RE2 PURCHASE ORDER TERMS AND CONDITIONS
Performance under this Purchase Order confirms Supplier's acceptance of RE2's Purchase Order Terms and Conditions.
1. INTRODUCTION: The following Purchase Order (P.O.) Terms and Conditions (including the attached Shipping and Invoice Instructions) shall govern the procurement of the products which are the subject matter of the accompanying P.O. issued by RE2, Inc. (“RE2”) to a supplier (“Supplier”). RE2’s offer to purchase the products and/or services in the P.O. is conditioned upon the acceptance of the P.O. Terms and Conditions by Supplier. By accepting the P.O. and/or performing thereunder, Supplier will be deemed to have accepted the P.O. Terms and Conditions. The P.O. including the P.O. Terms and Conditions shall constitute the entire contract between the parties, and supersedes any and all prior written and oral agreements or understandings relating to such subject matter. It is expressly agreed that the terms of the P.O. Terms and Conditions shall supersede any additional or contrary terms, limitations or conditions set forth in any acceptance, quote, or proposal, and no terms included in any such document shall apply. The P.O. Terms and Conditions may be amended or modified only by a writing executed by both parties. Notwithstanding the foregoing, if RE2 and the Supplier have also entered into a written agreement executed by the Supplier and an authorized signatory of RE2 that governs the procurement of the products and/or services which are the subject matter of the P.O. (“Subcontract” or “Contract”), then the terms and conditions of that Subcontract or Contract control and supersede the provisions of the P.O. Terms and Conditions to the extent inconsistent and/or conflicting therewith.
2. PURCHASE ORDERS: Individual Purchase Orders shall be implemented by Supplier upon receipt of a telephone call, electronic transmission, or written P.O. issued by RE2’s authorized buyer. The Purchase Orders are identified by number, and Supplier shall reference that number on its individual packing sheets and invoices.
3. PERFORMANCE: Supplier shall make deliveries or perform services in accordance with the date/dates specifically negotiated with RE2. In the event Supplier is unable to fulfill RE2's specific request, Supplier shall immediately advise RE2. Supplier shall not back-order or delay the shipment of goods or the performance of services without RE2's authorization, and if Supplier cannot make timely deliveries to RE2 or perform services in a timely manner, in addition to any other remedies available to RE2 at law or equity, RE2 shall have the option to cancel, at no charge, the Order or service request or any portion thereof.
4. LABELING: Supplier will label the outside of each package with description, quantity, and P.O. and will include this information on all packing slips and invoices.
5. DEFECTIVE OR NONCONFORMING MERCHANDISE: RE2 may, at any time, return defective or nonconforming merchandise. Transportation cost will be borne by Supplier and Supplier shall issue RE2 a refund, at RE2's option, for full purchase price.
a) In addition to any specific warranties agreed to by the parties and provided by law, Supplier warrants to RE2 that all items delivered and all services rendered hereunder will conform to the requirements and specifications hereof and will be merchantable, of first class materials and workmanship, free from defects including defects in design and fit.
b) If services or technical data are to be provided by Supplier hereunder, Supplier warrants to RE2 that such services and/or technical data shall be performed or prepared in a professional and workmanlike manner, and are fully in conformance with the requirements and specifications of the Order.
c) In performance of the Order, Supplier shall comply with, and all materials and work or services furnished thereunder shall be produced or furnished in full and complete compliance with, all applicable laws and regulations. In addition to other remedies that may be available at law or in equity, RE2, at its option, may return to Supplier any nonconforming or defective item(s), or have Supplier re-perform such nonconforming services, and/or require correction or replacement of the item(s) or services, all at no cost to RE2. These warranties are in addition to and shall not be construed as restricting or limiting any warranties of Supplier, expressed or implied, which are provided or exist by operation of law.
d) Supplier represents and warrants that, in anticipation of or in connection with this Order and the Supplier’s services contemplated herein, it has not, directly or indirectly, attempted, made or caused to be made, and will not, directly or indirectly, attempt, make, or cause to be made, any offer, promise, or payment to a public official, in contravention of any law, including but not limited to, the U.S. Foreign Corrupt Practices Act.
7. INSPECTION: RE2 shall have the right to perform inspection of the materials and the fabrication thereof at the facility of Supplier or its suppliers at any reasonable times. All materials or services are subject to final inspection and acceptance by RE2 at destination, notwithstanding any prior payment or inspection at the source. Inspection and acceptance of items/services by RE2, or payment therefor, shall not relieve Supplier of its responsibilities under the P.O.
8. PRICE WARRANTY: Supplier warrants that the price(s) and discounts for the articles or services sold to RE2 hereunder are not less favorable than those extended to any other customer (whether government or commercial) for the same or similar articles or services under similar situations. Supplier warrants that prices shown on an Order shall be complete, and no additional charges of any type shall be added without RE2's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, and crating.
9. INFRINGEMENT REPRESENTATION AND WARRANTY: Supplier represents and warrants that no article, service or Work Product (as defined below) infringes or will infringe on any patent, copyright, trademark or other intellectual property rights of any third party, and that, to Supplier’s knowledge, no claim of such infringement has been threatened or asserted, and no such claim is pending, against Supplier or, to Supplier’s knowledge, any entity or person from which Supplier has obtained such rights.
10. SOFTWARE LICENSE: RE2 has the right to perpetually use provided software with unlimited user access. Supplier warrants that Supplier holds all rights, titles and/or licenses necessary to provide any software hereunder without restriction. Supplier warrants that any software provided hereunder does not contain any malicious code, program, or other internal component (e.g., computer virus, worm, time bomb, or similar component), which could damage, destroy, or alter any computer program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, or alter any data or other information accessed through or processed by the software in any manner. Supplier also warrants that the software products which are licensed to RE2 hereunder and used by RE2 include accurate date capabilities.
11. NON-ASSIGNMENT, NO SUBCONTRACTING: An Order shall not be assignable by the Supplier. Any attempted assignment by Supplier shall be void and of no effect. In addition, Supplier may not utilize any subcontractor or third party in connection with the provision of services under a P.O. without RE2’s prior written approval. Neither RE2’s approval of a subcontractor nor Supplier’s use of a subcontractor shall relieve the Supplier from responsibility under an Order, and Supplier shall be fully responsible for all acts and omissions of Supplier’s subcontractors (which will be deemed to be Supplier’s acts and omissions under the P.O.).
12. CONFIDENTIALITY; RETURN OF MATERIALS: If Supplier has executed a separate Non-Disclosure Agreement (“NDA”) with RE2, the terms and conditions of the NDA shall take precedence over this Confidentiality clause.
(a) “Confidential Information” means all information disclosed to Supplier and/or to which Supplier has access that concerns or relates to the business, operations, financial condition or prospects of RE2, regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form or is marked confidential. Without limiting the general nature of the prior sentence, “Confidential Information” shall specifically include without limitation (i) all information disclosed by RE2 to Supplier and/or to which Supplier has access, in connection with the performance of an Order; (ii) all inventions, copyrighted material, patents, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how of RE2; (iii) all records, drawings, tools, plans, designs or specifications for performing the Order designed for or by RE2; and (iv) any and all documentation relating to contracts between RE2 and any third party. In addition, “Confidential Information” shall also include third party information which is designated as (and/or should under the circumstances be understood to be considered) confidential and/or proprietary and that is made available to and/or accessible by RE2 during the performance of an Order.
(b) At no time shall Supplier use or disclose to any third party any Confidential Information except as may be authorized in writing by an authorized agent of RE2. Supplier will put in place any and all safeguards and/or security procedures necessary to safeguard the Confidential Information from unauthorized use, access and/or disclosure. Upon completion or termination of an Order, Supplier will turn over to RE2 all Confidential Information which are in Supplier’s possession or under Supplier’s control.
(c) Notwithstanding the foregoing, “Confidential Information” shall not include (i) information which is or becomes generally known to the public through no act or omission of Supplier or (ii) information which has been or hereafter is lawfully obtained by Supplier from a source other than RE2 so long as, in the case of information obtained from a third party, such third party was or is not, directly or indirectly, subject to an obligation of confidentiality at the time such Confidential Information was or is disclosed to Supplier.
13. EXPORT CONTROL: Supplier agrees to comply with all applicable U.S. export control laws and regulations. RE2 does not take receipt of export-controlled goods, technical data, services or technology (“Materials”), except as may be specifically agreed to by RE2. Supplier agrees that it will not provide or make accessible to RE2 any export-controlled Materials without first informing RE2 of the export-controlled nature of the materials and obtaining from RE2 its written consent to accept such Materials as well as any specific instructions for delivering controlled Materials to RE2.
14. TERMINATION FOR CONVENIENCE:
(a) RE2 may terminate this P.O,. in whole or in part, for its convenience upon providing Supplier notice of termination specifying the extent of termination and the effective date. Supplier shall immediately stop all work hereunder and take the actions as listed in the applicable FAR termination clause, including notifying all of its suppliers to cease work. Subject to the terms of this P.O., Supplier shall be paid a percentage of the P.O. price reflecting the percentage of the Work performed prior to the notice of termination, plus reasonable costs Supplier can demonstrate to the satisfaction of RE2, using its standard record keeping system, have resulted from the termination. Supplier shall not be paid for any costs incurred which could have been avoided.
(b) In no event shall RE2 be liable for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the total P.O. price. Supplier's termination claim shall be submitted within thirty (30) days from the effective date of the termination.
(c) Supplier shall continue all Work not terminated.
15. TERMINATION FOR DEFAULT:
a) RE2 may, without prejudice to any other rights or remedies provided by law or under the P.O., by written Notice of Default to Supplier, terminate any P.O. in whole or in part in any one of the following circumstances:
1. If Supplier has been declared bankrupt, makes an assignment for the benefit of creditors, or is in receivership; or
2. If Supplier fails to perform the work or deliver the articles in accordance with the delivery schedules specified herein or any extension thereof; or
3. If Supplier fails to perform any of the other terms of this or any Order, or so fails to make progress as to endanger the performance of the Order in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of five (5) days (or such longer period as RE2 may authorize in writing) after receipt of written notice from RE2 specifying such failure; or
4. If Supplier is in breach of these P.O. Terms and Conditions, which termination shall be effective if such breach is not cured within five (5) days following written notice of the breach to Supplier by RE2.
b) In the event RE2 terminates a P.O. as provided in paragraph a) of this provision, RE2 may procure, upon such terms and in such manner as it may deem appropriate, items, supplies or services similar to those so terminated, and Supplier shall be liable to RE2 for any excess costs reasonably incurred for such similar supplies or services, in addition to any consequential and incidental damages incurred by RE2.
c) Upon termination of a P.O, whether for convenience or for cause, Supplier shall promptly provide to RE2 any and all Work Product or other materials developed for RE2 under the P.O. as of the effective date of termination.
16. COMPLIANCE WITH DELIVERY SCHEDULE: Time is of the essence under each P.O.. Any notice to Supplier by RE2 as to possible delay and/or expediting action by RE2 to accomplish on-time delivery shall not constitute a waiver of RE2's rights under any P.O., nor shall such actions in any way affect the responsibility of Supplier to deliver items or perform specified services in accordance with the delivery schedule prescribed by the P.O.. RE2 reserves the right to reject the goods, materials or services for Supplier's failure to meet the delivery provisions of the P.O. whether or not material delay or loss ensues.
17. COUNTERFEIT PARTS: Suppliers to RE2 are required to purchase from Original Component Manufacturers and Original Equipment Manufacturers, or their authorized distributors, as sole and exclusive sources for all electronic assemblies, components or parts to be delivered to RE2 and to retain written records for such. Supplier shall provide Manufacturers’ Certificates of Conformance and acquisition traceability if requested by RE2.
18. PROPERTY RIGHTS: All materials, tools, equipment, and other property either furnished by RE2 to Supplier or individually paid for by RE2, shall remain the property of RE2, but the Supplier assumes the risks of, and shall be responsible for, any loss thereof or damage thereto, until returned in good P.O. to RE2. Such property shall, at all times, be safely stored and properly maintained by Supplier. Supplier, in accordance with the provisions of this or any P.O., but in any event upon completion or termination thereof, shall return such property to RE2 or to any other person as RE2 may direct, in the condition in which it was received, manufactured or procured by Supplier except for reasonable wear and tear and except to the extent that such property has been incorporated in the items delivered or has been reasonably consumed in performance of work under the P.O.
19. INDEMNIFICATION: Supplier will defend, indemnify and hold harmless RE2, RE2’s trustees, officers, employees, attorneys, agents, successors and assigns (“RE2 Parties”) from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees and costs) incurred by and/or imposed upon any and/or all RE2 Parties in connection with any claim, suit, action or demand arising out of or relating to:
(a) Supplier’s negligence or willful misconduct;
(b) any injury to persons or damage to property to Supplier and/or caused by the Supplier’s activities under these P.O. Terms and Conditions or any P.O.;
(c) products liability;
(d) allegations that the Work Product infringes and/or potentially infringes on any third party’s intellectual property rights; and/or
(e) a breach of any terms or conditions of an P.O. or these P.O. Terms and Conditions by Supplier, including a breach of the Supplier’s export control obligations specified herein.
a) No delay or failure by either party to exercise any right, remedy or power herein shall impair such party’s right to exercise such right, remedy or power or be construed to be a waiver of any default or an acquiescence therein, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power. No waiver hereunder shall be valid unless set forth in writing and executed by the waiving party.
b) Suppliers performing services for RE2 are required to provide satisfactory evidence of appropriate and adequate general and/or professional (if applicable) liability and statutory insurance coverage (such as workmen’s compensation or equivalent insurance) prior to the commencement of any services.
c) In performing under any P.O., the Supplier will act as an independent contractor and the method and techniques of performance shall rest in Supplier’s discretion, subject to the reasonable satisfaction of RE2. It is understood that neither the Supplier nor RE2 intends that Supplier shall be, or be deemed to be, an employee of RE2.
d) These P.O. Terms and Conditions shall be governed by the laws of the Commonwealth of Pennsylvania, USA without regard to conflicts of laws principles. All claims and/or controversies of every kind and nature arising out of or relating to the P.O. and the P.O. Terms and Conditions, including any questions concerning its existence, negotiation, validity, meaning, performance, non-performance, breach, continuance or termination shall be settled (a) at RE2’s election, by binding arbitration administered by the American Arbitration Association (“AAA”) , however either party may seek injunctive relief in a court of law or equity to asset, protect or enforce its rights hereunder, or (b) in the event that RE2 does not elect binding arbitration as permitted in point (a) above, , in any court of general jurisdiction in Allegheny County, Pennsylvania, USA and each party consents to the exclusive jurisdiction of any such courts and waives any objection which such party may have to the laying of venue in any such courts.
e) Supplier shall at all times comply with all applicable governmental laws, status, ordinances, rules, and regulations. Supplier further agrees that it will comply with, and will not do anything that would cause RE2 not to be in compliance with, all applicable international, federal, state and local laws, regulations, and rules relating to antibribery and anti-corruption, including without limitation the U.S. Foreign Corrupt Practices Act, the commercial bribery, domestic corruption laws and regulations, and all similar laws of any jurisdiction in which Supplier will be providing services to RE2, unless such laws conflict with U.S. laws. RE2 may terminate this P.O. immediately in the event that RE2 should believe, in good faith, that Supplier or anyone working on behalf of Supplier has committed a violation of the laws described herein, or should Supplier deny RE2 the audit and access rights to which RE2 is entitled under Section 21 (g) of this P.O.. In addition, RE2 reserves the right to withhold payment in the event that such payment would constitute a violation of the laws as herein described, or any other applicable law or regulation. Further, RE2 reserves the right to recover payments already made in the event of noncompliance with the representations and warranties provided herein.
f) Supplier shall comply with E.O. 11246 Equal Employment Opportunity and to require its subcontracts to be compliant with E.O. 11246.R g) Supplier agrees that it will maintain complete and accurate records relating to the P.O. provided by Supplier to RE2, including records of Supplier’s use of any and all funds to be paid by RE2 to Supplier under this P.O. (the “Records”). During the Term and for a period of three (3) years thereafter, RE2 shall have a right of audit and access to such Records without limitation. RE2 will have the right to request any additional information and documentation from Supplier that RE2, in its sole discretion, may require from Supplier in P.O. to verify Supplier’s compliance with laws as herein described.
21. SHIPPING AND INVOICE INSTRUCTIONS
a) DELIVERY: Delivery is to be made only to the destination stated in the P.O. and must be made between 8:00 a.m. and 5:00 p.m. Monday through Friday, legal and RE2’s holidays excluded, unless otherwise specified in the P.O.. Supplier is responsible for maintaining and providing proof of delivery.
b) FREIGHT: Unless otherwise specified in the P.O., RE2's freight terms are F.O.B. Destination, Freight Prepaid and Allowed. Separate freight invoices will not be accepted. Freight charges must be supported by receipts (including a valid tax receipt, where applicable).
c) SHIPPING INSURANCE: Unless otherwise specified in the P.O., for all Supplier shipments for indicated as F.O.B. Origin over $10,000 U.S. in value, Supplier will, at its expense, provide motor truck (air and/or ocean, as applicable) cargo liability insurance covering all shipments in accordance with domestic and/or international (as applicable) carriage of freight rules while en route in the custody of a common or contract carrier, while in the due course of transit, that is being delivered on any mode of transportation (including airlines, ocean-going vessels, barges and trucks) owned, operated or contracted by Supplier in the maximum amount of $10,000 U.S. in value for each shipment. In the event of any loss, RE2 shall not incur any co-insurance and/or under insurance penalties by Supplier or Supplier’s transit insurance companies for losses that exceed $10,000 U.S. in value. It is understood that the originating carrier issuing the bill of lading has the primary responsibility for the above insurance coverage as well as for the safe delivery of all shipped property for RE2. Supplier will provide advance notice to RE2 of shipments exceeding $10,000 U.S. in value.
d) CONSOLIDATION: Except where limited by the insurance clause above, Supplier shall consolidate all shipments to the delivery point specified herein, for any one day, on one Bill of Lading.
e) P.O. NUMBER(S): RE2's P.O. Numbers must appear on all invoices, packing slips, shipping documents and labels.
f) PACKING, PACKAGING AND PACKING SHEETS: Supplier shall use best commercial practice for packing and packaging of items to be delivered under this or any P.O., unless otherwise specified herein.
g) HAZARDOUS MATERIAL, PACKING, LABELING AND SHIPPING: Supplier shall package, label, transport and ship hazardous material, items containing hazardous materials, and any other regulated materials, in accordance with all applicable laws and regulations, and shall furnish any appropriate Material Safety Data Sheets. Supplier, prior to each hazardous or regulated material shipment, shall notify RE2 of its nature and shipment data by such means of communication as will allow for the proper preparation for acceptance of delivery by the carrier of the material and shall identify same on all shipping documents.
h) INVOICES: Supplier shall provide invoices as specified in the P.O. within three (3) days of delivery against or completion of P.O.
22. FEDERAL FUNDING REQUIREMENTS/REGULATIONS: In the event this P.O. is subject to Federal Funding Requirements applicable to such procurement any pertinent requirements, including the clauses listed below, are incorporated into and form a part of these P.O. Terms and Conditions.
Full text of the following clauses can be found at https://www.acquisition.gov/
52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements
52.209-10, Prohibition on Contracting with Inverted Domestic Corporations
52.233-4, Applicable Law for Breach of Contract Claim
52.203-6, Restrictions on Subcontractor Sales to the Government
52.203-13, Contractor Code of Business Ethics and Conduct
52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards
52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment
52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters
52.219-8, Utilization of Small Business Concerns
52.219-14, Limitations on Subcontracting
52.219-28, Post Award Small Business Program Representation
52.222-3, Convict Labor
52.222-19, Child Labor—Cooperation with Authorities and Remedies
52.222-21, Prohibition of Segregated Facilities
52.222-26, Equal Opportunity
52.222-35, Equal Opportunity for Veterans
52.222-36, Equal Opportunity for Workers with Disabilities
52.222-37, Employment Reports on Veterans
52.222-40, Notification of Employee Rights Under the National Labor Relations Act
52.222-50, Combating Trafficking in Persons
52.222-59, Compliance with Labor Laws
52.222-60, Paycheck Transparency
52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons
52.223-15, Energy Efficiency in Energy-Consuming Products
52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving
52.223-20, Aerosols (E.O. 13693).
52.223-21, Foams (E.O. 13693).
52.225-1, Buy American—Supplies
52.225-3, Buy American—Free Trade Agreements—Israeli Trade Act
52.225-5, Trade Agreements
52.225-13, Restrictions on Certain Foreign Purchases
52.222-41, Service Contract Labor Standards
52.222-42, Statement of Equivalent Rates for Federal Hires
52.222-55, Minimum Wages Under Executive Order 13658 52.222-60, Paycheck Transparency (E. O.13673)
52.222-62, Paid Sick Leave Under Executive Order 13706 (E.O. 13706).