buyer may at any time, by written change order, suspend performance of this Order, in whole or in part, make changes in the quantities, drawings, designs, specifications, method of shipment or packaging, or time or place of delivery of the Product(s), reschedule Service(s), or require additional or diminished Service(s).
B. Buyer may also make changes to the terms and conditions of this Order required to meet Buyer’s obligations under its customer prime contracts or subcontracts, and to remain complaint with public laws and regulations. Except for the rights granted to the Buyer under this article, a change pursuant to this article shall not give rise to nor authorize any other modification of or amendment to the terms and conditions of this Order.
C. If any such change causes an increase or a decrease in the cost or time required to perform under this Order, Buyer and Seller shall negotiate an equitable adjustment in the price or schedule or both to reflect the increase or decrease. Unless otherwise agreed in writing, Seller must assert any claim for adjustment to Buyer’s Authorized Procurement Representative in writing within thirty (30) days from the date of receipt by Seller of the change order. Buyer may at its sole discretion consider claims which fail to comply with this submittal requirement as unconditionally waived. If Seller’s claim proposal includes the cost of property made obsolete or excess by the change, Buyer may direct the disposition of such property. Seller has the burden to support the amount of any claim for equitable adjustment. Buyer shall have the right to verify the amount of Seller’s claim by audit of all records relating to the change claim. Failure of the parties to agree upon any adjustment shall not excuse Seller from performing in accordance with the Buyer’s direction.
17. TERMINATION:
Termination for Convenience:
Buyer may terminate, for its convenience, all or any part of this Order at any time by written notice to Seller. 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 stop work. Subject to the terms of this Order, within thirty (30) days after the effective date of the termination, Seller may submit to Buyer a claim reflecting the percentage of the work performed prior to the effective date of termination, plus reasonable charges, that Seller can demonstrate to the satisfaction of Buyer using its standard record keeping systems, that have resulted from the termination. Seller will not be paid for any work performed or costs incurred which reasonably could have been avoided. Further, Seller shall not be paid, and in no event shall Buyer be obligated to pay, lost or anticipated profits or unabsorbed indirect costs or overhead. In no event shall Buyer be obligated to pay Seller any amount in excess of the Order price. The provisions of this article shall not limit or affect the right of the Buyer to cancel this Order for default. Seller shall continue all work not terminated.
Termination for Default:
Buyer may, by written notice to Seller, cancel all or part of this Order if (i) Seller fails to deliver the Product(s) within the time specified by this Order or any written extension; (ii) Seller fails to perform any other provision of this Order or fails to make progress, so as to endanger performance of this Order. In either case, within ten (10) days after receipt of notice from Buyer, Seller must either cure the failure or provide a detailed plan to cure the failure for any circumstance that cannot be reasonably cured within ten (10) days. Any such plan must be acceptable to Buyer’s Authorized Purchasing Representative. Seller shall continue all work not cancelled.
Buyer shall pay the contract price for completed Product(s) accepted. Buyer may withhold from any amount due under this Order any sum determined to be necessary to protect Buyer from loss associated with liens or claims driven by the default. Any goods or materials accepted by the Buyer for protection or preservation of property shall be at a price in accordance with the “Termination for Convenience” article of this Order for which Seller will not be entitled to profit.
18. WARRANTY:
A. Seller warrants that Product(s) furnished under this Order shall conform to all specifications and requirements of this Order and shall be free from defects in materials and workmanship. In the event the Product(s) are not manufactured to detailed designs and specifications furnished by the Buyer, the Product(s) shall nonetheless be free from design and specification defects. The Product(s) shall not infringe any patent, copyright, trademark or other proprietary right or trade secret of any third party. The Product(s) shall also be free from liens or encumbrances.
B. This warranty shall begin upon Buyer’s final acceptance of the Product(s) and shall survive inspection, test and payment for the Product(s). The warranty shall extend for a period of (18) eighteen months or such other period as set forth elsewhere in this Order, and Buyer shall give Seller notice after discovery of a defect or nonconformance in the Product(s). The warranty shall run to Buyer and its successors, assigns and customers.
C. In the event of any defect or nonconformance in the Product(s), Buyer may at its option and at Seller’s expense (i) require prompt correction or replacement of the Product(s) or (ii) return the Product(s) for credit or refund. Seller shall bear all expenses associated with the defect or nonconformance in the event the Product(s) are returned to the Seller. Product(s) required to be corrected or replaced by the Seller shall be subject to the same requirements as Product(s) originally purchased under this Order.
D. In the event the parties disagree about the existence of a breach of this warranty, Seller shall promptly comply with the Buyer’s direction to (i) repair, rework or replace the Product(s) or (ii) furnish any materials or parts required to successfully correct the defect or non‐conformance. If the parties later determine that Seller did not breach this warranty, the parties shall equitably adjust the contract price.
19. DISPUTES/JURISDICTION & VENUE: Buyer and Seller shall use their best reasonable efforts to resolve any and all disputes, controversies, claims, or differences ("Dispute(s)") between Buyer and Seller, arising out of or relating in any way to this Order or its performance, including, but not limited to, any questions regarding the existence, validity or termination hereof, through negotiation. Only upon failure by Buyer and Seller to resolve the Dispute through such negotiation may either party institute legal action. Any Dispute arising under this Order which is not disposed of by agreement of the parties shall be decided by a Binding Arbitration. Pending settlement of final decision of any such Dispute, Buyer and Seller shall proceed in accordance with the Arbitrator’s direction.
20. LIMITATION OF LIABILITY: Buyer’s liability to Seller hereunder shall not, under any circumstances, be greater than the total dollar amount of this Order indicated herein.
21. WAIVER AND REMEDIES: The failure of Buyer to insist upon the performance of any provision of this Order, or to exercise any right or privilege granted to the Buyer under this Order, shall not be construed as waiving such provision or any other provision of this Order, and the same shall continue in full force and effect. If any provision of this Order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, the other provisions of this Order shall not be affected thereby and shall remain in full force and effect. The remedies herein provided shall be cumulative and in addition to any other remedies allowed by law or in equity. No waiver of a breach of any provision of this Order by either party shall constitute a waiver of any other breach of this Order at a future time or of any other right.
22. INDEMNIFICATION: Including when Seller is performing work at Buyer's facility, Seller assumes liability for and shall indemnify, protect, save and keep harmless and defend the Buyer Indemnified Parties from and against any and all liabilities, obligations, losses, damages, penalties, claims, injuries, actions, suits, arbitrations, costs and expenses, including without limitation reasonable attorneys’ fees and other legal expenses (collectively, “Claims and Losses”), in any manner to the extent arising out of or incidental to (a) the Seller’s performance or non‐performance of this Order; and (b) any defect or deficiency in any Product(s) or Service(s) provided under this Order. Buyer will give Seller prompt notice of any Claim(s) or Loss(es) asserted by a third party (a “Third Party Claim”) for which the Buyer Indemnified Party seeks indemnity under this section. Seller will have sole control over the defense and settlement of a Third-Party Claim; provided, however, that Seller may not enter into any settlement in any way adverse to Buyer without Buyer’s prior written consent. In the event of litigation between parties to enforce rights under this paragraph, reasonable attorney fees shall be allowed to the prevailing party.
23. ENTIRE AGREEMENT: This instrument contains the entire agreement between the parties, and it is expressly understood and agreed that no promises, provisions, terms, warranties, conditions or obligations whatsoever, whether express or implied, other than herein set forth, shall be binding upon either party. Any subsequent additions, deletions or modifications to this Order shall not be binding upon the parties unless the same are mutually agreed upon and incorporated herein in writing signed by Buyer.
