EXHIBIT 10.29
GENERAL TERMS AGREEMENT
between
THE BOEING COMPANY
and
CASHMERE MANUFACTURING
Number BCA-65311-0140
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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
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SECTION TITLE
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8.4 Federal Aviation Administration or Equivalent
Government Agency Inspection
8.5 Retention of Records
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
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SECTION TITLE
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25.0 NOTICES
25.1 Addresses
25.2 Effective Date
25.3 Approval or Consent
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
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SECTION TITLE
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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,
------ ----------- ---- ---------
1
GENERAL TERMS AGREEMENT
RELATING TO
BOEING PRODUCTS
THIS GENERAL TERMS AGREEMENT is entered into as of 06-11-97, by and between
Cashmere Manufacturing, a (Washington) corporation, with its principal office in
Wenatchee, Washington, STATE, ("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 add
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) "Materiel 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.
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(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.
(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
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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 Materiel 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.
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
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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.
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
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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) slip 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, 1)
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 cashed 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 Sellers 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
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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 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
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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.
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 Materiel 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
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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 other 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
Materiel Representative in writing as to the nature of such conduct and its
effect on Seller's performance. Pending direction from Boeing's Materiel
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.
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.
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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
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(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 ss. 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.
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 terminated Order;
B. Any claim which Boeing has against Seller;
C. The agreed price for scrap allowance;
D. 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.
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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.
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
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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 Stations 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.
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C. Rework or Repair
Boeing may rework or repair any Product in accordance with GTA Section
8.3.
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
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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.
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.
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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 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.
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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 Information 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 Information 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.
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21.0 COMPLIANCE WITH LAWS
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 and shall ensure that its suppliers conduct their
procurement these standards. If Seller has
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reasonable grounds to believe been violated, Seller shall immediately
report such possible violation to the appropriate Director of Materiel 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 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:
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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;
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.
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25.2 Effective Date
The date on which any such communication is received by the addressee 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 Materiel 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 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.
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27.2 Certificate of Insurance
Prior to commencement of this Agreement, Seller shall provide to Boeing's
Materiel 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 Materiel 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 Materiel 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 Materiel Representative. No subcontracting by Seller shall relieve
Seller of its obligation under the applicable Order.
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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.
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.
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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 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.
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
Materiel 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.
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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.
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.
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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 CASHMERE MANUFACTURING
AEROSPACE
by and through its division
Boeing Commercial Airplane Group
Name: /s/ Name: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
Title: Buyer Title: President
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Date: 6-12-97 Date: 6-12-97
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