Vendor Terms and Conditions

WENZEL ASSOCIATES, INC. – TERMS AND CONDITIONS OF PURCHASE


October 2020


1. ACCEPTANCE OF CONTRACT:  In the absence of written acceptance or acknowledgment of these terms and conditions of purchase (“Contract”) between Wenzel Associates, (“Buyer”) and the supplier identified on the face of Buyer’s applicable Purchase Order (“Supplier”), Supplier’s commencement of performance on any portion of this Contract or its shipment of any products under this Contract (“Products”) shall constitute acceptance of the Contract.  This Contract expressly limits Supplier’s acceptance to the terms and conditions stated in the Entire Agreement, as specified in Section 13.  Additional or different terms or conditions proposed by Supplier are rejected unless expressly agreed to in writing by Buyer.


2. BILLING; PRICES:  Seller shall bill only after Buyer accepts Products.  Invoice(s) shall be in duplicate accompanied by a bill of lading or express receipt.  Invoice(s) incorrectly presented shall be returned to Supplier unpaid.  Buyer may set off any amount owed Buyer by Supplier against invoices presented by Supplier for payment.  Payment will be due forty-five (45) days after the latter of Buyer’s receipt of Supplier’s proper invoice delivered to Wenzel Associates or receipt and acceptance of product. The prices for Products in this Contract may not be increased without the prior written consent of Buyer.  Prices include all charges for packing, storage, insurance and transportation to the location specified on the face of Buyer’s applicable Purchase Order.  Supplier shall pay excess delivery charges, including expedited delivery fees incurred as a result of fault of Supplier.  Unless otherwise expressly stated herein, the prices set forth in this Agreement include all applicable taxes, including without limitation foreign, federal, state, local and value-added taxes and duties, imposts or levies.


3. WARRANTY:  Supplier warrants that all Products provided herein shall be new, merchantable, of satisfactory quality, free from defects in workmanship, materials and design (including software defects and errors), fit for the purposes to which Supplier reasonably knows or should know such Products shall be put, shall conform to this Contract, their published specifications, documentation and samples, and shall be free from claims or liens of third parties.  Buyer may return nonconforming Products under warranty to Supplier, at Supplier’s expense, for correction, replacement or credit, at Buyer’s sole discretion.  Products corrected or replaced shall also be warranted under this Section 3.  Buyer shall have no liability for any returned Products, and Supplier shall bear all liability, responsibility and expenses therefor.  Supplier’s warranties shall survive acceptance and payment for Products and shall continue for one (1) year after Buyer’s acceptance of Products or, if applicable, one year from subsequent distribution of Products to Buyer’s customers. 


4. PACKAGING; SHIPMENTS: All Products shall be prepared for shipment in a manner that follows best commercial practice and include two (2) copies of the packing slip.  Supplier shall not make, and Buyer shall have no obligation to accept, any partial shipments or shipments received before the delivery date specified herein.  All shipments shall be FOB destination (UCC §2-319(b)) and risk of loss shall remain with Supplier as to any Products that are not accepted by Buyer, that are rejected by Buyer, or as to which Buyer’s acceptance has been revoked.


5. DELIVERY: Time is of the essence.  Delivery of Products shall be strictly in accordance with the schedule set forth in this Contract, and Supplier shall promptly report any delivery delays to Buyer. 


6. REJECTION:  Payment for Products ordered herein shall not constitute acceptance.  All Products are subject to Buyer’s reasonable inspection and testing before acceptance at Buyer’s premises.  Products shall be deemed unacceptable if supporting documentation is missing.  Buyer shall have the right to reject or require the correction of any Product found to be defective or non-conforming and such Products may be returned to Supplier at Supplier’s expense.  Supplier shall promptly replace or correct such Products or Buyer can accept such Products with a reasonable reduction in price, at Buyer’s discretion.  If Buyer and Seller agree to correct Products at Buyer’s location, Buyer may set off correction costs against Seller’s invoice. 


7. CHANGES; CANCELLATION:  Buyer may, at any time upon written notice, make changes to this Product order, including, without limitation, to increase or decrease product quantities, change any delivery dates, specifications, or the methods of shipment, packing, or delivery.  Supplier shall timely notify Buyer of any change in price that results from such change.  Work on the ordered Products shall not be interrupted for change resolution without Buyer’s written consent.  At its sole discretion, Buyer may elect to exercise the option on the face of Buyer’s applicable Purchase Order to acquire additional units of Products under the terms and conditions of this Contract.  Buyer may cancel, without penalty, all or any part of this Product order upon written notice at any time prior to delivery of Products. 


8. SOFTWARE LICENSE:  Supplier hereby grants to Buyer a nonexclusive irrevocable, perpetual worldwide, fully paid, royalty-free license, to use, reproduce, create derivative works of, publicly perform, publicly display, sublicense and distribute any software components of the Products (whether installed on the Products or provided separately) (“Software”). Buyer may make a reasonable number of copies of the Software for backup purposes only, which copies shall be deemed part of the Software.


9. NONDISCLOSURE/PROPRIETARY INFORMATION:  All information disclosed by Buyer to Supplier, including but not limited to software, designs, descriptions, specifications, trade secrets, technical information, documentation, and any other information that Supplier knew or should have known under the circumstances was considered confidential or proprietary, shall be considered the confidential information of Buyer (“Confidential Information”) and Supplier shall use and disclose such Confidential Information only to the extent necessary for the performance of this Contract.  Supplier shall not disclose Confidential Information, or release any publicity or information concerning the contract without the written permission of the Buyer.  Supplier agrees that the same care extended to Supplier’s own proprietary information, but no less than reasonable care, shall be extend to Buyer’s Confidential Information.  Supplier shall, upon Buyer’s request or upon completion of this Contract, whichever comes first, promptly return all such Confidential Information (including all copies) to Buyer.  Buyer shall, at all times, retain title to any drawings, designs, or specifications furnished for use in connection with this Contract.


10.  PROPERTY:  Tools and/or equipment of any kind, materials, drawings, software or data of every description that Supplier receives from Buyer, or from a third party on behalf of Buyer, or that is paid for in whole or in part by Buyer or is fabricated by Supplier for this Contract, is the property of Buyer (“Property of Wenzel Associates”).  Property of Wenzel Associates held in Supplier’s possession shall be clearly marked, “Property of Wenzel Associates.”  Supplier shall exercise all reasonable care in the use and maintenance of Property of Wenzel Associates and shall timely return Property of Wenzel Associates to Buyer upon written request, or upon the termination or expiration of this Contract, whichever is earlier.  Property of Wenzel Associates may only be used in Supplier’s performance of this Contract, unless authorized in writing.


11.  INSURANCE; INDEMNIFICATION:  Supplier shall maintain, and require its subcontractors, if applicable, to maintain, all risk insurance, in substance and amount and with insurers consistent with industry standard, covering all Products and any other equipment delivered to Buyer the risk of loss to which has not passed to Buyer.  Supplier shall indemnify and hold harmless Buyer and Buyer’s customers from and against any costs, expenses, losses, damages or liabilities (including attorneys’ fees) arising from or related to any claim, demand, threat, or proceeding regarding any: (i) actual or alleged infringement of any worldwide patent, copyright, trade secret, trademark, maskwork, or other third party right arising from or related to the use or sale by Buyer or use by Buyer’s customers of any Products furnished herein; (ii) alleged defect in the Products; or (iii) any breach of this Contract (collectively, a “Claim”).  Buyer shall notify Supplier of any such Claim and Supplier shall defend or settle, at its own expense, each and every such Claim.  If an injunction restricting Buyer’s or its customer’s rights with respect to any Product is issued or appears reasonably likely to be issued as a result of any such Claim, Supplier agrees at its expense, and at Buyer’s sole option, to promptly either: (i) procure for Buyer and Buyer’s customers the right to continue using such Products; (ii) replace such Products with non-infringing Products; (iii) modify the Products so that they are non-infringing; or (iv) refund to Buyer the amount paid for such Products.


12.  TERMINATION:  Buyer reserves the right to terminate this Contract if Supplier breaches or fails to perform in accordance with this Contract, fails to make progress sufficient to preclude endangering delivery of Products, fails to make specified deliveries at the time directed, and/or becomes insolvent or files a bankruptcy petition.  Termination, in whole or in part, does not limit any other right the buyer may have under this Contract.  Termination shall be effected in accordance with termination provisions set forth in the Federal Acquisition Regulation, if applicable, including those provisions related to reprocurement costs.  The provisions of Sections 3, 8, 9, 10, 11, 12, and 13 of this Contract shall survive its termination or expiration. 


13. GENERAL: This Contract shall be governed by the laws of the State of Texas and City of Austin.  Venue for any disputes relating in any way to this Contract shall lie exclusively in Travis County, Texas.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Contract.  Supplier agrees that the remedies for a breach of this Contract shall include, without limitation, damages, injunctive relief, specific performance, and restitution.  In performing under this Contract, Seller agrees to comply with any and all applicable international, federal, state and local laws and regulations.  Supplier may not assign the contract or any interest therein except as expressly authorized in writing by Buyer.  Any such attempted assignment shall be null and void from the beginning.  Buyer agrees that Supplier may subcontract with respect to Supplier’s performance herein except as otherwise provided on the face of Buyer’s applicable Purchase Order; provided, however, that such subcontracting shall in no way modify Supplier’s obligations herein.  Buyer may assign this Agreement, in whole or in part, in its sole discretion.  Supplier agrees to notify Buyer immediately of any actual or suspected work stoppage, act of God, or other event beyond the reasonable control of Supplier that delays, or threatens to delay, delivery of Products. Immediately upon such notice, Buyer may cancel any Product order. and set off applicable costs of such cancellation against Supplier’s invoice.  Buyer shall be excused from accepting all or any part of the Products tendered for delivery by Supplier under this contract due to any act of God, or other event beyond the reasonable control of Buyer that makes acceptance impossible or impractical.  Failure of Buyer to enforce any terms and conditions of this Contract shall not be deemed a waiver of any rights or remedies that Buyer shall have and shall not be deemed a waiver of any subsequent default under this Contract.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way and the invalid provision shall be replaced with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  Supplier agrees that the terms and conditions stated in this Contract, Buyer’s applicable Purchase Order, any documents incorporated by reference or attached hereto, available on the web site specified above, or in any purchase agreements existing between Buyer and Supplier with respect to the Products covered by this Contract (“Purchase Agreement”), constitute the entire agreement (“Entire Agreement”) between Buyer and Supplier and supersedes, in their entirety, any and all oral or other written agreements previously existing between Buyer and Supplier with respect to the subject matter herein. In the event of a conflict among the terms and conditions constituting the Entire Agreement, such conflict shall be resolved by the following descending order of precedence: 1. Provisions set forth in the Purchase Agreement; 2. Terms and conditions available on the web site; 3. Terms and conditions included in Buyer’s applicable Purchase Order; 4. Terms and conditions stated in documents incorporated by reference or attached hereto; and 5. Terms and conditions of this Contract.  Except as expressly set forth in the introduction to this agreement, the terms and conditions stated herein shall not be varied, supplemented, qualified, or interpreted by any prior course of dealings between the parties or by custom or usage of trade.  No modifications or additions to said contract should be binding upon Buyer unless in writing and signed by an authorized representative of Buyer.


14. Export Control: 


14.1  The Purchase Order may be stamped with either an International Traffic In Arms Regulations (22 CFR Parts 120 – 130) (ITAR) or Export Administration Regulations (15 CFR Parts 700 – 799) (EAR).

14.2 If stamped with an ITAR control statement the information on that purchase order and all related technical documents attached to it contain information that is controlled under the International Traffic In Arms Regulations (ITAR) and cannot be disclosed within the USA to foreign nationals or sent outside the USA without US Government approval.


14.3  If stamped with an EAR control statement the purchase order contents are controlled by the Export Administration Regulations (EAR) and US Government approval may be required prior to allowing access to the technical documents by a foreign national within the US or prior to sending the technical data off-shore.  In addition, Wenzel Associates requires written approval of the Buyer prior to off-shore procurement.


14.4 SELLER agrees to comply with all applicable U.S. export control laws and regulations, including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, the International Traffic in Arms Regulation (ITAR), 22 C.F.R. Parts 120-130 and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 700-799. SELLER agrees that it will not transfer any export controlled article, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to SELLER or SELLER’s lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception. SELLER agrees to notify Buyer if any deliverable under this Contract is restricted by export control laws or regulations. SELLER shall immediately notify the Buyer’s Procurement Representative if SELLER is, or becomes, listed in any Denied Parties List or if SELLER’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.


  1. SPECIALTY METALS CLAUSE/Flow down of Penalties:  Buyer may impose the clause at DFARS 252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals (Jun 2013). The requirement will be stated on the face of applicable purchase order(s).  Supplier will adhere to this requirement by insuring specialty metals used meet the requirements of DFARS 252.225-7009 by providing objective evidence that the specialty metal(s) used was(were) melted in the United States or in a “qualifying country” as defined in DFARS 225.003, Contracting with qualifying country sources. Objective evidence is herein defined as a raw material certification document which contains the manufacturer and the country of melt.  Failure to adhere to this requirement, or any other requirements of the Purchase Order, may result in the flow down of administrative actions and/or penalties to the Supplier or Subcontractor responsible for non-compliance to the extent applicable and practicable.
  2. SDS COMPLIANCE:  Buyer requires supplier or subcontractor to provide current SDS with all shipments of Chemicals or other Hazardous Materials shipped to Wenzel Associates.  Supplier or subcontractor shall clearly label any such materials and said shipments must be accompanied by a current SDS.
  3. COUNTERFEIT WORK AVOIDANCE

For the purpose of this requirement, “Work” consists of those products, items or materials delivered under the Purchase Order that are the lowest level of separately identifiable items (parts, materials, articles, components, goods, and assemblies). Counterfeit Work is identified as products, items or materials that are or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. Seller agrees and shall ensure that Counterfeit Work is not delivered to Wenzel Associates. Seller shall only deliver products to Wenzel Associates directly from the Original Component Manufacturer (OCM), Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Work shall not be provided or acquired from independent distributors, or brokers unless approved in advance in writing from Wenzel Associates Reliability Assurance. When requested by Wenzel Associates, Seller shall provide OCM/OEM documentation that authenticates traceability of affected Work to the applicable OCM/OEM. Seller shall immediately notify Wenzel Associates with the pertinent facts if Seller becomes aware or suspects that it has furnished Counterfeit Work. In the event Work under this Purchase Order constitutes or includes Counterfeit Work, Seller shall, at its expense, promptly replace such Counterfeit Work with genuine items conforming to the requirements of this Purchase Order. Notwithstanding any other provision in this Purchase Order, Seller shall be liable for all Wenzel Associates costs relating to the removal and replacement of Counterfeit Work. Wenzel Associates may turn suspected Counterfeit Work over the US Governmental Authorities (Office of Inspector General, Defense Criminal Investigative Services, Federal Bureau of Investigation, etc) for investigation and reserves the right to withhold payment for the suspected Work pending results of the investigation(s)


  1. CONFLICT MATERIALS

Supplier represents and warrants that it is in full compliance with conflict minerals laws, including, without limitation, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 as it may be amended from time to time and any regulations, rules, decisions or orders relating thereto adopted by the Securities and Exchange Commission or successor governmental agency responsible for adopting regulations relating thereto (collectively, (“Dodd-Frank Section 1502”).

• Supplier must cooperate with Wenzel Associates, to make available to Wenzel Associates and/or its agents, full material declarations that identify the sources of and amount of all substances contained in the Products. Unless Wenzel Associates specifically agrees in writing that a particular Product may contain a particular material, Supplier will also provide a statement that the Products do not contain various materials at issue in applicable laws and regulations.

• Supplier agrees to disclose to Wenzel Associates upon Wenzel Associates request, to the extent known or discoverable by Supplier following inquiry, the original source of all minerals contained in the Product.

• If Supplier does not know the original source of the minerals, Supplier agrees to cooperate with Wenzel Associates including disclosing from whom Supplier purchased the minerals and urging others to disclose such information, so that the original source of minerals can be accurately determined and reported. Supplier shall comply with all laws regarding the sourcing of minerals, including, without limitation, laws prohibiting the sourcing of minerals from mines controlled by combatants and Dodd-Frank Section 1502.

• Without any further consideration, Supplier shall provide such further cooperation as Wenzel Associates may reasonably require in order to meet any obligations it may have under conflict minerals laws, including, without limitation, under Dodd-Frank Section 1502.


  1. CONFIDENTIALITY AGREEMENTS

CONFIDENTIALITY AGREEMENTS—REPRESENTATION (DEVIATION 2015-O0010) (FEB 2015) (a) In accordance with section 743 of Division E, Title VII, of the Consolidated and Further Continuing Resolution Appropriations Act, 2015 (Pub. L. 113-235), Government agencies are not permitted to use funds appropriated (or otherwise made available) under that or any other Act for contracts with an entity that requires employees or subcontractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contactors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information. (b) The prohibition in paragraph (a) of this provision does not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a Federal department or agency governing the nondisclosure of classified information. (c) Representation. By submission of its offer, the Offeror represents that it does not require employees or subcontractors of such entity seeking to report fraud, waste, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contactors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.


  • DISCRIMINATION PROHIBITION

The contractor or subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.


  • Industry/ Military/Federal Specification Cancellation Notice Interpretation

Industry/Military/Federal Specification Cancellation Notice Interpretation:

For items where WENZEL ASSOCIATES has design authority and calls out a cancelled industry, military or federal specification, the cancellation notice shall be reviewed. Any requirement or guidance in the cancellation notice to utilize other standards or specifications shall be interpreted as follows:

● Notices with “may” or “should” are not superseded by the alternate standard/specification. The last active version of the cancelled standard/specification shall be used. If certification cannot be obtained to the last action version, contact WENZEL ASSOCIATES Quality Engineering to find an acceptable alternate specification.

● Notices with “shall” or “superseded” provide a firm requirement to use the alternate standard/specification in place of the cancelled standard/specification.

● Exceptions to this interpretation are drawings or Purchase Orders that require a specific revision of the cancelled standard/specification (example: “Finish in accordance with MIL-G-45204C” or “Finish in accordance with ASTM B488-95”). The revision indicated is required to meet the requirements of the drawing regardless of inactive or cancelled status

Please contact the buyer for any assistance when interpreting cancellation notices, this requirement or if the specification is cancelled without replacement and non-procurable and there is no documented path to get to an available specification.


  • HUMAN TRAFFICKING PROHIBITION

By accepting this contract/purchase order, the seller acknowledges that they are aware of, and compliant with FAR 52.222-50 Combating Trafficking in Persons as prescribed in 22.1705(a)(1) (https://acquisition.gov/far/22.1705)


  • FOREIGN CORRUPT PRACTICES ACT (FCPA)

The Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1et seq.) is a United States federal law that prohibits U.S. citizens and entities from bribing foreign government officials to benefit their business interests. By accepting this contract/purchase order, the seller acknowledges that they are aware of, and compliant with the Foreign Corrupt Practices act (FCPA).