Harris General Provisions—Fixed Price(Commercial Items for Government Programs)
SECTION I
1.DEFINITIONS
As used in the Purchase Order/Subcontract:
a.“Certificate of Compliance” means a certificate signed by an authorized representative of Seller’s Quality Department, certifying that the Products delivered are of the quantity specified and conform in all respects with the requirements of the Purchase Order.
b.“Days” shall mean calendar days unless otherwise expressly provided in the Purchase Order.
c.“Effective Date” means the date on the front page of this Purchase Order.
d.“Gratuity” means any money, fee, commission, credit, gift, thing of value, or compensation of any kind which is provided, directly or indirectly, to any Harris employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with the Purchase Order.
e.“Harris” means the Harris legal entity issuing the Purchase Order.
f.“Harris Proprietary Information” shall mean trade secret, confidential, or proprietary information disclosed by Harris to Seller in connection with this Purchase Order, which either is identified to Seller as trade secret, confidential, or proprietary information or which is information that a reasonable person would understand to be trade secret, confidential, or proprietary information.Harris information shall not include any information previously known to Seller without obligation of confidence, or which is in the public domain.
g.“Prime Contract” means the contract existing between Harris and its customer.
h.“Products” means the equipment, firmware, software, components, goods, services, work, reports, or other items purchased from Seller or to be supplied by Seller under the Purchase Order.
i.“Purchase Order” means the Purchase Orderincluding these General Provisions and all other plans, specifications, schedules, regulations, and other documents that are attached to or incorporated by reference into the Purchase Order.
j.“Seller” means the individual, association, partnership, corporation or other entity that agrees to perform in accordance with the Purchase Order.
2.ENTIRE AGREEMENT
Seller agrees to the following General Provisions, and Seller further agrees that the terms and conditions of the Purchase Order and any documents (including these General Provisions and any plans, specifications, schedules, regulations, etc.) attached to or incorporated by reference into the Purchase Order shall constitute the entire agreement between the parties hereto and supersede all prior agreements relating to the subject matter hereof.Seller represents and warrants that in entering the Purchase Order, Seller does not rely on any previous direct or implied representation, inducement, or understanding of any kind.
3.ORDER OF PRECEDENCE
To the extent there are any conflicts among the provisions within the Purchase Order, such conflicting provisions shall prevail in the following order of precedence:
a.Purchase Order;
b.Special Provisions as identified in the Supplemental Terms;
c.These General Provisions;
d.Statement of work or any other attachments when attached or incorporated by reference;
e.Specifications
4.ACCEPTANCE—MODIFICATION OF TERMS
The Purchase Order constitutes acceptance of Seller’s offer and such acceptance is expressly made conditional on Seller’s assent to the terms and conditions contained in the Purchase Order. The Purchase Order will be deemed accepted by Seller upon the first to occur (i) Seller’s written acceptance of the Purchase Order; or (ii) Seller’s commencement of performance under the Purchase Order.In either such event any additional or different terms proposed by Seller are rejected unless expressly approved in writing by an Authorized Harris Procurement Official. No communication from Seller that in any way differs from or adds to the Purchase Order, irrespective of whether or not Harris seasonably objects thereto, will be binding upon Harris unless such different or additional terms are incorporated into a writing signed by both Harris and Seller, making express reference to the Purchase Order.
5.CHANGES
Changes in the terms and conditions of this Purchase Order may be made only by written agreement of the parties.
a.Equitable Adjustment: If any such change causes a variation in the cost of performance or the time required for performance, Harris may make an equitable adjustment in the Purchase Order price and delivery schedule (except as otherwise provided herein) and the parties' shall modify the Purchase Order in writing accordingly. Seller must make any request for an equitable adjustment of price or schedule in writing to Harris withintwenty five (25) days from the date of Harris' written notification to Seller of the change or such further time as Harris may allow in writing. Seller shall then have thirty (30) days; from the date it submitted its request to Harris for an equitable adjustment to submit a fully supported proposal. Seller's failure to adhere to the time deadlines in submitting its equitable adjustment proposal shall waive Seller's right to seek an equitable adjustment. Pending any equitable adjustment, Seller shall proceed in accordance with the change order.The parties' failure to agree to any adjustment shall be a dispute concerning a question of fact covered by the Dispute Resolution clause.
6.INSURANCE
a.Types of Insurance: Unless otherwise specified by Harris in writing, Seller shall maintain and cause Seller's subcontractors to maintain during the term of the Purchase Order (a) workers' compensation insurance as prescribed by the law of the state or nation in which the work is performed; (b) employer's liability insurance with limits of at least $500,000 for each occurrence; (c) automobile liability insurance if the use of motor vehicles is required hereunder, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; and (d) Commercial General Liability ("CGL") insurance, ISO 1988 or later occurrence form of insurance, including, without limitation, Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $2,000,000 combined single limit for bodily injury and property damage per occurrence.All CGL and automobile liability insurance shall designate Harris, its affiliates, and its directors, officers, and employees (all referred to as "Harris") as additional insured.All such insurance must be primary and non-contributory and required to respond and pay prior to any other insurance or self-insurance available.Insurance companies providing coverage under the Purchase Order must be rated by A-M Best with at least an AVII rating unless no such company is available in the local market.If specifically requested by Harris, Seller and Seller's subcontractors shall furnish, prior to the start of work or at such other time as Harris requires, certificates or adequate proof of the foregoing insurance, including, without limitation, endorsements and policies. The policies evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the interest of Harris or Harris' Customer shall not be effective (1) for such period as the laws of the State in which this Purchase Order is to be performed prescribe or (2) until thirty (30) days after the insurer or Seller gives written notice to Harris, whichever period is longer. Any other coverage available to Harris shall apply on an excess basis.Seller agrees that Seller, Seller's insurer(s) and anyone claiming by, through, under or on Seller's behalf shall have no claim, right of action or right of subrogation against Harris and Harris' Customer based on any loss or liability insured against under the foregoing insurance.
b.Harris Materials, Tools, and Equipment: Seller shall keep, at Seller's sole expense, all Harris materials and all tools and equipment, special or otherwise, in which Harris has any interest, insured against risk of loss or damage by fire or other unavoidable casualty for their fair market value at the time of receipt by Seller and during such time as they remain in Seller's possession.
c.No Effect on Indemnification Obligations:Seller's obligation to obtain the insurance specified in this Clause does not waive or release Seller's liabilities or duties to indemnify under this Purchase Order.
7.INDEMNIFICATION
a.General: Seller acknowledges that, as an independent contractor, it is furnishing Products to Harris which may be subject to certain local, state, Federal, and foreign laws and regulations. Seller therefore agrees to indemnify and hold harmless Harris and Harris’ customer and their respective directors, officers, agents, and employees, against all claims, damages, losses, causes of action, liabilities and expenses of any kind or nature, including without limitation, defense costs and attorneys' fees, which arise out of or relate to Seller's failure to comply with all applicable local, state, Federal, and foreign laws and regulations in the performance of Seller's obligations under the Purchase Order.Seller also agrees to indemnify and hold harmless Harris and Harris’ customer and their respective directors, officers, agents, and employees, against all claims, damages, losses, causes ofaction, liabilities and expenses of any kind or nature, including without limitation, defense costs and attorneys' fees, which arise out of or relate to Seller's failure to comply with the provisions of the Purchase Order.
b.Infringement: Seller shall indemnify, defend, and hold harmless, Harris and Harris' customer and their respective officers, directors, agents, and employees against liability and losses including, without limitation, defense costs and attorneys' fees, for any allegation of or suit or action for infringement of any United States or foreign patent, copyright, trademark, or other intellectual property right arising out of the provision of Products under the Purchase Order or out of the use or disposal of such Products by or for the account of Harris.Seller shall at its own expense either procure for Harris and/or for Harris and Harris' customer, as Harris shall require in its sole discretion, the right to continue using the alleged infringing Products, replace the infringing Products with non-infringing Products, or modify the Products so that the Products become non-infringing.The foregoing indemnity shall not apply unless Harris or Harris' customer informs Seller of the suit or action or other proceeding alleging infringement and gives Seller the opportunity as is afforded by applicable laws, rules, or regulations, to participate in the defense thereof.
c.Work on Harris Premises: If the Purchase Order involves performance by Seller on the premises of Harris or Harris' customer, Seller agrees, in addition to any other indemnification obligations in the PurchaseOrder, to assume entire responsibility and liability for any and all damage or injury of any kind or nature whatever to persons, whether employees of Seller or otherwise, and to all property, caused by, resulting from, or arising out of Seller's performance or that of its agents or employees; provided, however, that any such damage or injury shall not have been caused solely by the negligence of the agents, servants, or employees of Harris or Harris' customer. Seller also shall carry adequate insurance as provided in Clause 6, Insurance,to cover all such risks and to protect Harris and Harris' customer pursuant to this Clause.
8.INSPECTION AND ACCEPTANCE
a.Inspection:Both Harris and Harris' customer may at any time (e.g., before, during or after manufacture or completion) inspect and test any or all Products ordered hereunder with reasonable notice. Such inspection and/or test may occur at Seller or Sellers’ subcontractor’s plant.All Products shall be subject to final acceptance by Harris.Inspections shall be performed in such a manner as not to delay Seller's performance unduly.In the case of rejection of any Products, neither Harris nor Harris' customer, shall be liable for any reduction in value of samples used in connection with such inspection or test.No inspection or test or review or approval by Harris or Harris' customer shall relieve Seller of any of its obligations under the Purchase Order, or constitute a waiver of any defects or nonconformities.
b.Rejected Products: Rejected Products may, at the option of Harris, be returned to Seller at Seller's expense for outbound and inbound shipments with risk of loss or damage upon Seller, or be accepted with an equitable adjustment in price. Upon rejection, Seller shall immediately refund previous payments. Seller shall not resubmit rejected Products for acceptance without a concurrent notice to Harris of the prior rejection.If, after request by Harris, Seller fails to promptly replace or correct any rejected Products, Harris at its sole discretion (1) may replace or correct such Products, and charge to Seller the cost incurred by Harris in doing so, or (2) may, without further notice, terminate the Purchase Order for cause, in accordance with Clause 14,Termination for Cause.The foregoing remedies shall in no way preclude or prejudice the exercise of any other right or remedy that Harris may have at law or under the Purchase Order.
c.Final Acceptance: Except as otherwise agreed in writing, all Products provided under the Purchase Order shall be subject to final inspection and acceptance by Harris and Harris’ customer.Final acceptance by Harris of the Products provided hereunder shall take place only after complete delivery of all Products in accordance with the delivery schedule specified herein or later agreed upon by the parties in writing and after final inspection of those Products by Harris and Harris' customer.Final acceptance shall be contingent upon agreement by Harris and the Harris customer that the Products conform totherequirements of the Purchase Order.Final acceptance shall be evidenced by the execution of a written certificate or document signed by a Harris representative and indicating the date of final acceptance. Final acceptance by Harris shall be conclusive, except for latent defects, negligent or intentional misrepresentations by Seller that a nonconformity or defect would be or had been cured or did not exist, acceptance induced by false or negligent assurances of Seller, or as otherwise provided in the Purchase Order or applicable law. Final acceptance by Harris of the Products delivered hereunder shall not limit or affect the warranty or indemnity granted by Seller hereunder.
d.Risk of Loss: Seller shall bear the risk of loss or damage to the Products until they are delivered in conformity with the Purchase Order at the F.O.B. destination point stated in the Purchase Order. (If not otherwise stated, destination point shall be Harris’ facility or F.O. B. Harris facility). Upon such delivery, Seller’s responsibility for loss or damage to the Products shall cease except for loss or damage resulting from Seller’s negligence or fault. Notwithstanding the foregoing, Seller shall remain responsible for risk of loss of any nonconforming or rejected Products, unless such loss, destruction, or damage results from the sole negligence of Harris.
e.Title: Except as otherwise stated in this Purchase Order, title to all Products furnished under this Purchase Order shall pass to Harris upon final acceptance regardless of when or where Harris takes physical possession of the items.
9.DELIVERY AND ADVANCE COMMITMENTS
a.Unless advance shipment has been authorized in writing by Harris, Harris may store or return, at Seller’s expense, all work received materially in advance of the scheduled delivery date.
b.If Seller becomes aware of difficulty in performing the work, Seller shall timely notify Harris, in writing, giving pertinent details. This notification shall not change any delivery schedule.
10.PAYMENT
a.Seller shall submit invoices to Harris in accordance with the terms of the Purchase Order, and such invoices shall contain at least the following information: Purchase Order number, Product number, description of Products, sizes, quantities, unit prices and extended totals, and supporting documentation for the amount invoiced.Harris institutes its invoice payment processing on the first and fifteenth of each month and will pay invoices properly submitted hereunder within thirty (30) days of its bi-monthly invoice payment processing dates unless otherwise stated in the Purchase Order, after receipt of invoices and acceptance of the Work by Harris subject to the other provisions of the Purchase Order.Payment by Harris shall be deemed to have been made on the date Harris deposited the payment in the U.S. mail or with another recognized commercial carrier, or the date Harris made the electronic funds payment.
b.Harris may make any adjustment or withhold any payment reasonably appropriate in Seller's invoices due to shortages, late delivery, rejections or other failure to comply with the requirements of the Purchase Order.Cash discounts will be taken from date of receipt of invoice for material received. Payment does not constitute final acceptance.
c.The price set forth in the Purchase Order covers all Products ordered by Harris.The aggregate of the payments and reimbursements due the Seller by Harris shall not exceed the price for Seller’s Products in the Purchase Order and Seller is not authorized to exceed nor is Harris obligated to pay Seller any amount exceeding the price of the Products stated in the Purchase Order.Any increase in the price for the Products shall be made by a change order in accordance with Clause 5, Changes.
d.If so specified in the Purchase Order, the Seller shall furnish a signed Certificate of Compliance to the requirements of the Purchase Order with each shipment made to Harris; to substantiate the Certificate of Compliance; the Seller shall maintain inspection or test records which Harris or a Harris representative may audit from time to time.