EXHIBIT 10.14
GENERAL TERMS AGREEMENT
between
THE BOEING COMPANY
and
▇▇▇▇ COMPONENTS
Number ▇-▇▇▇▇-▇▇▇▇
i
GENERAL TERMS AGREEMENT
TABLE OF CONTENTS
SECTION TITLE
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1.0 DEFINITIONS
2.0 ISSUANCE OF PURCHASE ORDERS
AND APPLICABLE TERMS
2.1 Issuance of Purchase Orders
2.2 Acceptance of Purchase Orders
2.3 Written Authorization to Proceed
2.4 Rejection of Purchase Orders
3.0 TITLE AND RISK OF LOSS
4.0 DELIVERY
4.1 Requirements
4.2 Delay
4.3 Notice of Labor Disputes
5.0 ON-SITE REVIEW AND RESIDENT
REPRESENTATIVES
5.1 Review
5.2 Resident Representatives
6.0 INVOICE AND PAYMENT
7.0 PACKING AND SHIPPING
8.0 QUALITY ASSURANCE, INSPECTION
REJECTION AND ACCEPTANCE
8.1 Controlling Document
8.2 Seller's Inspection
8.3 Boeing's Inspection and Rejection
8.4 Federal Aviation Administration or
Equivalent Government Agency Inspection
8.5 Retention of Records
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SECTION TITLE
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8.6 Source Inspection
8.7 Language for Technical Information
9.0 EXAMINATION OF RECORDS
10.0 CHANGES
10.1 General
10.2 Model Mix
11.0 PRODUCT ASSURANCE
12.0 TERMINATION FOR CONVENIENCE
13.0 EVENTS OF DEFAULT AND REMEDIES
14.0 EXCUSABLE DELAY
15.0 SUSPENSION OF WORK
16.0 TERMINATION OR CANCELLATION: INDEMNITY
AGAINST SUBCONTRACTOR'S CLAIMS
17.0 ASSURANCE OF PERFORMANCE
18.0 RESPONSIBILITY FOR PROPERTY
19.0 LIMITATION OF SELLER'S RIGHT TO
ENCUMBER ASSETS
20.0 PROPRIETARY INFORMATION AND
ITEMS
21.0 COMPLIANCE WITH LAWS
22.0 INTEGRITY IN PROCUREMENT
23.0 INFRINGEMENT
24.0 BOEING'S RIGHTS IN SELLER'S, PATENTS
COPYRIGHTS, TRADE SECRETS AND TOOLING
25.0 NOTICES
25.1 Addresses
25.2 Effective Date
25.3 Approval or Consent
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SECTION TITLE
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26.0 PUBLICITY
27.0 PROPERTY INSURANCE
27.1 Insurance
27.2 Certificate of Insurance
27.3 Notice of Damage or Loss
28.0 RESPONSIBILITY FOR PERFORMANCE
28.1 Subcontracting
28.2 Reliance
28.3 Assignment
29.0 NON-WAIVER
30.0 HEADINGS
31.0 PARTIAL INVALIDITY
32.0 APPLICABLE LAW
33.0 AMENDMENT
34.0 LIMITATION
35.0 TAXES
35.1 Inclusion of Taxes in Price
35.2 Litigation
35.3 Rebates
36.0 FOREIGN PROCUREMENT OFFSET
37.0 ENTIRE AGREEMENT/ORDER
OF PRECEDENCE
37.1 Entire Agreement
37.2 Incorporated By Reference
37.3 Order of Precedence
37.4 Disclaimer
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AMENDMENT
AMEND
NUMBER DESCRIPTION DATE APPROVAL
------ ----------- ---- --------
v
GENERAL TERMS AGREEMENT
RELATING TO
BOEING PRODUCTS
THIS GENERAL TERMS AGREEMENT ("Agreement") is entered into as of (DATE), by
and between ▇▇▇▇ COMPONENTS, a California corporation, with its principal
office in El Segundo, CA, ("Seller"), and The Boeing Company, a Delaware
corporation with its principal office in Seattle, Washington acting by and
through its division the Boeing Commercial Airplane Group ("Boeing").
RECITALS
A. Boeing produces commercial airplanes.
B. Seller manufactures and sells certain goods and services for use in the
production and support of such aircraft.
C. Seller desires to sell and Boeing desires to purchase certain of Seller's
goods and services in accordance with the terms set forth in this
Agreement.
Now therefore, in consideration of the mutual covenants set forth
herein, the parties agree as follows:
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AGREEMENTS
1.0 DEFINITIONS
The definitions set forth below shall apply to the following terms as
they are used in this Agreements, any Order, or any related Special
Business Provisions ("SBP"). Words importing the singular number shall
also include the plural number and vice versa.
(a) "Customer" means any owner, operator or user of Products and any
other individual, partnership, corporation or entity which has or
acquires any interest in the Products from, through or under
Boeing.
(b) "Derivative" means any new model airplane designated by Boeing as
a derivative of an existing Model airplane and which: (1) has the
same number of engines as the existing model airplane; (2)
utilizes essentially the same aerodynamic and propulsion design,
major assembly components, and systems as the existing model
airplane and (3) achieves other payload/range combinations by
changes in body length, engine thrust, or variations in certified
gross weight.
(c) "Drawing" means an automated or manual depiction of graphics or
technical information representing a Product or any part thereof
and which includes the parts list and specifications relating
thereto.
(d) "End Item Assembly" means any Product which is described by a
single part number and which is comprised of more than one
component part.
(e) "FAA" means the United States Federal Aviation Administration or
any successor agency thereto.
(f) "FAR" means the Federal Acquisition Regulations in effect on the
date of this Agreement.
(g) "Material Representative" means the individual designated from
time to time, by Boeing as being primarily responsible for
interacting with Seller regarding this Agreement and any Order.
(h) "Order" means each purchase order issued by Boeing and accepted
by Seller under the terms of this Agreement. Each Order is a
contract between Boeing and Seller.
(i) "Product" means goods, including components and parts thereof,
services, documents, data, software, software documentation and
other information or items furnished or to be furnished to Boeing
under any Order, including Tooling except for Rotating Use Tools.
(j) "Purchased on Assembly Production Detail Part (POA)" means a
component part of an End Item Assembly.
(k) "Shipset" means the total quantity of a given part number or
material necessary for production of one airplane.
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(l) "Spare" means any Product, regardless of whether the Product is
an End Item Assembly or a Purchased on Assembly Production Detail
Part, which is intended for use or sale as a spare part or a
production replacement.
(m) "Tooling" means all tooling, as defined in Boeing Document
M31-24, "Boeing Suppliers Tooling Manual," and/or described on
any Order, including but not limited to Boeing-Use Tooling,
Supplier-Use Tooling and Common-Use Tooling as defined in Boeing
Document D6-49004, "Operations General Requirements for
Suppliers," and Rotating-Use Tooling as defined in Boeing
Document M31-13, "Accountability of Inplant/Outplant Special
(Contract) Tools." For purposes of this Agreement, in the
documents named in this subparagraph, the term "Supplier Use
Tooling" shall be changed to Seller Use Tooling.
2.0 ISSUANCE OF ORDERS AND APPLICABLE TERMS
2.1 ISSUANCE OF ORDERS
Boeing may issue Orders to Seller from time to time. Each Order shall
contain a description of the Products ordered, a reference to the
applicable specifications and Drawings, the quantities and prices, the
delivery schedule, the terms and place of delivery and any special
conditions.
Each Order which incorporates this Agreement shall be governed by and
be deemed to include the provisions of this Agreement. Purchase Order
Terms and Conditions, Form D1-4100-4045, Form P252T and any other
purchase order terms and conditions which may conflict with this
Agreement, do not apply to the Orders.
2.2 ACCEPTANCE OF ORDERS
Each Order is Boeing's offer to Seller and acceptance is strictly
limited to its terms. Boeing will not be bound by and specifically
objects to any term or condition which is different from or in
addition to the provisions of the Order, whether or not such term or
condition will materially alter the Order. Seller's commencement of
performance or acceptance of the Order in any manner shall
conclusively evidence Seller's acceptance of the Order as written.
Boeing may revoke any Order prior to Boeing's receipt of Seller's
written acceptance or Seller's commencement of performance.
2.3 WRITTEN AUTHORIZATION TO PROCEED
Boeing's Material Representative may give written authorization to
Seller to commence performance before Boeing issues an Order. If
Boeing in its written authorization specifies that an Order will be
issued, Boeing and Seller shall proceed as if an Order had been
issued. This Agreement, the applicable SBP and the terms stated in the
written authorization shall be deemed to be a part of Boeing's offer
and the parties shall promptly agree on any open Order terms. If
Boeing does not specify in its written authorization that an Order
shall be issued, Boeing's obligation is strictly limited to the terms
of the written authorization. For purposes of this Section 2.3 only,
written authorization includes electronic transmission chosen by
Boeing.
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If Seller commences performance before an Order is issued or without
receiving Boeing's prior authorization to proceed, such performance
shall be at Seller's expense.
2.4 REJECTION OF PURCHASE ORDER
Any rejection by Seller of an Order shall specify the reasons for
rejection and any changes or additions that would make the Order
acceptable to Seller; provided, however, that Seller may not reject
any Order for reasons inconsistent with the provisions of this
Agreement or the applicable SBP.
3.0 TITLE AND RISK OF LOSS
Title to and risk of any loss of or damage to the Products shall pass
from Seller to Boeing at the F.O.B. point as specified in the
applicable Order, except for loss or damage thereto resulting from
Seller's fault or negligence. Passage of title on delivery does not
constitute Boeing's acceptance of Products.
4.0 DELIVERY
4.1 REQUIREMENTS
Deliveries shall be strictly in accordance with the quantities, the
schedule and other requirements specified in the applicable Order.
Seller may not make early or partial deliveries without Boeing's prior
written authorization. Deliveries which fail to meet Order
requirements may be returned to Seller at Seller's expense.
4.2 DELAY
Seller shall notify Boeing immediately, of any circumstances that may
cause a delay in delivery, stating the estimated period of delay and
the reasons therefor. If requested by Boeing, Seller shall use
additional effort, including premium effort, and shall ship via air or
other expedited routing to avoid or minimize delay to the maximum
extent possible. All additional costs resulting from such premium
effort or premium transportation shall be borne by Seller with the
exception of such costs attributable to delays caused directly by
Boeing. Nothing herein shall prejudice any of the rights or remedies
provided to Boeing in the applicable Order or by law.
4.3 NOTICE OF LABOR DISPUTES
Seller shall immediately notify Boeing of any actual or potential
labor dispute that may disrupt the timely performance of an Order.
Seller shall include the substance of this Section 4.3, including this
sentence, in any subcontract relating to an Order if a labor dispute
involving the subcontractor would have the potential to delay the
timely performance of such Order. Each subcontractor, however, shall
only be required to give the necessary notice and information to its
next higher-tier subcontractor.
5.0 ON-SITE REVIEW AND RESIDENT REPRESENTATIVES
5.1 REVIEW
At Boeing's request, Seller shall provide at Boeing's facility or at a
place designated by Boeing, a review explaining the status of the
Order, actions taken or planned relating to the Order and any other
relevant information. Nothing herein may be construed as a waiver of
Boeing's rights to proceed against Seller because of any delinquency.
BCAG CONTRACT 07-01-95 4
Boeing's authorized representatives may enter Seller's plant at all
reasonable times to conduct preliminary inspections and tests of the
Products and work-in-process. Seller shall include in its subcontracts
issued in connection with an Order a like provision giving Boeing the
right to enter the premises of Seller's subcontractors. When requested
by Boeing, Seller shall accompany Boeing to Seller's subcontractors.
5.2 RESIDENT REPRESENTATIVES
Boeing may in its discretion and for such periods as it deems
necessary assign resident personnel at Seller's facilities. Seller
shall furnish, free of charge, all office space, secretarial service
and other facilities and assistance reasonably required by Boeing's
representatives at Seller's plant. The resident team will function
under the guidance of Boeing's manager. The resident team will provide
communication and coordination to ensure timely performance of the
Order. Boeing's resident team shall be allowed access to all work
areas, Order status reports and management review necessary to assure
timely performance and conformance with the requirements of each
Order. Notwithstanding such assistance, Seller remains solely
responsible for performing in accordance with each Order.
6.0 INVOICE AND PAYMENT
Unless otherwise provided in the applicable Order, invoicing and
payment shall be in accordance with SBP Section 7.0.
7.0 PACKING AND SHIPPING
Seller shall (a) prepare for shipment and suitably pack all Products
to prevent damage or deterioration, (b) where Boeing has not
identified a carrier, secure lowest transportation rates, (c) comply
with the appropriate carrier tariff for the mode of transportation
specified by Boeing and (d) comply with any special instructions
stated in the applicable Order.
Boeing shall pay no charges for preparation, packing, crating or
cartage unless stated in the applicable Order. Unless otherwise
directed by Boeing, all standard routing shipments forwarded on one
day must be consolidated. Each container must be consecutively
numbered and marked as set forth below. Container and Order numbers
must be indicated on the applicable ▇▇▇▇ of lading. Two copies of the
packing sheets must be attached to the No. 1 container of each
shipment and one copy in each individual container. Each pack sheet
must include as a minimum the following: a) Seller's name, address and
phone number; b) Order and item number; c) ship date for the Products;
d) total quantity shipped and quantity in each container, if
applicable; e) legible pack slip number; f) nomenclature; g) unit of
measure; h) ship to if other than Boeing; i) warranty data and
certification, as applicable; j) rejection tag, if applicable; k)
Seller's certification that Products comply with Order requirements;
and, l) identification of optional material used, if applicable.
Products sold F.O.B. place of shipment must be forwarded collect.
Seller may not make any declaration concerning the value of the
Products shipped, except on Products where the tariff rating or rate
depends on the released or declared value, and in such event the value
shall be released or declared at the maximum value for the lowest
tariff rating or rate.
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The following markings shall be included on each unit container: a)
Seller's name; b) Seller's part number, if applicable; c) Boeing part
number, if applicable; d) part nomenclature; e) Order number; f)
quantity of Products in container; g) unit of measure; h) serial
number, if applicable; i) date (quarter/year) identified as assembly
or rubber cure date, if applicable; j) precautionary handling
instructions or marking as required.
In addition, the following markings/labels shall be included on each
shipping container: a) Name and address of consignee; b) Name and
address of consigner; c) Order number; d) Part number as shown on the
Order; e) Quantity of Products in container; f) Unit of measure; g)
Box number; h) Total number of boxes in shipment; and, i)
Precautionary handling, labeling or marking as required.
8.0 QUALITY ASSURANCE, INSPECTION, REJECTION, & ACCEPTANCE
8.1 CONTROLLING DOCUMENT
The controlling quality assurance document for Orders shall be as set
forth in the SBP Section 4.0.
8.2 SELLER'S INSPECTION
Seller shall inspect or otherwise verify that all Products and
components thereof, including those procured from or furnished by
subcontractors or Boeing, comply with the requirements of the Order
prior to shipment to Boeing or Customer. Seller shall be responsible
for all tests and inspections of the Product and any component thereof
during receiving, manufacture and Seller's final inspection. Seller
shall include on each packing sheet a certification that the Products
comply with the requirements of the Order.
8.2.1 SELLER'S DISCLOSURE
Seller will immediately notify Boeing when discrepancies in Seller's
processes or Product are discovered or suspected for Products Seller
has delivered.
8.3 BOEING'S INSPECTION AND REJECTION
Unless otherwise specified on an Order, Products shall be subject to
final inspection and acceptance by Boeing at destination,
notwithstanding any payment or prior inspection. Boeing may reject any
Product which does not strictly conform to the requirements of the
applicable Order. Boeing shall by notice, rejection tag or other
communication notify Seller of such rejection. Whenever possible,
Boeing may coordinate with Seller prior to disposition of the rejected
Product(s), however, Boeing shall retain final disposition authority
with respect to all rejections. At Seller's risk and expense, all such
Products will be returned to Seller for immediate repair, replacement
or other correction and redelivery to Boeing; provided, however, that
with respect to any or all of such Products and at Boeing's election
and at Seller's risk and expense, Boeing may: (a) hold, retain, or
return such Products without permitting any repair, replacement or
other correction by Seller; (b) hold or retain such Products for
repair by Seller or, at Boeing's election, for repair by Boeing with
such assistance from Seller as Boeing may require; (c) hold such
Products until Seller has delivered conforming replacements for such
Products; (d) hold such Products until conforming replacements are
obtained from a third party; (e) return such Products with
instructions to Seller as to whether the Products shall be repaired or
replaced and as to the
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manner of redelivery or (f) return such Products with instructions
that they be scrapped. Upon final disposition by Boeing that the
non-conforming Product(s) are not subject to repair and prior to the
Products being scrapped. Seller shall render the Product(s) unusable.
Seller shall also maintain, pursuant to their quality assurance
system, records certifying destruction of the applicable Products.
Said certification shall state the method and date of mutilation and
destruction of the subject Product(s). Boeing shall have the right to
review and inspect these records at any time it deems necessary.
Failure to comply with these requirements shall be a material breach
of this Agreement and grounds for default pursuant to GTA Section
13.0. All repair, replacement and other corrections and redelivery
shall be completed within such time as Boeing may require. All costs
and expenses, loss of value and any other damages incurred as a result
of or in connection with nonconformance and repair, replacement or
other correction may be recovered from Seller by an equitable price
reduction, set-off or credit against any amounts that may be owed to
Seller under the applicable Order or otherwise.
Boeing may revoke its acceptance of any Products and have the same
rights with regard to the Products involved as if it had originally
rejected them.
8.4 FEDERAL AVIATION ADMINISTRATION OR EQUIVALENT
GOVERNMENT AGENCY INSPECTION
Representatives of Boeing, the FAA or any equivalent government agency
may inspect and evaluate Seller's plant including, but not limited to,
Seller's and subcontractor's facilities, systems, data, equipment,
inventory holding areas, procedures, personnel, testing, and all work-
in-process and completed Products. For purposes of this Section 8.4,
equivalent government agency shall mean those governmental agencies so
designated by the FAA or those agencies within individual countries
which maintain responsibility for assuring aircraft airworthiness.
8.5 RETENTION OF RECORDS
Quality assurance records shall be maintained on file at Seller's
facility and available to Boeing's authorized representatives. Seller
shall retain such records for a period of not less than seven (7)
years from the date of final payment under the applicable Order.
8.6 SOURCE INSPECTION
If an Order contains a notation that "100% Source Inspection" is
required, the Products shall not be packed for shipment until they
have been submitted to Boeing's quality assurance representative for
inspection. Both the packing list and Seller's invoice must reflect
evidence of this inspection.
8.7 LANGUAGE FOR TECHNICAL INFORMATION
All reports, drawings and other technical information submitted to
Boeing for review or approval shall be in English and shall employ the
units of measure customarily used by Boeing in the U.S.A.
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9.0 EXAMINATION OF RECORDS
Seller shall maintain complete and accurate records showing the sales
volume of all Products. Such records shall support all services
performed, allowances claimed and costs incurred by Seller in the
performance of each Order, including but not limited to those factors
which comprise or affect direct labor hours, direct labor rates,
material costs, burden rates and subcontracts. Such records and other
data shall be capable of verification through audit and analysis by
Boeing and be available to Boeing at Seller's facility for Boeing's
examination and audit at all reasonable times from the date of the
applicable Order until three (3) years after final payment under such
Order. Seller shall provide assistance to interpret such data if
requested by Boeing. Such examination shall provide Boeing with
complete information regarding Seller's performance for use in price
negotiations with Seller relating to existing or future orders for
Products, including but not limited to negotiation of equitable
adjustments for changes and termination/obsolescence claims pursuant
to GTA Section 10.0. Boeing shall treat all information disclosed
under this Section as confidential.
10.0 CHANGES
10.1 GENERAL
Boeing's Material Representative may at any time by written change
order make changes within the general scope of an Order in any one or
more of the following: drawings, designs, specifications, shipping,
packing, place of inspection, place of delivery place of acceptance,
adjustments in quantities, adjustments in delivery schedules, or the
amount of Boeing furnished material. Seller shall proceed immediately
to perform the Order as changed. If any such change causes an increase
or decrease in the cost of or the time required for the performance of
any part of the work, whether changed or not changed by the change
order, an equitable adjustment shall be made in the price of or the
delivery schedule for those Products affected, and the applicable
Order shall be modified in writing accordingly. Any claim by Seller
for adjustment under this Section 10.1 must be received by Boeing in
writing no later than (60) days from the date of receipt by Seller of
the written change order or within such further time as the parties
may agree in writing or such claim shall be deemed waived. Nothing in
this Section 10.1 shall excuse Seller from proceeding with an Order as
changed, including failure of the parties to agree on any adjustment
to be made under this Section 10.1.
If Seller considers that the conduct of any of Boeing's employees has
constituted a change hereunder, Seller shall immediately notify
Boeing's Material Representative in writing as to the nature of such
conduct and its effect on Seller's performance. Pending direction from
Boeing's Material Representative, Seller shall take no action to
implement any such change.
10.2 MODEL MIX
In the event any Derivative aircraft(s) is introduced by
Boeing, Boeing may (but is not obligated to) direct Seller
within the scope of the applicable Order and in accordance
with the provisions of GTA Section 10.0 to supply Boeing's
requirements for Products for such Derivative aircraft(s)
which correspond to those Products being produced under the
applicable Order.
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11.0 PRODUCT ASSURANCE
Boeing's acceptance of any Product does not alter or affect the
obligations of Seller or the rights of Boeing and its customers under
the document referenced in the SBP Section 6.0 or as provided by law.
12.0 TERMINATION FOR CONVENIENCE
12.1 BASIS FOR TERMINATION; NOTICE
Boeing may, from time to time and at Boeing's sole discretion,
terminate all or part of any Order issued hereunder, by written notice
to Seller. Any such written notice of termination shall specify the
effective date and the extent of any such termination.
12.2 TERMINATION INSTRUCTIONS
On receipt of a written notice of termination pursuant to GTA Section
12.1, unless otherwise directed by Boeing, Seller shall:
A. Immediately stop work as specified in the notice;
B. Immediately terminate its subcontracts and purchase orders
relating to work terminated;
▇. ▇▇▇▇▇▇ any termination claims made by its subcontractors or
suppliers; provided, that Boeing shall have approved the amount
of such termination claims prior to such settlement;
D. Preserve and protect all terminated inventory and Products;
E. At Boeing's request, transfer title (to the extent not previously
transferred) and deliver to Boeing or Boeing's designee all
supplies and materials, work-in-process. Tooling and
manufacturing drawings and data produced or acquired by Seller
for the performance of this Agreement and any Order, all in
accordance with the terms of such request;
F. Take all reasonable steps required to return, or at Boeing's
option and with prior written approval to destroy, all Boeing
Proprietary Information and Items in the possession, custody or
control of Seller;
G. Take such other action as, in Boeing's reasonable opinion, may be
necessary, and as Boeing shall direct in writing, to facilitate
termination of this Order; and
H. Complete performance of the work not terminated.
12.3 SELLER'S CLAIM
If Boeing terminates an Order in whole or in part pursuant to Section
12.1 above, Seller shall have the right to submit a written
termination claim to Boeing in accordance with the terms of this
Section 12.3. Such termination claim shall be submitted to Boeing not
later than six (6) months after Seller's receipt of the termination
notice and shall be in the form prescribed by Boeing. Such claim must
contain sufficient detail to explain the amount claimed, including
detailed inventory schedules and a detailed breakdown of all costs
claimed separated into categories ( e.g., materials, purchased parts,
finished components, labor, burden, general and administrative), and
to explain the basis for allocation of all other costs. Seller shall
be entitled to be compensated in accordance with and to the extent
allowed under the terms of FAR 52-249-2(e)-(m) excluding (i), (as
published in 48 CFR Section 52.249-2) which is incorporated herein by
this reference except "Government" and "Contracting Officer" shall
mean Boeing, "Contractor" shall mean Seller and "Contract" shall mean
Order.
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12.4 FAILURE TO SUBMIT A CLAIM
Notwithstanding any other provision of this Section 12.0, if Seller
fails to submit a termination claim within the time period set forth
above, Seller shall be barred from submitting a claim and Boeing shall
have no obligation for payment to Seller under this Section 12.0
except for those Products previously delivered and accepted by Boeing.
12.5 PARTIAL TERMINATION
Any partial termination of an Order shall not alter or affect the
terms and conditions of the Order or any Order with respect to
Products not terminated.
12.6 PRODUCT PRICE
Termination under any of the above paragraphs shall not result in any
change to unit prices for Products not terminated.
12.7 EXCLUSIONS OR DEDUCTIONS
The following items shall be excluded or deducted from any claim
submitted by Seller:
A. All unliquidated advances or other payments made by Boeing to
Seller pursuant to a terminated Order;
B. Any claim which Boeing has against Seller;
C. The agreed price for scrap allowance;
E. Except for normal spoilage and any risk of loss assumed by
Boeing, the agreed fair value of property that is lost,
destroyed, stolen or damaged.
12.8 PARTIAL PAYMENT/PAYMENT
Payment, if any, to be paid under this Section 12.0 shall be made
thirty (30) days after settlement between the parties or as otherwise
agreed to between the parties. Boeing may make partial payments and
payments against costs incurred by Seller for the terminated portion
of the Order, if the total of such payments does not exceed the amount
to which Seller would be otherwise entitled. If the total payments
exceed the final amount determined to be due, Seller shall repay the
excess to Boeing upon demand.
12.9 SELLER'S ACCOUNTING PRACTICES
Boeing and Seller agree that Seller's "normal accounting practices"
used in developing the price of the Product(s) shall also be used in
determining the allocable costs at termination. For purposes of this
Section 12.9, Seller's "normal accounting practices" refers to
Seller's method of charging costs as either a direct charge, overhead
expense, general administrative expense, etc.
12.10 RECORDS
Unless otherwise provided in this Agreement or by law, Seller shall
maintain all records and documents relating to the terminated portion
of the Order for three (3) years after final settlement of Seller's
termination claim.
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13.0 EVENTS OF DEFAULT AND REMEDIES
13.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall
constitute an "Event of Default":
A. Any failure by Seller to deliver, when and as required
by this Agreement or any Order, any Product, except as
provided in GTA Section 14.0; or
B. Any failure by Seller to provide an acceptable
Assurance of Performance within the time specified in
GTA Section 17.0, or otherwise in accordance with
applicable law; or,
C. Any failure by Seller to perform or comply with any
obligation set forth in GTA Section 20.0; or
D. Seller is or has participated in the sale, purchase or
manufacture of airplane parts without the required
approval of the FAA.
E. Any failure by Seller to perform or comply with any
obligation (other than as described in the foregoing
Sections 13.1.A, 13.1.B, 13.1.C and 13.1.D) set forth in
this Agreement and such failure shall continue
unremedied for a period of thirty (30) days or more
following receipt by Seller of notice from Boeing
specifying such failure; or
F. (a) the suspension, dissolution or winding-up of Seller's
business, (b) Seller's insolvency, or its inability to pay debts,
or its nonpayment of debts, as they become due, (c) the
institution of reorganization, liquidation or other such
proceedings by or against Seller or the appointment of a
custodian, trustee, receiver or similar Person for Seller's
properties or business, (d) an assignment by Seller for the
benefit of its creditors, or (e) any action of Seller for the
purpose of effecting or facilitating any of the foregoing.
13.2 REMEDIES
If any Event of Default shall occur:
A. CANCELLATION
Boeing may, by giving written notice to Seller,
immediately cancel this Agreement and/or any Order, in
whole or in part, and Boeing shall not be required
after such notice to accept the tender by Seller of any
Products with respect to which Boeing has elected to
cancel this Agreement.
B. COVER
Boeing may manufacture, produce or provide, or may
engage any other persons to manufacture, produce or
provide, any Products in substitution for the Products
to be delivered or provided by Seller hereunder with
respect to which this Agreement or any Order has been
cancelled and, in addition to any other remedies or
damages available to Boeing hereunder or at law or in
equity, Boeing may recover from Seller the difference
between the price for each such Product and the
aggregate expense, including, without limitation,
administrative and other indirect costs, paid or
incurred by Boeing to manufacture, produce or provide,
or engage other persons to manufacture, produce or
provide, each such Product.
C. REWORK OR REPAIR
Boeing may rework or repair any Product in accordance
with GTA Section 8.3;
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D. SETOFF
Boeing shall, at its option, have the right to set off
against and apply to the payment or performance of any
obligation, sum or amount owing at any time to Boeing
hereunder or under any Order, all deposits, amounts or
balances held by Boeing for the account of Seller and any
amounts owed by Boeing to Seller, regardless of whether any
such deposit, amount, balance or other amount or payment is
then due and owing.
E. TOOLING AND OTHER MATERIALS
As compensation for the additional costs which Boeing will
incur as a result of the actual physical transfer of
production capabilities from Seller to Boeing or Boeing's
designee, Seller shall upon the request of Boeing, transfer
and deliver to Boeing or Boeing's designee title to any or
all (i) Tooling, (ii) Boeing-furnished material, (iii) raw
materials, parts, work-in-process, incomplete or completed
assemblies, and all other Products or parts thereof in the
possession or under the effective control of Seller or any
of its subcontractors (iv) Proprietary Information and
Materials of Boeing including without limitation planning
data, drawings and other Proprietary Information and
Materials relating to the design, production, maintenance,
repair and use of Tooling, in the possession or under the
effective control of Seller or any of its subcontractors, in
each case free and clear of all liens, claims or other
rights of any person.
Seller shall be entitled to receive from Boeing
reasonable compensation for any item accepted by Boeing
which has been transferred to Boeing pursuant to this
Section 13.2.E (except for any item the price of which
shall have been paid to Seller prior to such transfer);
provided, however, that such compensation shall not be
paid directly to Seller, but shall be accounted for as
a setoff against any damages payable by Seller to
Boeing as a result of any Event of Default.
F. REMEDIES GENERALLY
No failure on the part of Boeing in exercising any right or
remedy hereunder, or as provided by law or in equity, shall
impair, prejudice or constitute a waiver of any such right
or remedy, or shall be construed as a waiver of any Event of
Default or as an acquiescence therein. No single or partial
exercise of any such right or remedy shall preclude any
other or further exercise thereof or the exercise of any
other right or remedy. No acceptance of partial payment or
performance of any of Seller's obligations hereunder shall
constitute a waiver of any Event of Default or a waiver or
release of payment or performance in full by Seller of any
such obligation. All rights and remedies of Boeing hereunder
and at law and in equity shall be cumulative and not
mutually exclusive and the exercise of one shall not be
deemed a waiver of the right to exercise any other. Nothing
contained in this Agreement shall be construed to limit any
right or remedy of Boeing now or hereafter existing at law
or in equity.
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14.0 EXCUSABLE DELAY
If delivery of any Product is delayed by unforeseeable circumstances
beyond the control and without the fault or negligence of Seller or of
its suppliers or subcontractors (any such delay being hereinafter
referred to as "Excusable Delay"), the delivery of such Product shall
be extended for a period to be determined by Boeing after an
assessment by Boeing of alternate work methods. Excusable Delays may
include, but are not limited to, acts of God, war, riots, acts of
government, fires, floods, epidemics, quarantine restrictions, freight
embargoes, strikes or unusually severe weather, but shall exclude
Seller's noncompliance with any rule, regulation or order promulgated
by any governmental agency for or with respect to environmental
protection. However, the above notwithstanding, Boeing expects Seller
to continue production, recover lost time and support all schedules as
established under this Agreement or any Order. Therefore, it is
understood and agreed that (i) delays of less than two (2) days'
duration shall not be considered to be Excusable Delays unless such
delays shall occur within thirty (30) days preceding the scheduled
delivery date of any Product and (ii) if delay in delivery of any
Product is caused by the default of any of Seller's subcontractors or
suppliers, such delay shall not be considered an Excusable Delay
unless the supplies or services to be provided by such subcontractor
or supplier are not obtainable from other sources in sufficient time
to permit Seller to meet the applicable delivery schedules. If
delivery of any Product is delayed by any Excusable Delay for more
than three (3) months, Boeing may, without any additional extension,
cancel all or part of any Order with respect to the delayed Products,
and exercise any of its remedies in accordance with GTA Section 13.2
provided however, that Boeing shall not be entitled to monetary
damages or specific performance to the extent Seller's breach is the
result of an Excusable Delay.
15.0 SUSPENSION OF WORK
Boeing may at any time, by written order to Seller, require Seller to
stop all or any part of the work called for by this Agreement
hereafter referred to as a "Stop Work Order" issued pursuant to this
Section 15.0. On receipt of a Stop Work Order, Seller shall promptly
comply with its terms and take all reasonable steps to minimize the
occurrence of costs arising from the work covered by the Stop Work
Order during the period of work stoppage. Within the period covered by
the Stop Work Order (including any extension thereof) Boeing shall
either (i) cancel the Stop Work Order or (ii) terminate or cancel the
work covered by the Stop Work Order in accordance with the provisions
of GTA Section 12.0 or 13.0. In the event the Stop Work Order is
cancelled by Boeing or the period of the Stop Work Order (including
any extension thereof) expires, Seller shall promptly resume work in
accordance with the terms of this Agreement or any applicable Order.
16.0 TERMINATION OR CANCELLATION AND INDEMNITY AGAINST SUBCONTRACTOR CLAIMS
Boeing shall not be liable for any loss or damage resulting from any
termination pursuant to GTA Section 12.1, except as expressly provided
in GTA Section 12.3 or any cancellation under GTA Section 13.0 except
to the extent that such cancellation shall have been determined by
Boeing and Seller to have been wrongful, in which case such wrongful
cancellation shall be deemed a termination pursuant to GTA Section
12.1 and therefore shall be limited to the payment to Seller of the
amount or amounts identified in GTA Section
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12.3. As subcontractor claims are included in Seller's termination
claim pursuant to GTA Section 12.3, Seller shall indemnify Boeing and
hold Boeing harmless from and against (i) any and all claims, suits
and proceedings against Boeing by any subcontractor or supplier of
Seller in respect of any such termination and (ii) and any and all
costs, expenses, losses and damages incurred by Boeing in connection
with any such claim, suit or proceeding.
17.0 ASSURANCE OF PERFORMANCE
A. SELLER TO PROVIDE ASSURANCE
If Boeing determines, at any time or from time to time, that it
is not sufficiently assured of Seller's full, timely and
continuing performance hereunder, or if for any other reason
Boeing has reasonable grounds for insecurity, Boeing may request,
by notice to Seller, written assurance (hereafter an "Assurance
of Performance") with respect to any specific matters affecting
Seller's performance hereunder, that Seller is able to perform
all of its respective obligations under this Agreement when and
as specified herein. Each Assurance of Performance shall be
delivered by Seller to Boeing as promptly as possible, but in any
event no later than 15 calendar days following Boeing's request
therefore and each Assurance of Performance shall be accompanied
by any information, reports or other materials, prepared by
Seller, as Boeing may reasonably request. Boeing may suspend all
or any part of Boeing's performance hereunder until Boeing
receives an Assurance of Performance from Seller satisfactory in
form and substance to Boeing.
B. MEETINGS AND INFORMATION
Boeing may request one or more meetings with senior management or
other employees of Seller for the purpose of discussing any
request by Boeing for Assurance of Performance or any Assurance
of Performance provided by Seller. Seller shall make such persons
available to meet with representatives of Boeing as soon as may
be practicable following a request for any such meeting by Boeing
and Seller shall make available to Boeing any additional
information, reports or other materials in connection therewith
as Boeing may reasonably request.
18.0 RESPONSIBILITY FOR PROPERTY
On delivery to Seller or manufacture or acquisition by it of any
materials, parts, Tooling or other property, title to any of which is
in Boeing, Seller shall assume the risk of and shall be responsible
for any loss thereof or damage thereto. In accordance with the
provisions of an Order, but in any event on completion thereof, Seller
shall return such property to Boeing in the condition in which it was
received except for reasonable wear and tear and except to the extent
that such property has been incorporated in Products delivered under
such Order or has been consumed in the normal performance of work
under such Order.
19.0 LIMITATION OF SELLER'S RIGHT TO ENCUMBER ASSETS
Seller warrants to Boeing that it has good title to all
inventory, work-in-process, tooling and materials to be
supplied by Seller in the performance of its obligations
under any Order ("Inventory"), and that pursuant to the
provisions of such Order, it will transfer to Boeing title
to such Inventory, whether transferred separately or as part
of any Product delivered under the Order, free of any liens,
charges, encumbrances or rights of others.
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20.0 PROPRIETARY INFORMATION AND ITEMS
Boeing and Seller shall each keep confidential and protect from
disclosure all (a) confidential, proprietary, and/or trade secret
information; (b) tangible items containing, conveying, or embodying
such information; and (c) tooling obtained from and/or belonging to
the other in connection with this Agreement or any Order (collectively
referred to as "Proprietary Information and Materials"). Boeing and
Seller shall each use Proprietary Information and Materials of the
other only in the performance of and for the purpose of this Agreement
and/or any Order. Provided, however, that despite any other
obligations or restrictions imposed by this Section 20.0, Boeing shall
have the right to use and disclose of Seller's Proprietary Information
and Materials for the purposes of testing, certification, use, sale,
or support of any item delivered under this Agreement, an Order, or
any airplane including such an item; and any such disclosure by Boeing
shall, whenever appropriate, include a restrictive legend suitable to
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 Boeing's Proprietary
Information and Materials. Upon Boeing's request at any time, and in
any event upon the completion, termination or cancellation of this
Agreement, Seller shall return all of Boeing's Proprietary Information
and Materials, and all materials derived from Boeing's Proprietary
Information and Materials to Boeing unless specifically directed
otherwise in writing by Boeing. Seller shall not, without the prior
written authorization of Boeing, 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 Boeing. Prior to
disposing of such parts or materials as scrap, Seller shall render
them unusable. Boeing shall have the right to audit Seller's
compliance with this Section 20.0. Seller may disclose Proprietary
Information and Materials of Boeing to its subcontractors as required
for the performance of an Order, provided that each such subcontractor
first assumes, by written agreement, the same obligations imposed upon
Seller under this Section 20.0 relating to Proprietary Informations
and Materials; and Seller shall be liable to Boeing for any breach of
such obligation by such subcontractor. The provisions of this Section
20.0 are effective in lieu of, and will apply notwithstanding the
absence of, any restrictive legends or notices applied to Proprietary
Informations and Materials; and the provisions of this Section 20.0
shall survive the performance, completion, termination or cancellation
of this Agreement or any Order. This Section 20.0 supersedes and
replaces any and all other prior agreements or understandings between
the parties to the extent that such agreements or understandings
relate to Boeing's obligations relative to confidential, proprietary,
and/or trade secret information, or tangible items containing,
conveying, or embodying such information, obtained from Seller and
related to any Product, regardless of whether disclosed to the
receiving party before or after the effective date of this Agreement.
21.0 COMPLIANCE WITH LAWS
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21.1 SELLER'S OBLIGATION
Seller shall be responsible for complying with all laws, including,
but not limited to, any statute, rule, regulation, judgment, decree,
order, or permit applicable to its performance under this Agreement.
Seller further agrees (1) to notify Boeing of any obligation under
this Agreement which is prohibited under applicable environmental law,
at the earliest opportunity but in all events sufficiently in advance
of Seller's performance of such obligation so as to enable the
identification of alternative methods of performance, and (2) to
notify Boeing at the earliest possible opportunity of any aspect of
its performance which becomes subject to additional environmental
regulation or which Seller reasonably believes will become subject to
additional regulation during the performance of this Agreement.
21.2 GOVERNMENT REQUIREMENTS
If any of the work to be performed under this Agreement is performed
in the United States, Seller shall, via invoice or other form
satisfactory to Boeing, certify that the Products covered by the Order
were produced in compliance with Sections 6, 7, and 12 of the Fair
Labor Standards Act (29 U. S. C. 201-291), as amended, and the
regulations and orders of the U. S. Department of Labor issued
thereunder. In addition, the following Federal Acquisition Regulations
are incorporated herein by this reference except "Contractor" shall
mean "Seller":
FAR 52.222-26 "Equal Opportunity"
FAR 52.222-35 "Affirmative Action for Special Disabled and
Vietnam Era Veterans"
FAR 52.222-36 "Affirmative Action for Handicapped Workers".
22.0 INTEGRITY IN PROCUREMENT
Boeing's policy is to maintain high standards of integrity in
procurement. Boeing's employees must ensure that no favorable
treatment compromises their impartiality in the procurement process.
Accordingly, Boeing's employees must strictly refrain from soliciting
or accepting any payment, gift, favor or thing of value which could
improperly influence their judgement with respect to either issuing a
Order or administering this Agreement. Consistent with this policy,
Seller agrees not to provide or offer to provide any employees of
Boeing any payment, gift, favor or thing of value for the purposes of
improperly obtaining or rewarding favorable treatment in connection
with any Order or this Agreement. Seller shall conduct its own
procurement practices and shall ensure that its suppliers conduct
their procurement practices consistent with these standards. If Seller
has reasonable grounds to believe that this policy may have been
violated, Seller shall immediately report such possible violation to
the appropriate Director of Material or Ethics Advisor of Boeing.
23.0 INFRINGEMENT
Seller shall indemnify, defend, and save Boeing and Customers harmless
from all claims, suits, actions, awards (including but not limited to
awards based on intentional infringement of patents known to Seller at
the time of such infringement, exceeding actual damages, and/or
including attorneys' fees and/or costs), liabilities, damages, costs
and attorneys' fees related to the actual or alleged infringement of
any United States or foreign intellectual property right (including
but not limited to any right in a patent, copyright, industrial design
or
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semiconductor mask work, or based on misappropriation or wrongful use
of information or documents) and arising out of the manufacture. sale
or use of Products by Boeing or Customers. Boeing and/or Customers
shall duly notify Seller of any such claim, suit or action; and Seller
shall, at its own expense, fully defend such claim, suit or action on
behalf of Boeing and/or Customers. Seller shall have no obligation
under this Section 23.0 with regard to any infringement arising from:
(i) Seller's compliance with formal specifications issued by Boeing
where infringement could not be avoided in complying with such
specifications or (ii) use or sale of Products in combination with
other items when such infringement would not have occurred from the
use or sale of those Products solely for the purpose for which they
were designed or sold by Seller. For purposes of this Section 23.0
only, the term Customer shall not include the United States
Government; and the term Boeing shall include The Boeing Company
(Boeing) and all Boeing subsidiaries and all officers, agents, and
employees of Boeing or any Boeing subsidiary.
24.0 BOEING'S RIGHTS IN SELLER'S PATENTS, COPYRIGHTS, TRADE SECRETS, AND
TOOLING
Seller hereby grants to Boeing an irrevocable, nonexclusive, paid-up
worldwide license to practice and/or use, and license others to
practice and/or use on Boeing's behalf, all of Seller's patents,
copyrights, trade secrets (including, without limitation, designs,
processes, drawings, technical data and tooling), industrial designs,
semiconductor mask works, and tooling (collectively hereinafter
referred to as "Licensed Property") related to the development,
production, maintenance or repair of Products. Boeing hereafter
retains all of the aforementioned license rights in Licensed Property,
but Boeing hereby covenants not to exercise such rights except in
connection with the making, having made, using and selling of Products
or products of the same kind, and then only in the event of any of the
following:
a. Seller discontinues or suspends business operations or the
production of any or all of the Products;
b. Seller is acquired by or transfers any or all of its rights to
manufacture any Product to any third party, whether or not
related;
c. Boeing cancels this Agreement or any Order for cause pursuant to
GTA Section 13.0 herein;
d. in Boeing's judgement it becomes necessary, in order for Seller
to comply with the terms of this Agreement or any Order, for
Boeing to provide support to Seller (in the form of design,
manufacturing, or on-site personnel assistance) substantially in
excess of that which Boeing normally provides to its suppliers;
e. Seller's trustee in bankruptcy (or Seller as debtor in
possession) fails to assume this Agreement and all Orders by
formal entry of an order in the bankruptcy court within sixty
(60) days after entry of an order for relief in a bankruptcy case
of the Seller, or Boeing elects to retain its rights to Licensed
Property under the bankruptcy laws;
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f. Seller is at any time insolvent (whether measured under a balance
sheet test or by the failure to pay debts as they come due) or
the subject of any insolvency or debt assignment proceeding under
state or nonbankruptcy law; or
g. Seller voluntarily becomes a debtor in any case under bankruptcy
law or, in the event an involuntary bankruptcy petition is filed
against Seller, such petition is not dismissed within thirty (30)
days.
As a part of the license granted under this Section 24.0, Seller
shall, at the written request of Boeing and at no additional cost to
Boeing, promptly deliver to Boeing any and all Licensed Property
considered by Boeing to be necessary to satisfy Boeing's requirements
for Products and their substitutes.
25.0 NOTICES
25.1 ADDRESSES
Notices and other communications shall be given in writing by personal
delivery, mail, telex, teletype, telegram, facsimile, cable or other
electronic transmission addressed to the respective party as set forth
in the SBP Section 9.0.
25.2 EFFECTIVE DATE
The date on which any such communication is received by the addressee
is the effective date of such communication.
25.3 APPROVAL OR CONSENT
With respect to all matters subject to the approval or consent of
either party, such approval or consent shall be requested in writing
and is not effective until given in writing. With respect to Boeing,
authority to grant approval or consent is limited to Boeing's Material
Representative.
26.0 PUBLICITY
Seller will not, and will require that its subcontractors and
suppliers of any tier will not, (i) cause or permit to be released any
publicity, advertisement, news release, public announcement, or denial
or confirmation of the same, in whatever form, regarding any Order or
Products, or the program to which they may pertain, or (ii) use, or
cause or permit to be used, the Boeing name or any Boeing trademark in
any form of promotion or publicity without Boeing's prior written
approval.
27.0 PROPERTY INSURANCE
27.1 INSURANCE
Seller shall maintain continuously in effect a property insurance
policy covering loss or destruction of or damage to all property in
which Boeing does or could have an insurable interest pursuant to this
Agreement, including but not limited to Tooling, Boeing-furnished
property, raw materials, parts, work-in process, incomplete or
completed assemblies and all other products or parts thereof, and all
drawings, specifications, data and other materials relating to any of
the foregoing in each case to the extent in the possession or under
the effective care, custody or control of Seller, in the amount of
full
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replacement value thereof providing protection against all perils
normally covered in an "all risk" property insurance policy (including
without limitation fire, windstorm, explosion, riot, civil commotion,
aircraft, earthquake, flood or other acts of God). Any such policy
shall be in the form and with insurers acceptable to Boeing and shall
(i) provide for payment of loss thereunder to Boeing, as loss payee,
as its interests may appear and (ii) contain a waiver of any rights of
subrogation against Boeing, its subsidiaries, and their respective
directors, officers, employees and agents.
27.2 CERTIFICATE OF INSURANCE
Prior to commencement of this Agreement, Seller shall provide to
Boeing's Material Representative, for Boeing's review and approval,
certificates of insurance reflecting full compliance with the
requirements set forth in GTA Section 27.1. Such certificates shall be
kept current and in compliance throughout the period of this Agreement
and shall provide for thirty (30) days advanced written notice to
Boeing's Material Representative in the event of cancellation, non-
renewal or material change adversely affecting the interests of
Boeing.
27.3 NOTICE OF DAMAGE OR LOSS
Seller shall give prompt written notice to Boeing's Material
Representative of the occurrence of any damage or loss to any property
required to be insured herein. If any such property shall be damaged
or destroyed, in whole or in part, by an insured peril or otherwise,
and if no Event of Default shall have occurred and be continuing, then
Seller may, upon written notice to Boeing, settle, adjust, or
compromise any and all such loss or damage not in excess of Two
Hundred Fifty Thousand Dollars ($250,000) in any one occurrence and
Five Hundred Thousand Dollars ($500,000) in the aggregate. Seller may
settle, adjust or compromise any other claim by Seller only after
Boeing has given written approval, which approval shall not be
unreasonably withheld.
28.0 RESPONSIBILITY FOR PERFORMANCE
Seller shall be responsible for the requirements of this Agreement and
any Order referencing this Agreement. Seller shall bear all risks of
providing adequate facilities and equipment to perform each Order in
accordance with the terms thereof. Seller shall include as part of its
subcontracts those elements of the Agreement which protect Boeing's
rights including but not limited to right of entry provisions,
proprietary information and rights provisions and quality control
provisions. In addition, Seller shall provide to its subcontractors
sufficient information to clearly document that the work being
performed by Seller's subcontractor is to facilitate performance under
this Agreement or any Order. Sufficient information may include but is
not limited to Order number, GTA number or the name of Boeing's
Material Representative. No subcontracting by Seller shall relieve
Seller of its obligation under the applicable Order.
28.1 SUBCONTRACTING
Seller may not procure any Product, as defined in the applicable
Order, from a third party in a completed or a substantially completed
form without Boeing's prior written consent.
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Where required by the requirements of the Order, no raw material
and/or material process may be incorporated in a Product unless: (a)
Seller uses an approved source or (b) Boeing has surveyed and
qualified Seller's receiving inspection personnel and laboratories to
test the specified raw materials an/or material process. No waiver of
survey and qualification requirements will be effective unless granted
by Boeing's Engineering and Quality Control Departments. Utilization
of a Boeing-approved raw material source does not constitute a waiver
of Seller's responsibility to meet all specification requirements.
28.2 RELIANCE
Boeing's entering into this Agreement is in part based upon Boeing's
reliance on Seller's ability, expertise and awareness of the intended
use of the Products. Seller agrees that Boeing and Boeing's customers
may rely on Seller as an expert, and Seller will not deny any
responsibility or obligation hereunder to Boeing or Boeing's customers
on the grounds that Boeing or Boeing's customers provided
recommendations or assistance in any phase of the work involved in
producing or supporting the Products, including but not limited to
Boeing's acceptance of specifications, test data or the Products.
28.3 ASSIGNMENT
Each Order shall inure to the benefit of and be binding on each of the
parties hereto and their respective successors and assigns, provided
however, that no assignment of any rights or delegation of any duties
under such Order is binding on Boeing unless Boeing's written consent
has first been obtained. Notwithstanding the above, Seller may assign
claims for monies due or to become due under any Order provided that
Boeing may recoup or setoff any amounts covered by any such assignment
against any indebtedness of Seller to Boeing, whether arising before
or after the date of the assignment or the date of this Agreement, and
whether arising out of any such Order or any other agreement between
the parties.
Boeing may settle all claims arising out of any Order, including
termination claims, directly with Seller. Boeing may unilaterally
assign any rights or title to property under the Order to any wholly-
owned subsidiary of The Boeing Company.
29.0 NON-WAIVER
Boeing's failure at any time to enforce any provision of an Order does
not constitute a waiver of such provision or prejudice Boeing's right
to enforce such provision at any subsequent time.
30.0 HEADINGS
Section and Section headings used in this Agreement are for
convenient reference only and do not affect the
interpretation of the Agreement.
31.0 PARTIAL INVALIDITY
If any provision of any Order is or becomes void or unenforceable by
force or operation of law, the other provisions shall remain valid and
enforceable.
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32.0 APPLICABLE LAW; JURISDICTION
Each Order, including all matters of construction, validity and
performance, shall in all respects be governed by, and construed and
enforced in accordance with, the law as set forth in SBP Section 5.0.
33.0 AMENDMENT
Oral statements and understandings are not valid or binding. Except as
otherwise provided in GTA Section 10.0 and SBP Section 12.0, no Order
may be changed or modified except by a writing signed by Seller and
Boeing's Material Representative.
34.0 LIMITATION
Seller may not (except to provide an inventory of Products to support
delivery acceleration and to satisfy reasonable replacement and Spares
requirements) manufacture or fabricate Products or procure any goods
in advance of the reasonable flow time required to comply with the
delivery schedule in the applicable Order. Notwithstanding any other
provision of an Order, Seller is not entitled to any equitable
adjustment or other modification of such Order for any manufacture,
fabrication, or procurement of Products not in conformity with the
requirements of the Order, unless Boeing's written consent has first
been obtained. Nothing in this Section 34.0 shall be construed as
relieving Seller of any of its obligations under the Order.
35.0 TAXES
35.1 INCLUSION OF TAXES IN PRICE
All taxes, including but not limited to federal, state and local
income taxes, value added taxes, gross receipt taxes, property taxes,
and custom duties taxes are deemed to be included in the Order price,
except applicable sales or use taxes on sales to Boeing ("Sales
Taxes") for which Boeing has not supplied a valid exemption
certificate or unless otherwise indicated on the applicable Order.
35.2 LITIGATION
In the event that any taxing authority has claimed or does claim
payment for Sales Taxes, Seller shall promptly notify Boeing, and
Seller shall take such action as Boeing may direct to pay or protest
such taxes or to defend against such claim. The actual and direct
expenses, without the addition of profit and overhead, of such defense
and the amount of such taxes as ultimately determined as due and
payable shall be paid directly by Boeing or reimbursed to Seller. If
Seller or Boeing is successful in defending such claim, the amount of
such taxes recovered by Seller, which had previously been paid by
Seller and reimbursed by Boeing or paid directly by Boeing, shall be
immediately refunded to Boeing.
35.3 REBATES
If any taxes paid by Boeing are subject to rebate or reimbursement,
Seller shall take the necessary actions to secure such rebates or
reimbursement and shall promptly refund to Boeing any amount
recovered.
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36.0 FOREIGN PROCUREMENT OFFSET
With respect to work covered by the Order, Seller shall use its best
efforts to cooperate with Boeing in the fulfillment of any foreign
offset program obligation that Boeing may have accepted as a condition
of the sale of Boeing's products. In the event that Seller solicits
bids or proposals for, or procures or offers to procure any goods or
services relating to the work covered by an Order from any source
outside of the United States, Boeing shall be entitled, to the
exclusion of all others, to all industrial benefits and other "offset"
credits which may result from such solicitations, procurements or
offers to procure. Seller agrees to take any actions that may be
required on its part to assure that Boeing receives such credits.
37.0 ENTIRE AGREEMENT/ORDER OF PRECEDENCE
37.1 ENTIRE AGREEMENT
The Order sets forth the entire agreement, and supersedes any and all
other prior agreements understandings and communications between
Boeing and Seller related to the subject matter of an Order. The
rights and remedies afforded to Boeing or Customers pursuant to any
provisions of an Order are in addition to any other rights and
remedies afforded by any other provisions of this Order, by law or
otherwise.
37.2 INCORPORATED BY REFERENCE
In addition to the documents previously incorporated herein by
reference, the documents listed below are by this reference made a
part of this Agreement:
A. Engineering Drawing by Part Number and Related Outside
Production Specification Plan (OPSP).
B. Any other exhibits or documents agreed to by the parties to be a
part of this Agreement.
37.3 ORDER OF PRECEDENCE
In the event of a conflict or inconsistency between any of the terms
of the following documents, the following order of precedence shall
control:
A. SBP (excluding the Administrative Agreement identified in E
below)
B. This General Terms Agreement (excluding the documents identified
in D and F below)
C. Order (excluding the documents identified in A and B above)
D. Engineering Drawing by Part Number and, if applicable, related
Outside Production Specification Plan (OPSP).
E. Administrative Agreement (If Applicable)
F. Any other exhibits or documents the parties agree shall be part
of the Agreement.
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37.4 DISCLAIMER
Unless otherwise specified on the face of the applicable Order, any
CATIA Dataset or translation thereof (each or collectively "Data)
furnished by Boeing is furnished as an accommodation to Seller. It is
the Seller's responsibility to compare such Data to the comparable two
dimensional computer aided design drawing to confirm the accuracy of
the Data.
BOEING HEREBY DISCLAIMS, AND SELLER HEREBY WAIVES, ALL WARRANTIES AND
LIABILITIES OF BOEING AND ALL CLAIMS AND REMEDIES OF SELLER, EXPRESS
OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN
ANY CATIA DATASET OR TRANSLATION THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
USE OR FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM
COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED
UPON TORT, WHETHER OR NOT ARISING FROM BOEING'S NEGLIGENCE, AND (D)
ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON
DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
EXECUTED in duplicate as of the date and year first written above by the duly
authorized representatives of the parties.
THE BOEING COMPANY ▇▇▇▇ COMPONENTS
by and through its division
Boeing Commercial Airplane Group
Name: /s/ illegible Name:
-------------------------- ---------------------------
Title: Buyer Title:
-------------------------- ---------------------------
Date: Dec. 1, 95 Date:
--------------------------- --------------------------
23
37.4 DISCLAIMER
Unless otherwise specified on the face of the applicable Order, any
CATIA Dataset or translation thereof (each or collectively "Data)
furnished by Boeing is furnished as an accommodation to Seller. It is
the Seller's responsibility to compare such Data to the comparable two
dimensional computer aided design drawing to confirm the accuracy of
the Data.
BOEING HEREBY DISCLAIMS, AND SELLER HEREBY WAlVES, ALL WARRANTIES AND
LIABILITIES OF BOEING AND ALL CLAIMS AND REMEDIES OF SELLER, EXPRESS
OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN
ANY CATIA DATASET OR TRANSLATION THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
USE OR FOR A PARTICULAR PURPOSE, (8) ANY IMPLIED WARRANTY ARISING FROM
COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED
UPON TORT, WHETHER OR NOT ARISING FROM BOEING'S NEGLIGENCE, AND (D)
ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON
DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
EXECUTED in duplicate as of the date and year first written above by the duly
authorized representatives of the parties.
THE BOEING COMPANY ▇▇▇▇ COMPONENTS
by and through its division
Boeing Commercial Airplane Group
Name: /s/ illegible Name:
-------------------------- ---------------------------
Title: Buyer Title:
-------------------------- ---------------------------
Date: Dec. 1, 95 Date:
--------------------------- --------------------------
23