1. Purchase Order Acceptance: Seller agrees to provide the goods and or services described in this purchase order (the "Goods" and or the "Services") in accordance with the requirements set forth on the face of the applicable purchase order (the “P.O.”) and these terms and conditions. The P.O. and these terms and conditions constitute and are collectively referred to as the "Agreement".
This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized Aegis Electronic Group, Inc. (“Aegis”) representative. Any terms or conditions contained in any acknowledgment, invoice or other communication of Seller, which are inconsistent with the terms and conditions herein, are hereby rejected. To the extent that this Agreement might be treated as an acceptance of Seller's prior offer, such acceptance is expressly made on condition of assent by Seller to the terms of this Agreement and shipment of the Goods by Seller shall constitute such assent. Aegis hereby reserves the right to reschedule any delivery (subject to clause 11 herein) or cancel any purchase order issued at any time prior to shipment of the Goods (subject to clause 15 herein).
2. Packing and Shipment: Unless otherwise specified by the buyer in writing, all products shall be packed, packaged, marked, and otherwise repaired for shipment in a manner which is (i) in accordance with good commercial practice and ISTA 1G/1H standards, (ii) acceptable to common carriers for shipment at the lowest rate for the safe arrival of the products and in accordance with all tariffs, government laws and regulations and (iii) adequate to insure safe arrival of the products at the destination designated in this order and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also purchase order numbers, date of shipment, names of the consignee and consignor, product model number, quantity, serial numbers (where applicable) and product description. An itemized packing slip must accompany each shipment unless otherwise specified by Buyer in writing.
3. Payment Terms: As full consideration for delivery of the Goods and Services and the assignment of rights to Aegis as provided herein, Aegis shall pay Seller the amount agreed upon and specified in the P.O. Seller’s invoice shall separately state all applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges. Seller shall consider payment made when Aegis mails its check to Seller. Payment shall not constitute acceptance unless otherwise stated herein. All personal property taxes assessable upon the Goods prior to receipt by Aegis of Goods conforming to the P.O. shall be borne by Seller. Seller shall invoice Aegis for only Goods delivered and Services completed. Unless otherwise specified on the face of the P.O., Aegis will pay the invoiced amount within thirty (30) days after receipt of acceptable invoice or the actual delivery date, whichever is later. Seller will not be entitled to any royalty or other remuneration on the production or distribution of any products developed by Aegis.
4. Identification, Risk of Loss & Destruction of Goods: Title to the Goods and risk of loss shall pass to Aegis at delivery (Gilbert, Arizona). If the Goods ordered are destroyed prior to title passing to Aegis, Aegis may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, Aegis shall have the right to require delivery of the Goods not destroyed.
5. Warranties: Seller warrants that the Goods will be free from defects in material, workmanship, and design for a period of 12 months from the date of initial operation of the Goods, or 18 months from the date of shipment, whichever shall first occur. In the case of spare or replacement parts manufactured by Seller, the warranty period shall be for a period of six months from shipment. Repairs shall be warranted for 12 months or, if the repair is performed under this warranty, for the remainder of the original warranty period, whichever is greater. Buyer shall report any claimed defect in writing to Seller upon discovery and in any event, within the warranty period. Seller shall repair or replace the Goods within twenty (20) working days, at the original delivery point of shipment. If Buyer repairs or replaces Goods without Seller's prior written approval, Seller is relieved of obligation to Buyer under this section with respect to such Goods, unless the repair, replacement, or adjustment occurred after Seller failed to satisfy its obligations under this section. Goods shall not be deemed defective either by reason of normal wear and tear or, Buyer's failure to properly store, install, and maintain the Goods.
If Aegis identifies a warranty problem with the Goods during the applicable warranty period, Aegis will promptly notify Seller of such problems and, at Seller’s expense and Aegis’s option, either return the Goods to Seller, repair the Goods or have the Good repaired. Within five (5) business days of receipt of any returned Goods, Seller shall, at Aegis's option and Seller’s expense:
(i) Either repair or replace such Goods;
(ii) Credit Aegis's account for the same; or
(iii) Obtain replacement Goods from another source.
Seller shall not redeliver corrected or rejected goods without disclosing the former rejection or requirement for correction and the corrective action taken, on the packing slip. All costs and expenses 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 or credit against any amounts that may be owed to Seller under this contract. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. Warranty is transferable to Aegis's customer. If Services are to be performed as part of this Agreement, Seller warrants that is qualified to perform such Services and warrants all Services in accordance with standards referenced in the Statement of Work.
Seller further warrants that it shall not furnish “Counterfeit Goods” under this contract, defined as Goods or separately-identifiable items or components of Goods that:
(i) Are an unauthorized copy or substitute of an Original Equipment Manufacturer or Original Component Manufacturer (collectively, “OEM”) item;
(ii) Are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture;
(iii) Do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design;
(iv) Have been re-worked, re-marked, re-labeled, repaired, refurbished, or otherwise modified from OEM design but are represented as OEM authentic or as new; or
(v) Have not passed successfully all OEM required testing, verification, screening, and quality control processes. Counterfeit Goods shall be deemed nonconforming to this contract and shall be subject to the remedies set forth in this article 5 and all other remedies available at law and in equity.
6. Counterfeit Components/Material Prevention: It’s the responsibility of each seller to take actions to implement and enforce Counterfeit Components and Material Prevention designed to preclude, detect, and remove any counterfeit components and/or raw material from deliveries to Aegis.
Seller shall support Aegis with the implementation of this requirement to eliminate counterfeit product and/or materials from the process. Seller shall ensure that all requirements are communicated throughout their organization. As part of contract review provide written acknowledgement and confirmation of compliance to Aegis’ purchasing team.
7. Changes in Source of Supply: Prior to any changes in suppliers, from the original contract, permission must be obtained, in writing, from Aegis. Under no circumstance shall product be shipped to Aegis without approval. Seller shall inform Aegis of the specifics associated with the “request for change of supplier.”
(i) Specifics to include impact to Aegis’ business if this change is not approved (lead time, costs etc.)
(ii) Information relating to proposed supplier (certifications, key customers, location, etc.)
(iii) Controls in place to monitor the new supplier
(iv)Ability to meet Aegis’ requirements, traceability, record retention, controlled source of supply
8. Quality Management: Seller shall establish and maintain a quality management system acceptable to Aegis for the Goods purchased under this contract. Seller shall permit Aegis to review procedures, practices, processes and related documents to determine such acceptability. Seller shall have a continuing obligation to promptly notify Aegis of any violation of or deviation from Seller’s approved inspection/quality management system and to advise Aegis of the quantity and specific identity of any Goods delivered to Aegis during the period of any such violation or deviation.
9. Inspection and Acceptance: Seller shall maintain an inspection system acceptable to Aegis for the Goods purchased under his contract. Aegis or its customer, at no cost, shall have reasonable access to Seller's, and Seller’s subcontractor locations, facilities and records as requested to inspect Seller's facilities, documentation, processes and Goods. Aegis shall have a reasonable time after receipt of Goods and before payment to inspect Goods for conformity with this Agreement and Aegis’s specifications and/or drawings (the “Specifications”), and Goods received prior to inspection shall not be deemed accepted ("Acceptance") until Aegis has run an adequate test to determine whether the Goods conform to this Agreement and the Specifications. Payment or use of a portion of the Goods for the purpose of testing shall not constitute an Acceptance of the Goods. If Goods tendered do not wholly conform to the provisions of this Agreement and the Specifications, Aegis shall have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon Aegis's delivery to the common carrier. Upon Acceptance, title to all Goods, and if Goods are customized for Aegis, documentation, engineering and modifications to Goods shall transfer to Aegis. Services shall be considered Accepted upon payment of Seller's invoice.
10. Subcontracting: Seller shall maintain complete and accurate records regarding all subcontracted items and/or processes. Unless Aegis’s prior written authorization or approval is obtained, Seller may not purchase completed or substantially completed Products. Unless Aegis’s prior written authorization or approval is obtained, Seller may not purchase Services where said Services result in any Intellectual Property commitments. For the purposes of this Agreement, completed or substantially completed Products shall not include components or subassemblies.
11. Diminishing Manufacturing Sources & Material Shortages: Seller shall identify obsolete parts, diminishing manufacturing sources and material shortages. Criteria used in evaluating such parts shall include availability of the part(s) the life cycle use of the part and available suppliers. Seller shall monitor the parts and materials that have the potential to adversely affect Aegis’s supply of such parts production or life cycle supportability. Seller shall provide Aegis with a minimum of 30 days written notice any time a part is identified as an at risk part or material. Seller’s notice shall address part cost, where and how often parts are used in the Goods, and how many parts are affected. Seller’s notice shall also include a recommendation to Aegis stating how the parts will be supported in the future.
(i) Aegis’s Authorized Procurement Representative may, without notice to sureties and in writing, direct changes within the general scope of this contract in any of the following areas:
a. Shipment or packing methods;
b. Place of delivery, inspection or acceptance;
c. Reasonable adjustments in quantities or delivery schedules or both;
d. Amount of Aegis-furnished property; and, if this contract includes services,
e. Description of services to be performed;
f. Time of performance (e.g., hours of the day, days of the week);
g. Place of performance, and
h. Terms and conditions of this contract required to meet Aegis’s obligations under Government prime contracts or subcontracts. Seller shall comply immediately with such direction.
(ii) If such change increases or decreases the cost or time required to perform this contract, Aegis and Seller shall negotiate an equitable adjustment in the price or schedule, or both, to reflect the increase or decrease. Aegis shall modify this contract in writing accordingly. Seller must assert any claim for adjustment to Aegis’s Authorized Procurement Representative in writing within twenty (20) working days and deliver a fully supported proposal to same within forty (40) working days after seller’s receipt of such direction.
Aegis may, at its sole discretion, consider any claim regardless of when asserted. If Seller’s proposal includes the cost of property made obsolete or excess by the change, Aegis may direct the disposition of the property. Aegis may examine Seller’s pertinent books and records to verify the amount of Seller’s claim. Failure of the parties to agree upon any adjustment shall not excuse Seller from performing in accordance with Aegis’s direction.
13. Insurance: Seller shall be solely responsible for maintaining such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, product insurance, and other insurance, as is required by law or as is the common practice in Seller's businesses, whichever affords greater coverage. Upon request, Seller shall provide Aegis with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Seller shall provide adequate coverage for any Aegis property under the care, custody or control of Seller.
14. Indemnity: Seller shall indemnify, hold harmless, and at Aegis's request, defend Aegis, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods provided under this Agreement. Seller shall not settle any such suit or claim without Aegis's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Aegis in enforcing this indemnity, including attorneys' fees.
15. Confidentiality / Export: Buyer and Seller shall each keep confidential and protect from unauthorized use and disclosure all:
(i) Confidential, proprietary and/or trade secret information;
(ii) Tangible items and software containing, conveying or embodying such information; and
(iii) Tooling identified as being subject to this article and obtained, directly or indirectly, from the other in connection with this contract or other agreement referencing this contract (collectively referred to as "Proprietary Information and Materials").
Buyer and Seller shall each use Proprietary Information and Materials of the other only in the performance of and for the purpose of this contract and/or any other agreement referencing this contract. However, despite any other obligations or restrictions imposed by this article, Buyer shall have the right to use, disclose and reproduce Seller's Proprietary Information and Materials, and any other materials provided by the seller, and make derivative works thereof, for the purposes of testing, certification, use, sale or support of any Goods delivered under this contract or any other agreement referencing this contract. Any such use, disclosure, reproduction or derivative work by Buyer shall, whenever appropriate, include a restrictive legend suitable for the particular circumstances. The restrictions on disclosure or use of Proprietary Information and Materials by Seller shall apply to all materials derived by Seller or others from Buyer's Proprietary Information and Materials. Upon Buyer's request at any time, and in any event upon the completion, termination or cancellation of this contract, Seller shall return to Buyer all of Buyer's Proprietary Information and Materials and all materials derived therefrom, unless specifically directed otherwise in writing by Buyer. Seller shall not, without the prior written authorization of Buyer, sell or otherwise dispose of (as scrap or otherwise) any parts or other materials containing, conveying, embodying or made in accordance with or by reference to any Proprietary Information and Materials of Buyer. Prior to disposing of such parts or other materials as scrap, Seller shall render them unusable. Buyer shall have the right to audit Seller's compliance with this article. Seller may disclose Proprietary Information and Materials of Buyer to its subcontractors as required for the performance of this contract, provided that each such subcontractor first agrees in writing to the same obligations imposed upon Seller under this article relating to Proprietary Information and Material. Seller shall be liable to Buyer for any breach of such obligation by such subcontractor. The provisions of this article are effective in lieu of any restrictive legends or notices applied to Proprietary Information and Materials. The provisions of this article shall survive the performance, completion, termination or cancellation of this contract.
Seller acknowledges that the Proprietary Information and any other information transferred to Seller is subject to export controls of the US Government, and agrees not to transfer, export or re-export such information without the written permission of the US Government and Aegis. Transfer, export, or re-export for which US Government and Aegis permission is required includes, but is not limited to, transfer to foreign nationals. Aegis shall reasonably assist Seller in securing the permission described in this paragraph.
Additional Aegis export information can be found on our Export Compliance page
16. Termination: Aegis may terminate this Agreement upon written notice to Seller if Seller fails to deliver Goods within the time specified by this contract or any written extension, or Seller fails to perform any other provisions of this contract or fails to make progress so as to endanger performance of this contract and does not correct the failure within ten (10) working days after receipt of notice from Aegis, or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Aegis shall pay Seller for those conforming Goods delivered to Aegis through the date of termination, less appropriate offsets. Seller shall continue work not cancelled. If Aegis cancels all or part of this contract, Seller shall be liable for Aegis’s excess re-procurement costs.
Aegis may terminate this Agreement for any other reason upon twenty (20) working days' written notice to Seller. Seller shall cease to provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, Aegis shall be liable to Seller only for accepted conforming Goods and if Goods are in accordance with Aegis specifications, any in- process Goods delivered to Aegis through the date of termination, less appropriate offsets.
Seller may terminate this Agreement upon written notice to Aegis if Aegis fails to pay Seller within ninety (90) days after Seller notifies Aegis in writing that payment is past due.
Upon the expiration or termination of this Agreement for any reason:
(i) Each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and
(ii) Seller will promptly notify Aegis of all Proprietary Information in Seller's possession and, at the expense of Seller and in accordance with Aegis's instructions, will promptly deliver to Aegis all such Proprietary Information.
17. Remedies: If Seller breaches this Agreement, Aegis shall have all remedies available at law and in equity. For the purchase of Goods, Seller's sole remedy in the event of breach of this Agreement by Aegis shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction. Seller shall have no right to resell Goods for Aegis's account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Aegis and any resale so made shall be for the account of Seller.
18. Disputes: The parties agree to make every effort to resolve disputes through communication amongst the parties. The following steps shall be taken to resolve any disputes
(i) Oral communication between the parties; then
(ii) The aggrieved party shall notify the other party in writing as to the dispute with thirty (30) days to resolve; if not resolved then
(iii) Either party may seek redress in any court of competent jurisdiction. Pending final resolution of any dispute, Seller shall proceed with performance of this contract according to Aegis’s instructions so long as Aegis continues to pay amounts not in dispute.
19. Aegis’s Property: Seller shall clearly mark; maintain an inventory of and keep segregated or identifiable all of Aegis’s property and all property to which Aegis acquires an interest by virtue of this contract. As directed by Aegis, upon completion, termination or cancellation of this contract, Seller shall deliver such property, to the extent not incorporated in delivered Goods, to Aegis in good condition subject to ordinary wear and tear and normal manufacturing losses. Seller assumes all risk of loss, destruction or damage of such property while in Seller’s possession, custody or control, including any transfer to Seller’s subcontractors. Upon request, Seller shall provide Aegis with adequate proof of insurance against such risk of loss. Seller shall notify Aegis’s Authorized Procurement Representative if Aegis’s property is lost, damaged or destroyed.
20. Records and Audit: Seller shall retain all records and documents pertaining to the Goods for a period of no less than five (5) years after final payment. Such records and documents shall date back to the time this contract was issued and shall include without limitation, catalogs, price lists, invoices and inventory records for purposes of verification of prices or rates charged by seller for Goods procured by Aegis. Aegis shall have the right to examine, reproduce and audit all such records related to pricing and performance to evaluate the accuracy, completeness and currency of cost and pricing data submitted with Seller’s bid or offer to sell.
21. Force Majeure: Neither party shall be liable for any failure to perform, including Aegis’s failure to take delivery of the Goods as provided, caused by circumstances beyond that party’s control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of terrorism, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. In the event performance is so excused, either party may terminate the Agreement and Aegis shall at its expense and risk, return any Goods received to the place of shipment.
22. Severability: If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
23. Limitation of Liability: On no event shall Aegis be liable to seller or any third party for any incidental, indirect, special or consequential damages arising out of, or in connection with, this agreement, whether or not Aegis was advised of the possibility of such damage.
24. Assignment; Waiver: Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Aegis. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Aegis without restriction. A waiver of, or any default hereunder of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
25. Nonexclusive Agreement: This is not an exclusive agreement. Aegis is free to engage others to provide Goods the same as or similar to Seller's. Seller is free to, and is encouraged to, advertise, offer and provide Seller's standard Goods to others; provided however, that Seller does not breach this Agreement.
25. Notices: Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Aegis representative, and shall be considered given when
(i) Delivered personally,
(ii) Sent by email, confirmed facsimile,
(iii) Sent by commercial overnight courier with written verification receipt, or
(iv) Ten (10) days after having been sent, postage prepaid, by first class or certified mail.
26. Survival of Obligations: Any obligations and duties, which by their nature extend beyond the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement, including but not limited to Confidentiality and Export.
27. Governing Law: This Agreement shall be governed and construed in all respects in accordance with the domestic laws and regulations of the State of Arizona, without regard to its conflicts of laws principles to the contrary. The parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
28. Entire Agreement; Modification: This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter of this Agreement. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Aegis, signed by the parties.
The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller.
29. Compliance with Laws: Seller shall comply fully with all applicable federal, state and local laws in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control and environmental laws. If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials. Upon Aegis's request, Seller will promptly provide Aegis with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States.
30. Compliance with Government Flow-down Clauses (FARs and DFARs): Seller shall comply fully with all pertinent Government FAR and DFAR clauses applicable with this purchase.
31. Suspension of Work:
(i) Buyer’s Authorized Procurement Representative may, by written order, suspend all or part of the work to be performed under this contract for a period of 100 days. Within such period of any suspension of work, Buyer shall
a. Cancel the suspension of work order;
b. Terminate this contract in accordance with the “Termination” article of this contract; or
c. Extend the stop work period.
(ii) Seller shall resume work whenever a suspension is canceled. Buyer and Seller shall negotiate an equitable adjustment in the price or schedule or both if:
a. His contract is not canceled or terminated;
b. The suspension results in a change in Seller’s cost of performance or ability to meet the contract delivery schedule; and
c. Seller submits a claim for adjustment within twenty (20) working days after the suspension is canceled.
32. Publicity: Seller shall implement the intent of this paragraph in its business operations and at all of its sub-tier suppliers as follows:
(i) Seller shall not use Aegis’s brand (text or visual use of Aegis’s products, services, company name, logo, programs, etc.), of any kind through any outbound channel, including, but not limited to: press releases, advertising, media articles, websites, presentations, video, still photos and tradeshow graphic panels & promotional items or denial or confirmation of same regarding this purchase order (PO) contract or the Goods or program to which it pertains.
(ii) Seller shall require that its subcontractors, at all tier levels, not release any publicity, advertisement, news release or denial or confirmation of same regarding this contract or the Goods or program to which it pertains. Information released includes, but is not limited to: press releases, advertising, media articles, websites, presentations, video, still photos and tradeshow graphic panels & promotional items, etc.
(iii) Seller shall be liable to Buyer for any breach of such obligation by subcontractor and its sub-tier Suppliers. Aegis may, at its option, recover damages caused by release of unauthorized information as discussed in this section including all legal fees and costs.
(iv)By accepting this PO award, Seller explicitly agrees that dissemination of unauthorized publicity is strictly prohibited unless approved prior to any release, in writing, by a representative of Aegis.