Standard Terms & Conditions
for Gemini Electronic Components LLC August 31, 2021
Gemini Electronic Components LLC Terms and Conditions of Purchase (hereinafter referred to as "Conditions”) shall act as a binding agreement between the purchaser; Gemini Electronic Components LLC (GEC), a Corporation with its principal place of business located at 2 Emery Avenue, Randolph, New Jersey and the “Seller" of these Conditions. For the consideration stated herein, GEC and the Seller may be referred to herein collectively as "Party" and/or as "Parties."
1. Acceptance of Purchase Order Requirements – In consideration of the Conditions of this agreement the Seller agrees to furnish and deliver to GEC, all products, materials and/or services (hereinafter referred to as "Goods), in accordance with the requirements set forth in a submitted GEC Purchase Order (PO) issued under this agreement. Upon acceptance of a PO, Seller shall be bound by the provisions of these Conditions; including all provisions set forth on the face of any applicable PO, unless Seller objects to such Conditions in writing prior to the shipment of Goods. Failure to obtain GEC prior written approval constitutes a material breach under the terms of this agreement. These Conditions may not be added to, modified, superseded or otherwise altered, except in writing by an authorized GEC Representative. Any of the following acts by the Seller shall constitute acceptance and understanding of these Conditions and the terms of the PO:
2. Guarantee of Goods Source Requirements – Seller shall ensure that only new and authentic Goods are delivered to GEC, and therefore are required to purchase parts directly from the Original Component Manufacturer (OCM) or OCM Authorized Distributors.
3. Quality Management System – Seller warrants that it has or shall maintain a Quality Management System that complies with SAE International, AS9120 Quality Management Systems – Requirements for Aviation, Space and Defense Distributors, ISO 9001, Quality Management System Requirements and/or other reputable Industry Recognized Quality Management System (QMS).
4. Notification of Changes – Seller warrant that upon acceptance of these Conditions, Seller shall immediately notify GEC in writing or within the allotted time of any of the following occurrences or events that may affect Goods which could be or will be shipping to GEC:
5. Supply Chain Traceability – The Seller shall maintain a method of Goods traceability that ensures tracking of the Goods throughout the supply chain back to the OriginalComponent Manufacturer (OCM) for all Goods supplied under these Conditions. Such traceability shall clearly identify the name and location of the OCM and all Supply Chain Intermediaries up to and including GEC and shall include OCM identification data such as date codes, lot codes, serial numbers and/or other identifications. This traceability requirement applies to all Goods supplied under these Conditions. Whenever traceability is unavailable or cannot be provided, the Seller shall notify and obtain GEC’s approval in writing before Goods are shipped
6. Seller Competence – Seller warrants that is possesses the required facilities and/or infrastructure necessary to process and provide Goods supplied under these Conditions in a safe and responsible manner. Seller further warrants that all Personnel, including Subcontractors, are qualified and possessed of the appropriate level of competence based on the skills, knowledge and/or expertise necessary to process and provide Goods supplied under these Conditions. Whenever specific Personnel qualification requirements are referenced on a GEC PO, Seller warrants that only qualified or as required certified Personnel, including Subcontractors, will be used to fulfill the requirements of the order as it relates to the verification, validation and/or testing of supplied Goods
7. Conformity:
8. Delivery of Goods – Delivery of Goods shall be made in the quantities and at the times specified by the purchase order required delivery dates. GEC shall have no liability to pay for Goods delivered in excess of the quantities specified by the purchase order. In the event that the Seller fails to deliver the Goods within the time specified, GEC may at its option decline to accept the Goods and terminate the agreement.
9. Goods Batch Requirements – Seller warrants that all Goods supplied under these Conditions and the terms of the PO shall be from a single batch identified by the same date and/or lot codes, unless otherwise agreed upon in writing by GEC prior to the shipment of Goods.
10. Packaging Requirements – Sellers providing Goods shall package Goods in accordance with the OCM recommended packaging requirements. All Electro Static Discharge (ESD) Sensitive devices must be packaged to prevent ESD damage and/or damage from moisture. Seller shall package all items in suitable containers to permit safe transportation and handling. GEC’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and/or bills of lading.
11. Payment – GEC shall pay the Seller the agreed upon amount specified in the applicable purchase order; payment shall not constitute GEC’s acceptance of Goods. Seller shall invoice GEC for all Goods delivered within twenty (20) days of Goods delivery and must reference the applicable purchase order number. Unless otherwise stated, agreed upon and specified on the face of a purchase order, GEC shall pay the invoiced amount within forty-five (45) days after receipt of a correct invoice.
12. Warranties – Seller warrants that all Goods provided will be new, unused and not refurbished. GEC does not accept any non-conforming parts. Therefore, refurbished parts, reprogrammed parts or parts with bent, formed or oxidized leads, test dots, or test markings will be rejected. Seller warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications of “fit, form, and function” for a period of two (2) years from the date of delivery to GEC or for the period provided in Seller's standard warranty covering the Goods, whichever is longer. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to GEC Seller's standard warranty and service guaranty applicable to the Goods. If GEC identifies a nonconformance with the Goods during the warranty period, GEC will promptly notify the Seller of the nonconformance and reserves the right to return the Goods to the Seller, at the Seller’s expense. At GEC’s option, the Seller shall either replace the Goods or credit GEC’s account for the purchased amount of the Goods.
13. Goods Inspection – GEC shall have a reasonable amount of time after receipt of Goods and before payment to inspect Goods for conformity to the OCM and/or GEC specifications. Goods received prior to inspection shall not be deemed accepted until GEC has determined whether the Goods conform to all applicable specifications.
14. Right of Access – By acceptance of a PO the Seller warrants that GEC, GEC’s Customers and/or other Regulatory Authorities shall have the right to access Sellers facilities and audit Sellers’s records pertaining to Goods supplied under these Conditions. Evidence of records required to prove conformance to these Conditions and the terms of the PO shall be maintained via digital storage and in perpetuity from the date that Goods ship to GEC. This Right of Access clause applies to all external providers throughout the supply chain.
15. Flow Down Requirements – When required, the Seller warrants that it shall flow down all applicable GEC, Customer and/or Government contract requirements to Sub-Tier Suppliers that are identified on the face of the purchase order.
16. Governing Law – This order and the performance by Seller and Buyer of the provisions hereof shall be governed by and brought in the courts of the County of Morris, State of New Jersey, United States.
17. Counterfeit:
b. Counterfeit Prevention Flow-downs for purposes of this Contract:
c. Product Impoundment and Financial Responsibility:
a. Seller hereby certifies that it will comply with U.S. export and import controls laws and regulations, including but not limited to the International Traffic in Arms Regulations (“ITAR”) (22 CFR 120 et seq.), the Export Administration Regulations (“EAR”) (15 CFR Part 730-774), the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (31 CFR Part 500-598), the regulations administered by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) found in 27 CFR Chapter II, and all other applicable U.S. Government regulations relating to the importation of goods into the United States (including, but not limited to, the regulations administered by U.S. Customs and Border Protection (“CBP”) at 19 CFR 0 et seq. and other import regulations promulgated by other U.S. agencies which may be enforced by CBP)(collectively “U.S. export and import control laws and regulations”). If Seller engages in the United States in the business of either manufacturing, exporting, or brokering in ITAR-controlled defense articles or furnishing ITAR-controlled defense services, Seller hereby certifies that it has registered with the U.S. Department of State Directorate of Defense Trade Controls (“DDTC”).
b. Seller shall control the disclosure, export, re-export, transfer and retransfer of, and access to, any hardware, software, controlled technical data, technology, and/or services (collectively referred to as “items”) received under this Purchase Order to ensure that any such disclosure, export, re-export, transfer or retransfer is undertaken in accordance with U.S. export control laws and regulations. Seller agrees that no controlled items provided by Buyer in connection with this Purchase Order shall be provided to any person or entity unless the transfer is expressly permitted by a U.S. Government license or other authorization or is otherwise in accordance with applicable laws and regulations. It shall be the responsibility of Seller to be cognizant of (including by requesting such information from Buyer if needed) the proper jurisdiction and classification under the ITAR and/or EAR of the items provided by Buyer prior to any release to a third party, including foreign affiliates or employees. If a final jurisdiction and classification determination for items provided by the Buyer has not been provided, Seller cannot export or otherwise release the information to a foreign person until a final jurisdiction and classification is approved by Buyer and any applicable export authorizations are obtained. For items subject to the ITAR, this responsibility includes Seller’s cognizance of the ITAR controls applicable to any technical data or defense service furnished to Seller by Buyer, including when exported to Seller from the United States in furtherance of Buyer’s technical assistance, manufacturing license agreement or other ITAR authorization prescribing ITAR jurisdiction of any defense article which may be produced or manufactured by Seller from such technical data or defense service.
c. Seller shall notify Buyer if any deliverable under this Purchase Order, for which the Buyer is not the design authority, is subject to U.S. export and import controls laws and regulations described in Paragraph 23(a). Before providing Buyer any deliverable subject to the EAR or the ITAR, Seller shall provide in writing to the Buyer’s Procurement Representative the export classification of any such item or controlled data, including the export classification of any:
i. dual use goods and technology subject to the EAR, including any embedded ITAR controlled or EAR 500 or 600 series’ item or technology; ii. defense article, including any technical data, controlled by the ITAR; iii. item or technology controlled by the EU List of Dual Use Items or by other applicable national export control lists. Subsequent to the initial disclosure above, Seller shall timely notify the Buyer’s Procurement Representative in writing of any changes to the export classification information of the item or controlled data. Seller represents that an official authorized to bind the Seller has determined that the Seller or the designer, manufacturer, supplier or other source of the deliverable has properly determined their export classification.
d. Seller hereby warrants that neither Seller, nor any parent, subsidiary, affiliate, or lower-tier subcontractor is listed on any Restricted Party List of an agency of the U.S. Government, any applicable non-U.S. Government, or international organization, or any applicable state, local government, or municipality, nor are their export privileges denied, suspended or revoked. For purposes of this provision, “Restricted Party List” is defined to include the U.S. Government’s Denied Persons List, Unverified List, Entity List, Nonproliferation Sanctions List, AECA Debarred List, Specially Designated Nationals (SDN) List, Sectoral Sanctions Identifications (SSI) List, Foreign Sanctions Evaders List, Excluded Parties List, Palestinian Legislative Council (PLC) List, or other similar lists issued by the U.S. Government or a non-U.S. government, or international organization, or any state or local government, or municipality that relates to export controls, economic sanctions, or anti-corruption. Seller shall immediately notify Buyer if Seller, or any parent, subsidiary, affiliate, or lower-tier subcontractor is added to any such Restricted Party List or if any of their export privileges become denied, suspended, or revoked. Seller shall not deal with any Restricted Party in relation to this purchase order. Seller shall notify Buyer of any known or suspected violations of export or import control laws or regulations related to any Restricted Party involving this purchase order, or the initiation or existence of any U.S. Government investigation into same.
e. If the items provided by Seller are shipped from outside the United States, they may also be subject to the export and import control laws and regulations of the exporting country. Seller shall abide by all applicable export and import control laws and regulations of that country, to the extent consistent with U.S. law.
f. Unless this Purchase Order provides otherwise, for any goods imported into the United States pursuant to this Purchase Order, Seller shall obtain all necessary import and/or export authorizations. If Buyer seeks any import and/or export authorizations for the goods or items into which the goods are incorporated or seeks to confirm compliance with applicable laws and regulations, Seller will provide Buyer with appropriate information as necessary.
g. Seller shall promptly notify Buyer of any known or suspected violation of export or import control laws or regulations, or the initiation or existence of any U.S. Government investigation into same. Additionally, where Buyer transfers items to Seller under a U.S. Government export authorization, Seller shall promptly notify Buyer of any changed circumstance that may require Buyer to seek a new authorization, or a revision or amendment to an existing authorization, or that may impact Seller’s ability to perform under this contract (including but not limited to a change in name or ownership, the desired addition of a non-U.S. dual or foreign national employee, or the desired addition of a new subcontractor and/or affiliate). Seller shall comply with requests from Buyer for additional information regarding any such changed circumstance, known or suspected violation, or U.S. Government investigation.
h. If this Purchase Order forms the whole or a part of a sale by Buyer of defense articles or defense services being sold in support of a Foreign Military Sale or commercially to or for the use of the armed forces of a foreign country or international organization, Seller shall within ten (10) days of being requested by Buyer to do so, with respect to all Purchase Orders received by the Seller’s legal entity to date in relation to the Rajant Purchase Orders, certify that pursuant to “International Traffic in Arms Regulations Certificate and Reporting of Political Contributions, Fees or Commissions,” in furtherance of the requirements stipulated in Part 130 of the ITAR, 22 C.F.R. §§130.9 and 130.10.
i. Seller shall not engage in any subcontracts relating to this Purchase Order except in accordance with the terms and conditions of Section 18, Assignments, Subcontracting, Organizational Changes, and Place of Manufacture, and as compliant with U.S. export and import controls laws and regulations, and any authorizations granted thereunder. If Seller is authorized by Buyer to engage in subcontracting for procurements related to this Purchase Order, Seller shall incorporate into its subcontracts the provisions of Section 23 requiring compliance with U.S. and other applicable export and import control laws and regulations.
j. Unless this Purchase Order specifies otherwise, if any goods are imported into the United States pursuant to this Purchase Order, Buyer shall not serve as Importer of Record. Seller is responsible for complying with all relevant import laws and regulations to the extent consistent with U.S. law, including Customs clearance and payment of any and all duties, taxes, and fees.
k. Where Seller is a recipient of any items received pursuant to a U.S. export license, Technical Assistance Agreement (“TAA”), Manufacturing License Agreement (“MLA”), or other export authorization, Seller will abide by all provisos, requirements, and restrictions related to the applicable authorization. Seller will provide to Buyer accurate and complete records relating to all activities for which such records are required under TAAs and MLAs, such as but without limitation (
i. Non-disclosure Agreements for sublicensees,
ii. Non-transfer and Use Certificates (DSP-83) for exports of Significant Military Equipment or classified equipment or technical data, and
iii. sales data to support annual sales reports. Seller will immediately notify Buyer of any change in circumstance that may require an amendment to an existing authorization or the obtaining of a new authorization. Buyer shall not be responsible for delays in U.S. import or export of controlled items supplied hereunder by Buyer resulting from a lack of necessary documentation from Seller or Seller’s country.
l. Seller shall indemnifyBuyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of non-U.S. or U.S. export or import control laws and regulations, by Seller, its officers, employees, agents, Sellers or subcontractors at any tier.
21. Entire Agreement – This Agreement is the complete, final and exclusive statement of the terms of the Agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and Agreements, whether oral or written, between them relating to the subject matter hereof. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller. Standard Terms & Conditions for Gemini Electronic Components LLC August 31, 2021 Gemini Electronic Components LLC Terms and Conditions of Purchase (hereinafter referred to as "Conditions”) shall act as a binding agreement between the purchaser; Gemini Electronic Components LLC (GEC), a Corporation with its principal place of business located at 2 Emery Avenue, Randolph, New Jersey and the “Seller" of these Conditions. For the consideration stated herein, GEC and the Seller may be referred to herein collectively as "Party" and/or as "Parties."