TERMS AND CONDITIONS for USAID-FINANCED INTERNATIONAL SUPPLY OF COMMERCIAL ITEMS
1. APPLICABLE LAW - This purchase order shall be enforced in accordance with the body of law applicable to the procurement of goods and services by the Federal Government. To the extent that Federal law does not exist, the laws of the District of Columbia shall apply. By accepting this agreement Vendor agrees to waive any rights to invoke the jurisdiction of the local national courts where this contract is performed.
2. ASSIGNMENT - This purchase order or any interest therein nor claim thereunder shall not be assigned, transferred, or subcontracted by the Vendor except as expressly agreed upon in writing by THE KAIZEN COMPANY's contracting authority.
3. AUTHORIZED GEOGRAPHIC CODE - Except as THE KAIZEN COMPANY may specifically notify Vendor (based on approval by the Government's Contracting Officer), all Goods, services, suppliers and subcontractors shall be from the Authorized Geographic Code and comply with the requirements of [a] AIDAR 752.752.225-70, and [b] USAID Regulation 28, 22 CFR Part 228, "Rules on Source, Origin and Nationality for Commodities and Services Financed by USAID." The Authorized Geographic Code applicable to this Contract is Code 937 as defined in 22 CFR 228.03( c), which includes the U.S. and other countries that are not "foreign policy restricted countries". Notwithstanding any of the foregoing, the source and origin of any of the Goods for which a specific "Origin" is indicated on the Purchase Order form shall be of the specified source and origin, unless otherwise approved in writing by THE KAIZEN COMPANY in consultation with the Government. In no case will the procurement of Goods or services or from vendors, from a foreign policy restricted country be approved.
4. CHANGES (a) By written order, THE KAIZEN COMPANY may from time-to-time direct changes for: (i) technical requirements; (ii) shipment or packing methods; (iii) place of delivery, inspection or acceptance; (iv) reasonable adjustments in quantities, delivery schedules or both; and, (v) terms and conditions of this contract required to meet THE KAIZEN COMPANY's obligations under Government prime contract or subcontract. (b) If any such change causes an increase or decrease in the price or in the time required for its performance, Vendor shall promptly notify THE KAIZEN COMPANY thereof and assert its claim for equitable adjustment within thirty (30) days after the change is ordered, and an equitable adjustment shall be made. However, nothing in this provision shall excuse Vendor from proceeding immediately with the directed change(s). Changes shall not be binding upon THE KAIZEN COMPANY except when specifically confirmed in a written Change Order.
5. CONFIDENTIAL INFORMATION - Vendor shall not publish any information developed under this Purchase Order, nor disclose, confirm, or deny any details about the existence or subject matter of this Purchase Order, or use THE KAIZEN COMPANY's name in connection with Vendor's sales promotion or publicity without prior written approval of the THE KAIZEN COMPANY.
6. DISPUTES - In case of a dispute arising from this agreement, the parties shall use their best efforts to arrive at an agreeable resolution. Any dispute that is not settled through the above "best efforts clause" shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall take place in Washington, D.C. The language of arbitration shall be English. Arbitrator(s) shall be appointed as provided in the American Arbitration Association Commercial Arbitration Rules. The arbitrator(s) may not award punitive or special damages. The parties in dispute shall each pay its own expenses in conjunction with the arbitration, but the compensation and expenses of the arbitrator(s) shall be borne in such manner as may be specified in the decision of the arbitrator(s). The Vendor shall proceed diligently with its performance of this purchase order pending the final resolution of any dispute arising or relating to this purchase order. THE KAIZEN COMPANY shall continue to reimburse the Vendor for its allowable costs in accordance with the payment provisions of this purchase order except for those costs related to the dispute.
7. ETHICAL STANDARDS OF CONDUCT - Vendor shall neither receive nor give any gifts or gratuities in connection with this Purchase Order. Vendor's employees are required to conduct company business with integrity and maintain a high standard of conduct in all business-related activities. Vendor shall not participate in any unethical conduct during performance of this Purchase Order. Vendor shall not engage in any personal, business, or investment activity that may be defined as a conflict of interest, whether real or perceived.
8. EXCUSABLE DELAYS - The Vendor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Vendor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Vendor shall notify THE KAIZEN COMPANY in writing as soon as it is reasonably possible after the commencement of any excusable delay and shall include the Vendor's good faith estimate of the likely duration of the delay.
9. EXPORT AND TRANSPORTATION CLEARANCES - Vendor shall secure in a timely manner all necessary licenses, approvals, permits and other authorizations, and shall successfully comply with all applicable laws and binding regulations and complete all required administrative processes and other formalities, for export of the Goods and any Related Services from their country of origin, through any intermediary countries, to their destination in Jordan.
10. INDEMNIFICATION - The Vendor is solely and exclusively liable to third parties for all costs incurred by the Vendor, all claims of damages against the Vendor arising out of, or based on its performance of this purchase order. The Vendor shall indemnify and hold harmless THE KAIZEN COMPANY and THE KAIZEN COMPANY's clients, including their respective officers, agents and employees, against all liability or loss, demands, suits, damages and claims or actions, fines of judgments (including costs, attorney's and witnesses' fees and expenses incident thereto) based upon or arising out of property loss or damage and of personal injury or death which may be sustained by the Vendor or by any of its employees, agents, consultants, or subcontractors as a result of performing the work required under this purchase order excepting only liability arising from affirmative acts, done with intent to cause loss, damage or injury, by THE KAIZEN COMPANY or THE KAIZEN COMPANY's client(s) or the officers, agents or employees of either.THE KAIZEN COMPANY
11. INDEPENDENT CONTRACTOR STATUS - Vendor is, and shall remain, an independent contractor during the performance of this Purchase Order.
12. INVOICING AND PAYMENT - The Kaizen Company will make payment by credit card at a verified point of sale for the vendor.
13. ORDER OF PRECEDENCE - In the event of a conflict between these Terms and Conditions and other portions of the purchase order, the order of precedence shall be: (a) any typed provisions on the face of THE KAIZEN COMPANY's purchase order specifically modifying the terms of this agreement; (b) these Terms and Conditions; and, (c) any other provisions set forth in the THE KAIZEN COMPANY's purchase order including any terms and conditions stated or referenced therein.
14. PATENT INDEMNITY-The Vendor shall indemnify THE KAIZEN COMPANY and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this purchase order.
15. PACKING AND MARKING - Vendor shall pack, mark for export and ship Goods in compliance with the requirements of this Purchase Order, as well as all applicable transportation regulations, carrier tariffs and sound commercial practice. Without limiting the generality of the foregoing, all Goods shall be properly and seaworthy prepared for export to withstand exposure to the elements and rough handling during ocean, air or land shipment. Such packing must be sufficient to ensure safe arrival at destination, and fully cover such hazards as extreme temperature, exposure to weather and open storage, and possible corrosion due to salt air. Packing size and weights shall take into consideration, where appropriate, the remoteness of the Goods destination and the absence of heavy handling facilities at some or all points during transit. Vendor shall be solely responsible for complying with all applicable U.S. federal, state and local laws as well as sound international practices for the packaging, labeling, transportation and shipping of the Goods (including, if applicable, hazardous materials safeguards). Vendor shall mark each container with the number of this Contract and shall enclose a packing slip with this Contract number in a secure and durable envelope attached to each container. Damage resulting from improper packing, export marking and preparation for shipment shall be for Vendor's account. Vendor shall ensure compliance with USAID marking requirements in AIDAR 752.7009. No extra charge is payable by THE KAIZEN COMPANY for containers, crating, boxing, handling, dunnage, drayage, storage, USAID marking compliance, or any other action necessary to comply with the requirements of this clause unless specifically stated in this Purchase Order or otherwise agreed to by THE KAIZEN COMPANY in writing.
16. PRICE The Price specified on the Purchase Order form is a firm, fixed, all-inclusive total price covering performance of all of Vendor's obligations pursuant to this Contract, including but not limited to, supply of Delivered Goods to destination and successful performance of all Related Services; warranty-related costs and charges; any and all required licenses, maintenance or use charges; and all other costs and charges of whatever description or amount, in connection with or resulting from Vendor's performance.
17. QUALITY ASSURANCE (INSPECTION AND ACCEPTANCE) - All Goods delivered and services rendered pursuant to this Purchase Order shall be subject to inspection and testing by THE KAIZEN COMPANY prior to acceptance in accordance with FAR 52.246-2 Inspection of Supplies Fixed Price. THE KAIZEN COMPANY will exert good faith efforts to decide on acceptance of Goods and services (and, as applicable, to complete inspection and testing) as promptly as possible upon delivery/performance. Notwithstanding the foregoing, payment shall only be made for accepted Goods and services. If Vendor delivers non-conforming Goods, THE KAIZEN COMPANY may, at its option and Vendor's expense: (i) return the Goods for refund or credit; (ii) require Vendor to promptly correct or replace the Goods; (iii) correct the nonconformance; or (iv) obtain conforming Goods from another source. THE KAIZEN COMPANY shall specify the reason for any return or rejection of nonconforming Goods and/or shall describe the action taken. Vendor shall be liable for any increase in costs, including procurement costs attributable to THE KAIZEN COMPANY's rejection of the non-conforming Goods or Services. Prompt removal and replacement or correction (as applicable), for purposes of FAR 52.246-2 (g) and (h) shall be deemed, unless otherwise subsequently agreed by THE KAIZEN COMPANY, to mean (10) business days after receiving notification of rejection of Goods or services.
18. SEVERABILITY - If any court of competent jurisdiction determines that any provision of this agreement is invalid or unenforceable, such a determination shall not affect the remaining provisions of this agreement. Further, each valid provision under this agreement shall be enforced to the fullest extent permitted by law.
19. SHIPPING AND DELIVERY - If the Delivery Terms shown in this Purchase Order require overseas shipment, Vendor shall arrange, facilitate, effectuate and be responsible for transportation of the Goods from the country of origin to destination. Unless otherwise specified on the Contract form, [a] carriage from the United States shall be by air; [b] Vendor shall arrange for transportation under a through air waybill or other multimodal arrangement that will ensure prompt, smooth and continuous carriage of the Goods to destination; [c] delivery shall be on the basis F.O.B. Destination (FAR 52.247-34) specified above. Vendor shall strictly adhere to all purchase order schedules. Vendor shall notify THE KAIZEN COMPANY in writing immediately of any actual or potential delay to the performance of this purchase order. Such notice shall include a revised schedule and shall not constitute a waiver of THE KAIZEN COMPANY's rights and remedies hereunder.
20. TERMINATION - THE KAIZEN COMPANY may terminate performance of work under this purchase order, in whole or in part, if (a) the Government terminates the performance of the prime contract or task order under which this purchase order is authorized, (b) funding of the prime contract or task order is terminated by the Government, (c) the Vendor defaults in performing the Statement of Work and fails to cure the default within ten (10) days after receiving a notice from THE KAIZEN COMPANY specifying the default, and (d) the Government orders the termination of the purchase order. Default includes failure of the Vendor to make progress in the work so as to endanger performance. If this purchase order is terminated for convenience, THE KAIZEN COMPANY shall be liable only for the actual, reasonable, substantiated and allowable costs with the total amount to be paid by THE KAIZEN COMPANY being determined by negotiation. If terminated for cause, THE KAIZEN COMPANY shall not be liable to the Vendor for any amount for supplies not accepted by THE KAIZEN COMPANY.THE KAIZEN COMPANY
21. TITLE Title to Goods supplied hereunder shall pass directly from Vendor to the Government (represented by the USAID Mission), on the date(s) of acceptance by THE KAIZEN COMPANY. Notwithstanding completion of delivery, Vendor shall bear all risk of loss or damage to the Goods prior to acceptance by THE KAIZEN COMPANY, except to the extent that any loss or damage is due to the gross negligence of the Government, without any fault on Vendor's part.
22. WARRANTY - In addition to any warranties required by any other provision of this Purchase Order, and any other warranties that may be established by operation of the applicable laws, Vendor hereby expressly warrants that all Goods (including without limitation their parts) and services supplied, as applicable:
a. are free of defects in material and workmanship for the warranty period specified in the manufacturer's standard warranty commencing on the date the Goods are accepted;
b. C.
d.
e.
f.
g.
h.
i.
j.
are being supplied by a Vendor or subcontractor included on any list of suspended, debarred, or ineligible bidders used by USAID;
conform to applicable specifications and regulatory agencies' requirements, and are free of defects in design;
are free of latent defects (as used herein, defects that meet the following criteria: (a) such defects are not apparent to either Party during customary manufacturing or quality testing and/or inspection; and (b) such defects result solely from defective material, workmanship, or design and are not caused by misuse or misapplication of the Equipment);
are new; unused; non-remanufactured and non-refurbished; not previously disposed as Government surplus; and produced entirely from Goods meeting all of the foregoing requirements (including but not limited to materials, parts, components and sub-assemblies thereof);
will, to the extent found to be in breach of any warranty specified in this purchase order, be removed, and repaired or replaced, covered by new warranties identical to those that applied to the originally supplied Goods and services, extending for the longer of [a] the remainder of the original warranty period, or [b] a new warranty period;
ensure that all spares and replacement parts are the same as the original spares and parts unless formally replaced by an improved and THE KAIZEN COMPANY-approved technical equivalent;
comply with the description on the Purchase Order form and all other requirements of this Purchase Order in all respects;
are covered by intellectual property licenses, permissions, or rights which will not infringe the intellectual property rights of any third person, and which, being granted to THE KAIZEN COMPANY and USAID pursuant to this Contract, will be adequate to ensure that both the THE KAIZEN COMPANY and USAID may freely utilize the licenses, permissions and rights free and clear of any claim, encumbrance, lien or interest of any other person or entity, and in all other respects without disturbance or impediment; and
Vendor has no knowledge of any patents or copyrights which are infringed or may be infringed, or any trade secrets or other proprietary rights of other persons which are or may be misappropriated or violated by using, making, copying, licensing, distributing or selling the Goods.
B. If any Goods or services supplied hereunder are defective or otherwise do not meet the warranties specified herein or otherwise applicable, THE KAIZEN COMPANY may, at its option: (1) reject the affected item(s) and require a full refund or credit; (2) reject the affected item(s) and require prompt correction or replacement (freight prepaid) at Vendor's sole expense; (3) retain it/them at a equitably adjusted price; or (4) require Vendor to provide, if available, corrections in the form of field change order kits (including components, instructions and other necessary materials) from Vendor so that THE KAIZEN COMPANY may make necessary changes or repairs Repaired or corrected items shall be subject to the same warranties as if they were new. While returned item(s) are in Vendor's possession and while in transit during return to Vendor and reshipment to THE KAIZEN COMPANY, all risks and costs of loss, destruction or damage shall be for Vendor's account.
C. THE KAIZEN COMPANY shall submit warranty claims to Vendor within a reasonable time after THE KAIZEN COMPANY becomes aware of any breach, indicating the nature and date of the claim.
D. Vendor shall promptly correct any problem reported by THE KAIZEN COMPANY by making necessary changes in the Goods or their manufacturing processes so that further Goods to be delivered to THE KAIZEN COMPANY shall be as warranted herein. If Vendor becomes aware of any non-conformance to any warranty relating to the Delivered Goods, Vendor shall promptly notify THE KAIZEN COMPANY thereof in writing.
E. THE KAIZEN COMPANY shall have the right, at any time and from time to time, to stop further shipments of Goods from Vendor to THE KAIZEN COMPANY that do not conform to the warranties and other requirements of this Contract, and in such event THE KAIZEN COMPANY shall advise Vendor of THE KAIZEN COMPANY's best identification and assessment of the problems. Further shipments of Goods shall not be made to THE KAIZEN COMPANY until and unless Vendor has corrected the specified areas of non-conformance in Products, or THE KAIZEN COMPANY authorizes in writing the shipment of such Products pending Vendor's correction.