THESE TERMS AND CONDITIONS APPLY TO ORDERS ISSUED UNDER U.S. GOVERNMENT CONTRACTS, OR IF NOTED ON PURCHASE ORDER
As used throughout these Terms and Conditions the following definitions apply unless otherwise specifically stated:
(a) “FAR” means the Federal Acquisition Regulation and “DFAR” means the U.S. Department of Defense FAR Supplement, issued under Title 48, Code of Federal Regulations, in effect on the date of this agreement.
(b) “Contracting Officer” means the U.S. Government contracting officer(s) for the prime contract.
(c) “Customer” means any entity for which Buyer is providing products or services that are supported by the materials and/or services that are the subject of this agreement.
(d) “Buyer” means M Cubed Technologies Inc.
(d) “Seller” means the legal entity that is the contracting party with Buyer in this Purchase Order. In FAR clauses incorporated herein, it is understood that as used therein, the terms “Government” and “Contracting Officer” shall be deemed to mean Buyer, and “Contractor” shall be deemed to mean Seller.
(e) “Purchase Order” or “Order” refers to this contractual instrument. In FAR clauses incorporated herein, the term “Contract” means this Purchase Order.
(f) “Government” or “U.S. Government” refers to the Government of theUnited Statesacting through the Department or agency that awarded the prime contract.
(g) “Prime Contract” means the Government contract under which this agreement was issued.
(h) “Ordered Item” means any good or other item or service ordered by Buyer pursuant to this agreement. Depending on the context, Ordered Items or parts thereof are sometimes referred to as “goods,” as “property,” or by other appropriate terms.
2. PACKAGING AND SHIPPING
Packaging and packing of items to be delivered by Seller under this Purchase Order shall be conducted in accordance with good commercial practice so as to ensure safe arrival at their destination, secure lowest transportation cost, and conform with requirements of common carriers. No charges will be paid by Buyer for packing, crating or carriage unless specifically stated in the order.
3. CONTRACT DIRECTION
Only Buyer has authority to make changes to this Contract. All amendments must be identified as such in writing and executed by the parties
4. COMMUNICATION WITH PRIME CONTRACT CUSTOMER
Buyer shall be solely responsible for all liaison and coordination with the Prime Contract Customer, any higher tier contractor(s), or the U.S. Government, as it affects the applicable Prime Contract, this Purchase Order, and any related contract. Except as required by law, Seller shall not communicate with the Customer, any higher tier contractor(s), or the U.S. Government, with respect to the applicable Prime Contract, this Contract, and/or any related contract without prior approval of Buyer. Seller shall promptly notify Buyer of any communications, initiated by the Customer, any higher tier contractor(s), or the U.S. Government, related to the applicable Prime Contract, this Purchase Order, or any related contract.
5. RESPONSIBILITY FOR GOVERNMENT FURNISHED PROPERTY
All property, including material, tooling and equipment that is furnished to Seller by Buyer for performance of this Order or for which Buyer has specifically agreed to pay Seller, shall be and remain the property of Buyer or the U.S. Government, as applicable, and title to such property shall not be affected by incorporation or attachment to any other property
6. EMPLOYMENT ELIGIBILITY VERIFICATION
This Purchase Order may be subject to the requirements of Employment Eligibility Verification (also known as “E-Verify”) as articulated under FAR 52.222-54. Seller warrants compliance with E-Verify by enrolling in the E-Verify program, if required under FAR 22.1803 and 52.222-54 and verifying the work authorization of all new hires and all employees assigned to this contract. Seller agrees to flow down this provision to subcontractors and their applicable entities. Breach of this warranty shall be deemed a material breach of this contract, and shall subject Seller to penalties up to and including termination of the contract.
7. EXPORT CONTROLS
Seller, at its sole expense, agrees to comply with all applicable export license requirements, to obtain any required export license or other official authorization, and to carry out any customs or immigration formalities or similar requirements for the export of any goods or services covered by this Order. Without limiting the foregoing, Seller agrees that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Seller or Seller’s 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 grant access to Buyer for the purpose of copying during business hours all records of Seller relating to the products or services to be provided under this Purchase Order.
9. TRADE SECRETS AND CONFIDENTIAL INFORMATION
Seller shall not disclose or use any confidential matters or trade secrets of Buyer, except to the extent required to fulfill this Purchase Order and only upon express written permission from Buyer.
Seller shall not, without first obtaining Buyer’s written approval, subcontract any portion of this Order without express written consent of Buyer; provided, however, that this section shall not apply to Seller’s purchase of reasonable commercial supplies of standard raw materials. Seller shall select subcontractors (including subcontractors supplying such raw materials) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of this Order.
11. DEFENSE PRIORITIES AND ALLOCATIONS SYSTEMS REGULATION
Acknowledgment of a Purchase Order issued as the result of a Government prime contract or subcontract shall be in accordance with the provisions of the Defense Priorities and Allocations Systems Regulation (15 C.F.R. Part 700) governing rated orders. Failure to provide acknowledgment within the allotted time frame and in manner prescribed therein shall constitute acceptance of the order/subcontract and all terms and conditions set forth therein.
12. INCORPORATION BY REFERENCE
The following clauses set forth in the Federal Acquisition Regulations (FAR) and Department of Defense FAR Supplement (DFAR), in effect on the date of the Prime Contract, where applicable, are incorporated herein by reference with the same force an effect as in full text.
It is the responsibility of the Seller to comply with the FAR/DFAR clauses applicable to the Seller, the requirements of the Purchase Order, and the Prime Contract. The FAR/DFAR clauses set forth herein are included as a reference and should not be treated as an all inclusive list of the FAR/DFAR clauses which would apply to Seller, other requirements of the Purchase Order, or the Prime Contract.
Seller also hereby agrees to flow down the following FAR/DFAR clauses, where applicable, to their lower-tier contractors.
13. FAR CLAUSES
The following FAR clauses apply to this Contract:
52.215-20 REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION OTHER THAN COST OR PRICING DATA
52.215-21 REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION OTHER THAN COST OR PRICING DATA – MODIFICATIONS
52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS (If this Contract, except contracts to small business concerns, exceeds $100,000 the Seller must include this clause in all lower tier agreements that offer subcontracting opportunities.)
52.222-21 PROHIBITION OF SEGREGATED FACILITIES
52.222-26 EQUAL OPPORTUNITY
52.222-50 COMBATING TRAFFICKING IN PERSONS
52.225-13 RESTRICTION ON CERTAIN FOREIGN PURCHASES
52.244-6 SUBCONTRACTS FOR COMMERCIAL ITEMS
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $10,000:
52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $15,000:
52.222-36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $30,000:
52.209-6 PROTECTING THE GOVERNMENT’S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED OR PROPOSED FOR DEBARMENT (Applies to agreements that are not for commercially available off-the-shelf items.)
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $100,000:
52.222-35 EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS,/VETERANS OF THEVIETNAMERA, AND OTHER ELIGIBLE VETERANS
52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $150,000:
52.203-5 COVENANT AGAINST CONTINGENT FEES
52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT
52.203-7 ANTI-KICKBACK PROCEDURES
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $650,000:
52.219-9 SMALL BUSINESS SUBCONTRACTING PLAN (Applicable if Seller is not a small business.)
52.219-16 LIQUIDATED DAMAGES – SUBCONTRACTING PLAN
The following FAR clauses apply to this Contract if the value of the Contract equals or exceeds $5,000,000:
52.203-13 CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT (Applicable if period of performance is more than one hundred twenty 120 days.)
52.203-14 DISPLAY OF HOTLINE POSTER(S)
The following FAR clauses apply as indicated:
52.203-15 WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (Applicable to all agreements funded in whole or in part with Recovery Act funds.)
52.204-2 SECURITY REQUIREMENTS (Applicable if the Work involves access to classified information.)
52.204-9 PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (Applicable where Seller will have physical access to a federally-controlled facility or access to a federal information systems.)
52.204-10 REPORTING EXECUTIVE COMPENSATION AND FIRST-TIER SUBCONTRACT AWARDS
52.222-41 SERVICE CONTRACT ACT OF 1965 (Applicable if this Contract is for services covered by the Service Contract Act of 1965.)
52.222-54 EMPLOYMENT ELIGIBILITY VERIFICATION (Applicable if this Contract has a value of more than $3000 unless an exception contained in FAR 52.222-54(e)(1) applies.)
52.223-7 NOTICE OF RADIOACTIVE MATERIALS (Applicable to Work containing covered radioactive material meeting the criteria in paragraph (a) of this clause.)
52.223-11 OZONE-DEPLETING SUBSTANCES (Applicable if the Work was manufactured with or contains ozone-depleting substances.)
52.225-1 BUY AMERICAN ACT – SUPPLIES (Applicable if the Work contains other than domestic components.)
52.225-5 TRADE AGREEMENTS (Applicable if the Work contains other than domestic components.)
52.245-1 GOVERNMENT PROPERTY (Applicable if Government property is furnished in the performance of this Contract. “Contracting Officer” means Buyer” except in the definition of Property Administrator and in paragraphs (h)(1)(iii) and where it is unchanged, and in paragraphs (c) and (h)(4) where it includes Buyer. “Government” is unchanged in the phrases “Government property” and “Government furnished property” and where elsewhere used except in paragraph (d)(1) where it means “Buyer” and except in paragraphs (d)(2) and (g) where the term includes Buyer.” The following is added as paragraph (n) “Contractor shall provide to Buyer immediate notice of any disapproval, withdrawal of approval, or nonacceptance by the Government of Contractor’s property control system.”)
52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S.-FLAG COMMERCIAL VESSELS
14. DFAR CLAUSES
252.203-7001 Prohibition on Persons Convicted of Fraud or Other Defense Contract Related Felonies
252.209-7000 Acquisition from Subcontractors Subject to On-Site Inspection Under the Intermediate-Range Nuclear Forces (INF) Treaty
252.211-7000 Acquisition Streamlining
252.225-7009 Duty-Free Entry – Qualifying Country Products and Supplies (End Products and Components)
252.225-7014 “Alternate 1” Preference for Domestic Specialty Metals
252.225-7016 Restriction on Acquisition of Ball and Roller Bearings
252.225-7025 Restriction on Acquisition of Forgings
252.225-7026 Reporting of Contract Performance Outside the United States
252.225-7032 Waiver ofUnited KingdomLevies
252.227-7013 Rights in Technical Data-Noncommercial Item
252.227-7014 Rights to Computer Software and Software Documentation
252.227-7030 Technical Data-Withholding of Payment
252.227-7037 Validation of Restrictive Markings on Technical Data
252.235-7003 Frequency Authorization
252.239-7016 Telecommunications Security Equipment Devices, Techniques and Services
252.244-7000 Subcontracts for Commercial Items and Commercial Components (DoD Contracts)
252.247-7023 Transportation of Supplies by Sea
252.247-7024 Notification of Transportation of Supplies by Sea
252.249-7002 Notification of Anticipated Contract Termination or Reduction
15. REPRESENTATIONS AND CERTIFICATIONS
By entering into this Contract, Seller republishes the following FAR certifications and representations submitted with its written offer, including company profile information, and oral offers/quotations made at the request of Buyer, and Seller makes those certifications and representations set forth below. Seller shall immediately notify Buyer of any change of status regarding any certification or representation.
52.203-11 CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
52.209-5 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS
52.222-22 PREVIOUS CONTRACTS AND COMPLIANCE REPORTS
52.222-25 AFFIRMATIVE ACTION COMPLIANCE
16. AFFIRMATIVE ACTION NOTICE
Seller is hereby notified that it may be subject to the provisions of 29 C.F.R. Part 470, 41 C.F.R. § 60-1.4(c), 41 C.F.R. § 60-250.4 and/or § 60-300.5, and 41 C.F.R. § 60-741.5 with respect to affirmative action program and plan requirements.
17. ADDITIONAL PROVISIONS
Seller agrees to manufacture all ordered supplies and/or render all ordered services in accordance with all applicable requirements of the statutes referenced below:
Davis Bacon Act (Act of March 3, 1931, as amended; 40 U.S.C. § 276a);