BASIC
ORDERING AGREEMENT
NC3A/BOA/9236
Between
NATO
CONSULTATION, COMMAND AND CONTROL
ORGANISATION
Represented
by
THE
GENERAL MANAGER, NATO C3 AGENCY
And
ATLANTIC
COMMTECH CORPORATION
For
ENGINEERING
SERVICES
TABLE
OF CONTENTS
SIGNATURE PAGE
BASIC ORDERING AGREEMENT WITH NC3A *
PART I - SPECIAL
PROVISIONS *
1. TERM *
2. DEFINITIONS *
3. ELIGIBLE PURCHASERS *
4. ORDERING PROCEDURE *
5. DELIVERY *
6. PRICES *
7. WARRANTY *
8. PAYMENTS *
9. MISCELLANEOUS *
PART II - GENERAL
PROVISIONS *
1. NOTICE OF SHIPMENT *
2. CONTRACTOR PERSONNEL WORKING AT
PURCHASER'S FACILITIES *
3. PURCHASER FURNISHED PROPERTY *
4. INDEMNIFICATION *
5. TITLE AND RISK OF LOSS *
6. TRANSFER REQUIREMENTS *
7. INSPECTION, ACCEPTANCE AND REJECTION *
8. PREFERRED CUSTOMER *
9. PRICE FIXING *
10. TAXES AND DUTIES *
11. INVOICES *
12. CHANGES *
13. PURCHASER DELAY OF WORK *
14. STOP WORK ORDER *
15. ORDER OF PRECEDENCE *
16. APPLICABLE LAW *
17. DISPUTES AND ARBITRATION *
18. DELAYS IN DELIVERY *
19. TERMINATION FOR DEFAULT *
20. TERMINATION FOR CONVENIENCE OF THE
PURCHASER *
21. PATENT AND COPYRIGHT INDEMNIFICATION *
22. CLAIMS *
23. RELEASE OF CLAIMS *
24. EXTRAS *
25. LANGUAGE *
26. SECURITY *
27. HEALTH, SAFETY AND ACCIDENT PREVENTION *
28. RELEASE OF INFORMATION *
29. FORCE MAJEURE *
APPENDIX 1 TO PART
II - PURCHASER'S PRICING PRINCIPLES *
EXHIBIT A -
ORDERING INFORMATION *
EXHIBIT B -
AUTHORISATION TO USE BOA BY NATO CONTRACTORS *
EXHIBIT C -
PRODUCTS AND SERVICES *
Schedule of Labor
Prices – Government Unit Prices FY2000 *
BASIC ORDERING AGREEMENT WITH NC3A
ATLANTIC COMMTECH CORPORATION
("ACT-Corp") and NATO CONSULTATION, COMMAND AND CONTROL Organisation
represented by the General Manager NATO C3 Agency ("NC3A") agree that
the Terms and Conditions contained in this Agreement ("Agreement"),
shall govern the sale or licensing of Products and Engineering Services (as
later defined) ordered under this Agreement.
ACT-Corp has entered into this Agreement for
and on behalf of itself. The geographic scope of this Agreement shall extend to
member countries of the North Atlantic Treaty: Belgium, Canada, Czech Republic,
Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The
Netherlands, Norway, Poland, Portugal, Spain, Turkey, United Kingdom, United
States of America.
This Agreement establishes the Terms and
Conditions under which Products and Engineering Services may be sold or
licensed to Eligible Purchasers (as later defined), but does not obligate
ACT-Corp to sell or license or Eligible Purchasers to buy or license any
Product or Engineering Service. The following sections and Exhibits contained in
the Agreement, form an integral part thereof.
Part I --
Special Provisions
Part II --
General Provisions
Appendix 1 to Part II -- Purchaser's Pricing Principles
Exhibit A --
Ordering Information
Exhibit B --
NATO Contractor Authorisation
Exhibit C --
Products and Services
ACT-Corp and NC3A have read this Agreement,
understand it, and agree to be bound by its Terms and Conditions. NC3A and
ACT-Corp further agree that this Agreement constitutes the entire agreement
between the Parties with respect to its subject matter and supersedes all prior
proposals, negotiations, and communications, oral and written between the
Parties or their representatives. Deviations from this Agreement shall be
binding only when mutually agreed in writing by the Authorised Representatives
of NC3A and ACT-Corp.
Orders placed referencing this Agreement are
subject exclusively to its terms which may only be amended or supplemented by
written agreement of ACT-Corp and Eligible Purchasers
EFFECTIVE DATE 1st July, 2000
NATO C3 AGENCY Atlantic CommTech Corporation
Rue De Genève, 8 4661 Haygood Road, Suite 102
1140 Brussels Virginia Beach, VA 23455
Belgium USA
______________________________ ______________________________
(authorised signature) (authorised signature)
Title: Chief of Contracts Title: Kelly R. Thorp
President
Date: Date:
1. This Agreement is effective for an Initial Term of
one (1) year from the Effective Date which is given on page *. Thereafter, it
will continue unless and until one Party gives to the other a written thirty
(30) day notice of its intention to terminate.
2. Any expiration or termination of this Agreement will
not alter the rights, duties and obligations of ACT-Corp or Purchaser, or any
discounts granted, for any Orders accepted by ACT-Corp under this Agreement
prior to the date of expiration or termination of the Agreement.
1. "Authorised Representative of ACT-Corp"
means an officer of the company and/or contracts manager who has the authority
to obligate the company.
2. "Authorised Representative of NATO, NATO Body or
NATO Member Nation" means the General Manager, Deputy General Manager or
Chief of Contracts of NC3A and any designated representative of an Eligible
Purchaser.
3. "Authorised Representative of NC3A" means
the General Manager, Deputy General Manager or Chief of Contracts.
4. "Contractor" means any entity working on a
project for any Eligible Purchaser.
5. "Effective Date" is the date specified on
the signature page when the Initial Term of this Agreement begins.
6. "Eligible Purchaser" means the entity
identified in 3.0 below which may benefit of the Terms and Conditions of this
agreement, if they express so in any subsequent agreement between them and
ACT-Corp.
7. "Engineering Services" means professional
services which members of the engineering/computer science profession may
logically perform including studies, investigations, test, evaluations,
consultations, comprehensive planning, program management, conceptual designs,
plans and specifications and preparation of operating and maintenance manuals.
8. "Governmental Agency" means any
governmental agency, including military forces, of a NATO Member Nation.
9. "Member Nation" means any of the 19 Member
Nations of NATO.
10. "NATO" means the North Atlantic Treaty
Organisation.
11. "NATO Body" means any entity created by the
North Atlantic Council (or Defence Planning Committee) and to which either the
Agreement on the Status of the North Atlantic Treaty Organisation, National
Representatives and International Staff (20 September 1951) or the Protocol on
the Status of International Military Headquarters set up pursuant to the North
Atlantic Treaty (28th August 1952) applies.
12. "Order" means any instrument/document, e.g.
Purchase Order or Task Order, used for the procuring of Products and/or
Engineering Services under this Agreement.
1. "Purchase Order" means any agreement
concluded between the Purchaser and ACT-Corp.
2. "Task Order" means any instrument, in the
form of a statement of work to be performed by ACT-Corp, as concluded between
the Purchaser and ACT-Corp.
13. "Parties" means NC3A and ACT-Corp.
14. "Partnership for Peace (PfP) Countries"
means those countries who are signatories to the Partnership for Peace Agreement
dated 10 January 1994.
15. "Products" means Equipment, Software and
related goods and services, such as Training and Documentation.
1. "Equipment" shall mean the hardware
components of Products.
2. "Software" shall mean each software program
provided by ACT-Corp in machine readable, object, printed or interpreted form.
16. "Purchaser" means NC3A and any other entity
identified as "Eligible Purchasers".
17. "Standard Terms and Conditions" are the
Terms and Conditions contained in this Agreement.
18. "Sub-contract" means any Agreement,
Contract or Order made by ACT-Corp with any other party in order to fulfil any
part of an Order.
19. "Sub-contractor" means any party directly
or indirectly under a "sub-contract".
1. The following entities are eligible to reference and
use the terms and conditions of this Agreement, subject to the provisions
specified in paragraph 4 below:
1. NC3A
2. NATO Bodies
3. Governmental Agencies of NATO Member Nations as per
2.8 above
4. Contractors performing work on behalf of the
categories mentioned in 3.1.1, 3.1.2 and 3.1.3 above.
1. All Orders under this Agreement shall contain, as a
minimum, the information detailed in Exhibit A.1 , and shall be subject to
acceptance by ACT-Corp.
1. Orders may be placed with ACT-Corp for the Products
and/or Engineering Services identified on Exhibit C. Orders may be placed
hereunder for Products and/or Engineering Services not included herein, subject
to determination of availability and price by ACT-Corp.
2. ACT-Corp accepts that NC3A shall not be liable in any
form for any Order issued and concluded between a Purchaser, other than by NC3A
itself, and ACT-Corp.
2. In the case of the Purchaser being a Governmental
Agency or a Contractor performing work on behalf of NATO, NATO Bodies or NATO
Member Nations, ACT-Corp may request the Authorised Representative of NATO,
NATO Bodies or NATO Member Nations, to verify that the Purchaser is eligible to
use the Agreement.
3. Assignment: Authorised Representatives of NATO, NATO
Bodies or NATO Member Nations may assign Orders at their discretion provided
there is no further change to the terms of the Agreement, especially as regards
payment. ACT-Corp reserves the right to approve any assignment.
4. In the case of the Purchaser being a Contractor,
ACT-Corp may request the Authorised Representative of NC3A or Eligible
Purchaser to verify that the Contractor is in fact performing work on a project
or for an Eligible Purchaser of a NATO Member Nation and that the Products
and/or Engineering Services are required for such purpose and the Authorised
Representative of Eligible Purchaser shall provide such verification in the
form of Exhibit B.
1. ACT-Corp is authorised to accelerate the Requested
Products Delivery Schedule or to complete the Performance of each Order issued
hereunder prior to the time set forth therein, provided, however that nothing
contained herein, or in any said Order obligates the Purchaser to perform any
of its obligations at an earlier date than would otherwise be the case.
1. All Products prices shall be quoted as firm prices
and all Engineering Services’ prices shall be quoted as firm rates per hour by
labour category in accordance with Exhibit C pricing practices as disclosed and
agreed to by NC3A or any other Eligible Purchaser.
2. All Product prices are quoted CIF Destination and all
Product shipments and deliveries shall be effected on this basis,
notwithstanding any other provision of this Agreement or order placed
hereunder.
1. Hardware Warranty. Unless otherwise agreed between
the Purchaser and ACT-Corp, or as otherwise specified, ACT-Corp warrants its
Equipment against defects in workmanship of materials for one (1) year from the
date of either shipment or ACT-Corp-performed installation. The Purchaser
should return the Equipment in ACT-Corp packaging and bear the cost of outbound
carriage. ACT-Corp will carry out and repair and bear the cost of return
carriage to the Purchaser. The repaired unit will be shipped within a maximum
of [specify period] working days from the receipt at the repair
facility, or as otherwise specified and agreed in the Order.
2. Software Warranty. ACT-Corp warrants that the
licensed Software shall substantially conform to its user's manual, as it
exists at the date of delivery, for ninety (90) days from the date of shipment.
1. Valid invoices (properly supported and certified) may
be submitted to the Purchaser upon acceptance and payment will be made within
45 days from receipt of such invoices, unless otherwise agreed between ACT-Corp
and the Purchaser. The payment terms for Engineering Services shall be specified
on each Task Order".
2. Payment of invoices shall be made to the address
shown below:
Atlantic CommTech
Corporation
4661 Haygood Road,
Suite 102
Virginia Beach, VA
23455
Attn.: Accounts Receivable
For Electronic Funds Transfer:
Account Name: Atlantic
CommTech Corporation
Bank Name: Cenit Bank
Account Number: 008025087348
ABA Number: 051404985
1. Failure by either Party to enforce any provision
shall not be deemed a waiver of future enforcement of that or any other
provision. In the event that any portion or provision of this Agreement shall
be held unenforceable or one is declared void, the remaining portions and/or
provisions of this Agreement shall remain in full force and effect.
2. ACT-Corp may re-assign any Order under this Agreement
to a third party after prior written approval by Purchaser, which will not be
unreasonably withheld. ACT-Corp or his legal successor shall always be
responsible for his obligations under this Agreement and for actions of his
assigned representatives.
3. ACT-Corp may sub-contract its responsibilities in
relation to this Agreement with the understanding that ACT-Corp shall remain
responsible for all obligations under this Agreement.
4. Purchaser shall have the right to take possession of
and to use any partial delivery of an Order for Products and such possession or
use shall not of itself constitute acceptance of the Products.
5. All formal communications as required and specified
in the clauses of Part II of this Agreement shall be given by receipted personal
delivery or by recorded delivery or registered post, with postage prepaid. The
addresses and nominated personnel of the Parties (until change of notice shall
be given) shall be as follows:
ACT-Corp: Kelly R. Thorp
President
Atlantic
CommTech Corporation
4661
Haygood Road, Suite 102
Virginia
Beach, VA 23455
USA
Tel.
+1 757 363 7575
Fax.
+1 757 363 3443
Email:
kthorp@act-corp.com
NC3A: J.A. Wager
Acquisition Division/ASB
NATO
C3 Agency
Rue
de Genève, 8
B-1140
Brussels
Belgium
Tel:
+32 2 707 8322
Fax:
+32 2 707 8770
E-Mail:
jim.wager@nc3a.nato.int
1. ACT-Corp shall, as appropriate and prior to the
delivery of any shipment, give notice of shipment to the Purchaser and to such
other persons as may reasonably be designated by the Purchaser. Unless
otherwise specified by the Purchaser, delivery will be made to the address
specified in the country of purchase on Purchaser's Order. The scheduled delivery
date shall be that date acknowledged by ACT-Corp. ACT-Corp shall consider any
date requested by the Purchaser.
2. The Notice of Shipment shall contain, as appropriate,
the request for Customs Form 302, or equivalent document, which shall enable
any carrier to effect duty free import/export clearance through customs for the
Purchaser on behalf of NATO. The Form 302 is an official Customs Clearance
Declaration issued in advance of shipment to provide certified information as
to the import/export, or transit of NATO Member Nations.
3. The Notice of Shipment and request for Form 302 shall
contain the following information, as appropriate:
1. Purchaser's Order Number;
2. Order Item Number, Designation and Quantities;
3. Destination;
4. Number and Description of Packages (gross and net
weight);
5. Consignor's Name and Address;
6. Consignee's Name and Address;
7. Method of Shipment (i.e. road, rail, sea, air, etc.);
8. Name and Address of Freight Forwarder.
4. Forwarding Agents, Carriers or other responsible
organisations shall be informed by ACT-Corp of the availability of FORM 302 and
how the form should be utilised to avoid the payment of custom duties.
2.
CONTRACTOR
PERSONNEL WORKING AT PURCHASER'S FACILITIES
1. The term "Purchaser Facilities" as used in
this clause shall be deemed to include sites, property, utilities, ships or
vessels owned or controlled by NATO, NATO Bodies or NATO Member Nations or NATO
Contractor and the term "Facility Representative" shall be deemed to
refer to the authority designated by the NATO responsible for such site, property,
utility, ship or vessel.
2. The Facility Representative shall provide such
available administrative and technical facilities for ACT-Corp's personnel
working at the Purchaser's Facilities for the purpose of the Agreement as in
the opinion of the Facility Representative may be necessary for the effective
and economical discharge of work under this Agreement. These facilities may be
provided at no cost at the discretion of the Facility Representative. ACT-Corp
shall be responsible for ascertaining what necessary facilities may be provided
and whether they will be provided free of charge, or determining what charges
are payable.
3. ACT-Corp shall, except as otherwise provided for in
the Agreement, make good or, at the option of the Purchaser, pay compensation
for all damage occurring to any Purchaser's Facilities occasioned by ACT-Corp
or by his servants, agents or subcontractors, arising from his or their
presence on Purchaser Facilities in connection with the Agreement; provided
that this Condition shall not apply to the extent that ACT-Corp is able to show
that any such damage was not caused by ACT-Corp's neglect or default, or the
neglect or default of ACT-Corp's servants, agents or subcontractors.
4. All property of ACT-Corp while at a Purchaser
Facility shall be at risk of ACT-Corp and the Purchaser shall accept no
liability for any loss or damage, except to the extent that any loss or damage
is the result of a wilful act or gross negligence on the part of the
Purchaser's employees or agents.
3. PURCHASER FURNISHED PROPERTY
1. The term "Purchaser Furnished Property" as
used in this clause refers to items of equipment, material or property
furnished by the Purchaser to ACT-Corp which shall be subject to overhaul,
repair, modification, test, embodiment or other work as specified in any Order
under this Agreement to be performed by ACT-Corp.
2. The Purchaser shall deliver to ACT-Corp, for use only
in connection with any Order under this Agreement, the property described in
the schedule or specifications (hereinafter referred to as "Purchaser
Furnished Property"), at the times and locations stated therein. In the
event that Purchaser Furnished Property is not delivered by such time or times
stated in the Schedule, or if not so stated, in sufficient time to enable
ACT-Corp to meet such delivery or performance dates the Purchaser shall, upon
timely written request made by ACT-Corp, and if the facts warrant such action,
equitably adjust any affected provision of the Order pursuant to the procedures
of the "Changes" clause hereof.
3. In the event that Purchaser Furnished Property is
received by ACT-Corp in a condition not suitable for its intended use, ACT-Corp
shall immediately notify the Purchaser. The Purchaser shall within a reasonable
time of receipt of such notice replace, re-issue, authorise repair or otherwise
issue instructions for the disposal of Purchaser Furnished Property agreed to
be unsuitable. The Purchaser shall, upon timely written request by ACT-Corp,
equitably adjust any affected provision of the Order pursuant to the procedures
of the "Changes" clause hereof.
4. Title to Purchaser Furnished Property shall remain in
the Purchaser. ACT-Corp shall maintain adequate property control records of
Purchaser Furnished Property in accordance with sound industrial practice.
5. Unless otherwise provided in the Order, ACT-Corp,
upon delivery to him of any Purchaser Furnished Property, assumes the risk of,
and shall be responsible for, any loss thereof or damage thereof except for
reasonable wear and tear, and except to the extent that such property is
consumed in the performance of the Order.
6. Upon completion of the Order, or at such earlier
dates as may be specified by the Purchaser, ACT-Corp shall submit, in a form
acceptable to the Purchaser, inventory schedules covering all items of
Purchaser Furnished Property not consumed in the performance of the Order or
not theretofore returned to the Purchaser. ACT-Corp shall prepare for shipment,
deliver FOB origin, or otherwise dispose of Purchaser Furnished Property as may
be directed or authorised by the Purchaser. The net proceeds of any such
disposal shall be credited to the contract price or paid in such other manner
as the Purchaser may direct.
7. ACT-Corp shall not modify any Purchaser Furnished
Property unless specifically authorised by the Purchaser or directed by the terms
of the Order.
1. ACT-Corp shall indemnify and hold the Purchaser
harmless against claims for injury to ACT-Corp employees, agents, or
subcontractors, or damages to property of ACT-Corp or others arising from
ACT-Corp's possession or use of Purchaser Furnished Property or Facilities in
the performance of work as specified in an Order; except to the extent that
ACT-Corp is able to show any such injury or damage was caused by Purchaser's
wilful act or negligence.
1. Unless the Order specifically provides for earlier
passage of title, title to supplies covered by the Order shall pass to the
Purchaser upon acceptance as specified in the Order, regardless of when or
where the Purchaser takes physical possession.
1. delivery of supplies as specified in accordance with
the Agreement; or
2. acceptance by the Purchaser or receipt of supplies by
the Purchaser at the destination specified in the Order, whichever is the
later.
3. Notwithstanding 5.2 above, the risk of loss or damage
to supplies which fail to conform to the requirements of the Order shall remain
with ACT-Corp until cure or acceptance, at which time 5.2 above shall apply.
4. Notwithstanding 5.2 above ACT-Corp shall not be
liable for the loss of or damage to supplies caused by the negligence of
officers, agents or employees of the Purchaser acting within the scope of their
employment under the terms and conditions of this Agreement.
1. ACT-Corp shall not give, bargain, sell, assign,
sub-let or otherwise dispose of any order under this Agreement or any part
thereof or the benefit or advantage of the Order or any part thereof without
the previous consent in writing of the Purchaser.
7. INSPECTION, ACCEPTANCE AND REJECTION
1. Unless otherwise specifically provided for in the
Agreement, all equipment, materials and supplies incorporated in the work
covered by this Agreement are to be new and of the most suitable grade of their
respective kinds for the purpose, notwithstanding the requirements for testing,
inspection and performance as required under this Agreement. All workmanship
shall be as required under the Order or, if not specified, best commercial
(National and International) standard.
2. All supplies (which term throughout this clause
includes without limitation raw materials, components, intermediate assemblies,
end products, data including software and firmware) and services may be subject
to inspection and test by the Purchaser, or his authorised representative to
the extent practicable at all times and places prior to acceptance, including
the period of manufacture, or after delivery, or as otherwise specified in the
Order. For the purposes of inspection and testing the Purchaser may delegate as
his representative the authorised National Quality Assurance Representative
(NQAR) in accordance with STANAG 4107.
3. No representative or NQAR appointed by the Purchaser
for the purpose of determining the Contractor’s compliance with the technical
requirements of the Order shall have the authority to change any of the
specifications. Such changes may only be made by the Contracting Authority in
writing in accordance with the clause of this Agreement entitled
"Changes".
4. The presence or absence of an NQAR or other Purchaser
representative shall not relieve ACT-Corp from any of the requirements of this
Agreement.
5. In the event that any supplies, or lots thereof, or
services are defective in design, material, workmanship or manufacturing
quality, or as a result of undue wear and tear or otherwise not in conformity
with the requirements of the order, including any characteristic or condition
which is or becomes at variance to the performance specifications and to the
intended function of the supplies, the Purchaser shall have the right either to
reject them (with or without instructions as to their disposition) or to require
their correction or replacement. Supplies, or lots thereof or services which
have been rejected or required to be corrected or replaced shall, at the
expense of ACT-Corp, be removed, or, if permitted or required by the
Contracting Authority, corrected in place by ACT-Corp promptly after notice,
and shall not thereafter be tendered for acceptance by ACT-Corp unless the
former rejection or requirement of correction or replacement is disclosed. If
ACT-Corp fails promptly to remove, replace or correct such supplies or lots
thereof, or services, the Purchaser either:
1. may by Order or otherwise return, replace or correct
such supplies or services and charge ACT-Corp the cost incurred by the
Purchaser, or
2. may terminate this Agreement for default as provided
in the clause of this Agreement entitled "Termination for Default".
6. Unless ACT-Corp corrects or replaces such supplies or
services within the delivery schedule, the Purchaser may require the delivery
of such supplies or services at a reduction in price which is equitable under
the circumstances. Failure to agree to such reduction of price shall be a
dispute within the meaning of the clause of this Agreement entitled
"Disputes".
7. If any inspection or test is made by the Purchaser's
representatives on the premises of ACT-Corp or sub-contractor, ACT-Corp,
without additional charge, shall provide all reasonable facilities and
assistance for the safety and convenience of the Purchaser’s representatives in
the performance of their duties. The NQAR or other Purchaser representatives
shall have the right of access to any area of ACT-Corp's or his
sub-contractor’s premises where any part of the contractual work is being
performed. If Purchaser inspection or test is made at a point other than the
premises of ACT-Corp or sub-contractor, it shall be at the expense of the
Purchaser except as otherwise provided in this Agreement; provided that in case
of rejection the Purchaser shall not be liable for any reduction in value of
samples used in connection with such inspection or test. All inspections and
tests by the Purchaser shall be performed in such a manner as not to unduly
delay the work. The Purchaser reserves the right to charge to ACT-Corp any
additional cost of Purchaser inspection and test when supplies or services are
not ready at the time such inspection and test is requested by ACT-Corp or when
re-inspection or retest is necessitated by prior rejection. Acceptance or
rejection of the supplies or services shall be made as promptly as practicable
after delivery, except as otherwise provided in the Order, but failure to
inspect and accept or reject supplies or services shall neither relieve
ACT-Corp from responsibility for such supplies or services as are not in
accordance with the Order requirements nor impose liability on the Purchaser
thereof.
8. The inspection and test by the Purchaser of any
supplies or lots thereof, or services does not relieve ACT-Corp from any
responsibility regarding defects or other failures to meet the contract
requirements which may be discovered prior to acceptance. Except as otherwise
provided in the Order, acceptance shall be conclusive except as regards latent
defects, fraud, or such gross mistakes as amount to fraud.
9. Acceptance of supplies or services shall take place
when the Purchaser confirms acceptance of the supplies or services in
accordance with the procedure specified in the Order, or if none is so
specified then the Purchaser shall be deemed to have accepted the supplies or
services without prejudice to any other remedies, when and as soon as any of
the following events have occurred:
1. The Purchaser has taken the supplies or services into
use;
2. The Purchaser has not exercised its right of
rejection of the supplies or services within any period specified for that
purpose in the Order;
3. There being no period of exercising the right of
rejection specified in the Order, a reasonable time, all the circumstances
having been taken into account, has elapsed since delivery of the supplies or
services was effected in accordance with the Order.
10. Unless otherwise specified in this Agreement,
ACT-Corp shall have or establish, implement and maintain an effective and
economical quality control system, planned and developed in conjunction with
other contractor functions necessary to satisfy the contract requirement. The
system shall be acceptable to the Purchaser and its authorised representatives.
The system shall provide for the early and prompt detection of deficiencies,
trends and conditions which could result in unsatisfactory quality, and for
timely and effective corrective action. Objective evidence that the system is
effective shall be readily available to the Purchaser and its authorised
representatives. Records of all inspection and testing work by ACT-Corp shall
be kept complete and available to the Purchaser’s representatives during the
performance of any Order under this Agreement and for such longer periods as
may be specified elsewhere in the Order.
11. Product acceptance shall be accomplished by using
test procedures and/or programs established by ACT-Corp which are applicable to
the Products, unless otherwise agreed in writing by the Purchaser and ACT-Corp.
Such acceptance shall be at the time of completion of final tests at ACT-Corp's
facilities, except as otherwise specified below. If Purchaser has conveyed in
writing its intention to witness final tests in the Order, ACT-Corp will give
Purchaser prior notice of the date of such tests. Purchaser shall be
responsible for any charges that may be associated with witnessing said tests.
If installation by ACT-Corp is included in the purchase price, acceptance will
be at any installation site specified by the Purchaser, when ACT-Corp
demonstrates that the applicable diagnostic and/or verification programs work
properly. If ACT-Corp's demonstration of the programs at the installation site
is delayed for more than fifteen (15) calendar days, except due to the fault of
ACT-Corp, the Products will be deemed accepted.
1. ACT-Corp warrants that the prices set forth in this
Agreement, and appendices thereto, are as favourable as those extended to any
Government, Agency, Company, Organisation or individual purchasing or handling
like quantities of equipment and/or parts covered by the Agreement under
similar conditions. In the event that prior to complete delivery under this
Agreement ACT-Corp offers any of such items in substantially similar quantities
under similar conditions to any customer at prices lower than those set forth
herein, ACT-Corp shall so notify the Purchaser and the prices of such items
shall be correspondingly reduced by a supplement to this Agreement. Price in
this sense means "Base Price" prior to applying any bonus, export tax
reduction, turn-over tax exemptions and other reductions based on National
Policies.
1. For the purposes of verifying that cost or pricing
data submitted in conjunction with paragraphs 9.1 and 9.2 above are accurate,
complete and current, the Purchaser shall, until the expiration of three (3)
years from the date of final payment of all sums due under the Agreement, have
the right of access to ACT-Corp's facilities to examine those books, records,
documents and other supporting data which will permit adequate evaluation and
verification of the cost or pricing data submitted along with the computations
and projections used therein which were available to ACT-Corp as of the date of
ACT-Corp's price proposal.
1. cost or pricing data or substantiation of commercial
product status;
2. access to Subcontractor's facilities and records by
the National Audit Agency for the purpose of verification of such cost or
pricing data; and
3.
a Certificate of
Current Cost or Pricing Data when required.
5.
Price Reduction for
Defective Cost or Pricing Data.
1. If any price, including profit or fee, negotiated in
connection with this Agreement or any cost reimbursable under this Agreement
was increased by any significant sums because,
4. ACT-Corp or a Sub-contractor or prospective
Subcontractor furnished any data, not within paragraphs 9.5.1.1, 9.5.1.2 or
9.5.1.3 above, which was not accurate as submitted. Then the price or cost
shall be reduced accordingly and the Order shall be modified in writing as may
be necessary to reflect such reductions.
6.
Certificate of Current
Cost or Pricing Data.
1. At the time of negotiating any price, including
profit or fee, ACT-Corp shall be required to submit a Certificate of Current
Cost or Pricing Data as required by paragraph 9.4.3.
2. Such Certificate will certify that, to the best of
ACT-Corp's knowledge and belief, cost or pricing data submitted to the
Purchaser in support of any proposal for a price, price adjustment or claim,
are accurate, complete and current, as per the completion of the negotiations
or, in the case of a claim, as per the submission date of the claim.
3. All such certificates shall be in the format shown below
and shall be dated and signed by a responsible officer of the company.
CERTIFICATE OF CURRENT COST OR PRICING DATA
This is to certify
that, to the best of my knowledge and belief, cost or pricing data as
submitted, either actually or by specific identification in writing to the
Purchaser or his representative in support of _________________________ are
accurate, complete and current as of _______________________.
day month year
Firm _____________________________
Name _____________________________
Title ____________________________
____________________________
Date of Execution
7. ACT-Corp shall insert the substance of this Clause in
each Subcontract where applicable.
1. NATO, NATO Bodies and certain other Eligible
Purchasers are exempt from all taxes and all customs duties on Products and
Services imported or exported hereunder. ACT-Corp therefore, certifies that the
prices stipulated under this Agreement do not include amounts to cover such
taxes or customs duties. ACT-Corp shall be responsible for determining whether
such exemptions apply for other Eligible Purchasers, as defined under
paragraphs 3.1.3, 3.1.4 and 3.2 of Part I, Special Provisions above.
2. In cases where taxes and duties are levied, ACT-Corp
should seek reimbursement directly from the authorities concerned in compliance
with the applicable procedures. The Purchaser shall provide reasonable
assistance in claiming reimbursement.
4. Following payment by the Purchaser of the taxes
and/or duties pursuant to paragraph 10.3 above, should ACT-Corp receive a
rebate of any amount paid by Purchaser, ACT-Corp shall immediately notify
Purchaser, and the amount of such rebate shall be credited or reimbursed to the
Purchaser, as directed. ACT-Corp shall be responsible for taking any and all
action that could reasonably be required in order to obtain such rebate.
1. Invoices shall be prepared and submitted by ACT-Corp
in a manner as agreed with Purchaser and shall contain: BOA number, Order
number (if any), description of Products, sizes, quantities, unit prices, and
extended totals (exclusive of taxes and duties for which relief is available).
Details of Bills of Lading or Freight Warrant numbers and weight of shipment
shall be identified on each invoice as appropriate.
2. In addition, where applicable and on request by
Purchaser, documentary evidence of acceptance (as defined in the Agreement)
shall be submitted together with each invoice.
3. All invoices shall be addressed to the designated
authority specified by Purchaser.
1. Specifications (including drawings and designs)
except to Commercial Products;
2. Method and manner of performance of the work;
3. Marking, method of shipment and packing;
4. Time and place of delivery; and
5. Purchaser Furnished Property and Facilities
(including Equipment, materials, services or sites).
1. the date, circumstances, and source of the order and
2. that ACT-Corp regards the order as a change order,
and that the order is accepted in writing by the Purchaser as a change order.
The timely written notice requirement, as detailed above, remains in force in
all cases, even where, for example, the Purchaser has positive knowledge of the
relevant facts.
3. Except as provided in this clause, no order,
statement, or conduct of the Purchaser shall be treated as a change order under
this clause or entitle ACT-Corp to an equitable adjustment.
4. If any such change order causes an increase or
decrease in ACT-Corp's cost of, or the time required for the performance of any
part of the work under the Order, whether or not changed by any such order, the
Purchaser shall make an equitable adjustment and modify the Order in writing
accordingly. However, except for a "proposal for adjustment"
(hereafter referred to as "proposal") based on defective
specifications, no proposal for any change under paragraph 12.2 above shall be
allowed for any costs incurred more than thirty (30) days before ACT-Corp gives
written notice as required. In the case of defective specifications for which
the Purchaser is responsible, the equitable adjustment shall include any
increased cost reasonably incurred by ACT-Corp in attempting to comply with the
defective specifications. Where the cost of property made obsolete or excess as
a result of a change is included in the ACT-Corp's claim for adjustment, the
Purchaser shall have the right to prescribe the manner of disposition of such
property. Failure to agree to any adjustment shall be a dispute within the
meaning of the clause of this Agreement entitled "Disputes." However,
nothing in this clause shall excuse ACT-Corp from proceeding with the Order as
changed.
5. ACT-Corp must submit any proposal under this clause
within thirty (30) days after
1. receipt of a written change order under paragraph 12.1
above or
2. the furnishing of a written notice under paragraph
12.2, by submitting to the Purchaser a written statement describing the general
nature and amount of the proposal, unless this period is extended by the
Purchaser. The statement of proposal for adjustment may be included in the
notice under paragraph 12.2 above.
6. No proposal by ACT-Corp for an equitable adjustment
shall be allowed if asserted after final payment and acceptance under the
Order.
1. If the performance of all or any part of the work is
delayed or interrupted by an act of the Purchaser in the administration of the
Order, which act is not expressly or implicitly authorised by the Order, or by
his failure to act within the time specified in the Order (or within a reasonable
time if not time is specified), an adjustment shall be made for any increase in
the cost of performance of the Order caused by such a delay or interruption and
the Order modified in writing accordingly. Adjustments shall be made also in
the delivery or performance dates and any other contractual provision affected
by such delay or interruption. However, no adjustment shall be made under this
clause for any delay or interruption:
1. to the extent that performance would have been
delayed or interrupted by any other clause, including the fault or negligence
of ACT-Corp; or
2. for which an adjustment is provided under any other
provision of this Agreement.
2. No claim under this clause shall be allowed:
1. for any costs incurred more than twenty (20) days
before ACT-Corp shall have notified the Purchaser in writing of the act or
failure to act involved; and
2. unless the claim, in an amount stated, is asserted in
writing as soon as practicable after the termination of such delay or
interruption, but not later than the date of final payment under the Order.
1. The Purchaser may, at any time, by written order to
ACT-Corp, require ACT-Corp to stop all, or any part, of the work called for by
the Order for a period of ninety (90) days after the order is delivered to
ACT-Corp, and for any further period to which the Parties may agree. Any such
order shall be specifically identified as a Stop Work Order issued pursuant to
this clause. Upon receipt of such an order, ACT-Corp shall forthwith comply
with its terms and take all reasonable steps to minimise costs incurred
allocable to the work covered by the order during the period of work stoppage.
Within a period of ninety (90) days after a stop work order is delivered to
ACT-Corp, or within any extension of that period to which the Parties shall
have agreed, the Purchaser shall either:
1. cancel the stop work order, or
2. terminate the work covered by such order in
accordance with paragraph 20, TERMINATION FOR CONVENIENCE OF THE PURCHASER.
2. If a stop work order issued under this clause is
cancelled or the period of the order or any extension thereof expires, ACT-Corp
shall resume work. An equitable adjustment shall be made in the delivery
schedule or Contract price, or both, and the Order shall be modified in writing
accordingly, if:
1. the stop work order results in an increase in the
time required for, or in ACT-Corp's cost properly allocable to, the performance
of any part of the Order, and
2. ACT-Corp asserts a claim for such adjustment within thirty
(30) days after the end of the period of work stoppage; provided that, if the
Purchaser decides the facts justify such action, he may receive and act upon
any such claim asserted at any time prior to final payment under any Order.
3. If a stop order is not cancelled and the work covered
by such order is terminated for the convenience of the Purchaser, the
reasonable costs resulting from the stop work order shall be allowed in
arriving at the termination settlement.
1. In the case of any inconsistencies herein, the order
of precedence of the contractual documents is as follows:
1. the Special Provisions
2. the General Provisions
3. Exhibits and Appendices,
2. Except where inconsistency between the terms of this
Agreement and those contained in any Order have been expressly agreed between
the Purchaser and ACT-Corp, the terms of this Agreement shall take precedence.
1. This Agreement and each subsequent Order under this
Agreement between NC3A and ACT-Corp shall be governed by and construed in
accordance with the private contract law of the Kingdom of Belgium. Orders
signed between ACT-Corp and any other Purchaser under this Agreement shall be
governed by the laws applicable to the country of the Purchaser, unless
otherwise agreed between the Purchaser and ACT-Corp.
1. In the event of a dispute under this Agreement or any
Order issued hereunder, the Parties shall attempt to settle their difference in
an amicable manner. However, in the event that a settlement cannot be made
under this Agreement within a reasonable period of time, the Parties agree to
institute arbitration proceedings in the manner provided in the following
Arbitration provision and such disputes shall finally be settled thereby,
unless otherwise agreed between the Purchaser and ACT-Corp.
3. Regardless of the procedure concerning the
appointment of this Arbitration Tribunal, the third arbitrator will have to be
of a nationality different from the nationality of the other two members of the
Tribunal.
4. Any arbitrator must be of the nationality of any one
of the NATO Member Nationsand shall be bound by the rules of security in force
within NATO.
5. Any person appearing before the Arbitration Tribunal
in the capacity of an expert witness shall, if he is of the nationality of one
of the NATO Member Nations, be bound by the rules of security in force within
NATO; if he is of another nationality, no NATO classified documents or
information shall be communicated to him.
6. An arbitrator who, for any reason whatsoever, ceases
to act as an arbitrator, shall be replaced under the procedure laid down in
paragraph 17.1.2 above.
7. The Arbitration Tribunal will take its decisions by a
majority vote. It shall decide where it will meet and, unless it decides
otherwise, shall follow the arbitration procedures of the International Chamber
of Commerce in force at the date of signature of the present Agreement.
8. The awards of the arbitrator or of the Arbitration
Tribunal shall be final and there shall be no right of appeal or recourse of
any kind. These awards shall determine the apportionment of the arbitration
expenses.
2. The place of arbitration shall be Brussels, Belgium,
in the case of dispute under this Agreement or under any subsequent Order
between ACT-Corp and NC3A, and shall be the country of the Purchaser in the
case of a dispute between ACT-Corp and any other Purchaser, unless otherwise
agreed between the Purchaser and ACT-Corp.
1. ACT-Corp agrees to notify Purchaser in the event that
it anticipates difficulty in meeting delivery schedule. Receipt of such notice
shall not be deemed to be a waiver by Purchaser of rights or remedies which it
may have for failure to meet an agreed delivery date. Notwithstanding the above
ACT-Corp shall be deemed to be in delay without notice from the Purchaser and
only by simple expiry of the due delivery date.
1. if ACT-Corp fails to make delivery of the supplies or
to perform the services within the time specified herein or any extension
thereof; or
2. In the event the Purchaser terminates an Order in
whole or in part, as provided in paragraph 19.1 of this clause, the Purchaser
may procure, upon such terms and in such manner as the Purchaser may deem
appropriate, supplies or services similar to those so terminated, and ACT-Corp
shall be liable to the Purchaser for any excess costs for such similar supplies
or services. However, ACT-Corp shall continue the performance of an Order to
the extent not terminated under the provisions of this clause.
4. If an Order is terminated as provided in paragraph
19.1 of this clause, the Purchaser, in addition to any other rights provided in
this clause, may require ACT-Corp to transfer title and deliver to the
Purchaser, in the manner and to the extent directed by the Purchaser:
1. any completed supplies, and
2. such partially completed supplies and materials,
parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract
rights (hereinafter called "manufacturing materials") as ACT-Corp has
specifically produced or specifically acquired for the performance of such part
of an Order as has been terminated;
and ACT-Corp
shall, upon direction of the Purchaser, protect and preserve property in the
possession of ACT-Corp in which the Purchaser has an interest. Payment for
completed supplies delivered to and accepted by the Purchaser shall be at the
contract price. Payment for manufacturing materials delivered to and accepted
by the Purchaser and for the protection and preservation of property shall be
in an amount agreed upon by ACT-Corp and Purchaser. Failure to agree to such
amount shall be a dispute within the meaning of the clause of this agreement
entitled "Disputes and Arbitration". The Purchaser may withhold from
amounts otherwise due to ACT-Corp for such completed supplies or manufacturing
materials such sum as the Purchaser determines to be necessary to protect the
Purchaser against loss because of outstanding liens or claims of former lien
holders.
5. If, after notice of termination of an Order under the
provisions of this clause, it is determined for any reason that ACT-Corp was
not in default under the provisions of this clause, or that the default was
excusable under the provisions of this clause, the rights and obligations of
the Parties, shall be the same as if the notice of termination had been issued
pursuant to a clause providing for termination of convenience of the Purchaser.
If after such notice of termination of an Order under the provisions of this
clause, it is determined for any reason that ACT-Corp was not in default under
the provisions of this clause and if the Order does not contain a clause
providing for termination for convenience of the Purchaser the Order shall be
equitably adjusted to compensate for such termination and the Order modified
accordingly. Failure to agree to any such adjustment shall be a dispute within
the meaning of the clause of this Agreement entitled "Disputes".
6. The rights and remedies of the Purchaser provided in
this clause shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Agreement or any Order issued under the
present BOA.
20.
TERMINATION FOR CONVENIENCE OF THE
PURCHASER
1. The performance of work under an Order may be
terminated by the Purchaser in accordance with this clause in whole, or from
time to time in part, whenever the Purchaser shall determine that such
termination is in the best interest of the Purchaser. Any such termination
shall be effected by delivery to ACT-Corp of a Notice of Termination specifying
the extent to which performance of work under an Order is terminated, and the
date upon which such termination becomes effective.
(i) stop work under the Order on the date
and to the extent specified in the Notice of Termination;
(ii) place no further orders or sub-contracts
for materials, services or facilities, except as may be necessary for
completion of such portion of the work under the Order as is not terminated;
(iii) terminate all orders and sub-contracts to
the extent that they relate to the performance of work terminated by the Notice
of Termination;
(iv) assign to the Purchaser, in the manner,
at the times and to the extent directed by the Purchaser, all of the right,
title and interest of ACT-Corp under the orders and sub-contracts so
terminated, in which case the Purchaser shall have the right, in its
discretion, to settle or pay any or all claims arising out of the termination
of such orders and sub-contracts;
(v) settle all outstanding liabilities and
all claims arising out of such termination of orders and sub-contracts, with
the approval or ratification of the Purchaser to the extent he may require,
which approval or ratification shall be final for all the purposes of this
clause;
(vi) transfer title and deliver to the
Purchaser in the manner at the times, and to the extent, if any, directed by
the Purchaser:
a. the fabricated or unfabricated parts,
work in process, completed work, supplies, and other material produced as a
part of, or acquired in connection with the performance of the work terminated
by the Notice of Termination, and
b. the completed or partially completed
plans, drawings, information, and other property which, if the Order had been
completed, would have been required to be furnished to the Purchaser;
(vii) use his best efforts to sell, in the
manner, at the times, to the extent, and at the price or prices directed or
authorised by the Purchaser, any property of the types referred to in (vi)
above. However, ACT-Corp:
a. shall not be required to extend credit
to any Buyer; and,
b. may acquire any such property under the
conditions prescribed by and at a price or prices approved by the Purchaser;
and provided further that the proceeds of any such transfer or disposition
shall be applied in reduction of any payments to be made by the Purchaser to
ACT-Corp under an Order or shall otherwise be credited to the price or cost of
the work covered by an Order or paid in such manner as the Purchaser may
direct;
(viii) complete performance of such part of the
work as shall not have been terminated by the Notice of Termination; and
(ix) take such action as may be necessary, or
as the Purchaser may direct, for the protection and preservation of the
property related to an Order which is in the possession of ACT-Corp and in
which the Purchaser has or may acquire an interest.
3. ACT-Corp may submit to the Purchaser a list,
certified as to quantity and quality, of any or all items of termination
inventory not previously disposed of, exclusive of items the disposition of
which has been directed or authorised by the Purchaser, and may request the Purchaser
to remove such items or enter into a storage agreement covering the same;
provided that the list submitted shall be subject to verification by the
Purchaser upon removal of the items, or if the items are stored, within
forty-five (45) days from the date of submission of the list, and any necessary
adjustment to correct the list as submitted shall be made prior to final
settlement.
(i) for completed supplies accepted by the
Purchaser (or sold or acquired as provided in paragraph 20.2 (vii) above) and
not therefore paid for, a sum equivalent to the aggregate price for such
supplies computed in accordance with the price or prices specified in the
Order, appropriately adjusted for any saving of freight or other charges;
(ii) the total of:
a. the costs incurred in the performance
of the work terminated including initial costs and preparatory expense
allocable thereto, but exclusive of any costs attributable to supplies paid or
to be paid for under paragraph 20.6 (i) hereof;
b. the cost of settling and paying claims
arising out of the termination of work under sub-contracts or orders, as
provided in paragraph 20.2 (v) above, which are properly chargeable to the
terminated portion of the Order, exclusive of amounts paid or payable on
account of supplies or materials delivered or services furnished by
sub-contractors or vendors prior to the effective date of the Notice of
Termination, which amounts shall be included in the costs payable under a.
above; and
c. a sum, as profit on a. above,
determined by the Purchaser to be fair and reasonable; provided, however, that
if it appears ACT-Corp would have sustained a loss on the entire Order, had it
been completed, no profit shall be included or allowed and an appropriate
adjustment shall be made reducing the amount of the settlement to reflect the
indicated rate of loss; and
(iii) the reasonable costs of settlement,
including accounting, legal, clerical and other expenses reasonably necessary
for the preparation of settlement claims and supporting data with respect to
the terminated portion of the Order and for the termination and settlement of
sub-contracts thereunder, together with reasonable storage, transportation, and
other costs incurred in connection with the protection, or disposition of
property allocable to the Order.
7. The total sum to be paid to ACT-Corp under (i) and
(ii) of paragraph 20.6 shall not exceed the total contract price as reduced by
the amount of payments otherwise made and as further reduced by the contract
price of work not terminated. Except for normal spoilage, and except to the
extent that the Purchaser shall have otherwise expressly assumed the risk of
loss, there shall be excluded from the amounts payable to ACT-Corp, as provided
in paragraph 20.6 (i) and (ii)(a) above, the fair value, as determined by the
Purchaser, of property which is destroyed, lost, stolen, or damaged so as to
become undeliverable to the Purchaser or to a buyer pursuant to paragraph 20.2
(vii) above.
8. ACT-Corp shall have the right of appeal, under the
clause of this Agreement entitled "Disputes", from any determination
made by the Purchaser under paragraphs 20.4 or 20.6 above, except that if
ACT-Corp has failed to submit his claim within the time provided in paragraph
20.4 above and has failed to request extension of such time, he shall have no
such right of appeal. In any case where the Purchaser has made a determination
of the amount due under paragraphs 20.4 or 20.6 above, the Purchaser shall pay
ACT-Corp the following:
(i) if there is no right of appeal
hereunder or if no timely appeal has been taken, the amount so determined by
the Purchaser, or
(ii) if an appeal has been taken, the amount
finally determined on such appeal.
9. In arriving at the amount due to ACT-Corp under this
clause there shall be deducted:
(i) all unliquidated advance or other
payments on account theretofore made to ACT-Corp, applicable to the termination
portion of the Order;
(ii) any claim which the Purchaser may have
against ACT-Corp in connection with the Order, and
(iii) the agreed price for, or the proceeds of
the sale of, any materials, supplies, or other things acquired by ACT-Corp or
sold, pursuant to the provisions of this clause, and not otherwise recovered by
or credited to the Purchaser.
10. If the termination hereunder is partial, prior to the
settlement of the terminated portion of the Order, ACT-Corp may file with the
Purchaser a request in writing for an equitable adjustment of the price or
prices specified in the Order relating to the continued portion of the Order
(the portion not terminated by the Notice of Termination), and such equitable
adjustment as may be agreed upon shall be made in such price or prices.
11. The Purchaser may from time to time, under such terms
and conditions as it may prescribe, make partial payments and payments on
account against costs incurred by ACT-Corp in connection with the terminated
portion of an Order whenever in the opinion of the Purchaser the aggregate of
such payments shall be within the amount to which ACT-Corp will be entitled
hereunder. If the total of such payment is in excess of the amount finally
agreed or determined to be due under this clause, such excess shall be payable
by ACT-Corp to the Purchaser upon demand, together with interest calculated
using the average of the official base rate(s) per annum as notified by the
Banque Nationale de Belgique or such other official source as may be determined
by the Purchaser, for the period from the date the excess is received by ACT-Corp
to the date such excess is repaid to the Purchaser, provided, however, that no
interest shall be charged with respect to any such excess payment attributed to
a reduction in ACT-Corp's claim by reason of retention or other disposition of
termination inventory until ten days after the date of such retention or
disposition or such later date as determined by the Purchaser by reason of the
circumstances.
12. Unless otherwise provided for in the Order, ACT-Corp,
from the effective date of termination and for a period of three years after
final settlement under the Order, shall preserve and make available to the
Purchaser at all reasonable times at the office of ACT-Corp, but without direct
charge to the Purchaser, all his books, records, documents, and other evidence
bearing on the costs and expenses of ACT-Corp under an Order and relating to
the work terminated hereunder, or, to the extent approved by the Purchaser,
photographs, micro-photographs, or other authentic reproductions thereof.
21.
PATENT
AND COPYRIGHT INDEMNIFICATION
1. Except as otherwise provided in this Agreement,
ACT-Corp shall assume all liability and indemnify the Purchaser, its officers,
agents and employees against liability, including costs for the infringement of
any patents or copyright in force in any countries arising out of the
manufacture, services performed or delivery of supplies, or out of the use or
disposal by or for the account of the Purchaser of such supplies. ACT-Corp
shall be responsible for obtaining any patent or copyright licences necessary
for the performance of an Order and of remaking all other arrangements required
to indemnify the Purchaser from any liability for patent or copyright
infringement in said countries.
2. ACT-Corp shall immediately notify the Purchaser of
any patent or copyright infringement claims of which he has knowledge and which
pertain to the goods and services under this Agreement.
3. This indemnity shall not apply under the following
circumstances:
1. Patents or copyright which may be withheld from issue
by order of the applicable government whether due to security regulations or
otherwise;
2. An infringement resulting from specific written
instructions from the Purchaser under this Agreement;
3. An infringement resulting from changes or additions
to the goods and services subsequent to final delivery and acceptance under
this Agreement.
1. ACT-Corp shall assert claims in writing and by
registered mail, and in accordance with the terms set out below:
2. Claims shall be submitted within:
1. the time specified in the Clause or Article under
which ACT-Corp alleges to have a claim. If no time is specified in the clause
or Article under which ACT-Corp intends to base its claim, the time limit shall
be forty-five (45) days from the date ACT-Corp has knowledge or should have had
knowledge of the facts on which it bases its claim;
2. three (3) months after final payment, release of
guarantees or performance bond provided under the Order, whichever occurs last.
This shall only apply to those claims for which ACT-Corp could not have had
earlier knowledge and were not foreseeable.
3. ACT-Corp shall be foreclosed unless it presents
complete documentary evidence, justification and cost for each of its claims
within three months from the assertion date of such claims. Claims shall be
supported by specifically identified evidence (including applicable historical
and planned cost and production data from ACT-Corp's books and records).
Opinions, conclusions or judgmental assertions not supported by such evidence
shall be rejected.
1. An individual breakdown of cost is required for each
element of ACT-Corp's claims at the time of claim submission or for any
material revision of the claim.
4. ACT-Corp shall present, at the time of submission of
a claim, an attestation as follows:
"I ................ the
responsible senior company official authorised to commit the ................
with respect to its claims dated ............... being duly sworn, do hereby
depose and say that: (i) the facts described in the claim are current, complete
and accurate; and (ii) the conclusions in the claim accurately reflect the
material damages or contract adjustments for which the Purchaser is allegedly
liable.
____________________________________
SIGNATURE
5. Failure to comply with any of the above requirements
shall result in automatic forfeiture of the claim. This foreclosure takes
effect in all cases and also where, for example, the claim is based on
additional orders, where the facts are known to the Purchaser, where the claim
is based on defective specifications of the Purchaser or an alleged negligence
in the precontractual stage.
6. No claim arising under this Agreement may be assigned
by ACT-Corp without prior approval of the Purchaser.
1. Prior to final payment under this Agreement, ACT-Corp
and each assignee under this Agreement shall execute and deliver a release
discharging the Purchaser, its officers, agents and employees from all
liabilities, obligations and claims arising out of or under this Agreement
subject only to the following exceptions:
1. Specified claims in stated amounts or in estimated
amounts where the amounts are not susceptible to exact statement by ACT-Corp;
2. Claims for reimbursement of costs (other than
expenses of ACT-Corp by reason of its indemnification of the Purchaser against
patent liability) including reasonable expenses incidental thereto, incurred by
ACT-Corp under the provisions of this Agreement relating to patents.
3. An infringement resulting from specific written instructions
from the Purchaser under the Order.
4. An infringement resulting from changes or additions
to the goods and services subsequent to final delivery and acceptance under the
Order.
1. Except as otherwise provided in an Order, no payment
for extras shall be made unless such extras and the price therefore have been
authorised in writing by the Purchaser.
1. In the event of any inconsistency between the
original English text of this Agreement and any translation into another
language, the original English text will govern.
2. All written correspondence and reports provided by
and to ACT-Corp shall be, as a minimum, in English.
1. ACT-Corp shall comply with all security measures as
are prescribed by the Purchaser and the National Security Authority or
designated Security Agency of each of the NATO Member Nations in which the
Agreement is being performed. ACT-Corp shall be responsible for the
safeguarding of classified information, documentation, material and equipment
entrusted to him or generated by him in connection with the performance of an
Order.
2. In particular ACT-Corp undertakes to:
1. appoint an official responsible for supervising and
directing security measures in relation to the Order and communicating details
of such measures to the Purchaser on request;
2. maintain, preferably through the official responsible
for security measures, a continuing relationship with the National Security
Authority or designated Security Agency charged with ensuring that all NATO or
National classified information involved in the Order is properly safeguarded;
3. abstain from copying by any means, without the
authorisation of the Purchaser, the National Security Authority or designated
Security Agency, any classified documents, plans, photographs or other
classified material entrusted to ACT-Corp;
4. furnish, on request, information to the National
Security Authority or designated Security Agency pertaining to all persons who
will be required to have access to NATO or National classified information;
5. maintain at the work site a current record of its
employees at the site who have been cleared for access to NATO or National
classified information. The record should show the date and level of clearance;
6. deny access to NATO or National classified
information to any person other than those persons authorised to have such
access by the National Security Authority or designated Security Agency;
7. limit the dissemination of NATO or National
classified information to the smallest number of persons as is consistent with
the proper execution of the Order;
8. comply with any request from the National Security
Authority or designated Security Agency that persons entrusted with NATO or
National classified information sign a statement undertaking to safeguard that
information and signifying their understanding both of their obligations under
national legislation affecting the safeguarding of classified information, and
of their comparable obligations under the laws of the other NATO Member Nations
in which they may have access to classified information;
9. report to the National Security Authority or
designated Security Agency any breaches or suspected breaches of security,
suspected sabotage, or other matters of security significance which would
include any changes that may occur in the ownership, control or management of
the facility or any changes that affect the security arrangements and security
status of the facility and to make such other reports as may be required by the
National Security Authority or designated Security Agency, e.g. reports on the
holdings of NATO or National classified information;
10. apply to the Purchaser for approval before
subcontracting any part of the work, if the subcontract would involve the
subcontractor in access to NATO or National classified information, and to
place the subcontractor under appropriate security obligations no less
stringent than those applied to its own contract;
11. undertake not to utilise, other than for the specific
purpose of the Order, without the prior written permission of the Purchaser or
its authorised representative, any NATO or National classified information
furnished to him, including all reproductions thereof in connection with the
Order, and to return all NATO or National classified information referred to
above as well as that developed in connection with the Order, unless such
information has been destroyed, or its retention has been duly authorised with
the approval of the Purchaser. Such NATO or National classified information
will be returned at such time as the Purchaser or its authorised representative
may direct;
12. classify any produced document with the highest
classification of the NATO or National classified information disclosed in that
document.
27.
HEALTH,
SAFETY AND ACCIDENT PREVENTION
1. If the Purchaser notifies ACT-Corp in writing of any
non-compliance in the performance of the Order, with safety and health rules
and requirements prescribed on the date of the Order by applicable national or
local laws, ordinances and codes, and ACT-Corp fails to take immediate
corrective action, the Purchaser may order ACT-Corp to stop all or part of the
work until satisfactory corrective action has been taken. Such an order to stop
work shall not entitle ACT-Corp to an adjustment of the contract price or other
reimbursement for resulting increased costs, or to an adjustment of the
delivery or performance schedule.
1. Except as otherwise specified elsewhere in the Order,
and to the extent that it is demonstratively unavoidable and without prejudice
to the "Security" Clause, ACT-Corp or its employees shall not,
without prior authorisation from the Purchaser, release any information
pertaining to the Order, its subject matter, performance thereunder or any
other aspect thereof.
1. If the performance of this Agreement, or any
obligation hereunder is prevented, restricted or interfered with by reason of
fire, flood, earthquake, explosion or other casualty or accident, strikes or
labour disputes, war or other violence, including acts of terrorism, any law,
order, proclamation, regulation, ordinance, demand or requirement of any
governmental agency, or any other act, event or condition whatsoever beyond the
reasonable control of the affected Party, the Party so affected, upon giving
prompt notice to the other Party, shall be excused from such performance to the
extent of such prevention, restriction or interference, provided, however, that
the Party so affected shall take all reasonable steps to avoid or remove such
cause of non-performance and shall resume performance hereunder with dispatch
whenever such causes are removed.
APPENDIX 1 TO PART II - PURCHASER'S
PRICING PRINCIPLES
The following principles shall apply to all
contracts not awarded on the basis of an adequate price competition as well as
to all contract modifications.
ACT-Corp shall also incorporate provisions
corresponding to those mentioned herein in all subcontracts, and shall require
price and cost analysis provisions be included therein.
A. Allowability
of Costs
A cost is
allowable if the following conditions are fulfilled:
a. it is incurred specifically for the Agreement or
benefits both the Agreement and other work or is necessary to the overall
operation of the business although a direct relationship to any particular
product or service cannot be established and is allocated to them in respective
proportion according to the benefit received;
b. it is reasonable and expedient in its nature and
amount and does not exceed that which would be incurred by an ordinary prudent
person in the conduct of competitive business;
c. it is not liable to any limitations or exclusion as
to types or amounts of cost items as set forth herein.
The following cost
items are examples of costs which are normally partially allowable only as
indirect costs within the limitations described below provided that such costs
are reasonable in nature and amount and are allocated as indirect costs to all
work of ACT-Corp.
c. Bonuses paid pursuant to an agreement entered into
before the Order was made or pursuant to a plan established and consistently
followed before the Order was concluded.
d. Depreciation of plant equipment or other capital
assets.
e. Costs of normal maintenance and repair of plant,
equipment and other capital assets.
f.
The costs of general
research and development work which are not chargeable directly to an Order and
which are not aimed at the preparation or development of a specific product.
g. Travel costs, except those which, according to the
terms of the Order, are to be charged directly to it.
h. Pre-contract cost (cost prior to the effective date
stated in the Order) in anticipation of the award of the Order or pursuant to
its negotiation.
In general all
costs which cannot be shown by ACT-Corp to be directly or indirectly of benefit
to the Order under this Agreement are totally unallowable. Examples of such
costs are:
a. Costs of a particular advertising campaign without
prior agreement of the Purchaser or which has no connection with the Order
under this Agreement.
b. Costs of remuneration, having the nature of profit
sharing.
c. Costs of maintaining, repairing and housing idle and
excess facilities.
d. Fines and penalties as well as legal and
administrative expenses resulting from a violation of laws and regulations.
e. Losses on other contracts.
f.
Costs incurred for the
creation of reserves for general contingencies or other reserves (e.g. for bad
debts, including losses).
g. Losses on bad debts, including legal expenses and
collection costs in connection with bad debts.
h. Costs incurred to raise capital.
i.
Gains and losses of any
nature arising from the sale or exchange of capital assets other than
depreciable property.
j.
Taxes on profits.
k. Contractual penalties incurred.
l.
Commissions and
gratuities.
B. Cost Groupings
A direct cost is
any cost which can be identified specifically with a particular cost objective
as generally accepted. Direct costs are not limited to items which are
incorporated in the end product as material or labour.
b. Indirect Costs
An indirect cost
is one which is not readily subject to treatment as a direct cost.
2. ACT-Corp shall specify the allocation of costs to
either of the cost groupings. The method by which costs are accumulated and
distributed as part of direct or indirect costs cannot be modified during the
duration of the Order.
C. Overhead
Rates
1. Indirect costs, which as a rule are to be allocated
to all work of ACT-Corp, shall be accumulated by logical cost groupings in
accordance with sound accounting principles and ACT-Corp's established
practices. Such costs shall be presented as overhead rates and be applied to
each related direct cost grouping.
2. ACT-Corp shall inform the Purchaser of its overhead
rates and the basis upon which they were computed.
3. The term "provisional overhead rate" means
a tentative overhead rate established for interim billing purposes pending
negotiation and agreement to the final overhead rate.
4. An overhead rate is pre-determined if it is fixed
before or during a certain period and based on (estimated) costs to be incurred
during this period. An overhead rate is post-determined if it is fixed after a
certain period and based on costs actually incurred during this period.
Pre-determined
overhead rates shall be agreed upon as final rates whenever possible; otherwise
the provisions of paragraph (3) above shall apply pending agreement to
post-determined rates.
5. Such rates shall be determined on the basis of
ACT-Corp's properly supported actual cost experience.
6. If the overhead rates of ACT-Corp for similar
contracts placed by national or international public services have been
established or approved by a government agency or an agency accepted by
ACT-Corp’s Government and ACT-Corp proposes the application of these rates,
ACT-Corp shall state the name and address of the agency which has accepted or
approved the rates and the period for which they were established. If ACT-Corp
proposes rates which vary from the rates mentioned above, ACT-Corp shall
furthermore provide a justification for the difference.
7. If the overhead rates of ACT-Corp for similar
contracts placed by national or international public services have not been
established or approved by a government agency or an agency accepted by
ACT-Corp's government, ACT-Corp shall provide the necessary data to support the
proposed rates.
EXHIBIT A - ORDERING INFORMATION
A.1 ORDERING INFORMATION REQUIRED:
All orders submitted under this Agreement
shall contain, as applicable, the following information:
A.2 ORDERING PROCESS:
a. A Procurement Authority desiring to make a purchase
from ACT-Corp may submit orders to the following:
|
In the USA: |
In Europe: |
|
Atlantic CommTech Corporation 4661 Haygood Road, Suite 102 Virginia Beach, VA 23455 USA Tel. +1 757 363 7575 Fax. +1 757 363 3443 Email: kthorp@act-corp.com |
Atlantic CommTech Corporation Miesenbacher Strasse, 8 66877 Ramstein Germany Tel. +49 (0)6371 913061 Fax. +49 (0)6371 913063 Email: dsamford@act-corp.com |
b. All Purchase Orders must contain, at the minimum, the
information contained above in Exhibit A.1.
c. Task Orders for Engineering and Technical Services
must also identify the specific task, skills, labor category, place of
performance, period of performance, customer provided items/services, and
acceptance criteria.
d. Additional services and incidental material required
for installation task orders may be placed with ACT-Corp subject to the availability
and pricing by ACT-Corp.
e. ACT-Corp may request the Authorized Representative of
NATO to verify that the purchaser (either Government or contractor) is eligible
to use this agreement.
f.
ACT-Corp will indicate
acceptance of a Purchase Order by such means as determined by the ordering
agency and in any event will hold NC3A harmless for any Purchase Order issued
and concluded between a Purchaser, other than NC3A itself, and ACT-Corp.
EXHIBIT B - AUTHORISATION TO USE BOA
BY NATO CONTRACTORS
Attn.: 'Company'*
Manager of Contracts
Subject: Order
under NC3A/BOA/nnnn
'Company'* is hereby authorised to procure
under Order No. ( ), in accordance with NC3A Basic Ordering Agreement
(NC3A/BOA/nnnn). Each Order placed shall quote the above-mentioned BOA, the
appropriate Order Number and shall state:
"This Order is placed under
NC3A/BOA/nnnn. ACT-Corp* hereby agrees that the terms and conditions contained
in the NC3A/BOA/nnnn shall govern the purchase/license of Products and/or
Engineering Services covered by this Order, unless otherwise agreed between the
Parties to this Order. ACT-Corp* places this Order under written authorisation
from [Name of Eligible Purchaser]. The Products and/or Engineering Services
covered by the Order will be directly utilised by [Name of Eligible
Purchaser]."
A copy of this authorisation will be sent to
ACT-Corp.
NC3A shall not be liable in any form for any
Order issued and concluded between Purchaser, other than by NC3A itself, and
ACT-Corp*.
EXHIBIT C - PRODUCTS AND SERVICES
Description of IT Services and Pricing
Labor Categories
|
ACC010 |
Program Manager |
|
ACC020 |
DO Task Manager |
|
ACC030 |
Cable Plant Engineer |
|
ACC040 |
Draftsman/CAD |
|
ACC050 |
Installation Team Leader/Lead Technician |
|
ACC060 |
Test/Term/QC Technician |
|
ACC070 |
Technician |
|
ACC080 |
Instructor |
ACC010
Program Manager – Functional Responsibility: Consults with the
Contracting Officer’s Technical Representative (COTR) and other Government
personnel to minimize costs and maximize efficiency in achieving the stated
requirements. Plans, organizes, and controls the overall activities of the
project (i.e., project management, technical work, quality of work, schedule,
and costs associated with various orders issued under the contract). Ensures
that all activities conform with the terms and conditions of the contract and
ordering procedures. Acts as liaison between the COTR, the Contracting Officer
(CO), and corporate management. Coordinates activities and seeks resolution of
contractual and technical problems while working with the CO, the COTR, and
other Government personnel.
Minimum Education/Minimum General
Experience: Bachelors degree with ten years of relevant experience and eight
years of management experience or an equivalent combination of education and
experience. Technical certification such as RCDD or MSCE and relevant military
technical training may be substituted for college degree.
ACC020 DO
Task Manager – Functional Responsibility: Monitors each task and
keeps the Project Manager abreast of all problems and accomplishments.
Anticipates problems and works to mitigate the anticipated problems. As a team
or project leader, provides on-site direction and coordination. May serve as
the technical authority for a design area. As a staff specialist or consultant,
resolves unique and unyielding systems problems using new technology. Directs
Project Leaders, Lead Technicians, Systems Specialists, Engineers and other
technical personnel on assigned work. This individual is fully qualified on the
use of special purpose test equipment to verify test results.
Minimum Education/Minimum General
Experience: Bachelor’s degree with five years of related experience or an
equivalent combination of education and experience. Technical certification
such as RCDD or MSCE and relevant military technical training may be
substituted for college degree.
ACC030
Cable Plant Engineer – Functional Responsibility: Provides guidance and
multi-disciplined leadership to evaluate client telecommunications, telephony,
and associated cable needs and develops an effective Engineering Installation
Plan based on customer and industry standards. The Cable Plant Engineer is
responsible for the supervision of assigned personnel, subcontractor
performance and overall implementation of the Quality Control Plan.
Minimum Education/Minimum General
Experience: Bachelor’s degree with seven years of related cable plan design of
increasing complexity in the US military environment or an equivalent
combination of education and experience. Must possess all required
certifications and permits for working in the Federal Republic of Germany.
ACC040
Draftsman/CAD – Functional Responsibility: Develops engineering
drawings, using computer based drawing packages such as CAD 12 or higher.
Develops engineering drawings for EIPs, site plans, electrical interconnects,
and mechanical plans for special installations. This position reports to the
Cable Plant Engineer.
Minimum Education/Minimum General
Experience: High school diploma. This position requires a minimum of five years
drafting experience. A diversified drafting background is required. A minimum
of three years experience shall be in drafting of specialized cable plant
(inside and outside) drawings, site plans, and electrical interconnect typical
of an ICDS or CDS installation. Proven ability to work independently or under
only limited supervision.
ACC050
Installation Team Leader/Lead Technician – Functional
Responsibility: Assists Engineering personnel with site surveys, assesses and
documents current site unique aspects/configuration and customer requirements. Analyzes
existing requirements and prepares site-specific reports for Engineering and
management review. Assists with the preparation and implements site
installation Technical Design Packages. Develops installation schedules.
Prepares drawings documenting configuration changes at each site (as built).
Prepares site installation and test reports. Configures computer,
communications devices, and peripheral equipment. Installs net hardware. Trains
site personnel in proper use of hardware. Builds specialized interconnecting
cables. This position reports to the DO Task Manager.
Minimum Education/Minimum General
Experience: High school diploma. This position requires a minimum of five years
experience of which at least three years must be specialized. Specialized
experience includes analysis and installation of cable plants (ICDS and CDS),
analysis and installation of local area nets, fiber optic cable installation,
specialized interconnect cable design and fabrication, and analysis and
installation of communications systems. This individual is fully qualified on
the use of all test equipment and the preparation of site test data and
documentation. Proven ability to work independently or under only limited
supervision.
ACC060
Test/Term/QC Technician – Functional Responsibility: This individual is fully
qualified in the termination of CAT 5 and Fiber Optic Cable in accordance with
EIA/TIA standards. Assists Engineering and management personnel with site QC
inspections and the verification of quality material delivered to the work
site. This individual is the assistant team leader and, in the absence of the
lead technician, supervises the on-site work crew.
Minimum Education/Minimum General
Experience: High school diploma. This position requires a minimum of five years
experience of which at least three years must be specialized. Specialized
experience includes installation of cable plants (ICDS and CDS), fiber optic
cable installation, specialized interconnect cable design and fabrication. This
individual is fully qualified on the use of all test equipment and the
preparation of site test data and documentation. Manufacturers technical
training is highly desirable. Proven ability to work independently or under
only limited supervision.
ACC070
Technician – Functional Responsibility: This individual is
experienced with the installation of either CAT 5 or Fiber Optic Cable systems.
This individual has working experience with test equipment, hand power tools
and general technical knowledge of electric or electronic equipment and
systems.
Minimum Education/Minimum General
Experience: High school diploma. This position requires a minimum of two years
experience.
ACC080 Instructor – Functional Responsibility: Prepares lesson plans,
handouts and syllabuses. Performs general technical classroom instruction.
Minimum Education/Minimum General
Experience: Bachelor’s Degree in Education, Psychology, Computer Science or
related field and one year of ADP/Telecommunications experience or an
equivalent combination of education and experience.
Atlantic CommTech
Corporation
Schedule
of Labor Prices – Government Unit Prices FY2000
|
Item # |
Position Title |
CONUS Rate |
European Rate |
|
ACC010 |
Program Manager |
|
|
|
ACC020 |
DO Task Manager |
|
|
|
ACC030 |
Cable Plant Engineer |
|
|
|
ACC040 |
Draftsman/CAD |
|
|
|
ACC050 |
Installation Team Leader/Lead Technician |
|
|
|
ACC060 |
Test/Term/QC Technician |
|
|
|
ACC070 |
Technician |
|
|
|
ACC080 |
Instructor |
|
|
Travel and per diem will be charged in
addition and at NATO rates.
Please Contact Altantic CommTech or the NC3A
for current pricing.