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1. GENERAL: This Order is expressly conditioned upon Seller’s acceptance of the terms and conditions set forth herein, together with the terms set forth in documents attached to this Order or incorporated by reference on the face of this Order. The Order constitutes the entire agreement between FRALOCK and Seller and supersedes all other agreements and undertakings, whether written or oral, between the Parties with respect to the subject matter of this Order except for Non-Exclusive Trademark Licenses which may exist between the Parties. The Order shall not be modified by or interpreted by reference to any course of dealing or usage of trade and shall not be modified by any course of performance. No modification of this Order shall be effective unless in writing signed by the party to be charged with the modification. No modification shall bind FRALOCK unless signed by an authorized FRALOCK Purchasing Representative. FRALOCK hereby explicitly rejects the inclusion of any different or additional terms proposed by Seller and if such different or additional terms are so included in an order acknowledgement, Seller agrees that a binding contract of sale will result including only the terms stated herein, unless FRALOCK has agreed by a written Order Modification to accept such different or additional terms.

The order of precedence of all terms and conditions in the Order are those designated: (1) on the face side of this Order, (2) in the body of a request for quotation or item specification, and (3) those stated in these Terms and Conditions.

Seller’s acceptance of this Order must be by commencement of performance or by seasonable written acknowledgment of this Order, but where Seller’s acceptance is by commencement of performance, FRALOCK reserves the right to treat its offer as having lapsed before acceptance unless FRALOCK is notified of Seller’s acceptance within a reasonable time.

2. EMPLOYEE AWARENESS: The supplier shall communicate to ensure its employees are aware their contribution to product or service conformity, applicable product safety, and importance of ethical behavior.

3. VERBAL ORDERS: Are accepted under the terms herein only. Any discrepancies between FRALOCK’s understanding of the verbal order (which is expressed in this Order) and the Seller issued order acknowledgement are the responsibility of the Seller.

4. ERRORS/CHANGES: Any clerical errors appearing in the typed portion of an FRALOCK Order may be corrected at any time by FRALOCK.

5. QUANTITIES: The quantities specified for delivery on this Order are the only quantities required by FRALOCK. Therefore, if Seller delivers quantities in excess of those specified in this Order, FRALOCK shall not be required to make any payment for the excess goods and, at FRALOCK’s election, may keep or return the excess goods at Seller’s risk and expense.

6. QUALITY SYSTEM REQUIREMENTS: The supplier shall maintain a Quality Management System in-line with AS9100/ISO9001 or equivalent or QMS System approved by Fralock Supply Base Management.

7. CONFORMANCE OF GOODS: Seller warrants that all goods furnished hereunder will conform to the requirements of this Order (including all descriptions, specifications and drawings made a part of this Order), will be merchantable, fit for their intended purposes, free from all defects in materials and workmanship and free from defects in design. All warranties, including special warranties specified elsewhere herein or normally offered to buyers of goods of this kind, shall inure to FRALOCK, its employees, successors, assigns, customers and users of its products. FRALOCK’s approval of designs or specifications furnished by Seller shall not relieve Seller of its obligations under this warranty. Any tender of goods which is nonconforming as to the quality or quantity or the delivery schedule shall constitute a breach of this Order and FRALOCK shall have the absolute right to reject such goods, in whole or in part, and notify Seller thereof. In the event of such a tender, FRALOCK shall be entitled to all remedies as provided by law, and in addition thereto shall have the right to do any or all of the following: (1) to hold such nonconforming goods for a reasonable period at Seller’s risk and expense pending a determination to accept or reject any or all thereof; (2) to return such nonconforming goods to Seller at FRALOCK’s election and at Seller’s risk and expense for replacement or correction; (3) to accept such nonconforming goods subject to an equitable price reduction; (4) to replace or correct such nonconforming goods and charge to Seller the cost occasioned to FRALOCK thereby; (5) to recover by offset or otherwise any and all expenses, costs, price reductions, and damages paid, incurred, or suffered by FRALOCK as a result of such holding, return, replacement, correction, reductions, or rejections of nonconforming goods; or (6) to terminate this Contract as provided herein.

8. COUNTERFEIT MITIGATION PROGRAM: The seller shall establish and implement test and inspection activities necessary to assure the authenticity and conformance of purchased materiel, including: traceability and documentation verification, visual examination, and tests and inspections. Tests and inspections shall be performed by individuals that have been trained and qualified concerning detection of the types and means of counterfeiting and how to conduct effective product authentication.

9. LOT CONTROL AND TRACEABILITY: Identification for traceability by lot number, material type, specification, and applicable change letters etc. is required. Traceability records shall be available for review by FRALOCK.

10. CALIBRATION: The supplier shall establish and maintain documented procedures to control, calibrate, and maintain inspection, measuring, and test equipment (including test software) used by the supplier to demonstrate the conformance of product or service the specified requirements (N.I.S.T. traceable per ANSI/NCSL Z540). Inspection, measuring, and Test equipment shall be used in a manner which ensures that measurement uncertainty is known and is consistent with the required measurement capability.

11. CALIBRATION LABORATORY: Shall have a quality system accredited certification or compliance to ISO 17025. All calibration service performed shall have documented traceability to NIST standards per ANSI/NCSL Z540 to demonstrate their conformance to the specified requirements.

12. SPECIAL PROCESS: In fulfillment of this purchase order, if any requirement for a special process (plating, coating, painting, thermal treatment, testing, etc., FRALOCK supplier shall use only approved “Special Process Suppliers”. Process certifications must be supplied with each shipment.

13. NOTIFICATION OF NONCONFORMING PROCESSES, PRODUCTS OR SERVICES: The Seller shall immediately notify FRALOCK when Seller becomes aware that nonconforming processes, products or services and obtain approval from FRALOCK for their disposition of processes, products or services delivered to FRALOCK against this Order. FRALOCK’s remedies in relation to nonconforming product are as outlined in these terms and conditions in T& C No. 7. 

14. RIGHT OF ACCESS: Seller shall grant right of access to FRALOCK, FRALOCK’s customer(s), and regulatory authorities to all facilities involved in this order and to all applicable records related to this order upon written request from FRALOCK. Additionally, the seller shall flow down this right of access requirement to its sub-tier suppliers.

15. NOTIFICATION OF PRODUCT/PROCESS/ SERVICE CHANGES: The Seller is required to notify FRALOCK of changes in processes, products, or services, including changes of Seller’s external providers or location of manufacture related to goods to be supplied on this Order and shall obtain FRALOCK’s approval prior to shipment of product, prior to change in processes, or prior to the performance of services.

16. SUBCONTRACTING: Seller will not subcontract without FRALOCK’s prior written consent for the design, development or procurement of the whole or any substantial portion of any goods ordered hereunder. Supplier shall flow down to sub-tier suppliers the applicable requirements in this purchasing document as well as the purchase order , including key characteristics where required. This limitation shall not apply to Seller’s purchases of standard commercial supplies or raw material.

17. DELEGATION OF AUTHORITY: The supplier under this purchase order hereby is given the delegation of authority for validation of furnish chemical and/or physical test reports and/or raw material certifications and acknowledges that the information provided are validated and found to be in compliance with FRALOCK’s purchase order requirements.

18. PACKING: All items are to be packed in suitable containers for protection in shipment and storage. Each container of a multiple container shipment shall be identified (a) to show the number of the container and the total number of containers in the shipment, and (b) the number of the container in which the packing sheet has been enclosed. All shipments by Seller must include packing sheets containing the FRALOCK Order number, quantity, part number/size, and description of the items shipped. Materials for different contracts shall be listed on separate packing sheets.

19. INVOICES: Shall be submitted by the Seller to the FRALOCK Accounts Payable Department at the address set forth on the face of this Order. The prices set forth in this order includes all taxes, duties, fees, packing, shipping and loading charges, levies and similar charges. All sales and use taxes must be separately itemized. The FRALOCK Purchase Order Number and Item Number (if applicable) must appear on all shipping documents, invoices, and packing sheets. Determination of payment due date, whether under net or discount terms, will be based on the latest of (1) the date goods are received or services are completed; (2) the date goods are scheduled to be received or services are scheduled for completion under this Order; or (3) the date an accurate invoice and packing sheet (including required product certifications) have been received. Unless early delivery of goods or services is expressly authorized by the FRALOCK Purchasing Representative, payment for goods or services received in advance of the contractual commitment date shall be made as set forth above. Payment will be deemed to have been made when deposited in the mail.

20. TIME: Is of the essence of this Order. Delivery dates are firm commitments to deliver goods on the specified date(s) unless specifically modified in writing. In the event of delivery before the agreed date, FRALOCK may refuse the goods, store goods at Seller’s expense or return goods to Seller at Seller’s expense.

21. FLOW-DOWN OF TERMS AND CONDITIONS: The Seller is required to flow down to sub-tier suppliers the applicable requirements in the purchasing documents, including key characteristics, where required.

22. PLACE OF DELIVERY: Unless specifically stated otherwise, all deliveries shall be F.O.B. FRALOCK at the address shown on the face of this Order.

23. RECORD RETENTION: Supplier shall retain process and product related quality records pertaining to this purchase order from deterioration for a minimum of seven years unless otherwise specified by the purchase order. FRALOCK shall be notified in writing 30 days prior to destruction of any records not held for the agreed upon period related to material supplied against our purchase order.

24. INDEMNIFICATION: FRALOCK shall not be liable for any incidental or consequential damages or losses incurred by Seller. By accepting this Order, Seller assumes all liability for any damages of any kind which may result from use by FRALOCK’s employees, agents, or any other person(s) including third parties unknown to FRALOCK or Seller, including damages due to failure of the goods. Seller agrees to indemnify, defend and hold FRALOCK harmless from any and all such damages or losses, including, without limitation, reasonable attorneys’ fees incurred by FRALOCK in defending against the same, excepting such loss, cost or damage occasioned by fault or negligence of FRALOCK.

25. TERMINATION: FRALOCK may terminate the whole or any part of this Order in any of the following circumstances:

A. If Seller fails to deliver the goods or to perform the services required by this Order within the time specified herein, or any extension thereof granted by FRALOCK in writing; or

B. If Seller fails to perform any of the other provisions of this Order or so fails to make progress as to endanger performance of this Contract in accordance with its terms, and in either of these two (2) circumstances does not cure such failure within a period of ten (10) days after receipt of notice from FRALOCK specifying such failure; or

C. In the event of suspension of Seller’s business, insolvency, institution of bankruptcy, liquidation proceedings by or against Seller, appointment of a trustee or receiver for Seller’s property or business, or any assignment, reorganization or arrangement by Seller for the benefit of creditors.

26. NOTICES: Any notice submitted by Seller, unless otherwise specified within this Contract, shall be in writing and directed to the FRALOCK Purchasing Representative indicated on the face of the Order.

27. DISPUTES: Pending the final resolution of any dispute involving this Order, Seller agrees to proceed with performance of this Order, including the delivery of goods, in accordance with FRALOCK’s instructions. Seller shall submit to FRALOCK’s buyer a written demand for FRALOCK’s final decision regarding the disposition of any dispute between the parties relating to this Order, unless FRALOCK, on its own initiative, has already rendered such a final decision. Any FRALOCK final decision shall be expressly identified as such, shall be in writing, and shall be signed by FRALOCK’s authorized Purchasing Representative, except that FRALOCK’s failure to render a final decision within ninety (90) days after receipt of Seller’s demand shall be deemed a final decision adverse to Seller’s contentions. FRALOCK’s final decision shall be conclusive and binding regarding the dispute unless Seller commences an action to contest such decision within ninety (90) days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. FRALOCK and Seller shall bear their own costs of processing the dispute.

28. WAIVER AND SEVERABILITY: Any action or inaction by FRALOCK or the failure of FRALOCK, on any occasion, to enforce any right or provision of this Order shall not be construed to be a waiver by FRALOCK of its rights hereunder, and shall not prevent FRALOCK from enforcing such provision or right on any future occasion. A determination that any portion of this Order is unenforceable or invalid shall not affect the enforceability or validity of any of the remaining portions of this Order.

29. RIGHTS AND REMEDIES: The rights and remedies of FRALOCK herein are cumulative, and are in addition to any other rights or remedies that FRALOCK may have at law or in equity.

30. GOVERNING LAW: This Order shall be governed by the laws of the State of California, except that its conflict of law rules shall not apply.

31. SPECIAL TERMS AND CONDITIONS: The following terms shall apply to the extent indicated on the face of this order:

A. QUALIFIED PRODUCTS: In addition to the warranties of Clause 7, Seller warrants that the goods conform in all respects with “Approved Source” and “Qualified/Certified Process” requirements of the applicable specifications.

B. PRODUCT CERTIFICATIONS
C. TEST REPORTS
D. ADDITIONAL REQUIREMENTS LISTED ON THE FACE OF THE ORDER.
E. SOURCE INSPECTION
F. CUSTOMER/GOVERNMENT SOURCE INSPECTION
G. BUY AMERICAN
H. NON-DISCRIMINATION
I. MINORITY-OWNED BUSINESS
J. SMALL BUSINESS
K. GOVERNMENT CONTRACT TERMINATIONS: To the extent required by law, including specifically, but not exclusively, terminations for convenience and terminations for default under the terms of a government contract or purchase order issued to FRALOCK or a FRALOCK customer.

F413 C Terms and Conditions – Vendor