Terms and Conditions






FAR and DFARS Flowdown Provisions


JGB ENTERPRISES, INC.
FEDERAL ACQUISITION REGULATION (FAR) AND DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS) FLOWDOWN PROVISIONS FOR FIXED-PRICE SUBCONTRACTS/PURCHASE ORDERS FOR NON-COMMERCIAL ITEMS UNDER A U.S. DEPARTMENT OF DEFENSE PRIME CONTRACT

The FAR and DFARS clauses referenced below are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable, including any notes following the clause citation, to this Contract. If the date or substance of any of the clauses listed below is different from the date or substance of the clause incorporated in the Prime Contract referenced by number herein, the date or substance of the clause incorporated by said Prime Contract shall apply instead. The Contracts Disputes Act shall have no application to this Contract, and nothing in this Contract grants SELLER a direct claim or cause of action against the U.S. Government. Any reference to a "Disputes" clause shall mean the "Disputes" clause of this Contract. SELLER shall include in each lower tier subcontract the appropriate flow down clauses as required by the FAR and FAR Supplement clauses included in this Contract.  The FAR and Supplements thereto are available at: http://www.acquisition.gov/content/regulations.


This Contract is entered into by the parties in support of a U.S. Government contract.  As used in the FAR and DFARS clauses referenced below:

  • "Commercial Item" means a commercial item as defined in FAR 2.101.
  • "Commercially available off-the-shelf (COTS) item" means a COTS item as defined in FAR 2.101
  • "Contract" means this contract.
  • "Contracting Officer" shall mean the U.S. Government Contracting Officer for JGB Enterprises government prime contract under which this Contract is entered.
  • "Contractor" and "Offeror" means the SELLER, which is the party identified on the face of the Contract or purchase order with whom JGB Enterprises is contracting, acting as the immediate subcontractor to JGB Enterprises.
  • "Prime Contract" means the contract between JGB Enterprises and the U.S. Government or between JGB Enterprises and its higher-tier contractor who has a contract with the U.S. Government.
  • "Subcontract" means any contract placed by SELLER or lower-tier subcontractors under this Contract.

The following notes apply to the clauses incorporated by reference below only when specified in the parenthetical phrase following the clause title and date.

  1. Substitute "JGB ENTERPRISES" for "Government" or "United States" throughout this clause.
  2. Substitute "JGB ENTERPRISES Procurement Representative" for "Contracting Officer", "Administrative Contracting Officer", and "ACO" throughout this clause.
  3. Insert "and JGB ENTERPRISES" after "Government" throughout this clause.
  4. Insert "or JGB ENTERPRISES" after "Government" throughout this clause.
  5. Communication/notification required under this clause from/to SELLER to/from the Contracting Officer shall be through JGB ENTERPRISES.
  6. Insert "and JGB ENTERPRISES" after "Contracting Officer", throughout the clause.
  7. If SELLER is an international contractor, this clause applies to this Contract only if Work under the Contract will be performed in the United States or Contractor is recruiting employees in the United States to Work on the Contract.

REFERENCE CLAUSE
 

Federal Acquisition Regulations (FAR)

 
52.201-1 Definitions
52.203-3 Gratuities. (The term “agency head” means Buyer). (Applicable if this Order exceeds the simplified acquisition threshold)
52.203-5 Covenant Against Contingent Fees. (Applicable if this Order exceeds thesimplified acquisition threshold)
52.203-6 Restrictions on Subcontractor Sales to the Government. (Applicable if thisOrder exceeds the simplified acquisition threshold)
52.203-7 Anti-Kickback Procedures. (Applicable if this Order exceeds the simplified acquisition threshold). Paragraph (c)(4) is revised by deleting “The Contracting Officer may” and inserting “To the extent the Contracting Officer has effected an offset at the prime contract level or has directed Buyer to withhold any sum from the Seller, Buyer may ….”
52.203-8 Cancellation, Rescission and Recovery of Funds for Illegal or ImproperActivity. (Applicable if this Order exceeds the simplified acquisition threshold)
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity. (Applicable if thisOrder exceeds the simplified acquisition threshold)
52.203-12 Limitation on Payments to Influence Certain Federal Transactions. (Applicable if this Order exceeds the simplified acquisition threshold)
52.203-13 Contractor Code of Business Ethics and Conduct. (Applicable if this Order exceeds $5,500,000 and has a period of performance of more than 120 days.  Disclosures made under this clause shall be made directly to the Government entities identified in the clause.)
52.203-14 Display of Hotline Poster(s). (Applicable if this Order exceeds $5,500,000, unless performed entirely outside of U.S.)
52.203-17 Contractor Employee Whistleblower Rights and Requirement to InformEmployees of Whistleblower Rights. (Applicable if this Order exceeds thesimplified acquisition threshold)
52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements
52.204-8 Annual Representations and Certifications
52.204-10 Reporting Executive Compensation and First Tier Subcontract Awards. (If SELLER meets the thresholds specified in paragraphs (d)(3) and (g)(2) of the clause, SELLER shall report required executive compensation by posting the information to the Government's System for Award Management (Beta-SAM) database. All information posted will be available to the general public.)
52.204-13 System for Award Management Maintenance
52.204-19 Incorporation by Reference of Representations and Certifications
52.204-21 Basic Safeguarding of Covered Contractor Information Systems
52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities
52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended or Proposed for Debarment. (Applicable if this Order exceeds $35,000.)
52.211-5 Material Requirements.  (Applicable contracts for supplies that are not Commercial items)
52.211-15 Defense Priority and Allocation Requirements.  If this Order is a “rated order” as indicated by a DPAS rating elsewhere in this Order, Seller will follow all the provisions of the Defense Priorities and Allocation System Regulations (15 CFR 700).
52.215-2 Audit and Records — Negotiation. (Applicable if this Order exceeds the simplified acquisition threshold and if: (1) SELLER is required to furnish cost or pricing data, or (2) the Contract requires SELLER to furnish cost, funding, or performance reports, or (3) this is an incentive or re-determinable type contract).
52.215-10 Price Reduction for Defective Cost or Pricing Data. (Applicable to Orders for which it is contemplated cost or pricing data will be required.)  Notes 2 and 4 apply except the first time "Contracting Officer" appears in paragraph (c)(1). "Government" means "JGB ENTERPRISES" in paragraph (d)(1). Rights and obligations under this clause shall survive completion of the Work and final payment under this Contract.)
52.215-11 Price Reduction and Defective Cost of Pricing Data — Modifications.  (Applicable to Orders for which it is contemplated cost or pricing data will be required for modifications and the Order includes FAR 52.215-10.)  Notes 2 and 4 apply except the first time "Contracting Officer" appears in paragraph (d)(1). "Government" means "JGB ENTERPRISES" in paragraph (e)(1). Rights and obligations under this clause shall survive completion of the Work and final payment under this Contract.)
52.215-12 Subcontractor Certified Cost or Pricing Data. (Applies if this Contract exceeds the threshold under FAR 15.403 and is not otherwise exempt).
52.215-13 Subcontractor Certified Cost or Pricing Data — Modifications. (Applies if this Contract exceeds the threshold under FAR 15.403 and is not otherwise exempt).
52.215-14 Integrity of Unit Prices.  (Applicable if this Order exceeds the simplifiedacquisition threshold.)
52.215-19 Notification of Ownership Change.  (Applicable in solicitations and purchase orders for which it is anticipated that cost or pricing data will be required or for which any pre-award or post-award cost determination will be subject to FAR Part 31.2)
52.215-20 Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data.  (Applicable to Orders if it is reasonably certain that cost or pricing data or data other than certified cost or pricing data will be required.) (Note 2 applies in paragraph (a)(1).)
52.215-21 Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data – Modifications. (Applicable to Orders if it is reasonably certain that cost or pricing data or data other than certified cost or pricing data will be required for modifications.) (Note 2 applies in paragraphs (a)(1) and (b).)
52.215-22 Limitations on Pass-Through Charges-Identification of Subcontract Effort.  (Applicable in solicitations containing FAR clause 52.215-23).
52.215-23 Limitations on Pass-Through Charges. (Applicable to fixed-price subcontracts exceeding the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4 under Department of Defense prime contracts) Notes 4 and 6 apply.)
52.219-8 Utilization of Small Business Concerns. (Applicable if this Order offers further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219–8 in lower tier subcontracts that offer subcontracting opportunities. (Note 7 applies.)
52.219-9 Small Business Subcontracting Plan & Alt II. (Applicable only if this Order exceeds $700,000, and Seller is not a Small Business Concern.) (Note 2 is applicable to paragraph (c) only. SELLER's subcontracting plan is incorporated herein by reference. Note 7 applies.)
52.219-16 Liquidated Damages — Subcontracting Plan. (Applicable in all solicitations and contracts containing the FAR clause 52.219-9).
52.222-1 Notice to the Government of Labor Disputes
52.222-3 Convict Labor
52.222-4 Contract Work Hours and Safety Standards -Overtime Compensation. (Note 7 applies.)
52.222-19 Child Labor - Cooperation with Authorities and Remedies.  (Applicable to all solicitations and contracts for the acquisition of supplies that are expected to exceed the micro-purchase thresholds).
52.222-20 Contracts for Materials, Supplies, Articles and Equipment Exceeding $15,000
52.222-21 Prohibition of Segregated Facilities. (Applicable when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity). (Note 7 applies.)
52.222-22 Previous Contracts and Compliance Reports.  (Applicable when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity).
52.222-26 Equal Opportunity. (Note 7 applies.)
52.222-35 Equal Opportunity for Veterans. (Applicable if the Order is for $150,000 or more.) (Note 7 applies.)
52.222-36 Equal Opportunity for Workers with Disabilities. (Applicable if this Order exceeds $15,000.) (Note 7 applies.)
52.222-37 Employment Reports on Veterans. (Applicable if the clause at 52.222-35 is applicable.) (Note 7 applies.)
52.222-40 Notification of Employee Rights Under the National Labor Relations Act. (Applicable if this Order exceeds the simplified acquisition threshold, unless performed entirely outside of U.S.) (Note 7 applies.)
52.222-50 Combating Trafficking in Persons. (Note 2 applies. In paragraph (e) Note 3 applies.)
52.222-54 Employment Eligibility Verification. (Applicable in all solicitations and contracts that exceed the simplified acquisition threshold, and for which none of the exceptions at FAR 22.1803 apply). (Note 7 applies.)
52.223-3 Hazardous Material Identification and Material Safety Data. (Notes 2 and 3 apply, except for paragraph (f) where Note 4 applies.)
52.223-6 Drug-Free Workplace
52.223-11 Ozone Depleting Substances and High Global Warming Potential Hydrofluorocarbons
52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving. (Note 7 applies.) 
52.225-1 Buy American Act – Supplies. (Applies if the Goods contain other than domestic components.) (Note 2 applies to the first time "Contracting Officer" is mentioned in paragraph (c).)
52.225-5 Trade Agreements. (Applies if the Goods contain other than U.S. made or designated country end products as specified in the clause.)
52.225-8 Duty Free Entry. (Applies if Work will be imported into the Customs Territory of the United States. Note 2 applies.)
52.225-13 Restrictions on Certain Foreign Purchases
52.227-1 Authorization and Consent. (Applicable if this Order exceeds the simplified acquisition threshold).
52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement. (Applicable if this Order exceeds the simplified acquisition threshold). (Notes 2 and 4 apply.)
52.227-3 Patent Indemnity
52.229-3 Federal, State and Local Taxes. (Applicable if this order exceeds the simplified acquisition threshold).
52.230-2 Cost Accounting Standards. (Applies only when referenced in this Contract that full CAS coverage applies. "United States" means "United States or JGB ENTERPRISES." Delete paragraph (b) of the clause.)
52.230-3 Disclosure and Consistency of Cost Accounting Practices. (Applies only when referenced in this Contract that modified CAS coverage applies. "United States" means "United States or JGB ENTERPRISES." Delete paragraph (b) of the clause.)
52.230-6 Administration of Cost Accounting Standards. (Applies if FAR 52.230-2, FAR 52.230-3, FAR 52.230-4 or FAR 52.230-5 applies.)
52.232-17 Interest. (Applicable if this Order exceeds the simplified acquisition threshold).
52.232-40 Providing Accelerated Payment to Small Business Subcontractors. (Applicable if this Order is placed with Small Business Concerns.) (Applies if SELLER is a small business concern. Note 1 applies. This clause does not apply if JGB ENTERPRISES does not receive accelerated payments under the prime contract. Not all agencies provide accelerated payments.)
52.233-3 Protest After Award.  (In the event JGB ENTERPRISES's customer has directed JGB ENTERPRISES to stop performance of the Work under the Prime Contract under which this Contract is issued pursuant to FAR 33.1, JGB ENTERPRISES may, by written order to SELLER, direct SELLER to stop performance of the Work called for by this Contract. "30 days" means "20 days" in paragraph (b)(2). Note 1 applies except the first time "Government" appears in paragraph (f). In paragraph (f) add after "33.104(h) (1)" the following: "and recovers those costs from JGB ENTERPRISES".)
52.242-13 Bankruptcy. (Notes 1 and 2 apply).
52.242-15 Stop-Work Order. (Notes 1 and 2 apply).
52.243-1 Changes – Fixed Price. (Notes 1 and 2 apply).
52.244-6 Subcontracts for Commercial Items
52.245-1 Government Property. (Applicable to all subcontracts that involve government furnished property).  ("Contracting Officer" means "JGB ENTERPRISES" except in the definition of Property Administrator and in paragraphs (h)(1)(iii) where it is unchanged, and in paragraphs (c) and (h)(4) where it includes JGB ENTERPRISES. "Government" is unchanged in the phrases "Government property" and "Government furnished property" and where elsewhere used except in paragraph (d)(1) where it means "JGB ENTERPRISES" and except in paragraphs (d)(2) and (g) where the term includes JGB ENTERPRISES. The following is added as paragraph (n) "SELLER shall provide to JGB ENTERPRISES immediate notice if the Government or other customers (i) revokes its assumption of loss under any direct contracts with SELLER, or (ii) makes a determination that SELLER's property management practices are inadequate, and/or present an undue risk, or that SELLER has failed to take corrective action when required.")
52.246-2 Inspection of Supplies - Fixed Price. (Applicable if this order exceeds the simplified acquisition threshold). (Note 2 applies. Note 3 applies, except in paragraph (b) the second time "Government" appears; (f), (h), (j), and (l) where Note 1 applies.)
52.246-15 Certificate of Conformance
52.246-16 Responsibility for Supplies
52.246-9000 Certificate of quality compliance
52.247-1 Commercial Bill of Lading Notations.  The term “Government” does not change in paragraphs (a) and (b).
52.247-63 Preference for U.S. Flag Carriers. (Applicable if this order may involve international air transportation.)
52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels
52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form). (Applicable for fixed-price contracts that do not exceed the simplified acquisition threshold).
52.249-2 Termination for Convenience of the Government — Fixed Price.  (Notes 1 and 2 apply. Note 4 applies to the first time "Government" appears in paragraphs (b)(4) and (b)(6), it applies to all of paragraph (b)(8) and it applies to the second time "Government" appears in paragraph (d). In paragraph (n) “Government" means "JGB ENTERPRISES and the Government". In paragraph (c) "120 days" is changed to "60 days." In paragraph (d) "15 days" is changed to "30 days," and "45 days" is changed to "60 days. "In paragraph (e) "1 year" is changed to "6 months." Paragraph (j) is deleted. In paragraph (l) "90 days" is changed to "45 days." Settlements and payments under this clause may be subject to the approval of the Contracting Officer.)
52.249-8 Default (Fixed-Price Supply and Service1984). (Notes 1 and 2 apply, except Note 1 is not applicable to paragraph (c). Note 4 applies to the second and third time "Government" appears in paragraph (e). Timely performance is a material element of this Contract.)
 

Defense Federal Acquisition Regulation Supplement (DFARS)

   
252.203-7001 Prohibition on Persons Convicted of Fraud or Other Defense- Contract- Related Felonies. (Applicable to all solicitations and contracts exceeding the simplified acquisition threshold, except solicitations and contracts for commercial items. “Government” is not changed in this clause.)  The terms "contract," "contractor," and "subcontract" shall not change in meaning in paragraphs (a) and (d). Delete paragraph (g). In paragraph (e), the remedies described in subparagraphs (2) and (3) are available to JGB ENTERPRISES not the Government. In paragraph (f), note 5 applies.)
252.203-7002 Requirement to Inform Employees of Whistleblower Rights
252.203-7003 Agency Office of the Inspector General
252.203-7004 Display of Fraud Hotline Posters. (Applies in lieu of FAR 52.203-14.)
252.204-7000 Disclosure of Information
252.204-7012 Safeguarding of Covered Defense Information and Cyber Incident Reporting. (Applies if this Contract is for operationally critical support or for which performance will involve covered defense information. SELLER shall furnish JGB ENTERPRISES copies of notices provided to the Contracting Officer at the time such notices are sent. SELLER shall also furnish JGB ENTERPRISES copies of any reports SELLER receives from its lower tier subcontractors.)
252.215-7010 Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data.  (This clause applies in lieu of FAR 52.215-20. Contracting Officer means "JGB ENTERPRISES" Paragraph (b)(ii)(E) is deleted).
252.219.7003 Small Business Subcontracting Plan. (Applies if FAR 52.219-9 applies to this Contract.)
252.222-7006 Restrictions on the Use of Mandatory Arbitration Agreements. (Applicable if this Order exceeds $1.0 million)
252.225-7001 Buy American Act and the Balance of Payments Program. (Applicable if the goods furnished under this Order contain other than domestic components. Applies in lieu of FAR 52.225-1 for DoD programs.)
252.225-7002 Qualifying Country Sources as Subcontractors
252.225-7007 Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies. (Applicable if this Order is for items that are covered by the United States Munitions List or the 600 series of the Commerce Control List.)
252.225-7009 Restrictions on Acquisition of Certain Articles Containing Specialty Metals
252.225-7012 Preference for Certain Domestic Commodities.
252.225-7013 Duty Free Entry.  Paragraph (e) is modified to read “The Buyer will obtain from the Government duty free entry of qualifying country supplies for which the shipping documents bear the notation specified in paragraph (f) of this clause.” No change to “Contracting Officer,” “Government,” “prime contractor,” or “prime contract” in paragraphs (c), (d), (i) or (k); except change “Contracting Officer administering the prime contract” and “contract administration office” in paragraph (i) to “Buyer’s Purchasing Representative” and “Contracting Officer” in paragraph (i)(10) to “Government.”
252.225-7015 Restrictions on Acquisitions of Hand or Measuring Tools. (Applicable if this Order exceeds the simplified acquisition threshold).
252.225-7016 Restriction on Acquisition of Ball and Roller Bearings. (Note 1 applies to subparagraph (a) (2).)
252.225-7021 Trade Agreements. (Applies if the Work contains other than U.S. made, qualifying country, or designated country end products. Applies in lieu of FAR 52.225-5 for DoD programs.)
252.225-7028 Exclusionary Policies and Practices of Foreign Governments
252.225-7048 Export Controlled Items
252.226-7001 Utilization of Indian Organizations, Indian Owned Economic Enterprises and Native Hawaiian Small Business Concerns. (Applies if this Contract exceeds $500,000. Note 2 applies to paragraph (c) the first time "Contracting Officer" appears.) In subparagraph (f)(1) "Contractor" shall mean "JGB ENTERPRISES." JGB ENTERPRISES shall have no liability to SELLER for any incentive payment under this clause unless and until the Government provides said incentive payment to JGB ENTERPRISES.)
252.227-7013 Rights in Technical Data – Noncommercial Items
252.227-7015 Technical Data – Commercial Items
252.227-7016 Rights in Bid or Proposal Information
252.227-7037 Validation of Restrictive Markings on Technical Data
252.231-7000 Supplemental Cost Principles
252.243-7001 Pricing of Contract Modifications
252.244-7000 Subcontracts for Commercial Items
252.246-7003 Notification of Potential Safety Issues. (Applicable to subcontracts for parts identified as critical safety items; systems and subsystems, assemblies, and subassemblies integral to a system; and repair, maintenance, logistics support, or overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system). Subcontractor must notify JGB ENTERPRISES, the Administrative Contracting Officer, and the Procuring Contracting Officer of non-conformances or deficiencies within the scope of paragraph (b).
252.246-7007 Contractor Counterfeit Electronic Part Detection and Avoidance System. (Paragraphs (a) through (e) apply. In paragraph (c)(2) Note 3 applies. In paragraph (c)(6) Note 6 applies.)
252.246-7008 Sources of Electronic Parts. (Applies if this contract is for electronic parts or assemblies containing electronic parts, unless SELLER is the original manufacturer. Note 1 applies except in paragraph (d). Note 2 applies).
   
252.247-7023 Transportation of Supplies by Sea. (Applies in lieu of FAR 52.247-64 in all Contracts for ocean transportation of supplies. In the first sentence of paragraph (g), insert a period after “Contractor” and delete the balance of the sentence. Paragraph (f) and (g) shall not apply if this Contract is at or below the simplified acquisition threshold. Notes 1 and 2 apply to paragraph (g).)
252.247-7024 Notification of Transportation of Supplies by Sea. (Notes 1 and 2 apply).
252.249-7002 Notification of Anticipated Contract Termination or Reduction.  (Applies if this Contract is for a major defense program (as defined in 10 U.S.C. 2302(5)). Note 2 applies. Delete paragraph (d) (1) and the first five words of paragraph (d) (2).)




Purchase Terms and Conditions

1. Definitions
The term “Purchaser” means J.G.B. Enterprises Inc. and the term “Seller” means the person, firm, or corporation from whom goods and/or services have been ordered.

2. Contract 
Any purchase order made by Purchaser includes and is expressly limited to these terms and conditions and all specifications, drawings, data and additional special terms and conditions contained herein, attached hereto or incorporated herein by reference (“Specifications”).  Seller’s acceptance of Purchaser’s order becomes a binding contract when it is accepted by Seller.  Either an acknowledgement by Seller or the commencement of performance by Seller shall constitute acceptance.  Acceptance may only be on the exact terms and conditions set forth herein.  No terms stated by Seller in accepting or acknowledging any order made by Purchaser shall be binding upon Purchaser unless accepted in writing by an authorized officer of Purchaser.  If an order follows an offer by Seller setting forth Seller’s conditions of sale, Purchaser’s acceptance of Seller’s offer is expressly conditioned on the Seller’s assent to the additional or different conditions set forth herein.  Prior to or in the absence of Seller’s assent to Purchaser’s terms and conditions, there shall be no contract between Seller and Purchaser.

3. Price 
Unless otherwise specified, the prices set forth in an order includes all applicable federal, state and local taxes and all shipping costs, duties and other charges.

4. Delivery Schedule; Shipment

            a. TIME IS OF THE ESSENCE UNDER ANY ORDER MADE BY PURCHASER.  Failure of Seller to make delivery of the Deliverables within the time specified on an order, or within any extension agreed to in writing by Purchaser, shall constitute a breach.  In the event of a breach, Purchaser, may in addition to its other rights and remedies, reject any Deliverables and/or terminate its order in whole or in part, and purchase substitute goods and/or services elsewhere and charge Seller with any Loss incurred.  “Loss” means every loss, liability, cost, damage and expense, including attorney’s fees and court costs.  The term “Deliverables” means all goods and services to be delivered or provided as specified in Purchaser’s order.

            b. A notice of shipment shall be sent to Purchaser at the time of shipment which shall state Purchaser’s order number, the kind and amount of Deliverables and the route by which the shipment is being made. All Deliverables shall be suitably packed, marked, and shipped in accordance with any shipping instructions specified herein and prepared for shipment to secure the lowest transportation cost in compliance with standard carrier regulations. Seller shall be liable for any difference in freight charge arising from its failure to a) follow any shipping instructions specified herein or b) properly describe the shipment. Purchaser and Seller mutually agree to assist each other in obtaining documents and other information necessary for the prosecution of claims against carrier.

5. Quantity
The quantity of Deliverables delivered shall not be greater than the amount specified in Purchaser’s order.  Purchaser shall have no obligation to accept or pay for any Deliverables delivered or provided by Seller in excess of that specified in an order. Purchaser may return excess quantities to Seller at Seller’s expense.

6. Invoices and Payment
All invoices must show Purchaser’s purchase order number and the destination to which the Deliverables were delivered or shipped. If any sales,  use, duty, excise or other similar tax or change is applicable to an order for which Purchaser has not furnished or agreed to furnish an exemption certificate, it must be separately itemized on the invoice.  Payment shall be made per the terms established on an order.  Payment is subject to any adjustment for shortage or rejection of supplied Deliverables. 

7. Responsibility
Unless otherwise provided in an order, Seller shall have title and bear risk of any loss or damage to any Deliverables purchased hereunder until delivered to Purchaser at the destination specified on the face of an order; or, if no such destination is specified, at Purchaser’s principle place of business.  Upon such receipt, title shall pass from Seller to Purchaser, provided that passing of such title shall not constitute acceptance of any Deliverables by Purchaser.

8. Inspection
All Deliverables delivered hereunder are subject to Purchaser’s inspection and acceptance within a responsible time after arrival at the ultimate destination. If any Deliverables are found to be unsatisfactory, defective, or of inferior quality or workmanship, or fail to meet any specifications or any other requirements of an order, Purchaser may, in addition to its other rights and remedies, reject all or some of such Deliverables and require either the replacement or a refund if payment has already been made.  Payment for any Deliverables hereunder shall not be construed to be an acceptance thereof.   Without limiting the foregoing, Seller shall reimburse Purchaser for a) any amounts paid by Purchaser on account of the purchase price of any non-conforming Deliverables, including any costs incurred by Purchaser in connection with the return of such Deliverables.

9. Changes; Cancellation
Purchaser may, at its option, upon written notice to Seller, terminate, reduce or make changes to any order prior to shipment.  Upon such notice being given, Seller shall immediately stop performance and Purchaser’s only obligation shall be to pay for any Deliverables shipped prior to the cancellation, irrespective of whether such Deliverables cover standard stock merchandise or Deliverables to be manufactured or fabricated to Purchaser’s specifications or specifications prepared by Seller for Purchaser.

10. Standard Warranties
In addition to and without prejudice to all other warranties, express or implied by law, Seller warrants that all Deliverables delivered or specified within an order (i) will conform to its description and any applicable specifications, (ii) will be free from all defects in material and


workmanship, and (iii) will be of good merchandise quality and fit for the purposes for which they are intended.  The foregoing warranties are in addition to any additional standard warranty or service guarantee given by Seller to Purchaser.  Seller further warrants to Purchaser that all Deliverables made to Purchaser when delivered shall be free and clear of all liens and encumbrances and the Seller has good and marketable title to same with authority to transfer good and marketable title to Purchaser free and clear from any third party liens or claims.

11. Patents, Trademarks and Copyrights
In addition to the Standard Warranties set forth above, Seller warrants that the sale or use of the Deliverables will not infringe or contribute to the infringement of any patents, copyrights or trademarks in either the United States or foreign countries.

12. Default
All warranties, express or implied, shall survive inspection, acceptance and payment.  In the event of Seller’s breach of any such warranty, in addition to other rights and remedies available to Purchaser, at law or in equity, Purchaser may return any Deliverables for a full refund, or direct Seller to promptly correct the breach by repairing or replacing the applicable items.  Purchaser may also at its option and without prejudice to any of its other rights, cancel any undelivered Deliverables.

13. Indemnification
Seller shall indemnify, defend, protect and hold harmless Purchaser from any and all actions, claims, costs, damages, expenses, fees (including attorney fees), investigations, liabilities, losses or suits arising out of or related to (A) any breach of any obligation, representation, warranty or covenant of Seller pursuant to any order by Purchaser, or (B) the Deliverables provided or to be provided pursuant to Purchaser’s order, including but not limited to losses which (i) involve any actual or alleged injuries, death, property damage or any other damage of any kind resulting in whole or in part from defective or allegedly defective goods or services; (ii) involve any actual or alleged infringement of any intellectual property rights by reason of the use or sale of any Deliverables, (iii) involve any actual or alleged violation of any law, regulation, rule or ordinance relating to the use or sale of any Deliverables, or (iv) involve any claims of Seller, its agents, representative contractors or employees relating to any actual or alleged injuries, death, property damage or any other damages of any kind sustained in providing the Deliverables.

14. Liability
Without limiting Section 13 above, in accepting an order, Seller agrees that he, or it, is an independent contractor for all intents and purposes and that he, or it, will indemnify and hold harmless Purchaser from any claims or damages arising from injury to Seller’s employees from any cause whatsoever while in or about Buyer’s plant or property, and Seller further agrees to carry all workmen’s compensation necessary under Federal or State Statutes and also agrees that none of the individuals whose compensation for service is paid by the Seller shall be deemed to be employed by the Purchaser for the purpose of any tax or contribution levied by Federal or State Government and the Seller accepts exclusive liability for any payroll taxes or contributions imposed by Federal or State laws covering his or its agents or employees.

15. Limitation of Liability
Purchaser shall not by reason of termination, cancellation or breach of an order be liable to Seller for any compensation, reimbursement or damages, including in particular, but not limited to, any special, incidental, or consequential damages, either on account of present or prospective profit or sales or anticipated profit or sales, or on account of expenditures, investments or commitments.

16. Export and Import
To the extent required by law, Purchaser and Seller shall cooperate with one another to submit to applicable customs authorities, all information and documentation necessary to comply with applicable customs and export and import requirements of each county into which goods will be exported and each country into which they will be imported.

17. Additional Terms
Orders that are subject to a federal contract, subcontract or federally assisted construction agreement, shall be subject to Purchaser’s Supplemental Purchase Order Terms and Conditions, a copy of which is incorporated herein by reference and shall be made available to Seller upon request.

18. Assignment
Seller’s rights and obligations hereunder may not be assigned without our prior written consent.  Any purported assignment in violation of this section shall be void.

19. Non-Waiver
Purchaser’s failure at any time to require strict performance by Seller of any of the provisions herein shall not waive or diminish our right thereafter to demand strict compliance therewith or with any other provisions.  Waivers of any default shall not waive any other default.

20. Applicable Law
The rights and duties of the parties shall be governed by the laws of the State of New York.  All disputes between Purchaser and Seller relating to the subject matter of an order or the Deliverables shall be resolved exclusively in the federal and state courts located in Onondaga County, New York and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.

21. Entire Agreement
The terms and conditions set forth herein represent the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior communications, representations or agreements, whether written or oral. 





Supplemental Purchase Order Terms and Conditions

The following Supplemental Purchase Order Terms and Conditions apply to all orders by J.G.B. Enterprises, Inc. (“Purchaser”) made to you (“Seller”) where the goods specified in a purchase order are subject to a federal contract, subcontract or federally assisted construction contract, and are intended to form an integral and material part of Purchaser’s standard Purchase Order Terms and Conditions (“Standard Terms”).  Capitalized terms used herein that are not otherwise defined shall have the meaning prescribed to them in Purchaser’s Standard Terms.

1. Equal Employment Opportunity

During the performance of a purchase order having a value of $10,000 or more, unless otherwise exempt, Seller hereby acknowledges and agrees as follows: Seller is on notice that Purchaser may utilize the Deliverables specified in an order in the transaction of business with the U.S. Government.  Seller is therefore deemed to have assumed the obligation of compliance with Executive Order 11246, as amended.  Purchaser’s order is subject to the Equal Employment Opportunity clause as set forth in 41 CFR 60-1.4(a), 41 CFR 60-250.5 and 41 CFR 60-741.5, said clause being herewith incorporated by reference.  The Seller and Purchaser shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a).  These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.  Moreover, these regulations require that prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.


2. Additional U.S. Government Terms

Seller hereby acknowledges that Purchaser supplies products and services under U.S. Government contracts and subcontracts and as a result, Purchaser may be subject to various FAR provisions, Executive Orders, and agency regulations, which are hereby incorporated by reference.  Seller will comply with all of the foregoing, as applicable, including any additional Federal, State and Local laws, rules and regulations with respect to procurement, manufacture, and delivery of the item(s) contained in an order.

A PURCHASE ORDER MAY BE ACCOMPANIED BY A PRIORITY RATING ASSIGNED BY THE DEPARTMENT OF DEFENSE OF THE UNITED STATES OF AMERICA.





Terms and Conditions of Sale

1. GENERAL
The following terms and conditions apply to all sales of goods and services (collectively, “Products”) by J.G.B. Enterprises Inc. (“JGB”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and JGB relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by JGB’s authorized representative.  Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein is hereby expressly rejected, and JGB’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof.  Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.

2. PRICE
The prices applicable to the Products shall be as quoted by JGB to Customer and are subject to change.  Stenographic and clerical errors are subject to correction.  A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by JGB.    

3. TAXES
Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase.  No sales tax refunds will be given at any time for any reason.  Any taxes paid by JGB on Customer’s behalf shall be reimbursed by Customer upon demand. 

4. PAYMENT TERMS
Unless otherwise agreed to by JGB in writing, payment terms shall be net thirty (30) days from the date of invoice.  If shipments are delayed by Customer, invoices may be rendered on the date(s) JGB is prepared to make shipment(s).  Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer.  Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof.  Such interest shall be in addition to the purchase price hereunder.  In the event JGB engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees).     

In addition, JGB reserves the right to require COD payment terms from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. JGB may also refuse to sell to any person until overdue accounts are paid in full.

5. SHIPPING POINT AND TRANSPORTATION
All Products will be shipped F.O.B. point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by JGB to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by JGB, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by JGB, the amount thereof shall be reimbursed to JGB.

6. DELIVERY
JGB will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that JGB shall not be liable for any delay in delivery due to causes beyond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary material or manufacturing facilities. JGB shall not be liable for any damages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer.  Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions.

7. CHANGES TO ORDERS
Unless otherwise agreed to by JGB in writing, changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by JGB (over its recommendation against the same) shall be at Customer’s sole risk and responsibility. 

8. CANCELLATION OF ORDERS
Due to the specialized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including JGB’ actual out of pocket costs, overhead and anticipated profit (as determined by us).  Partial cancellation of an order may result in adjustment of prices for the balance of the order.

9. REJECTION
Customer’s right to reject any Products supplied hereunder is conditioned upon Customer giving JGB a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Products to Customer.  Failure to give such notice within such time constitutes acceptance of such Products.  Products may be returned only when authorized by us in writing, and then only on such terms as JGB may specify.   All returned Products shall be returned with shipping prepaid.

10. LIMITED WARRANTIES DISCLAIMERS

(a) JGB represents and warrants that the Products delivered by JGB to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials.  The foregoing warranties shall be limited to a ninety (90) day period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Products have been properly cared for (i.e. the Products have not been subject to misuse, neglect, misapplication etc.) and used in accordance with JGB’s


instructions, if any, (ii) the Products have not been tampered with or modified without JGB’s prior written approval, and (iii) Customer promptly notifies JGB in writing of any warranty claim during the Warranty Period.  In the event any Product fails to meet either or both of the foregoing warranties, JGB’s sole obligation, in JGB’s sole discretion, shall be to either replace or repair the non-conforming Product. The foregoing warranties provided by JGB in this Section 10 are the only warranties provided by JGB with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by JGB.  Customer’s remedies and JGB’s aggregate liability with respect to the warranties provided by JGB in this Section 10 are set forth in and limited by this Section 10 and Section 11 below. 

(b) JGB’ warranties above do not apply to Products not manufactured by JGB and do not apply to components furnished by third parties.  In addition, such warranties shall be for the sole benefit of the original customer only and are not assignable.  JGB shall not be liable for any claim if alterations have been made to the Products by the Customer or others without JGB’s written consent.  Any components furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to JGB and then only if such original manufacturer’s warranty is assignable to Customer.

(c) THE EXPRESS WARRANTIES OF JGB STATED IN SECTION 10(a) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JGB’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 10.

11. LIMITATION OF LIABILITY 
Notwithstanding anything to the contrary contained in this Agreement, JGB’s aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to JGB pursuant to an applicable order.  JGB shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if JGB has been advised of the possibility of such damages.  Except as provided in Section 10(a) above, and subject to the limitations set forth in Sections 10 and 11 hereof, JGB shall not be liable for any claims of third parties relating to any use of the Products, and Customer will defend JGB and hold JGB harmless against all losses, liabilities, damages, claims and expenses, including, reasonable attorneys’ fees arising out of or in connection with the use or sale of Products by Customer or Customer’s employees, agents, customers, or contractors.   THE FOREGOING STATES THE ENTIRE LIABILITY OF JGB WITH REGARD TO THIS AGREEMENT AND JGB’S SALE OF PRODUCT(S) HEREUNDER.  THE LIMITATIONS CONTAINED IN SECTIONS 10 AND 11 ARE A FUNDAMENTAL PART OF THE BASIS OF JGB’S BARGAIN HEREUNDER, AND JGB WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

12. WARRANTY BY CUSTOMER 
Customer hereby represents and warrants to JGB that any Product(s) built to Customer’s specifications, when built, does not and will not infringe any rights of any third party, of any kind or nature.  Customer shall indemnify, defend and hold harmless JGB from all claims of any nature asserted or brought against JGB resulting from a breach of Customer’s warranty hereunder.

13. RETAINED SECURITY INTEREST
Until such time as the entire purchase price of the Products have been paid, Customer hereby grants to JGB a first priority purchase money security interest in the Products supplied pursuant to the terms hereof. The rights and remedies of JGB, as a secured party with respect to the Products shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Products are located. Customer authorizes JGB to execute and record on behalf of Customer such financing statements and other instruments as JGB may deem necessary to perfect or protect its security interest in the Products.

14. NOTICES
Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this contract, or at such other address as such party shall have notified the other party in writing.

15. NOT TRANSFERABLE
This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of JGB.

16. HEADINGS
Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.

17. AMENDMENTS
No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.

18. APPLICABLE LAW
The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.