Applicability and Acceptance. a. These Terms and Conditions of Purchase, together with any purchase order, including any change orders, supplements, or modifications thereto, as well as any referenced certifications, exhibits, attachments, statements of work, or other documents referenced therein (collectively, the “Order”), issued by Colt’s Manufacturing Company LLC (“Buyer”) to the party identified on the purchase order (“Seller”), constitute the entire and sole agreement between Buyer and Seller with respect to the goods and/or services referenced on the purchase order. Any of the following shall constitute Seller’s acceptance of an Order: (i) acknowledgment of the Order and/or signature of the purchase order; (ii) commencement of performance of the Order; (iii) furnishing of any goods and/or services under the purchase order; or (iv) acceptance of payment from Buyer in connection with the Order. Acceptance of a purchase order by Seller is strictly limited to the terms and conditions of the Order, except to the extent that the face of the purchase order expressly provides to the contrary. Any terms or conditions proposed by Seller that are inconsistent with, or in addition to, the Order shall be void and of no effect. b. Any conflicts in the Order shall be resolved by giving precedence in the following order: (i) the purchase order; (ii) these Terms and Conditions of Purchase; (iii) the statement of work; and (iv) any specifications, drawings, manuals, or other requirements incorporated into the Order by reference.
Prices and Payment. a. Seller shall sell to Buyer the goods and/or services specified in the Order at the prices indicated. Prices include all applicable local, state, and federal excise, sales, and use taxes. Taxes shall be separately identified on Seller’s invoice. Seller represents and warrants to Buyer that such prices are the lowest for the same or similar goods and/or services offered for sale or sold to other customers of Seller. b. Unless otherwise stated on the purchase order, payment shall be due sixty (60) days after the later of Buyer’s (i) receipt of a correct invoice, or (ii) receipt of the goods and/or services. c. Buyer may deduct from such payment any amounts owed by Seller to Buyer. Payment by Buyer does not constitute acceptance of the goods or services, impair Buyer’s right to inspect such goods or services, or waive Buyer’s remedies or Seller’s obligations hereunder for nonconforming goods or services.
Delivery, Delays, and First Article Test. a. Unless otherwise stated on the purchase order, all goods will be shipped prepaid, F.O.B. destination (Incoterms 2020), by the least expensive common carrier or Seller’s own vehicle. Time is and shall remain of the essence for this Order. No acts of Buyer, including acceptance of late deliveries, shall constitute a waiver of this provision. Buyer reserves the right to refuse or return, at Seller’s risk and expense, late deliveries, deliveries made in excess of the Order, or deliveries made in advance of scheduled delivery dates. If such deliveries are not refused or returned, Buyer may defer payment on such deliveries until the scheduled delivery dates. If Seller fails to meet the schedule listed on the face of the purchase order, Buyer, without waiving any rights or remedies, may require expedited shipping of goods at Seller’s expense. b. Seller shall notify Buyer immediately, in writing, of any actual or potential delay to the timely performance of the purchase order. In such an event, Seller will update Buyer regarding delivery status from time to time, as necessary to fully inform Buyer of the status of all delays and the anticipated date of delivery. No such notice shall relieve or modify Seller’s obligation to render timely performance in accordance with the Order. c. If Buyer has not previously purchased from Seller any good or service listed on the purchase order, Seller must, within the number of days directed by Buyer (but in any event prior to making deliveries against the required quantity), deliver to Buyer sufficient quantities of such good and/or service, as specified by Buyer, for first article testing, unless Buyer waives this requirement in writing. Such first article must meet the requirements and specifications set forth by Buyer, including its quality control requirements, and, if applicable, those of the U.S. Government. Upon completing testing of the first article, Buyer shall notify Seller of the conditional approval, approval, or disapproval of the first article. If the first article is disapproved or conditionally approved, Seller shall make any changes, repairs, and modifications required by Buyer, and shall promptly thereafter submit an additional first article for testing. This process shall repeat until Buyer approves the first article. Provided Buyer approves the first article, Seller may use such article towards the purchase order quantity. All costs incurred in connection with first article testing, including disposal of any disapproved goods from Buyer’s facility, shall be borne by Seller. If Seller fails to deliver any first article on time, or if Buyer disapproves any first article, Seller shall be deemed to have failed to make delivery within the time specified on the face of the purchase order.
Quality. Seller will provide and maintain a quality assurance system approved by Buyer. Seller shall furnish to Buyer, upon request, a copy of Seller’s quality program and supporting documentation. Additionally, Buyer may audit Seller’s quality assurance system, production process, and goods destined for Buyer at any time.
Warranty and Inspection. a. Seller warrants to Buyer that the goods and services shall (i) comply with the specifications, design criteria, descriptions, drawings, samples, and other requirements described or referenced in the Order or provided by Seller; (ii) be free from defects in design, workmanship, and material; (iii) comply with all applicable laws, regulations, and certifications; (iv) be free of all liens, encumbrances, and other claims against title; and (v) not contain any used, reconditioned, or counterfeit parts or materials. All services must be carried out professionally and competently by qualified and trained personnel, demonstrating the level of skill and judgment typically expected from recognized professionals in similar fields. b. In addition to all other rights and remedies available, if Seller delivers nonconforming goods or services, Buyer may (i) require Seller at its expense to promptly repair, replace, or reperform such goods and/or services, (ii) return the nonconforming goods for a refund, or (iii) if repair, replacement, or reperformance is not timely, Seller may repair, replace, reperform, or reprocure such goods and/or services at Seller’s expense. Any cost of rework, inspection, transportation, repackaging, and/or reinspection by Buyer shall be at Seller’s sole expense. Seller shall be liable for, and hold Buyer harmless from, any loss, damage, or expense whatsoever that Buyer may suffer from breach of any of these warranties. c. Buyer shall have the right to inspect all goods before and after delivery, but no such inspection shall relieve Seller of any obligation in the Order.
Changes. a. Buyer may, by written change order at any time, make changes to (i) drawings, designs, or specifications; (ii) the time and/or place of delivery, inspection, acceptance, or performance; (iii) the quantity of goods ordered or services to be performed; (iv) the statement of work; (v) the method or manner of performance; (vi) any property to be provided by Buyer under the Order; and (vii) the terms and conditions of the Order required to meet Buyer’s obligations under Buyer’s U.S. Government customer contract. If such a change causes an increase or decrease in the cost of the Order, or in the time required for its performance, an equitable adjustment to the price or the delivery schedule shall be negotiated, and the Order shall be modified in writing accordingly. Any claim by Seller for equitable adjustment must be asserted in writing within thirty (30) days from the date of receipt by Seller of notification of the change and shall be accompanied by the amount claimed, together with supporting cost figures. b. Seller shall not, without advance written consent from Buyer, make any changes in the specifications, dimensions, manufacturing location, physical composition of materials, or processes, methods, or treatments used to manufacture the goods sold under the Order (such as heat treating, coatings, finishes, etc.). Any information, advice, approvals, or instructions provided by Buyer’s technical personnel are considered personal opinions and do not alter the parties’ rights and obligations under the Order. Changes will only be recognized as amendments to the Order if they are explicitly stated as such and signed in writing by both Buyer and Seller.
Obsolescence and Support. a. Seller shall notify Buyer in writing if any services or goods, including any parts, subcomponents, components, assemblies, or subassemblies thereof, are expected to be discontinued or unavailable at least twelve (12) months prior to the anticipated date of discontinuance or unavailability. b. Seller shall support the goods purchased hereunder for a period of ten (10) years from the date of final shipment under the Order and the expiration of any warranty period. Support includes, but is not limited to, technical service for the goods. Additionally, Seller shall maintain an inventory of subassemblies and spare parts as may be required to support the operation of the goods.
