ILC Dover to Acquire Flexan

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ILC Dover to Acquire Flexan, Global Medical Device Contract Design & Manufacturing Company

Terms & Conditions

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STANDARD ILC DOVER PURCHASE ORDER TERMS AND CONDITIONS

 

Buyer Terms & Conditions

THESE TERMS AND CONDITIONS OF SALE APPLY TO THE SALE OF SELLER’S GOODS. SELLER’S ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL UPON BUYER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS CONTAINED HEREIN AND IN SELLER’S SALES ORDER ACKNOWLEDGEMENT. SELLER REJECTS ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS, WHETHER CONTAINED IN BUYER’S ORDER FORM OR TRANSMITTED SEPARATELY BEFORE OR AFTER RECEIPT OF GOODS. SELLER WILL NOT BE DEEMED TO HAVE WAIVED THESE TERMS AND CONDITIONS OF SALE IF IT FAILS TO OBJECT TO ANY PROVISION CONTAINED IN BUYER’S FORMS OR OTHERWISE. BUYER’S SILENCE OR ITS ACCEPTANCE OF SELLER’S GOODS CONSTITUTES ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Definitions. “Seller” means ILC Dover LP, Incorporated, a Delaware Corporation, acting through its subsidiary, business unit or affiliate, if any, specified in the Agreement, the Order, or the Sales Order Acknowledgement. “Buyer” means the individual, corporation or other entity that has submitted an Order to Seller. “Order” means Buyer’s express request, whether oral or written, and whether transmitted electronically or otherwise, to purchase Goods from Seller. “Goods” means all of the products and materials that Buyer requested and provided pursuant to an Order.
2. Order Acceptance. Buyer’s Order is subject to acceptance by Seller, which acceptance is made expressly contingent upon Buyer’s agreement to these terms and conditions. Acceptance of an Order is subject to all of the terms set forth herein and contained in Seller’s sales order acknowledgement form (“Acknowledgement Form”), which terms shall constitute the sole terms and conditions of this Order. Buyer’s assent to all such terms and conditions shall be conclusively presumed when Buyer accepts all of any part of the Goods reflected by the Order. Seller objects to any terms or conditions that differ from or are additional to those stated herein or on the Form. This Order can be modified only by written amendment executed by Seller.
3. Prices. All Orders for Goods are subject to minimum order quantities, as determined by Seller from time to time. Prices are subject to change without notice. Blanket order prices are firm for a maximum of ninety (90) days and subject to change thereafter. If there are cost increases between the time of order confirmation and shipment, Seller reserves the right to adjust the sell prices accordingly with notice to Buyer who can then either cancel the order without further obligation or accept the price increase. If any product furnished by Seller becomes subject to sales, use, excise or processing taxes, the Buyer will be liable for these taxes.

4. Payment Terms. Payment shall be made in US Dollars. Payment terms shall be as set forth on the face of the Form and shall be measured from the date of shipment. Failure by Buyer to make full payment by the due date shall constitute a default. In such case, and in addition to any other rights available to Seller at law or in equity, Seller will be entitled to assess interest charges upon Buyer for any overdue amounts (as well as on any judgment for the same). Unless prepaid, all Orders are subject to credit approval by Seller. Whenever reasonable grounds for insecurity arise with respect to due payment from Buyer or with respect to Buyer’s financial condition, Seller may demand different terms of payment from those specified above, and may demand additional assurance of Buyer’s payment. Any such demand may be oral or in writing and Seller may, upon the making of such demand, stop production and suspend shipments hereunder. If within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment or fails or refuses to give adequate assurance of due payment, Seller may, at its option, treat such failure or refusal as repudiation of the portion of the Order which has not been fully performed or may resume production and may make shipment under reservation of possession or of a security interest and may demand payment against tender of documents of title.
5. Import Duties and Taxes. Import duties and taxes are not included in the price of Goods. Prices do not include Federal taxes, state or local sales taxes, use taxes, occupational taxes or import duties and unless prohibited or otherwise required by law, Buyer is responsible for and shall pay all applicable sales, use, occupation, excise, value added or other similar taxes or import duties applicable to the manufacture, sale, price, delivery or use of Goods provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to and considered valid by the applicable taxing authorities.
6. Delays. Seller shall use reasonable efforts to fill the Order in accordance with the estimated shipping date, but shall not be responsible for any delays in filling the Order nor liable for any losses or damages resulting from such delays, and the Order shall not be subject to cancellation for such delays.
7. Force Majeure. Seller will not be liable for failure in the performance of its obligations hereunder where such performance has been delayed prevented or rendered commercially impractical due to accidents, differences with workmen, strikes, shortage of labor, inability to obtain materials, fuel or power from normal sources, fires, floods or other acts of God, acts or omissions of Buyer, priorities required, requested or granted for the benefit of any Federal or state government, restrictions imposed by Federal or any state legislation or regulations thereunder, or any cause whether similar or dissimilar to those enumerated, beyond the reasonable control of Seller.

8. Returns and Rejections. Buyer must contact Seller within ten (10) business days of receipt of Goods for rejection or revocation of delivery to obtain a returns authorization number for any returns, or any attempted rejection or revocation of acceptance of such Goods made thereafter shall be null and void unless agreed to in writing by Seller. Buyer items returned without prior contact with Seller may not be properly identified and this may either prolong or nullify a refund. Under no circumstances shall any Goods be returned by Buyer, to Seller, without a Certification stipulating that the Goods have not been exposed to known carcinogens, toxic, hazardous or biological materials. Any credit will be processed upon receipt and inspection of the Goods. Return of stock Goods are subject to a 20% restocking fee. Custom or special ordered Goods are not returnable. Failure to make claim within ten (10) business days of Goods delivery shall be conclusive evidence that the Goods were satisfactory in all respects and supplied in accordance with ordered specifications.
9. Equipment. (a) Any equipment (including jigs, fixtures, dies and tools) which Seller constructs or acquires for use in the production of Goods for Buyer shall be and remain Seller’s property and in Seller’s possession and control and will be maintained by Seller for a period of two (2) years from the date of last Order. (b) Any materials or equipment owned or furnished by Buyer to Seller will be carefully handled and stored by Seller while in Seller’s possession and, when for two (2) consecutive years, no Orders acceptable to Seller are received from Buyer for Goods to be made from any such equipment or materials, Seller may by written notice to Buyer, request Buyer to make disposition thereof at Buyer’s expense. If Buyer fails to comply with such notice, Seller may make such use or disposition of said materials or equipment as it desires without liability or obligation to Buyer.

10. Warranty. Seller warrants to Buyer that the Goods at the time of shipment to Buyer hereunder, (a) will conform to the specifications on the face of the Form; (b) that it will convey good title thereto and that such Goods will be delivered free from any lawful security interest or other lien or encumbrance unknown to Buyer; and (c) that such Goods will be free from defects in material and workmanship. All warranty claims must be made in writing by Buyer to Seller within ninety (90) days following shipment of the Goods to which such warranty claim relates.
EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER SUCH WARRANTIES.
11. Patents. Seller agrees to indemnify Buyer against all court-awarded damages and costs resulting from any third party claim of infringement of a United States Patent covering Goods (but not use of Goods) at the time of delivery by Seller to Buyer. Buyer agrees, for the Goods delivered under the Order, to indemnify Seller against all court-awarded damages (excluding consequential damages) and costs resulting from any third party claim of infringement of a United States Patent to the extent that such infringement arises from (i) designs, specifications or instructions furnished or explicitly or implicitly required by Buyer or (ii) Buyer’s use of the Goods. The parties agree to provide information and reasonable assistance to each other, upon request, to the extent such information and assistance are required by such party to defend against any infringement claim arising under this clause. Neither party shall be entitled to indemnification under this clause as to any claim of infringement if it does not provide the other party prompt notice in writing upon learning thereof and full opportunity, at the expense of such other party, to defend and dispose of such claim of infringement. The sale of Goods covered by the Order shall not grant to Buyer any right or license of any kind under any patent owned or controlled by Seller or under which Seller is licensed, but the foregoing shall not be understood to limit in any way Buyer’s right to use and sell such Goods, in the event that such Goods as sold hereunder are covered by any such patent.

12. Subsidiaries and Affiliates. Seller may be acting hereunder on its own behalf or as an agent for any one or more persons subsidiary to or affiliated with Seller. The Order may be performed and all rights hereunder against Buyer may be enforced by (i) Seller; or (ii) any one or more persons subsidiary to or affiliated with Seller; or (iii) a third party designated by Seller; in part by Seller and in part by one or more of said subsidiaries, affiliated persons or third parties.
13. Customer Part, Specification or Drawing Number.
Any such number which appears on the face of the Form will be produced in accordance with specifications thereof as modified with Buyer’s approval.
14. Release. Except as set forth in Section 11 above, Buyer shall release, hold harmless, indemnify and defend Seller, its present and future officers, directors, officials, employees, agents, subsidiaries, affiliates, successors and assigns from any liability (including without limitation liability for negligence) claims, losses, suits, demands, penalties, fines, forfeitures, damages and costs caused by, arising out of or relating to the Goods supplied hereunder, the design of Goods supplied hereunder or the design of the packages or containers in which Goods are shipped, if such Goods’ packages or containers are made in compliance with Buyer’s designs or specifications, or any act of omission of Buyer or its successors, assigns, agents, representatives or employees.
15. Termination of Order. Buyer may not terminate the Order without the written consent of Seller. If Seller consents to such termination, reasonable termination charges computed by Seller shall be assessed in connection with such termination (which may include but shall not be limited to any change in the price of the Goods between the date on which the Order was priced and the date of desired termination).
16. Limitations on Use. Buyer agrees and represents that Buyer is purchasing the Goods herein for their own internal use and “NOT FOR RESALE”. Based on the aforementioned, Buyer shall be responsible for all liabilities and expenses of any type whatsoever that may arise on account of Buyer’s resale of Goods. Buyer hereby agrees to indemnify, hold harmless and (at Seller’s option) defend Seller from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which Seller may become liable arising from or relating to any Buyer’s acts or omissions in connection with the marketing or resale of the Goods under this Order.
17. Limitation of Liability. Seller’s liability and Buyer’s exclusive remedy for any tender of nonconforming or defective Goods or breach of warranty, is expressly limited to Seller’s choice of (a) the repair of nonconforming or defective Goods; (b) the replacement of nonconforming or defective Goods with conforming Goods at the FOB or Ex Works point shown on the face of the Form, as applicable, or (c) the repayment of that portion of the purchase price represented by nonconforming or defective Goods. Such repair, replacement or repayment will be made only upon return of the nonconforming or defective Goods, which may be returned at Seller’s cost only after inspection by Seller and receipt by Buyer of definite shipping instructions from Seller.

SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, CONTINGENT, OR PUNITIVE DAMAGES FOR (A) ANY BREACH OF CONTRACT OR WARRANTY, WHETHER BASED ON THEORIES OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; (B) THE TENDER OF DEFECTIVE OR NONCONFORMING GOODS; OR (C) BREACH OF ANY HER PROVISION OF THIS AGREEMENT; OR (D) ANY CLAIM OF ANY KIND ARISING OUT OF OR RELATING TO ANY ORDER OF SELLER’S PERFORMANCE IN CONNECTION THEREWITH. IN ANY EVENT, SELLER’S LIABILITY TO BUYER SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS ON WHICH SUCH LIABILITY IS BASED. BUYER ASSUMES ALL OTHER LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH ORRESULTING FROM THE USE OF THE GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS.
18. Delivery and Risk of Loss. Delivery and transportation provisions applicable to this Order shall be those stated on the face of the Form. (A) Where the shipping terms on the face of the Form state that the Goods are sold FOB Destination, Seller will deliver such Goods to such destination in accordance with the provisions of this paragraph. The method and agency of transportation and the routing will be designated by Seller. Excess packing, shipping and transportation charges that result from compliance with respect to the use of any agency or
method of transportation or any routing other than that which would be designated by Seller shall be for Buyer’s account. In the case of Buyer pick-up, Buyer’s vehicle (or that of Buyer’s designated carrier effecting pickup) is the destination, and unless Seller otherwise agrees in writing, Seller will not deliver or bear any cost of shipment or transportation, or make any allowance with respect thereto, beyond loading onto such vehicle (whether owned by, leased to or otherwise under contract to Buyer or Buyer’s agent). Buyer shall bear all risk of loss or damage upon Seller’s loading of such Goods onto such vehicle. (B) Where the shipping terms on the face of the Form state that the Goods are sold FOB shipping point Seller’s plant,
the cost of transportation and risk of loss or damage thereof shall be borne by Buyer.
19. Export Control. (A) Buyer and Seller shall comply with all national and international export control regulations. Goods, equipment, technology and technical data shall not be exported, re-sold, diverted, re-exported or disposed of in other than the country of ultimate destination (currently approved by the United States Government), without the prior approval of the United States Department of State or Commerce or other Agency of the United States Government, whichever is appropriate. (B) Seller shall assume no liability in the event that an export license is not approved or later withdrawn by the United States Government or other applicable Government. (C) Where Buyer requests a routed transaction (meaning it will along with its U.S.
Freight Forwarder accept responsibility as U.S. Exporter of Record to attain such applicable Government approvals) it shall supply all required documentation to the Seller including the required routed transaction letters from both Buyer and its designated U.S. Forwarder/Agent.
20. Standard Quantity Tolerances. Unless another tolerance is stated on the face of the Form, the quantity tolerance applicable to each item of Goods specified on the Order shall be +/- 5%.
21. Arbitration. All disputes, controversies or claims arising in connection with the present contract, including a dispute regarding its validity, termination, performance or breach thereof, shall be finally settled by arbitration administered by the International Court of Arbitration of the International Chamber of Commerce (the “ICC”) in accordance with the ICC Rules of Arbitration in effect at the time of the arbitration. The arbitration shall be conducted by three (3) arbitrators appointed in accordance with said rules. The place of arbitration shall be
Wilmington, Delaware, USA and the proceedings shall be conducted in the English language. The award rendered by the arbitrator(s) shall be final and binding on the parties
and judgment on the award may be entered in any court of competent jurisdiction.
22. Governing Law. The laws governing the present contract and any dispute arising from or in connection with the contract shall be the laws of the state of Delaware without regard to its choice of law provisions. Notwithstanding anything to the contrary herein, the arbitration provision set forth under Section 21, and any arbitration conducted thereunder, shall be governed exclusively by the Federal Arbitration Act, Title 9 United States Code, to the exclusion of any state or municipal law of arbitration.
23. Buyer’s Warranty. Notwithstanding any other provision contained herein or any other obligation of Buyer hereunder, Buyer, upon acceptance of Goods that are the subject of the Order, warrants that Buyer, its successors, assigns, agents and employees are industrial users of such Goods and possess the knowledge and expertise to use the same in accordance with (i) accepted industry standards, (ii) all applicable laws, (iii) prudent safety practices and (iv) operating manuals or other instructions provided by Seller, if any.
24. Confidentiality. Unless otherwise agreed in writing by Seller, Buyer will not disclose the pricing or other terms of the Order to any third party.
25. Electronic Commerce. At Seller’s request, Seller and Buyer will facilitate business transactions by electronically transmitting data. Any data digitally signed pursuant to this Section and electronically transmitted will be as legally sufficient as a written, signed, paper document exchanged between the parties, notwithstanding any legal requirement that the data be in
writing or signed, and will have the same effect as a signature on a written document.
26. Miscellaneous. (a) Headings used herein are for convenience only and shall not be used for interpretive purpose. (b) A party’s failure to act with respect to another party’s breach of any provision contained herein does not constitute a waiver. (c) If any provision herein is held to be invalid or unenforceable, such provision shallbe narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. (d) These terms and conditions will survive the fulfillment of this Order.
27. Assignment and Modification. The rights and obligations of Buyer under this Agreement shall not be assignable without the prior written consent of Seller.
This Agreement shall not be modified, altered or amended in any respect except in writing and signed by both parties.
Any variation, modification or addition to the terms set forth herein shall be considered a material modification and shall not be considered part of this Agreement.

 

Seller Terms & Conditions

ILC Dover Purchase Orders are made subject to the following terms and conditions, in addition to those stated or referenced on the Purchase Order, and includes any drawings, specifications, schedules, exhibits or other writings incorporated herein. As used in this Purchase Order “Buyer” means ILC DOVER LP; “Seller” means the party named on the Purchase Order; and “UCC” means the Uniform Commercial Code as in effect from time to time in any appropriate jurisdiction.

1. SELLER’S ACCEPTANCE
(a) Acceptance of this Purchase Order is expressly limited to the terms and conditions contained herein. Any additional or different terms or conditions proposed by Seller shall constitute a counter offer.
(b) Seller accepts this Purchase Order by signing and returning an acknowledgment copy of this Purchase Order, by providing other written notice of acceptance which expressly refers to this Purchase Order and accepts the terms hereof, commencement of performance, or acceptance of payment.
(c) Acceptance of the Purchase Order must be received by Buyer within the time period specified on the Purchase Order. If no time period is specified, then acceptance must be received within 10 days.

2. PURCHASE ORDER CHANGES
(a) Buyer may at any time by written notice to Seller make changes in any one or more of the following (i) applicable drawings, specifications, delivery schedules, exhibits or other writings forming a part of this Purchase Order; (ii) method of shipment or packing; (iii) place of delivery.
(b) If any such change causes an increase or decrease in the cost or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and this Purchase Order shall be modified in writing to reflect such changes.
(c) Any claim for an adjustment pursuant to subparagraph (b) hereof must be asserted within thirty (30) days from the date notice of the change is given by Buyer.
(d) Buyer may request from Seller an estimate of the increase or decrease in the cost or the time required for performance of any change prior to ordering the same, whereupon Seller shall promptly submit to Buyer a firm bid in writing stating the amount of any increase or decrease. Seller shall not proceed with the change for which any such estimate has been requested unless and until Buyer gives written notice to Seller to make such change.

3. DELIVERY
(a) Time is of the essence in this Purchase Order. Delivery of goods and/or performance of services shall be made at the F.O.B. point and on the date or dates specified on the Purchase Order.
(b) Should Seller fail to comply with the delivery or performance terms of this Purchase Order, Buyer may terminate this Purchase Order in whole or part and may buy elsewhere and charge Seller any additional expense incurred thereby. Buyer expressly retains all its rights and remedies provided by law in the case of such default, and no action on the part of the Buyer shall constitute a waiver of any right or remedy. Neither Buyer nor Seller shall be liable by reason of any failure to deliver or delay in delivery due to any cause beyond reasonable control without fault or negligence.

4. IDENTIFICATION
Identification of the goods under UCC Section 2-501 shall occur upon Seller’s acceptance of this Purchase Order or as soon thereafter as the goods are identifiable; provided however, that Seller shall notify the Buyer immediately upon discovery of any non-conforming goods that are identified against the Purchase Order for appropriate disposition.

5. RISK OF LOSS
Risk of Loss shall be upon the Seller, who has title to the goods and, thus is responsible for loss or damage up until F.O.B. point stated on the Purchase Order; only at that time shall risk of loss and title pass to the Buyer.

6. SELLER’S WARRANTIES
(a) Seller warrants that the goods and/or services subject to this Purchase Order will conform to all applicable specifications and samples furnished or accepted by Buyer, will consist of only first class workmanship and materials (all of which materials shall be new unless otherwise specifically allowed by notation by Buyer on the Purchase Order), will be free from
any defects, latent or patent, in material, design, or workmanship.
(b) Seller warrants that it has complied, and the goods and/or services covered by this Purchase Order will comply, with all applicable federal, state and local laws, rules, regulations and orders, which directly or indirectly regulate or affect the manufacture and/or sale of such goods or services. Seller will furnish Buyer with guarantees and assurances in accordance Page 2 Mar. 2020 with the applicable provisions of any such law, rule, regulation or order which provide a specific written guarantee or assurance to be given by Seller with respect to such goods or services.
(c) Seller warrants that it has, or will have, at the time of delivery, good title to the goods covered by this Purchase Order, and that it has a right to transfer such goods, free from any security interest, lien or encumbrance. Before final payment, Seller shall, if requested, satisfy Buyer by affidavits or otherwise, that there is no outstanding security interest, lien or
encumbrance for labor or material against the goods delivered to Buyer.

7. CHANGES TO PARTS AND/OR MATERIALS
No substitution of, nor alteration or change in any goods, component parts thereof, tooling, equipment, sources of raw materials and/or supplies, processes, or manufacturing sites may be made without the prior written consent of Buyer.

8. PRICE
(a) The price of the goods and/or services covered by this Purchase Order shall be the lesser of (i) the amount specified on the Purchase Order or (ii) the lowest price in effect on the date of shipment for comparable goods and/or services in comparable quantities, and Seller shall promptly notify Buyer in writing of any reduction in price required hereunder.
(b) No charge not appearing on this Purchase Order shall be payable by Buyer.

9. INVOICES AND PAYMENT
(a) An invoice for goods and/or services, with evidence of shipment properly signed by carrier’s representative, if applicable, shall be submitted to Buyer for each shipment or performance of services. Error or omissions on invoices or delay in the receipt of invoices shall entitle Buyer to withhold payment without penalty or loss of any discount. Payment shall be made per the payment terms on the Purchase Order.
(b) Except as otherwise provided herein, payment for goods and/or services covered by this Purchase Order shall be made only (i) after arrival of goods at destination or after completion of services, (ii) after Buyer’s inspection and acceptance of goods and workmanship, (iii) after receipt of the appropriate and corrective invoices, and (iv) insofar as final payment is
concerned, after Seller has complied with all of its obligations to Buyer. Buyer shall have the right to set off against this Purchase Order any amounts which may become payable under this Purchase Order and any amounts which Seller may owe to Buyer.
(c) Neither inspection nor payment shall be deemed to waive any rights of the Buyer.

10. PACKING SLIP
An itemized packing slip shall be enclosed with each shipment. Buyer’s count shall be accepted as conclusive as to any shipment not accompanied by a packing slip. Acceptance by Buyer of goods accompanied by a packing slip shall not waive Buyers right to object to shipment.

11. QUALITY CONTROL SYSTEM
(a) Seller shall provide and maintain a quality control system to an industry recognized Quality Standard and in compliance with any other specific quality requirements identified in this Purchase Order.
(b) All Quality Records shall be maintained and available to ILC Dover LP and its customers for a period of 7 years and be available for review upon request. At the end of this 7-year period, the Seller shall contact Buyer for disposition of all records. Buyer shall have the right to inspect the goods and/or services at the time and place of delivery or performance before paying for or accepting them.
(c) Seller shall provide Buyer with test samples as required by Purchase Order for design approval, inspection/verification, investigation, or auditing.

12. BUYER’S PROPERTY
(a) Any property furnished by Buyer to Seller in connection with this Purchase Order shall be and remain Buyer’s property and Seller shall be deemed to be an insurer thereof.
(b) Seller shall segregate, clearly mark and maintain complete inventory of all such property and will notify Buyer of any loss or destruction of or damage to such property.
(c) Upon termination or completion of this Purchase Order Seller shall deliver any such property to Buyer, in good condition subject to ordinary wear and tear and normal manufacturing losses, in accordance with Buyer’s instructions, or shall otherwise dispose of such property as directed by Buyer.
(d) Seller shall maintain fire with extended coverage and theft insurance for any such property and provide evidence of such coverage upon request.

13. CONFIDENTIAL INFORMATION

Seller acknowledges that any data, designs or other information disclosed by Buyer to Seller in connection with this Purchase Order is confidential and proprietary to Buyer and that use of or disclosure of this information other than as may be required in the course of Sellers performance of this Purchase Order will be detrimental to Buyer. Seller shall not in any manner advertise, publish or release any information concerning this Purchase Order without the prior written consent of Buyer, except as may be required by law.

14. ASSIGNMENT AND TRANSFER
Seller shall not assign or transfer any of its rights or obligations under this Purchase Order without the express prior written consent of Buyer.

15. REMEDIES
Buyer and Seller shall have all of the remedies afforded by the UCC, as well as any other remedies which may be provided by law.

16. WAIVER
Failure of Buyer to insist upon strict adherence to any term of this Purchase Order on any occasion shall not be considered a waiver or deprive Buyer of the right thereafter to insist upon strict adherence to that term or any other term of this Purchase Order. Any waiver must be in writing and signed by an authorized representative of Buyer.

17. GOVERNING LAW
(a) This Purchase Order and its performance shall be governed by the UCC and the laws of the State of Delaware. Seller, in performance of this Purchase Order, agrees to comply with all applicable local, state, and federal laws, orders, rules, regulations, and ordinances. Seller shall procure all licenses/permits, pay all fees and other required charges.
(b) Seller represents that each chemical substance constituting or contained in work sold or otherwise transferred to ILC Dover hereunder is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 USC Sec. 2601 et seq) as amended.
(c) Seller shall provide to ILC Dover with each delivery any Material Safety Data Sheet applicable to the work in conformance with and containing such information as required by the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder, or its State approved counterpart.

18. ANTI-KICKBACK PROCEDURES
Federal Acquisition Regulation (FAR) Clause 52.203-7 “ANTI-KICKBACK PROCEDURES” is incorporated herein by reference.

19. EXPORT CONTROL
(a) Seller agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act,22 USC 2751-2794, including the International Traffic in Arms Regulations (ITAR), 22 CFR 120 et seq; and the Export Administration Act, 50 USC app.2401-2420, including the Export Administration Regulations (EAR), 15 CFR 730-774; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Seller agrees that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Seller or Seller’s lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception.

(b) Seller agrees to notify ILC Dover if any deliverable under this Purchase Order is restricted by export control laws or regulations.
(c) Seller shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorney’s fees, all expense of litigation and/or settlement, and court costs, 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 clause.

20. ELECTRONIC CONTRACTING
The parties agree that if this Purchase Order is transmitted electronically neither party shall contest the validity of this Purchase Order, or any acknowledgement thereof, on the basis that this Purchase Order or acknowledgement contains an electronic signature.

21. INTELLECTUAL PROPERTY
Paragraph (a) is NOT applicable to commercial off-the-shelf work unless such work is modified or redesigned pursuant to this Purchase Order.
(a) Seller agrees that ILC Dover shall be the owner of all inventions, technology, designs, works of authorship, mask works, technical information, and other information conceived, developed, or otherwise generated in the performance of this Purchase Order by or on behalf of Seller. Seller hereby assigns and agrees to assign all right, title, and interest in the foregoing to ILC Dover, including without limitation all copyrights, patent rights, and other intellectual property rights therein and further agrees to execute, at ILC Dover’s request and expense, all documentation necessary to perfect title therein in ILC Dover.
(b) In the event that any Seller pre-existing inventions, technology, designs, works or authorship, mask works, technical information, and other information or materials are used, included, or contained in the work or deliverable items, Seller grants to ILC Dover an irrevocable, nonexclusive, royalty free license to such items.
(c) Seller warrants that work performed or delivered under this Purchase Order will not infringe or otherwise violate the intellectual property rights of any third party.

22. TERMINATION

(a) TERMINATION FOR CONVENIENCE
Buyer reserves the right to terminate this contract, or any part hereof, for Buyer’s sole convenience. In the event of such termination, Seller shall immediately cease all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. In case of termination for convenience by Buyer of all or any part of this subcontract, Seller may submit a claim to Buyer within sixty days after the effective date of termination for work completed up to and including the date of Buyer’s notification of termination. In no event shall Buyer be obligated to pay Seller any amount in excess of the contract price. The provisions of this article shall not limit or affect Buyer’s right to cancel this contract for default.

(b) TERMINATION FOR DEFAULT Buyer, may, by written notice to Seller, cancel all or part of this subcontract, if (1) Seller fails to deliver the goods and/or services within the time specified by this subcontract or any written extension; (2) if Seller fails to perform any other provision of this subcontract, or fails to make progress, so as to endanger performance of this subcontract, and, in either of these two circumstances, does not cure the failure within ten days after receipt of notice from Buyer specifying the failure; or (3) in the event of Seller’s bankruptcy, suspension of business, insolvency, appointment of a receiver for Seller’s property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors. In the event of a termination for default, Buyer may acquire, in the manner Buyer considers appropriate, goods and/or services similar to those terminated for default. Seller shall be liable for, and pay to Buyer any costs, including the cost for additional managerial and administrative services, in excess of the subcontract price for the goods and/or services.

23. COUNTERFEIT WORK
(a) For purposes of this clause, Work consists of those parts delivered under this Contract that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). “Counterfeit Work” means Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair but is altered and misrepresented as acceptable.
(b) Seller agrees and shall ensure that Counterfeit Work is not delivered to Buyer.
(c) Seller shall only purchase products to be delivered or incorporated as Work to Buyer directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by Buyer.
(d) Seller shall immediately notify Buyer with the pertinent facts if Seller becomes aware or suspects that it has furnished Counterfeit Work. When requested by Buyer, Seller shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM.
(e) This clause applies in addition to any quality provision, specification, statement of work or other provision included in this Contract addressing the authenticity of Work. To the extent such provisions conflict with this clause, this clause prevails.

(f) In the event that Work delivered under this Contract constitutes or includes Counterfeit Work, Seller shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Contract. Notwithstanding any other provision in this Contract, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation Buyer’s costs of removing Counterfeit Work, of reinserting replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged.
The remedies contained in this paragraph are in addition to any remedies Buyer may have at law, equity or under other provisions of this Contract.
(g) Seller shall include paragraphs (a) through (e) and this paragraph (g) of this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to Buyer.

24. CONTRIBUTION AWARENESS
Products and/or services provided by Seller shall conform to all requirements defined by Purchase Order and Terms and Conditions defined herein. Handling of components shall ensure that product safety is a top priority to prevent damage to products. Seller shall comply with all applicable laws, statutes, regulations and other requirements prohibiting bribery, corruption, kick-backs or similar unethical practices and provide notice to Buyer of unethical conduct affecting any Purchase Order, Terms and Conditions, or other course of dealing between the Parties.

25. BUYER ACCESS
Upon reasonable advance written notice, Seller agrees to allow Buyer, along with Regulatory Authorities, reasonable right of access to the applicable areas of facilities and to applicable documented information, at any level of the supply chain.

26. ENTIRE AGREEMENT
This Purchase Order contains the complete agreement of the parties as to its subject matter, supersedes all prior agreements with respect to its subject matter, and may not be amended or discharged except in writing signed by the duly authorized representatives of both parties