Purchasing Terms & Conditions

rev. 5 1/9/23

General Terms

1)   Definitions

Buyer: Forster Tool & Manufacturing Co.,Inc.

Seller (Subcontractor): The legal entity that is the contracting party with the Buyer with respect to the purchase document.

Purchase Document: The Purchase Order or subcontract between the parties.

Item: The product or service contracted for by the procurement document.

2)   Assignment, Delegation and Subcontract

  • No assignment of any rights, including right to moneys due or to become due hereunder, or any delegation of duties, obligations or liabilities under this order shall be binding upon Buyer until Buyer’s written consent has been obtained. No goods to be delivered under this order shall be procured by Seller from a third party in complete or substantially completed form without Buyer’s prior written consent. This does not include raw material (i.e. – bar stock, plate stock, etc.).
    • Should Seller sub-contract any work on this purchase order, Sellers system shall assure that the applicable purchase order flow down of quality and technical requirements and subcontractors’ capability to produce items and adequate methods of assuring compliance. Seller’s suppliers shall be required to flow down and verify requirements of supplies/services they sub-contract.

3)   Changes

  • Changes in the PO requirements, quality clauses, terms and conditions of this contract may be made only by written agreement of the parties.

4)   Disputes

  • This contract is subject to the Contract Disputes Act of 1978, as amended (41 USC 601-613). Failure of the parties of this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Seller shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

5)  Excusable Delays

  • The Seller shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Seller and without its fault or negligence such as: acts of God or the public enemy, acts of Forster Tool in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, terrorist activities, unusually severe weather, and delays of common carriers.  The Seller shall notify the Buyer in writing as soon as it is reasonably possible after the commencement of any excusable delay, detailing the justification, and shall remedy such occurrence with all reasonable speed, and shall promptly give written notice to the Buyer of the termination of such occurrence.

6)  Invoice

  • The Seller shall submit an original invoice (or electronic invoice, if authorized) to the address designated in the Purchase Order to receive invoices. And invoice must include:
    • Name and address of the Seller;
    • Invoice date;
    • Buyer Purchase Order Number
    • Description, quantity, unit of measure, unit price, and extended price of the items delivered;
    • Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;
    • Terms of any prompt payment discount offered;
    • Name and address of official to whom payment is to be sent; and
    • Name, title, and phone number of persons to be notified in event of incorrect invoice.

7)   Patent Indemnity

  • The Seller shall indemnify Forster Tool and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of performance of this contract, provided the Seller is reasonably notified of such claims and proceedings.

8)   Payment

  • Payment shall be made for items accepted by Forster Tool that have been delivered to the delivery destinations set forth in this contract. Forster Tool shall make payments under this contract by check or electronic funds transfer at the option of Forster Tool. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date that appears on the payment check or the date on which an electronic funds transfer was made.

9) Risk of Loss

  • Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Seller, only passing to Forster Tool upon:
    • Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or
    • Delivery of the supplies to Forster Tool at the destination specified in the contract, if transportation is

f.o.b. destination.

10) Termination of Contract

Termination for Forster Tool’s Convenience
  • Forster Tool reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such a termination, the Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Seller shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Seller can demonstrate to the satisfaction of Forster Tool using its standard record keeping system, have resulted from the termination. The Seller shall not be paid for any work performed or costs incurred that reasonably could have been avoided.
  • Termination for Cause
    • Forster Tool may terminate this contract, or any part hereof, for cause in the event of any default by the Seller, or if the Seller fails to comply with any contract terms and conditions, or fails to provide Forster Tool, upon request, with adequate assurances of future performance. In the event of termination for cause, Forster Tool shall not be liable to the Seller for any amount for supplies or services not accepted, and the Seller shall be liable to Forster Tool for any and all rights and remedies provided by law. If it is determined that Forster Tool improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

11)   Title

  • Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to Forster Tool upon acceptance, regardless of when or where Forster Tool takes physical possession.
    • All work performed or created by contractor pursuant to this Purchase Order shall be “work for hire” and owned in its entirety by Forster Tool.

12)   Warranty

  • The Seller warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

13)  Limitation of Liability

  • Except as otherwise provided by and express or implied warranty, the Seller shall not be liable to Forster Tool for consequential damages resulting from any defect or deficiencies in accepted items. The Buyer shall indemnify and hold harmless Seller and its officers, directors, agents, subsidiaries, and employees from any liabilities, losses, and damages including costs, expenses, and damages incurred by Seller in defending or assisting the Buyer in its defense against any and all claims for damages, including, without limitation, any such claims for damage, destruction, loss, or loss of use of property or for any bodily injury or death caused by or arising out of use, transportation, handling, testing, or storage of articles delivered under the contract after final inspection and acceptance.

14)   Supplier Code of Conduct

  • The Seller shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract. We expect our suppliers to comply with applicable safety and health laws, regulations, policies, and procedures. Suppliers should provide for the health, safety, and welfare of their people, visitors, and others who may be affected by their activities
    • The Seller shall have a system in place that prohibits the sale of counterfeit materials and a mitigation policy where the source of materials is always maintained and disclosed should there ever be a legal or counterfeit issue. See PC-1004 for more info defining those controls.
    • Any product which contains conflict minerals (tin, tantalum, gold and tungsten) that originate from the Democratic Republic of the Congo (DRC) or adjoining countries shall be reported per the Dodd-Frank Wall Street Reform and Consumer Protection Act, HR 4173 Section 1502.
    • We expect our suppliers to provide equal employment opportunity to employees and applicants for employment without regard to race, ethnicity, religion, color, sex, national origin, age, military veteran status, ancestry, sexual orientation, gender identity or expression, marital status, family structure, genetic information, or mental or physical disability, so long as the essential functions of the job can be performed with or without reasonable accommodation.
  • We expect our suppliers to operate in a manner that actively manages risk, conserves natural resources, and protects the environment. We expect our suppliers to apply environmental management system principles in order to establish a systematic approach to the management of risks/hazards and opportunities associated with the environment, including potential risk from regulatory non-compliance, reputational loss, and opportunities for business growth through operational and product stewardship.
    • We expect our suppliers to ensure that employees may perform their work in an environment free from physical, psychological and verbal harassment, or other abusive conduct.
    • We expect our suppliers to maintain a workplace free from illegal drugs.
    • We have a zero-tolerance policy for corruption, and prohibit anyone conducting business on our behalf, including suppliers, from offering or making any improper payments of money or anything of value to government officials, political parties, candidates for public office, or other persons. This includes the offer and/or receipt of any bribe or kickback to and/or from any customer, supplier or others. Our policy specifically prohibits facilitating payments (payments made to expedite or secure performance of a routine governmental action like obtaining a visa or customs clearance), but allows personal safety payments where there is an imminent threat to health or safety. Our suppliers must comply with the anti-corruption laws that govern operations in the countries in which they do business, such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
    • We compete on the merits of our products and services and do not use the exchange of business courtesies to gain an unfair competitive advantage. We expect the same of our suppliers in the offering or receipt of any gift or business courtesy, including cash and cash equivalents. In particular, note that our employees who are in any way involved in procurement decisions are subject to even more strict limitations, and may not accept any business courtesies, with the exception of very low value promotional items. In any business relationship, our suppliers must ensure that the offering or receipt of any gift or business courtesy is permitted by law and regulation; does not violate the rules and standards of the recipient’s organization; is consistent with reasonable marketplace customs; and will not adversely impact the reputation of Forster Tool Technologies.
    • Our suppliers should take proper care to protect all sensitive information, including confidential, proprietary, and personal information. Information should not be used for any purposes beyond the scope of the business arrangement with our company, without prior authorization.
    • We expect our suppliers to not engage in the use of forced, bonded (including debt bondage) or indentured labor, involuntary prison labor, slavery, or trafficking of persons. This includes transporting, harboring, recruiting, transferring, or receiving vulnerable persons by means of threat, force, coercion, abduction, or fraud for the purpose of exploitation.
    • We expect our suppliers to ensure that child labor is not used in the performance of work. The term “child” refers to any person under the minimum legal age for employment where the work is performed.

15) Order of precedence

  • Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:
    • Typed provisions set forth on this order
    • Buyers purchase order attachments
    • These purchase order terms and conditions
    • Statement of Work (SOW)
    • Documents/Data attached

Note; Use of documents sent to supplier for quoting purposes is strictly forbidden. Supplier shall demand new documents at time of PO release if they have not been supplied. Supplier shall review PO/contract to insure revisions match the document.

16) Confidentiality

  1. It is understood that the information developed by or communicated to the Seller in the performance of the Services is of a highly confidential nature. Seller agrees that, without the prior written approval of Forster Tool, Seller will not, either during or after the term of this Agreement, use any such information except to perform contract duties under this Agreement or disclose such information in any manner to third parties except to person, including employees of Forster Tool or affiliated companies, who may be designated by Forster Tool. This restriction does not apply to information that is in the public domain.

17)       Supplier Requirements

        Seller agrees to maintain strict controls to assure that, after the item(s) successfully pass the qualification, no changes will be made to any design, material, part, process, procedure, critical personnel, tooling, or test equipment without prior written approval of the Buyer. The definition of change does not include the following: editorial or administrative changes such as spelling or typographical errors, clarifications, maintenance, or equipment changes not affecting the qualified product. In addition, the items shall not be produced at a facility other than the Seller’s original facility which produced the acceptable items, without prior written approval of the Buyer. Upon receipt of such notice from the Seller, the Buyer shall have the right to direct the Seller to repeat all or part of the qualification at Seller’s expense and to obtain from the Seller all data necessary to prove the acceptability of the proposed change.

Notwithstanding the above provisions, Seller agrees that the items to be supplied hereunder will conform to all applicable procurement specifications and drawings, as amended.

18) Conformance Certification

The Seller shall provide certification with each shipment that all quality, configuration conformance, and other applicable requirements have been met in accordance with the specification(s) stated in the item description/part number appearing on this Purchase Order. The certification must be signed (or duly authenticated via approved alternate means) by the corporate officer with management responsibility for the production of the product, or other designated responsible individual. At a minimum, the following information shall be included in the conformance certification:

  • Purchase Order Number (Forster Tool PO number)
  • Purchase Part Number (as shown on the PO)
  • Authorized company representative signature per the above

19) Quality Management System Flow Down

The Suppliers are expected to be certified to a registered Quality Management System. Suppliers that do not a a registered QMS must be approved by Forster Tool Management Team. The following are the Compliance Requirements for supplier;

Quality Management System


The Supplier is required to be registered to a Quality Management System standard relevant to the scope of their business (i.e, ISO 9001:2015, AS9100:2016, AS9120, etc.).
Any deviations from this requirement will require approval from Forster Tool’ Management Team.


Supplier organizational and/or process changes


Forster Tool shall be notified within fifteen (15) days of any changes in Supplier’s management team, location, quality management system, process approvals, suppliers, and/or any other major change.


Retention of Documented Information
Supplier shall retain all documentation for a minimum of ten (10) years after completion of the Purchase Order. Forster Tool shall be notified at the end of the retention time of any disposition requirements. Supplier shall contact Forster Tool if Supplier is unable to comply with the stated requirements.

Intellectual Property (IP)

Any IP data (Digital data, drawings, specifications, etc.) provided to Supplier shall only be used to fulfill the requirements of the Purchase Order and shall not be reproduced or shared by the Supplier.


Forster Tool Property
Supplier shall have the appropriate arrangements for the control of all property belonging to Forster Tool or its customers (collectively “Forster Tool Property”) while in their possession or in transit. Controls include but are not limited to the identification, verification, protection, and safeguarding Forster Tool Property.


Right of Entry
Forster Tool, its customers and regulatory agencies have the right to access to Supplier’s facilities, its subcontractors ’facilities, and all documented information related to the Purchase Order. Forster Tool shall also retain the right to perform audits and product and process inspections.


Competence
Supplier shall have resources and competency requirements for personnel performing work specified on the Purchase Order, including but not limited to, training, knowledge, certifications, periodic assessment, and evaluation to ensure continued adequacy
and effectiveness.


Awareness
Supplier shall ensure their personnel is aware of: (i) relevant Quality Management System documentation and any applicable changes; (ii) their contribution to product or service conformity; (iii) their contribution to product safety; (iv) the importance of ethical
behavior; and (v) the process for the prevention of counterfeit parts.
Prevention of Counterfeit parts
Counterfeit part prevention process shall include:
1. Training for the detection and prevention of counterfeit parts.
2. Controls for acquiring externally provided product, including but not limited to, monitoring parts obsolescence from original or authorized manufacturers, authorized distributors, or other approved sources.
3. Verification requirements and test methodologies to assure traceability of parts and components from original or authorized manufacturers.
4. Monitoring of counterfeit parts from external sources.
5. Quarantine and reporting of suspect or detected counterfeit parts

Nonconforming Product
Supplier and/or its subcontractors shall have a root-cause and corrective action process implemented. Forster Tool shall
be notified within twenty-four (24) hours of discovery of non-conforming product at any Supplier facility or detected after delivery.
Supplier and/or its subcontractors do not have authority to disposition non-conforming materials.

Product Acceptance
Supplier shall perform inspection on all materials, products, and processes used in relation to the Purchase Order. Supplier shall obtain prior written consent from Forster Tool prior to the use of alternate inspection or sampling plan.


Process Validation and Release of product or services
An FAI (First Article Inspection) shall be performed in accordance with the requirements of AS9102. Supplier shall obtain prior written consent from Forster Tool prior to the use of an alternative FAI report.


Verification of Products or services at Supplier’s facilities
When required, Forster Tool shall have the right to verify conformance of product or service to specified requirements.

 
Purchasing Process
1. All requests for quotes shall include the date, part number, quantity, description of product or services, price, availability, delivery date, and any other special requirements.
2. Purchase Orders generated by Forster Tool will reference the requirements defined on the Request for Quote (“RFQ”).
3. Purchase Order acceptance shall constitute agreement to comply with and provide product and/or services in accordance with the requirements expressly listed on the Purchase order.
4. Unless otherwise specified on the Purchase Order, product or services supplied to Forster Tool shall be performed to the latest revision of the specification(s).
5. Supplier shall notify Forster Tool, in writing, of the inability to comply with any of the requirements of the Purchase
Order.
6. Any deviation from the requirements expressly stated in the Purchase Order shall require Supplier to obtain an Amended Purchase Order from Forster Tool.

Subcontract of Processes or Services
Subcontracting a process or service related to the Purchase Order requires prior written consent from Forster Tool.
1. Suppliers’ subcontractors are required to be registered to a Quality Management System standard relevant to the scope of their business (Nadcap AC7004 or AS9100:2016). Any deviation will be approved by the Forster Tool Management Team.
2. Suppliers’ subcontractors for special processes shall be Nadcap certified. Any deviation must be approved by the Forster Tool Management Team.
3. Special Processes:
o Chemical Processing
o Coatings
o Heat Treating
o Materials Testing Laboratories
o Non conventional Machining and Surface Enhancement
o Nondestructive Testing
o Welding
4. Suppliers’ subcontractors for calibration services shall ensure that their measuring equipment is calibrated or verified at specified intervals against measurement standards traceable to international or national measurement standards
(NIST).
5. Supplier shall only use subcontractors that are approved by Forster Tool for services related to the Purchase Order. All flow downs including compliance requirements and key characteristics for Suppliers shall be listed on Supplier’s Purchase Orders to the subcontractors.


Supplier Monitoring
Supplier performance is measured for product conformity and on-time delivery. A Supplier Scorecard provides analysis of performance. Scorecards will be provided to major suppliers on a quarterly basis or as deemed necessary. Forster Tool’s Corrective Action process will be initiated with suppliers that have unacceptable performance.

On-site audits may be scheduled to assess Suppliers’ Quality Management System and the incorporation of risk analysis into
the Suppliers processes.


Certificate of Conformance (CoC) – Certificate of Analysis (CoA)
A CoC and/or CoA shall be provided to Forster Tool at the time of delivery. The CoC or CoA shall state conformance to the
requirements of the Purchase Order for the product or service provided. The CoC or CoA shall be signed by a Supplier

20) Flow Down of Federal and Defense Clauses and ITAR Requirements

  • See Addendum A for a full list of DFAR clauses that apply to this contract.

Addendum A

NOTICE: The following contract clauses pertinent to this section are hereby incorporated by reference

DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT CONTRACT CLAUSES

252.203-7000 REQUIREMENTS RELATING TO COMPENSATION OF FORMER DOD OFFICIALS (JAN 2009)

252.203.7001 PROHIBITION ON PERSONS CONVICTED OF FRAUD OR OTHER DEFENSE-CONTRACT-RELATED FELONIES (DEC

2008)

252.203-7002 REQUIREMENTS TO INFORM EMPLOYEES OF WHISTLE BLOWER RIGHTS (JAN

2009)

252.204-7000 DISCLOSURE OF INFORMATION (DEC 1991)

252.204-7003 CONTROL OF GOVERNMENT PERSONNEL WORK PRODUCT (APR 1992)

252.204-7004 ALTERNATE A, CENTRAL CONTRACTOR REGISTRATION (SEP 2007)

252.204-7005 ORAL ATTESTATION OF SECURITY RESPONSIBILITIES (NOV 2001)

252.204-7008 EXPORT-CONTROLLED ITEMS (APR 2010)

252.204-7012 SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING (DEC 2015)

252.205-7000 PROVISION OF INFORMATION TO COOPERATIVE AGREEMENT HOLDERS (DEC

1991)

252.209-7004 SUBCONTRACTING WITH FIRMS THAT ARE OWNED OR CONTROLLED BY THE GOVERNMENT OF A TERRORIST COUNTRY (DEC 2006)

252.215-7000 PRICING ADJUSTMENTS (DEC 1991)

252.215-7002 COST ESTIMATING SYSTEM REQUIREMENTS (MAY 2011)

252.216-7006 ORDERING (MAY 2011)

252.222-7006 EXTENSION OF RESTRICTIONS ON THE USE OF MANDATORY ARBITRATION AGREEMENTS (DEVIATION) (MAY 2011)

252.223-7004 DRUG-FREE WORK FORCE (SEP 1988)

252.223-7006 PROHIBITION ON STORAGE AND DISPOSAL OF TOXIC AND HAZARDOUS MATERIALS (APR 1993)

252.225-7006 QUARTERLY REPORTING OF ACTUAL CONTRACT PERFORMANCE OUTSIDE THE UNITED STATES (OCT2010)

252.225-7008 RESTRICTION ON ACQUISITION OF SPECIALTY METALS (JUL 2009)

252.225-7009 RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (JAN 2011)

252.225-7012 PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (JUN2010)

252.225-7016 RESTRICTION ON ACQUISITION OF BALL AND ROLLER BEARINGS (DEC 2010)

252.225-7016 RESTRICTION ON ACQUISITION OF BALL AND ROLLER BEARINGS (JUN 2011)

252.225-7030 RESTRICTION ON ACQUISITION OF CARBON, ALLOY, AND ARMOR STEEL PLATE (DEC 2006)

252.225-7052 RESTRICTION ON THE ACQUISITION OF CERTAIN MAGNETS AND TUNGSTEN (RARE-EARTH MATERIALS) (DEC 2019)

252.226-7001 UTILIZATION OF INDIAN ORGANIZATIONS, INDIAN-OWNED ECONOMIC ENTERPRISES, AND NATIVE HAWAIIAN SMALL BUSINESS CONCERNS (SEP 2004) 252.227-7013 RIGHTS IN TECHNICAL DATA-NONCOMMERCIAL ITEMS (MAR 2011)

252.227-7016 RIGHTS IN BID OR PROPOSAL INFORMATION (JAN 2011)

252.227-7018 RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE- SMALL BUSINESS INNOVATION RESEARCH (SBIR) PROGRAM (MAR 2011)

252.227-7030 TECHNICAL DATA-WITHHOLDING OF PAYMENT (MAR 2000)

252.227-7037 VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (SEP 1999)

252.227-7039 PATENTS-REPORTING OF SUBJECT INVENTIONS (APR 1990)

252.228-7001 GROUND AND FLIGHT RISK (JUN 2010)

252.231-7000 SUPPLEMENTAL COST PRINCIPLES (DEC 1991)

252.232-7003 ELECTRONIC SUBMISSION OF PAYMENT REQUESTS AND RECEIVING REPORTS (MAR 2008)

252.232-7010 LEVIES ON CONTRACT PAYMENTS (DEC 2006)

252.235-7010 ACKNOWLEDGMENT OF SUPPORT AND DISCLAIMER (MAY 1995)

252.239-7000 PROTECTION AGAINST COMPROMISING EMANATIONS (JUN 2004)

252.243-7002 REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998)

252.245-7001 TAGGING, LABELING, AND MARKING OF GOVERNMENT-FURNISHED PROPERTY (FEB2011)

252.245-7002 REPORTING LOSS OF GOVERNMENT PROPERTY (FEB 2011)

252.245-7003 CONTRACTOR PROPERTY MANAGEMENT SYSTEM ADMINISTRATION (MAY 2011)

252.247-7023 TRANSPORTATION OF SUPPLIES BY SEA (MAY 2002)