Phlow Corporation Terms & Conditions (Government)
PURCHASE ORDER/WORK ORDER TERMS AND CONDITIONS FOR GOVERNMENT PROCUREMENTS. GENERAL PROVISIONS APPLICABLE TO ALL GOODS AND SERVICES.
Phlow Corporation, (“Buyer” or “Phlow”) reserves the right to award a Purchase Order or Work Order under this Contract to Seller/Contractor, on a firm-fixed-price basis offering “best value” and covering all or any part of the materials/services mentioned in the Purchase Order or Work Order. Buyer has the right to reject all quotations or to waive any irregularities therein. It is understood and agreed that these terms and conditions are applicable to both the sale of goods/materials and/or the supply of services to Buyer, its equipment and/or other property. Buyer warrants that no apparent organizational conflict of interest or improper affiliations exist between it and its subcontractors and Seller in turn warrant same. Payment terms are 60 days, upon receipt of valid invoice.
GOVERNMENT SUBCONTRACT: This Contract is entered into by Buyer and Seller in support of a U.S. Government contract, with Buyer as Prime Contractor not acting as an agent for the U.S. Government. Accordingly, this Contract is subject to such Flow Down clauses as are set forth below. Seller shall ensure that all Flow Down clauses in this Contract are further flowed down to each of Seller‘s lower-tier subcontractors.
PRIORITY RATING: The Owner has assigned priority ratings of HRPAS DO-M3 and DPAS DO-H5 to the Prime Contract under the Defense Priorities and Allocation System (DPAS) and added FAR 52.211-15, Defense Priority and Allocation Requirements (April 2008) to the Prime Contract. Phlow in turn is required to include these ratings in this Contract and advises Seller that it may affect performance under this Contract through any rated work order issued hereunder. Any rated work orders assigned priority ratings shall be subject to scheduling as prescribed under 15 CFR Part 700 – Defense Priorities And Allocations System. Seller shall ensure that this clause is further flowed down to each of Seller’s lower-tier subcontractors.
1. DEFINITIONS
1.1. Best Value” Per FAR 2.101 means the expected outcome of an acquisition that, in the Governments estimation, provides the greatest overall benefit in response to the requirement.
1.2. “Buyer” means Phlow Corporation.
1.3. “Commercial Item”, “Commercial Service”, and “Commercially available off-the-shelf (COTS) item” have the meaning as set forth in FAR 2.101.
1.4. “Contractor” means and is synonymous with “Seller” as used in this document, acting as the immediate (first tier) subcontractor to Buyer.
1.5. “Flow Down clauses” means those clauses per FAR 52.244-6 below plus such additional clauses as Phlow deems necessary to meet its requirements to Owner. In each clause so incorporated, substitute “Buyer”, for “Government” and “Contracting Agency”, and “Buyers Procurement Representative” for “Contracting Officer”.
1.6. “Contractor” means “Seller” throughout.
1.7. “Goods/Materials” means non-personal property of every type, kind, and description, as specifically described in the Purchase Order and/or work specification.
1.8. “Owner” means the U.S. Government and all rights, benefits and remedies conferred upon Buyer by this Contract shall also accrue to and be available to and are for the express benefit of Buyer and Owner.
1.9. “Prime Contract” means the contract between Buyer and the U.S. Government and / or between Buyer and its higher-tier contractor in support of a contract with the U.S. Government.
1.10. “Property” means the facility, land, its appurtenances and / or any equipment and / or other items of Owner or Buyer for which Seller is to provide goods or services.
1.11. “Seller” means the vendor under this Contract and has the same meaning as “Contractor”.
1.12. “Services” means all design, delivery, installation, inspection, and testing specified or required to furnish the goods and/or provide the repair, improvement, and/or other work as specifically described in the Purchase Order and/or work specification.
1.13. “Subcontract” means any contract placed by Seller with one or more of its lower-tier subcontractors and any contract placed by and between any of Seller’s lower-tier subcontractors at any level under this Contract and includes a transfer of commercial items between affiliates of the parties or between subcontractors at any tier.
2. ENTIRE AGREEMENT
This Contract and any attachments hereto or referred to specifically herein constitute the entire agreement between the parties with respect to the subject matter hereof. Seller’s acceptance of any Order is limited to the terms and conditions hereof. Any written confirmation, or any oral understanding upon which this Contract may be based, containing proposals or terms additional to or different from those set forth herein are not binding on Buyer unless expressly agreed to in writing.
3. CHANGES IN ORDER
Buyer shall have the right to order in writing changes from time to time in the performance required of Seller and Seller shall without delay conform to any such change order. In the event of any such changes, the prices, or times of performance, or both, shall be adjusted within reasonable and appropriate limits; provided, however, that Buyer shall have no obligation to pay, and the right to refuse payment of any claim by Seller for increase in price, or performance period required, which is not received by Buyer in writing within ten (10) calendar days after the date the change is ordered. No change shall be made by Seller in the performance required by this Contract except such change as specified in writing and signed by an authorized representative of Buyer.
4. ACCEPTANCE OF SHIPMENTS AND INSPECTION
All goods and services covered by this Contract are subject to inspection by Buyer at any time or place and may be rejected if not strictly in accordance with all terms, conditions, and provisions herein contained or attached or required by class. Payment for shipments and / or progress payments for work in progress shall not constitute acceptance thereof, and defective shipments or performance and / or shipments not in accordance with this Contract will, at Buyer’s option, be held for Seller’s instructions at Seller’s risk, or will be returned to Seller. Seller will be responsible for transportation charges on returned shipments both ways. Any prior payment made by Buyer on such rejected goods or services shall be immediately refunded, and the rejected goods or services shall not be replaced or reperformed without a new Contract or other specific written instruction from Buyer. At Buyer’s option, inspection and tests before delivery may be made by Buyer or Buyer’s intermediate customers, or Owner, at Seller’s premises or elsewhere, at reasonable times and places, and Seller will provide sufficient safe and proper facilities for such inspection or testing; but, notwithstanding such inspection and tests, or inspections and tests made prior to the issuance of this Contract, the goods and services covered by this Contract are subject to rejection upon final test, inspection, and use upon delivery to the premises of Buyer and Owner. Buyer’s count shall be accepted as final on all shipments whether accompanied by a packing list.
5. PERMITS AND APPROVALS
All necessary permits, bonds, testing, inspection, and approval of materials or workmanship by the proper authorities is to be provided and arranged by Seller at no additional cost to Buyer unless authorized herein.
6. PERFORMANCE AND WAIVERS
Any waiver by Buyer of strict performance regarding any of the terms, conditions, or provisions of this Contract must be in writing and executed by Buyer to be effective, and such waiver shall not be deemed a waiver of Buyer’s rights to insist upon strict performance of all portions of this Contract not waived, and strict performance thereafter of provisions presently waived.
7. DEFAULT
Buyer reserves the right to terminate this Contract in its entirety, or in part, on account of defects in materials, workmanship, or quality, or if the Seller fails to comply with or perform any of the terms and conditions, provisions, promises or warranties of this Contract, or any pertinent Government requirements, statutes, or regulations, to include violations of US policy. Seller shall also be liable for all damages and costs of Buyer resulting from such default or violations, regardless of any action taken or not taken by Buyer to cancel this Contract entirely or in part. The failure of Buyer to terminate this Contract for any defect or other default shall not be deemed a waiver of its right to do so for any other defect or default.
8. COMPLIANCE WITH LAWS
Seller shall comply with all applicable laws, policies, and regulations of government authorities, which apply to the products or services being supplied under this Contract. Some of those include but are not limited to:
8.1. Executive Order 11246, as amended, 38 U.S.C. § 2012 on the Vietnam Era Veterans Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Part 60-1 through 60-60, 60-250, and 60-741, matters involving the Civil Rights Act of 1964, wages, hours, materials, race, color, sex and creed of workmen, price regulations and renegotiation provision, and other matters, whether or not specifically mentioned herein.
8.2. The provisions of Trafficking Victims Protection Act of 2000 (TVPA), 22 U.S.C. § 7102 and of the Occupational Safety and Health Act of 1970, the standards and regulations issued thereunder and all pertinent State occupational safety and health laws such as “Right-to-Know” Regulations. Hazard communication information such as complete Material Safety Data Sheets (MSDS) shall be supplied to Buyer for all hazardous material.
8.3. To the extent the Seller is engaged in supplying starter materials, active pharmaceutical ingredients, or finished drug products, it shall comply with all applicable provisions of the U.S. Food, Drug and Cosmetic Act, 21 U.S.C. § 210 et seq., § 211 et seq., § 301 et seq., § 501 et seq., as amended from time to time, and the regulations promulgated thereunder from time to time For biologics, this term includes additional applicable requirements under 21 C.F.R. parts 600-680. Seller agrees to indemnify and hold harmless Buyer for any loss, damage, fine, penalty or any expense whatsoever because of Seller’s failure to comply with such laws and regulations as set forth in this section and elsewhere in this Contract.
8.4. CERTIFICATIONS AND REPRESENTATIONS. Seller makes certain certifications and representations that are material representations of fact upon which Buyer will rely in making awards to Seller. By submitting its written offer or providing oral offers / quotations at the request of Buyer, or accepting any contract, Seller certifies to the representations and certifications as set forth herein. These certifications and representations shall apply whenever these terms and conditions are incorporated by reference in any Order, agreement, other contractual document or any quotation, request for quotation (oral or written), request for proposal or solicitation (oral or written), issued by Buyer, Seller shall immediately notify Buyer of any change of status regarding these certifications and representations. Seller represents and warrants that the Work provided under this Contract constitutes a “Commercial Item” or “Commercial Service” as defined in FAR 2.101.
9. TIME
Time is hereby declared to be as of the essence of this Contract.
10. DRAWINGS
Seller shall furnish for the approval of Buyer all shop drawings as Buyer may require, and all workmanship and materials shall be in strict accordance with the approved drawings. All plans, specifications and drawings provided by Buyer to Seller in connection with this Contract or provided by Seller especially for performance hereunder shall be the property of Buyer and may not be used at any time for any other purpose by Seller.
11. ASSIGNMENT AND/OR SUBCONTRACTING
Seller may not assign or subcontract any portion of its obligations under this Contract nor assign or otherwise transfer any monies due or to become due hereunder, without first obtaining the written consent of Buyer. In any event, Seller to remain fully responsible for the performance of all subcontractors or assigns.
12. ADVERTISING
Seller shall not, without first obtaining the written consent of the Buyer, in any manner advertise or publish in any media the fact that Seller has either contracted to furnish or has sold to Buyer the goods or services herein mentioned.
13. INDEMNITY
To the extent permitted under law, Seller shall indemnify, hold harmless, and defend Buyer from and against any and all suits, legal proceedings, claims, demands, damages, costs and expenses of whatsoever kind or character (including, but not limited to, reasonable attorney’s fees and expenses) arising out of or in way related to any injury (including death) or damage to any persons or property in any manner, caused or occasioned by any defect in the goods or services or any act, omission, fault, negligence or default of any person, firm, corporation or other entity (including but not limited to, Seller, Buyer or anyone acting on their respective behalf’s), in connection with or incident to this Contract or work to be performed hereunder, even if the same be, or is alleged to be, due to the sole active negligence of Buyer or anyone acting on its behalf.
14. TERMINATION
Buyer may terminate this Contract, in whole or in part at any time and for any reason whatever, by written or telegraphic notice, stating the extent and effective date of such termination. Upon receipt of notice Seller will, as and to the extent directed by Buyer, stop work under this Contract and the placement of further orders or subcontracts hereunder, terminate work under orders and subcontracts outstanding hereunder, and take any necessary action to protect property in Seller’s possession in which Buyer has or may acquire any interest. Buyer’s sole liability to Seller in case of termination shall be reimbursement of Seller’s expenses incurred up to and including the date and time of termination. Similarly, due to Government activation requirements, Buyer may have to postpone or interrupt service or delivery in which event, the terms of this clause and clause 21 below will apply.
15. CONSEQUENTIAL DAMAGES
In no event shall Buyer be responsible for indirect or special damages including without limitation extra expense, loss of use of property, delay, or damages consequential upon loss of use, whether resulting from negligence, strict liability, or breach or otherwise, even if the possibility of such damages is foreseeable.
16. TAXES
Unless otherwise expressly provided on the face of this Contract, all taxes, duties, tolls, fees, import charges or other governmental exactions shall be deemed included in the quoted price, and Buyer shall have no liability to pay Seller any amount more than the said price specified herein.
17. EXTENSION OF BENEFITS
All exceptions, exemptions, defenses, immunities, limitations of liability, privileges and conditions granted or provided by this Contract to the benefit of Buyer shall also apply to and be for the benefit of Owner and all corporations parent of, subsidiary to, affiliated with or under the same management as Buyer, as well as all directors, employees, and agents of said entities.
18. LAW AND JURISDICTION / DISPUTE RESOLUTION
18.1. This Contract and all matters relating to and arising from will be governed by, administered under, and construed in accordance with the laws of the Commonwealth of Virginia, without reference to provisions of conflicts of laws. For matters relating to patent rights under this Contract, the patent laws of the jurisdiction which issued such patent rights will apply. For disputed matters and claims involving Owner, the matter will be resolved in accordance with the statutory, regulatory, and common law of the United States as they apply to procurements of goods and services by the United States, to the extent applicable. With respect to disputes between Phlow and Seller, the state or federal courts located in the Commonwealth of Virginia, City of Richmond, will have sole and exclusive jurisdiction with respect to all matters under this Contract and Buyer and Seller hereby irrevocably consent to the exclusive jurisdiction of said courts.
18.2.
Informal Dispute Resolution. Any dispute will be identified in writing and presented to the other party. Within fourteen (14) business days after delivery of such notice of dispute, an executive officer of each party or their designee shall meet in-person or electronically at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute in good faith. All reasonable requests for information made by one party to another will be honored. Unless prohibited by law, all negotiations pursuant to this clause will be treated as confidential compromise and settlement negotiations for purposes of applicable rules of evidence. If such executive officers or designees cannot resolve such dispute within fourteen (14) business days after such meeting, then either party may initiate litigation. Compliance with the requirements of this subsection 18.2 will be a requirement and condition precedent to the initiation of litigation. Notwithstanding the foregoing, neither party shall be deemed to waive any legal right or remedy against the other party
18.3.
Phlow Claims Against Owner. In the event that Phlow has any claim against or dispute with the Owner, that is reasonably attributable to the performance of Seller under this Contract, as determined by Phlow in its sole discretion, Seller shall provide any and all documents and information reasonably requested by Phlow or Owner in pursuit of that claim, including but not limited to, any and all certifications required by the Contract Disputes Act of 1978, 41 U.S.C. § 601 et. seq. or other applicable law or regulation.
18.4.
Seller’s Claims. Any Dispute between Phlow and Seller that is derived or resulting in any way from any act, obligation, omission, directive, or actual or constructive change by the Owner related to the Prime Contract will be resolved only through the submission of a claim by Seller to Phlow for subsequent submission to the Contracting Officer (or other designated representative) assigned to the Prime Contract. To the extent Seller submits a timely claim, Phlow may pursue relief for Seller’s claim under the Prime Contract, provided, that Seller provides sufficient documentation (and information) of the validity of its claim to enable Phlow to pursue such relief in good faith. The Contracting Officer’s final decision in a dispute submitted will be binding on the Buyer and Seller unless appealed.
18.5.
Appeal in Seller’s Claims. If Seller deems the Contracting Officer’s final decision on a dispute submitted to have an adverse effect on Seller’s position or rights, Seller may request that Phlow appeal the Contracting Officer’s final decision to the appropriate appeal authority. Any final orders or decisions of the applicable appeal authority shall be binding on the Buyer and Seller.
18.6.
Seller’s Responsibilities in Pursuit of Claims. If Phlow incurs costs in connection with pursuing relief for a Seller claim, Phlow mayrequestreasonable reimbursement from Seller provided that the costs were approved in advance by Seller.
18.7.
Continued Performance. Notwithstanding the foregoing, nothing contained in this Section 18 shall relieve Seller of its obligations to continue performance under this Contract while any dispute relating to a claim remains outstanding.
19. FEDERAL ACQUISITION REGULATION CLAUSES
This Contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, Phlow will make their full text available. Also, the full text of a clause may be accessed electronically at this address: https://
www.acquisition.gov. This Contract is expressly subject to the following FAR clauses. Buyer and Seller acknowledge and agree that the Prime Contract and the orders issued thereunder may be amended, supplemented, or otherwise modified to include additional or different FAR provisions that Phlow may flow down to Seller under this Agreement.
The FAR provisions are applicable to Seller and all its subcontractors at all tiers to the maximum extent practicable and as applicable (reference FAR 52.244-06-Subcontracts for Commercial Items (Jan 2019)), including such other clauses as Buyer deems necessary and appropriate to fulfill its obligations to Owner.
Definitions. As used in this clause: “Commercial item”, “Commercial Service” and “Commercially available off-the-shelf item” have the meanings contained in FAR 2.101, Definitions; “Subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of the Contractor or subcontractor at any tier.
| 52.203-07 |
(May 2014) |
Anti-kickback Procedures. (Applicable to Contracts greater than $150,000) |
| 52.203-13 |
(Oct 2015) |
Contractor Code of Business Ethics and Conduct. |
| 52.203-14 |
(Oct 2015) |
Display of Hotline Poster(s). (Does not apply to CI contracts) |
| 52.203-15 |
(Jun 2010) |
Whistleblower protections Under the American Recovery and Reinvestment Act of 2009. |
| 52.203-17 |
(Apr 2014) |
Contractor Employee Whistleblower Rights and Requirement To Inform Employees of Whistleblower Rights. |
| 52.203-19 |
(Jan 2017) |
Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements. |
| 52.204-10 |
(Oct 2018) |
Reporting Executive Compensation and First Tier Subcontract Awards. |
| 52.204-21 |
(Jun 2016) |
Basic Safeguarding of Covered Contractor Information Systems. |
| 52.204-23 |
(Jul 2018) |
Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities. |
| 52.204-25 |
(Aug 2019) |
Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. |
| 52.211-15 |
(April 2008) |
Defense Priority and Allocation Requirements |
| 52.215-12
|
(Oct 2010) |
Subcontractor Certified Cost or Pricing Data. |
| 52.215-13 |
(Oct 2010) |
Subcontractor Certified Cost or Pricing Data-Modifications. |
| 52.215-21 |
(Jun 2010) |
Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data Modifications. |
|
52.219-08 |
(Oct 2018) |
Utilization of Small Business Concerns. (applies to subcontracts that exceed $700,000 where further subcontracting opportunities exist and subcontractor is not a small business) |
| 52.222-11 |
(May 2014) |
Subcontracts (Labor Standards) (applies to construction contracts). |
| 52.222-13 |
(May 2014) |
Compliance with Construction Wage Rate Requirements and Related Regulations (applies to construction contracts). |
| 52.222-21 |
(Apr 2015) |
Prohibition of segregated facilities. |
| 52.222-26 |
(Sep 2015) |
Equal Opportunity. |
| 52.222-35 |
(Oct 2015) |
Equal Opportunity for Veterans. |
| 52.222-36 |
(Jul 2014) |
Equal Opportunity for Workers with Disabilities. |
| 52.222-37 |
(Feb 2016) |
Employment Reports on Veterans. |
| 52.222-40 |
(Dec 2010) |
Notification of Employee Rights Under the National Labor Relations Act. |
| 52.222-55 |
(Dec 2015) |
Minimum Wages under Executive Order 13658. |
| 52.222-62 |
(Jan 2017) |
Paid Sick Leave Under Executive Order 13706. |
| 52.223-03 |
(Jan 1997) |
Hazardous Material Identification and Material Safety Data. |
| 52.223-18 |
(Aug 2011) |
Encouraging Contractor Policies to Ban Text Messaging While Driving. |
| 52.224-2 |
(Apr 1984) |
Privacy Act. |
| 52.224-3 |
(Jan 2017) |
Privacy Training. |
| 52.225-1 |
(May 2014) |
Buy American-Supplies. |
| 52.227-1 |
(Jun 2020) |
Authorization and Consent. |
| 52.227-11 |
(May 2014) |
Patent Rights—Ownership by the Contractor. |
| 52.227-14 |
(May 2014) |
Rights in Data—General, Alternate II (Dec 2007). |
| 52.232-40 |
(Dec 2013) |
Providing Accelerated Payments to Small Business Subcontractors. |
| 52.244-06 |
(Jan 2019) |
Subcontracts for Commercial Items. |
20. CERTIFICATION – USE OF FUNDS
By accepting this Contract, the offeror hereby certifies to the best of its knowledge and belief that no Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer of employee of Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of this contract.
21. FORCE MAJEURE
Event of Force Majeure. A Party shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond such Party’s reasonable control including, without limitation, acts of God, fire, explosion, weather, disease, pandemic, epidemic, public health emergency, war, insurrection, civil strife, riots, government action or order, labor disputes, earthquake, terrorism, or power failure; provided that such performance will be excused only to the extent of and during such disability and the affected Party shall use reasonable efforts to resume performance as soon as reasonably practicable and minimize the loss or inconvenience suffered by the Parties. Any time specified for completion of performance in a Project Plan and falling during or after the occurrence of any or all such events will be automatically extended for a commercially reasonable period to enable the affected Party to recover from such disability. Subcontractor shall promptly notify Company if, by reason of any force majeure, Subcontractor is unable to meet any such time for performance specified in a Project Plan. In such event, the Parties shall meet promptly to determine an equitable solution to the effects of any such force majeure. For the avoidance of doubt, neither capacity constraints due to the volume of business nor causes due to subcontractors, Representatives, or Participants shall be deemed a force majeure event.
21.1.
GOODS-ADDITIONAL PROVISIONS APPLICABLE ONLY TO GOODS
In addition to the above, the following terms and conditions shall apply to contracts for the supply or provision of Goods or Materials hereunder:
21.1.1. Title
Title and risk of loss to the Goods shall pass to Buyer upon Buyer’s acceptance of delivery at the place specified. Shipping tickets and/or packing slips must show in detail any Goods shipped and must accompany all deliveries, which must be signed for.
21.1.2. Crating
Cartage, Storage: No charges will be accepted by the Buyer for crating, boxing, cartage, storage or like services, unless specifically agreed to in writing prior to shipment of the Goods hereunder.
21.1.3. Warranties
Seller warrants clear and merchantable title to the goods free of any security interest, lien or encumbrance and agrees to indemnify Buyer against all liability for patent, copyright, or other infringement on account of sale and use of the goods. Seller further warrants that the goods shall be of merchantable quality and as specified and shall be fit for the purpose intended. All implied warranties of the Uniform Commercial Code and warranties implied by usage of trade are reserved by Buyer and incorporated herein.
21.1.4. Transportation Costs
Seller warrants that any transportation costs included in the price will not exceed actual transportation costs paid by Seller. If this Contract calls for payment of any transportation costs by Buyer, Buyer shall in no event be liable or accountable for any amount more than the actual costs of transportation. Seller shall be accountable for and shall pay any excess transportation costs arising from Seller’s failure to make delivery to the FOB point or to follow shipping instructions furnished by Buyer.
21.1.5. Invoices
NOTE: Due to government funds expiry, all invoices must be received within 3 months of performance to be processed for payment and Buyer expressly reserves the right to refuse to pay any stale or invalid invoices. Expediting of the invoicing process will not be used as an excuse to accept less than adequate invoices. Partial payments may be made on a case-by-case basis in Buyers sole discretion. Goods and/or Material invoices shall be submitted immediately, with proof of delivery to:
[email protected]
Invoices are processed on the 1
st and 15
th of each month. Net 60 days begins on the day of processing.
21.2.
SERVICES-ADDITIONAL PROVISIONS APPLICABLE ONLY TO SERVICES
In addition to the above, the following terms and conditions shall apply to the provision of Services hereunder.
21.2.1. Manner and Materials
Seller shall perform all services for the Buyer and to the property in a workmanlike manner, at the location designated by Buyer in accordance with the specifications of Buyer. All plans, drawings, materials, machinery, equipment, outfitting, and workmanship involved in performance of the services shall be supplied by Seller and shall be of a quality conforming to the best commercial practice for property of this type. If there should be any conflict between the provisions of any of the aforesaid documents and the Specification, the Specification will prevail.
21.2.2. Warranties
- Seller shall keep the property free and clear of all liens, security interests, encumbrances and claims of every nature, including statutory in favor of workman, materialmen, subcontractors, or others arising by, through or under Seller shall discharge all such liens and other claims at once. Seller hereby waives all liens, whether possessory or otherwise, in its favor which would otherwise attach to the property or connect to or cause a lien against the Government.
- Seller shall correct to the satisfaction of Buyer all defects in workmanship or in materials furnished by Seller hereunder, which developed within a period of one year or other longer period as may be specified by manufacturer, after completion of the Services.
21.2.3. Care of the Property
At all times during the term of this Contract, Seller shall protect the property from all damage. At all times while the property is on Seller’s premises, Seller shall assume all risk of damage to or loss of the property (or of any machinery, equipment, materials, and outfitting obtained or intended for the property) from any cause whatsoever except acts of God or the sole negligence of Buyer.
21.2.4. Insurance Requirements
Seller shall, at its own cost and subject to reasonable deductibles, obtain and maintain comprehensive general liability insurance with liability limits of not less than five million US dollars ($5,000,000) per any one claim and ten million US dollars ($10,000,000) in the aggregate. Such insurance will be issued by duly licensed and financially sound companies that meet industry solvency requirements. If the insurance is written on a claims-made basis, Seller shall maintain the described insurance coverage for not less than five (5) years after termination or expiration of this Agreement. Such insurance policy will name the Buyer and any of its affiliates, and their respective directors, officers, employees, agents, and representatives, as additional insureds. The certificate of insurance will state that all coverages provided by the insured and shall be primary to any insurance carried by such additional insureds for their own account.
Upon written request, Seller shall promptly provide written evidence (e.g., certificates) of such insurance that is reasonably satisfactory to the other Buyer. Seller shall provide to Buyer not less than thirty (30) days’ prior written notice of cancellation, non-renewal, or a material adverse change in its insurance coverage.
21.2.5. Independent Contractor
Seller shall determine the manner and method of performing the services and shall operate as an independent contractor and not as an agent or employee of Buyer or Owner.
21.2.6. Nature of Work
The nature and location of the Services and all conditions which may affect its completion have been carefully inspected and considered by Seller, who assumes all risk of loss and unanticipated expense, however, caused and whether foreseeable.
21.2.7. Time and Material Service Order
Normally all Purchase Orders and Work Orders will be issued as firm fixed price items on a “best value” basis. If agreed and the Purchase Order or Work Order states “Time and Material work” the contractor is to provide the following with its invoice: a) Time Sheets signed for hours worked. b) Itemized list of material used or provided. c) If allowed, travel expenses shall be fully supported by receipts and cannot exceed the minimum per diem rates listed on website:
http://www.gsa.gov. d) Sign off that the work has been completed to his/her satisfaction. NO MARKUP OF MATERIAL, SERVICES, OR TRAVEL EXPENSES ARE ALLOWED. Note that FAR 16.102 prohibits cost-plus-a- percentage-of-cost system of contracting.
21.2.8. Invoices
NOTE: Due to government funds expiry, all invoices must be received within 3 months of performance to be processed for payment and Buyer expressly reserves the right to refuse to pay any stale or invalid invoices. Expediting of the invoicing process will not be used as an excuse to accept less than adequate invoices. Partial payments may be made on a case-by-case basis in Buyers sole discretion. Goods and/or Material invoices shall be submitted immediately, with proof of delivery to:
[email protected]
Invoices are processed on the 1
st and 15
th of each month. Net 60 days begins on the day of processing.
