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TERMS AND CONDITIONS OF PURCHASE

ALL TRANSACTIONS ARE GOVERNED BY THE FLINCHBAUGH CO’S (HEREINAFTER THE “BUYER”) TERMS AND CONDITIONS OF PURCHASE. ANY PROPOSAL OR DOCUMENT FROM SELLER THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM ANY OF BUYER’S TERMS AND CONDITIONS OF PURCHASE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY SELLER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF PURCHASE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S)

1. Warranty. Seller represents that with respect to all materials, supplies and equipment (herein collectively referred to as "materials") delivered and services furnished hereunder: (i) title shall be good, merchantable, rightful and the materials free of any security interest, lien or encumbrance; (ii) that materials will be new, free from defects in material and workmanship, be of quality, size, description and dimension required by Buyer, be fit for the purpose for which they are purchased and will meet the specifications, if any, and that Seller's services will be performed in a skillful and workmanlike manner; and (iii) the materials, the process by which they are made, the use for which they are designed by Seller and Buyer's use of the materials will not infringe any patent, trademark, copyright or other rights of any third parties (“Intellectual Property Rights"). This express warranty shall not be deemed waived by reason of either or both the receipt of the materials and payment therefore by Buyer. The foregoing is in addition to any and all other express or implied warranties applicable to the materials purchased hereunder.
2. Compliance with Laws; Standards and Testing. Seller represents and warrants that all materials furnished hereunder, and Seller's manufacturing thereof, complies with all applicable laws, ordinances, rules and regulations (”Laws").
3. Indemnity. Seller will defend, indemnify and hold harmless Buyer, its affiliates, vendors, and their officers, directors, shareholders, employees, and agents from and against any and all loss, liability and expense by reason of (i) any actual or alleged violation of Laws, (ii) any actual or alleged infringement of Intellectual Property Rights, (iii) injury, death or property damage resulting, in whole or in part, from any negligent act or omission on the part of the Seller or which may result from the installation, operation or use of the materials furnished hereunder, (iv) a defect in the manufacture or design of the materials supplied hereunder, or (v) any breach or alleged breach by Seller of any representation, warranty, or other provision of these Terms and Conditions of Purchase. Upon notification, Seller shall promptly assume full responsibility for the defense of any suit or proceeding which may be brought against Buyer or any of its subsidiaries, affiliated companies, agents and vendors in connection with the above, of for alleged unfair competition resulting from similarity in design, trademarks, or appearance of the materials or equipment. Seller shall further indemnify and hold Buyer, its subsidiaries, affiliated companies, agents and vendors harmless from any and all expenses, losses, claims, royalties, profits, and damages, including court costs and attorneys' fees, resulting from the bringing of such suits or proceedings or the threat thereof and from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding.
4. Cover; Delivery. In case of default by Seller, Buyer may obtain materials and services from other sources and hold Seller responsible for any damages occasioned thereby. The dates of delivery and quantities specified herein are of the essence for this order and delivery must be affected within the specified time period. If deliveries are not made on time and in the quantities specified, Buyer reserves the right to cancel and to purchase the materials and/or services elsewhere and hold Seller accountable, therefore. Seller shall cooperate with Buyer in respect to all customs formalities applicable to the import or export of the materials, shall be responsible for determining proper import or export classifications, and shall provide Buyer documentation to Buyer's satisfaction for such classifications.
5. Prices. Orders shall not be filled at prices higher than those quoted or charged to Buyer or specified herein. Unless otherwise agreed in writing, prices include packaging, labeling, crating, taxes, and duties. Unless otherwise agreed in writing, all prices include shipping and delivery CIF Buyer’s premises 245 Beshore School Road | Manchester, PA 17345, unless otherwise agreed to in writing by Buyer and Seller.
6. Inspection and Rejection. Materials are subject to inspection, test, and acceptance by Buyer and the ultimate purchaser. Buyer shall have a reasonable number of days from the date of arrival to inspect the materials and notify Seller of any non-conformity to the order specifications (including quantity and delivery dates). Such inspection may not occur until final sale of the materials to Buyer's customers. Buyer reserves the right to reject any material, even after delivery and inspection at customer's site, which does not fulfill the specifications of the order or time of delivery and (i) return rejected materials to Seller at Seller's risk and expense for full credit at the order price, which shall specifically include any material or labor costs incurred by Buyer, without prejudice to any right to other damages for such breach, (ii) to require Seller at Seller's expense to replace rejected materials at the unit price of this order, or (iii) consider this order breached as to the rejected quantity and cancelled as to any unfulfilled portion of this order, and to hold Seller liable for such breach and cancellation. Seller is not relieved of the responsibility imposed by this clause, either as to proper packaging, quantity of materials or specifications, by reason of acceptance by Buyer.
7. Choice of Law. Except as specifically provided herein, this Agreement between Buyer and Seller shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the Commonwealth of Pennsylvania, without giving effect to its principles of conflicts of laws.
8. Payment and Invoicing. Invoices and bills of lading showing full routing should be dated and mailed at the time of shipment and a separate invoice must be made for each destination showing point of shipment and how shipped. Invoices bearing transportation charges must be supported with attached original receipted transportation bills and, in the case of consolidated carload shipments, must show weight and rate and certifications if applicable. The discount period, if any, stated in the face of the purchase order shall be calculated from the date of receipt by Buyer of a proper invoice from Seller.
9. Force Majeure. If the manufacture, transfer or receipt or use by either party of any materials covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party, upon prompt notice to the other party (and in the case of Buyer, prior to actual shipment), shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference but, at Buyer's option, deliveries so omitted shall be made upon notice thereof to Seller, upon cessation of such contingency.
10. Assignment. Seller may not assign this purchase order or any of Seller's obligations hereunder without Buyer's written consent.
11. Insurance. Seller shall maintain at its own expense at all times while performing hereunder occurrence-based liability insurance and product-liability insurance with a reputable and financially responsible carrier(s) satisfactory to Buyer for coverage in amounts not less than USD [1] million per occurrence, USD [2] million in aggregate, and all other insurance required by applicable law. Seller shall furnish insurance certificates as directed by Buyer, satisfactory in form and substance to Buyer, showing the above coverages, and providing for at least 30 days prior written notice to Buyer by the insurance company of cancellation or material modification. Unless otherwise agreed to in writing.
12. Seller's Representatives. If Seller's employees, subcontractors, consultants, or other representatives under Seller's control perform any services at Buyer's premises or at Buyer's direction at the premises of others, (i) such persons shall comply with all rules and regulations of such premises and (ii) Seller shall keep materials and the premises on which the work is performed free and clear of all liens for material and labor incident to the performance of Seller's services hereunder.
13. Termination. In the event of (i) any proceeding voluntary or involuntary in bankruptcy or insolvency by or against Seller, or in the event of an appointment of a receiver or assignee for the benefit of creditors, with or without Seller's consent, or (ii) any change in control and/or ownership of Buyer, Buyer may cancel any unfilled part of this order without any liability whatsoever on Buyer's part.
14. Buyer’s Property. All specialty tools, fixtures, programming, dies, patterns, designs, molds, drawings, specifications, and other data or papers, and the like furnished by Buyer to Seller in connection with this order by Buyer remains the property of Buyer. In the event materials furnished by Buyer to Seller include any intellectual property of Buyer, Seller is granted a non-exclusive, non- transferable, non-sublicensable and non-assignable license required only for the production of materials under this order and shall use Buyer's intellectual property only for that purpose. Except for this license, no right, interest, ownership or privilege of use of Buyer's intellectual property shall inure to the benefit of Seller.
15. Ownership of Work Product. Buyer will own all right, title and interest in all Work Product, including without limitation all patentable subject matter. For the purposes of these Terms and Conditions, “Work Product” means, collectively, all work product created, conceived, developed or first reduced to practice by Seller, either solely or in collaboration with others, including, without limitation, designs, inventions, improvements, processes, functional specifications, reports, presentations, and analyses, that arise directly or indirectly out of the transactions between Seller and Buyer, or any tasks assigned to Seller by or on behalf of Buyer. Without limiting the scope of the foregoing, all Work Product, to the extent copyrightable under the United States Copyright Act of 1976 (the “Act”), will be “works made for hire” pursuant to the Act, and Buyer will thereby own all right, title and interest in all copyrightable Work Product. Seller hereby assigns by way of present and future assignment to Buyer all right, title and interest in and to the intellectual property created as a result of the transaction between Seller and Buyer including all statutory and common law rights relating to such intellectual property and the right to sue for past infringements and to retain any damages obtained as a result of such action.
16. Dispute Resolution. Except as specifically provided herein, these Terms and Conditions shall be governed by the laws of the Commonwealth of Pennsylvania. Any dispute hereunder shall be under he jurisdiction of the Court of Common Pleas of York County, Pennsylvania, the appellate court thereof, and the United States District Court for the Middle District of Pennsylvania.
17. Confidentiality Agreement. In conjunction with these Terms and Conditions, Seller agrees to execute the applicable confidentiality agreement and non-compete agreement to be provided to Seller by Buyer.
18. Incorporation of Implied Warranties. Notwithstanding anything herein to the contrary, any purchase governed by these Terms and Conditions expressly includes all implied warranties (including but not limited to those set forth in U.C.C. §§ 2-312, 2-314, and 2-315) and all of the Buyer's remedies (including but not limited to those set forth in U.C.C. §§ 2-711 through 2-717) set forth in the Uniform Commercial Code or that are otherwise applicable.

SUPPLIER FLOWDOWN REQUIREMENTS

The Flinchbaugh Company, Inc is a US Defense Subcontractor. Therefore, it is extremely important that we meet all associated responsibilities and requirements that are required by the US Government. Many of these requirements must also be flowed down (or communicated as requirements) to our supply base. The purpose of this section is 1) to identify the “flowdown requirements” 2) to explain the general purpose of each, and 3) to provide a link to the government site where all the details to the requirement are provided.

 

Each and every Flinchbaugh Company supplier of materials and services used for defense Purchase Orders is expected to understand and comply to the details that are relevant to their specific situation or role in the US Defense supply chain. 

 

For a comprehensive list of US Government DFARS visit: http://www.acquisition.gov

 

ITAR or International Traffic in Arms Regulation 

For practical purposes, ITAR regulations dictate that information and material pertaining to defense and military-related technologies (items listed on the U.S. Munitions List) may only be shared with US persons unless authorization from the Department of State is received to export the material or information to a foreign person.[3] US persons (including organizations; see legal personality) can face heavy fines if they have, without authorization or the use of an exemption, provided foreign persons with access to ITAR-protected defense articles, services or technical data.[4]

The Flinchbaugh Company is an ITAR Registered company.

The ITAR is published in Title 22 of the Code of Federal Regulations (CFR), Parts 120 through 130 (22 CFR 120-130).  https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-120?toc=1

 

OPSEC or Operations Security 

OPSEC (operations security) is a security and risk management process and strategy that classifies information, then determines what is required to protect sensitive information and prevent it from getting into the wrong hands. OPSEC gets information technology (IT) and security managers to view their operations and systems as potential attackers would. OPSEC includes analytical activities and processes, such as social media monitoring, behavior monitoring and security best practices.

The Flinchbaugh Company is OPSEC compliant. See attached training form used by our company for OPSEC training documentation.

The OPSEC contractor guidelines can be found at this link: https://www.swf.usace.army.mil/Portals/47/docs/Security/pdfs/Contractors_Guide_to_OPERATIONS_SECURITY_Feb_2019.pdf

 

NIST SP 800-171 DOD SECURITY SYSTEM, PLAN AND CONTROLS

The Department of Defense (DOD) has defined responsibilities imposed on defense contractors and subcontractors to safeguard "covered defense information" and for reporting cyber incidents on unclassified information systems that contain such information. DFARS Clause 252.204-7012 specifies new security controls for contractors using covered defense information on nonfederal systems. Consistent with the Office of Management and Budget cybersecurity guidance, this DFARS Clause specifies National Institute of Standards and Technology NIST SP 800-171 as the baseline security standard for protecting covered defense information.

 

Click here to view DFARS 252.204.7012

https://www.acquisition.gov/dfars/252.204-7012-safeguarding-covered-defense-information-and-cyber-incident-reporting.

 

Click here to view NIST 800-171

https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-171r2.pdf

 

"Covered Defense Information" means unclassified controlled technical information or other information, as described in the Controlled Unclassified Information (CUI) Registry at: http://www.archives.gov/cui/registry/category-list.html that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government wide policies, and is—

1) Marked or otherwise identified in the contract, task order, or delivery order and provided to the contractor by or on behalf of DOD in support of the performance of the contract; or

2) Collected, developed, received, transmitted, used, or stored by or on behalf of the contractor in support of the performance of the contract.

 

EQUAL OPPORTUNITY CLAUSES – Applies to all Purchase Orders in excess of $10,000 value.

Code of Federal Regulation Equal Opportunity Clauses as listed:

41 CFR 60-1.4; 41 CFR 60-300.5; 41 CFR 60-741.5

All clauses identified can be found by searching at the website “govinfo.gov”

 

SPECIAL PHEONIX NOTE - AS9100D CLAUSE 8.4.3m

Supplier is required to comply with AS9100D Clause 8.4.3m. Information for External Providers by ensuring that all supplier personnel and sub-tier supplier personnel are "aware of their contribution to product or service conformity, their contribution to product safety and the importance of ethical behavior."

 

BUSINESS CONDUCT FARS

52.203-13 Contractor Code of Business Ethics and Conduct

https://www.acquisition.gov/far/52.203-13

 

52.204-21 Basic Safeguarding of Covered Contractor Information Systems.

https://www.acquisition.gov/far/52.204-21

 

52.222-26 Equal Opportunity.

https://www.acquisition.gov/far/52.222-26 

 

Counterfeit Parts Policy Flowdown – Dependent on customer and end use

https://www.acquisition.gov/dfars/252.246-7007-contractor-counterfeit-electronic-part-detection-and-avoidance-system.