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Commercial Items-Government Contract SIERRA NEVADA CORPORATION TERMS AND CONDITIONS- COMMERCIAL ITEMS-GOVERNMENT CONTRACT 1. ORDER ACCEPTANCE 26. QUALITY CONTROL SYSTEM 2. DEFINITIONS 27. CONFLICT MINERALS 3. INSPECTION/ACCEPTANCE 28. PARTIAL INVALIDITY 4. ASSIGNMENT 29. NON-WAIVER 5. CHANGES 30. SURVIVABILITY 6. RESERVED 31. DELIVERY 7. FORCE MAJEURE 32. CUSTOMER COMMUNICATION, NEWS AND 8. INVOICE AND PAYMENT PUBLIC STATEMENTS OR RELEASES 9. RESERVED. 33. CONTRACTUAL DIRECTION 10. PATENT, TRADEMARK, AND COPYRIGHT 34. ELECTRONIC SIGNATURE INDEMNITY 35. EXPORT CONTROL 11. F.O.B., TITLE AND RISK OF LOSS 36. BUYER PROPERTY 12. RESERVED 37. INDEMNITY AND REIMBURSEMENT 13. TERMINATION FOR CONVENIENCE 38. GRATUITIES/KICKBACKS 14. TERMINATION FOR CAUSE 39. INDEPENDENT CONTRACTOR RELATIONSHIP 15. WARRANTY 40. PROPRIETARY INFORMATION 16. RESERVED 41. INSURANCE 17. COMPLIANCE WITH LAWS 42. SITE REQUIREMENTS 18. ORDER OF PRECEDENCE 43. RIGHTS AND REMEDIES 19. RIGHTS IN INTELLECTUAL PROPERTY 44. REPORTING OF CYBER INCIDENTS 20. NEW MATERIALS 45. ENTIRE AGREEMENT 21. COUNTERFEIT AND SUSPECT PARTS 46. AFFIRMATIVE ACTION 22. PACKING AND SHIPPING 47. FAR AND DFARS CLAUSES 23. CHOICE OF LAW 24. DISPUTES/ARBITRATION 25. RESERVED SNC Proprietary Information Approved for Release Outside of SNC OPS-FORM-9605 Rev A Page 1 of 16 This document is controlled electronically in the Process Document Library. Document users are responsible for using the most current revision, including printed/saved copies. © 2020 Sierra Nevada Corporation 1. ORDER ACCEPTANCE result of performance of this Order to a bank, trust company, This Order shall be deemed to have been accepted by any of or other financing institution. the following: (i) Seller’s acknowledgement of the Order; (ii) Seller’s commencement of performance of Work under the 5. CHANGES Order; (iii) timely delivery of the products identified herein to Changes in the terms and conditions of this Order may be made the shipping address specified on the face of the Order; or (iv) only by written agreement of the parties. acceptance of payment by Seller. Buyer objects to, and is not 6. RESERVED bound by, any terms and conditions stated in Seller’s acceptance unless accepted in writing by Buyer. 7. FORCE MAJEURE Neither party shall be liable for damages for delay in delivery 2. DEFINITIONS arising out of causes beyond its reasonable control and without (a) “Buyer” means Sierra Nevada Corporation (“SNC”), its its fault or negligence, including, but not limited to, acts of God divisions or subsidiaries, as represented by an authorized or of the public enemy, acts of any Government authority, fires, representative. The only authorized representatives for floods, epidemics, quarantine restrictions, strikes, embargoes, this Purchase Order are as specified in the Purchase Order. or unusually severe weather. If the delay is caused by the delay (b) “FAR” means the Federal Acquisition Regulation, Chapter of a subcontractor of Seller and if such delay arises out of 1 of Title 48 of the Code of Federal Regulations. causes beyond the reasonable control of both Seller and the (c) “Government” means the United States Government or subcontractor, and without fault or negligence of either of its authorized representatives. them, Seller shall not be liable to Buyer in damages unless the (d) “Prime Contract” means the contract, if any between articles or services to be furnished by the subcontractor were Buyer and Government or the contract between Buyer obtainable from other sources in sufficient time to permit and a higher tier seller. Seller to meet the required delivery schedule. Seller will notify (e) “Product” means those services, goods, supplies, Buyer in writing within ten (10) calendar days after the materials, articles, items, parts, components or beginning of any such cause. assemblies described in this Order. (f) “Order” means this purchase order or subcontract, or 8. INVOICE AND PAYMENT modification thereof, incorporating by reference these Unless specifically set forth in Seller’s proposal or quote and conditions and instructions and all applicable data accepted by Buyer the stated contract price shall include all incorporated by reference therein charges for packing, shipping, hauling, storage, and (g) “Seller” means the party with whom Buyer is contracting. transportation to the point of delivery. No separate or (h) “Terms and Conditions” means this document. additional charges for these items will be accepted. (i) “Work” means all required articles, materials, supplies, goods and services constituting the subject matter of this Unless otherwise authorized by Buyer, Seller shall not issue an Order and ordered by this Order. invoice prior to the actual delivery date of products. Seller shall forward to Buyer, with the invoice, receipt or Bill of Lading 3. INSPECTION/ACCEPTANCE signed by the carrier, evidencing the fact that shipment has Seller shall only tender for acceptance those items that been made. Payment due dates, including discount periods, conform to the requirements of this Order. Buyer reserves the shall be calculated from the date of the later of the scheduled right to inspect or test any supplies or services that have been delivery date, the actual delivery date, or the date of receipt of tendered for acceptance. Buyer may require repair or a corrected invoice. The cash discount period to Buyer, if any, replacement of nonconforming supplies or re-performance of will date from the later of (1) the receipt of a compliant invoice nonconforming services at no increase in contract price. Buyer (not from date of the invoice) (2) the actual date of acceptance must exercise its post-acceptance rights: of the Products, or, (3) the delivery date specified in the Order. (a) Within a reasonable time after the defect was discovered Payment of invoices will be made in accordance with the terms or should have been discovered; and of the Order. Unless freight and other charges are itemized, any (b) Before any substantial change occurs in the condition of discount shall be taken on the full amount of the invoice. the item, unless the change is due to the defect in the Invoices shall be supported by such documents in such form as item. Buyer requests and shall bear such certification as may be 4. ASSIGNMENT required by law, regulations or the Order. Neither this Order, nor any interest herein, nor any claim hereunder may be assigned or delegated by Seller, nor may All payments are contingent on acceptance of the goods or Seller further subcontract all or substantially all of this Order services by Buyer. Seller shall issue separate invoices for each without the prior written consent of Buyer. Buyer’s consent shipment showing the amount of material shipped. The shall not be deemed to relieve Seller of its obligations to Subcontract or Purchase Order number shall appear on all comply fully with the requirements hereof. Seller or its invoices, packages, crates or boxes, bills of lading, express assignee may assign its rights to receive payment due as a receipts, correspondence and other instruments used in connection with the Order. Invoices shall be emailed to Buyer SNC Proprietary Information Approved for Release Outside of SNC OPS-FORM-9605 Rev A Page 2 of 16 This document is controlled electronically in the Process Document Library. Document users are responsible for using the most current revision, including printed/saved copies. © 2020 Sierra Nevada Corporation at [email protected] within ten days after Seller proposal shall be first approved by Buyer, prior to Seller shipment. All containers, drums, carboys, etc., to be returned commencing its effort to modify performance. shall be shipped on a no charge or consignment basis unless otherwise specified in the Order. Buyer shall pay for only such 11. F.O.B., TITLE AND RISK OF LOSS (applies only to goods containers that it does not return within a reasonable time. provided under the Order) Payment shall not constitute acceptance of the products. Unless otherwise specified, F.O.B. shall be Buyer’s facility. Title to any goods covered by the Order shall pass to Buyer upon Payment shall be deemed to have been made on the date final inspection and acceptance, regardless of when or where Buyer’s check is mailed or payment is otherwise tendered. Buyer takes physical possession. Seller shall promptly repay Buyer any amounts paid in excess of amount due Seller. Risk of loss or damage to articles shall remain with Seller until: (a) Delivery of the goods to an authorized carrier, if delivery Invoices that do not agree with prices or other terms of is F.O.B. Origin; or the Order will be returned to Seller for corrections. Payment schedule shall commence upon receipt of the corrected invoice by (b) Final acceptance by Buyer or receipt of goods by Buyer at Buyer. the destination specified in the Order, whichever is later, if transportation is F.O.B. Destination. 9. RESERVED. Notwithstanding the above, the risk of loss or damage to goods that fail to conform to the Order so as to give rise to a right of rejection shall remain with Seller until cure or final acceptance. 10. PATENT, TRADEMARK, AND COPYRIGHT INDEMNITY Seller shall defend, indemnify, and hold Buyer, Buyer’s officers, 12. RESERVED agents, employees, and customers harmless against all claims suits, actions, awards (including, but not limited to, awards 13. TERMINATION FOR CONVENIENCE based on intentional infringement of patents known at the Buyer reserves the right to terminate this Order, or any part time of such infringement, exceeding
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