Terms & Conditions

STANDARD PURCHASE ORDER TERMS AND CONDITIONS

As of March 9, 2021

1. Acceptance: This purchase order constitutes Massa’s offer to Seller and shall become a binding contract upon the terms and conditions set forth herein upon acceptance either by acknowledgement by Seller or commencement of performance. In the event that this order does not state price or delivery, Buyer will not be bound to any prices or delivery to which it has not specifically agreed in writing. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions of purchase herein contained shall be void and of no effect, unless specifically agreed to by Buyer. Modifications hereof or additions thereto, to be effective must be made in writing and be signed by the Buyer. These terms and conditions, together with such modifications and with such data relating to price and delivery as are accepted in writing by Buyer, constitute the entire agreement between the parties. The rights of both parties hereunder shall be in addition to their rights and remedies at law or equity. Failure of Buyer to enforce any of its rights shall not constitute a waiver of such rights or of any other rights.
2. Packing and Shipment: Deliveries shall be made as specified, without charge for boxing, crating, carting or storage unless otherwise specified; and material shall be suitably packed to secure lowest transportation costs and in accordance with the requirements of common carriers. Buyer’s order numbers and symbols must be plainly marked on all invoices, packages, bills of lading, and shipping orders. Packing list shall accompany each box or package or shipment showing Buyer’s order number and symbol, item number and description of materials. Buyer’s count or weight shall be final conclusive on shipments sent to Buyer’s Receiving Department on date material is shipped. Goods shall be packed as to assure against damage from weather or transportation. Invoices shall be mailed to the attention of Buyer’s Accounting Department immediately after each shipment.
3. Warranty: Seller warrants that all goods covered by this order strictly conform to all applicable specifications, drawings, samples or other descriptions, and will be merchantable of good material and workmanship and free from defects, latent or otherwise. Seller further warrants that all goods covered by this order, which are the products of the Seller or are in accordance with Seller’s specifications, will be fit and sufficient for the purpose intended, whether expressed or reasonably implied. These warranties shall be construed as conditions as well as warranties of Seller expressed or implied and shall survive delivery, inspection, acceptance, use and payment. Buyer’s approval of designs or specifications furnished by Seller shall not relieve Seller of its obligations under said warranties. Seller agrees to indemnify and hold Buyer harmless from any costs, losses, damages, or expense whatsoever, including attorney’s fees, incurred as a result of Seller’s breach of an such warranties. Without limitation of any other rights or remedies of Buyer, goods which are not as warranted may be returned at Seller’s expense at Buyer’s option. Seller agrees to pay Buyers cost of inspecting and / or reworking non-conforming goods and of removing defective goods provided that Buyer gives reasonable notice to Seller. All Warranties of Seller shall run to Buyer and or its customers and users of its products and their respective successors and assigns.
4. Inspection: All goods called for hereunder or portions thereof shall be subject to inspection and test by the Buyer or Buyer’s representative (and to the extent the articles hereunder are for the United States Government, Buyer’s customer) at any point of manufacture thereof, and in any event prior to acceptance. If any inspection or test is made at Seller’s plant, Seller shall provide reasonable facilities and assistance for the safety and convenience of inspection personnel. Any goods rejected as not conforming to this purchase order may, at the Buyer’s option, be returned to Seller, or held, or the deficiencies remedied by the Buyer, at the Seller’s expense and risk. The Seller shall reimburse the Buyer in full for all goods returned and for the deficiencies remedied by the Buyer.
5. Delivery: Time is and shall remain the essence of this order, and no acts of Buyer including without limitation modifications of this order or acceptance of late deliveries, shall constitute waiver of this provision. All goods which are shipped at a time other than the time specified, in quantities other than the quantities ordered, or otherwise contrary to instructions, may at any time be rejected in whole or in part by the Buyer and returned to the Seller at the Seller’s expense and risk. The Seller shall reimburse the Buyer in full for all goods returned by the Buyer. Failure to deliver in accordance with purchase order schedule and / or specifications constitutes a breach of the purchase order terms and conditions and subject to termination in accordance with clause 14(b) below.
6. Special Tools: (a) Unless otherwise herein agreed, special dies, tools and patterns used in the manufacture of the articles herein ordered shall be furnished by and at the expense of the Seller, shall be kept in good condition and when necessary shall be replaced by Seller without expense to the Buyer.  (b)  Upon agreement of the parties Buyer may at any time reimburse Seller for the cost of the whole or any part of said special dies, tools and patterns and replacements, and become the owner and entitled to the possession of same.  (c)  If the price stated on the face hereof includes separately the cost of any dies, tools and/or patterns acquired by Seller for the purpose of filling this order, such dies, tools and/or patterns shall become the property of Buyer and Seller shall, to the extent feasible, identify said property as Buyer directs. When this order has been completed, such tools shall be disposed of as Buyer may direct.
7. Buyer’s Property: All specifications, drawings, tools, jigs, dies, fixtures, materials and other items which are supplied by the Buyer or which are to be furnished by the Seller as an item or items on this order shall be confidential. They shall be and remain the property of the Buyer and Buyer shall have the right to enter Seller’s premises and remove them at any time without being guilt of trespass or liable to Seller for damages of any sort. All such items shall be used only in the performance of work under this order unless Buyer consents otherwise in writing. Seller shall prominently mark all such items as property of Buyer. Seller shall similarly list all such items on invoices and shall be responsible for them as an insurer until delivery to Buyer. Seller shall not dispose of any such item without Buyer’s written consent. Seller shall assume and indemnify Buyer against any and all liability for damage to property or injury to or death of persons arising from or incidental to the presence or use of such items, whether caused by defects therein, negligence in the use thereof, or otherwise.
8. Insurance: Seller agrees if and when requested by Buyer, to procure a policy or policies of insurance in form satisfactory to the Buyer, insuring all property on Seller’s property owned by the Buyer against loss or damage resulting from fire (including extended coverage), malicious mischief and vandalism. Satisfactory evidence of procurement of such insurance shall be submitted to Buyer within a reasonable period of time after such request by Buyer.
9. Changes: Buyer may at any time, and from time to time, make changes, within the general scope of this order, in the work to be performed or the supplies to be furnished by Seller hereunder. If any such changes cause and increase or decrease in the cost of, or time required for, performance of this order, an equitable adjustment in the price, or delivery schedule, or both, shall be negotiated and the order shall be modified in writing accordingly. Any claim for adjustment under this clause must be asserted within 20 days from the date of receipt by Seller of notification of change. However, nothing in this clause shall excuse Seller from proceeding with the order as changed.
10. Advertising: Seller shall not without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish to Buyer the articles herein mentioned. This order is confidential, and the Seller shall not disclose the details hereof to any third party except as required in the performance hereof. Seller shall indemnify Buyer against any loss, liability or damage by Seller’s violation of this paragraph.
11. Patent Indemnity:  The Seller shall indemnify, defend, and hold harmless the Buyer from all expenses, liability, and loss of any kind, costs and expenses (including attorney’s fees) arising from any and all claims, suits or actions based upon any actual or alleged infringement by the Seller of any valid patent, trademark, copyright or any other proprietary right. The Seller hereby expressly warrants that the goods are in fact free from any such infringement which might give rise to claims against which Seller has agreed to indemnify, defend and hold harmless the Buyer as aforesaid.
12. Data: Seller shall not use or disclose any data, designs, drawings, specifications, or other information (written or oral) belonging to or supplied by or on behalf of Buyer (“Data”) except in performance of this or other orders for Buyer and shall treat the same as strictly confidential. Data, designs, drawings, specifications or other information provided by the buyer may be subject to controls, restrictions and protection as specified by 22 CFR Chapter I, Subchapter M, Parts 120-130, International Traffic in Arms Regulations (ITAR). Seller is responsible for compliance with ITAR and agrees to indemnify and hold harmless Buyer from all expenses, liability, and loss of any kind, costs and expenses (including attorney’s fees) arising from any and all claims, suits or actions based upon any actual or alleged violation of aforementioned ITAR requirements. All such Data and any copies thereof shall be returned to Buyer upon completion of this order or earlier as Buyer may request. Where payment is made for experimental, development or research work, as such, to be performed in accordance with special requirements of the Buyer, Seller shall disclose and does hereby assign to Buyer each invention resulting therefrom. This contract shall not be construed as granting to the Seller any license or other right in or to any of the Buyer’s proprietary rights. The Seller shall not seek to obtain legal protection for any of the Buyer’s proprietary rights including without limitation, patent, design patent, copyright or trademark protection.
13. Compliance with Applicable Laws: Seller shall comply with all applicable Federal, State and local laws, rules, and regulations, issued pursuant thereto (all of which shall be deemed to be incorporated by reference) and shall indemnify Buyer against any loss, liability or damage by Seller’s violation of this paragraph.
14. Termination: (a) Without Cause. Buyer may terminate, for its convenience, all or any part of this order at any time by written notice to Seller. Upon such termination, settlement shall be made in accordance with the principles contained in Federal Acquisition Regulation (FAR) 52.249-2 (if this order is fixed price) or (FAR) 52.249-6 (if this order is cost-reimbursement) as in effect as of the date of this order, except that the Seller must submit any claim for an equitable adjustment of termination to Buyer within forty-five (45) days after the effective date of termination, or such claim shall be absolutely and unconditionally waived. (b) With Cause / Default. Buyer reserves the right to cancel all or any part of this order in the event the Seller breaches or fails to perform any of its obligations hereunder in any material respect, or, if Seller becomes insolvent, or subject to bankruptcy petition or the appointment of a receiver or trustee, which petition or appointment is not vacated within thirty (30) days from the date thereof or makes an assignment for the benefit of the creditors. The Buyer reserves the right to repurchase the items of the subject purchase order elsewhere and charge any excess re-procurement costs to the Seller.
15. Assignment and Subcontracting: The Seller shall not assign or subcontract this order or any part hereof or any payment due or to become due thereunder without the prior written consent of the Buyer and any such attempted shall be considered null and void. Assigned accounts shall be subject to set-off recoupment or other defense or claim of Buyer against Seller.
16. Title: Title to and risk of loss for goods purchased hereunder and conforming to this purchase order shall pass to the Buyer upon receipt by Buyer at Buyer’s premises, irrespective of the method by which the Seller ships the goods. Title to and risk of loss for non-conforming goods shall remain with Seller, until final acceptance by Buyer.
17. Applicable Laws: This purchase order shall be construed and enforced in accordance with the Laws of the Commonwealth of Massachusetts. Seller acknowledges and agrees that under all circumstances relating to this agreement there are contacts within the Commonwealth of Massachusetts sufficient for the Commonwealth and Federal courts of Massachusetts to exercise personal jurisdiction over the Seller and to interpret and enforce this agreement.
18. Fair Labor Standards Act: By exception of this Purchase Order, Seller certifies that these goods will be produced in compliance with all applicable requirements of Sections 6.7 and 12 of the Fair Labor Standards Act of 1938, as amended, and lawful regulations and orders of Administrator of the Wage and Hour Division issued under Section 13 thereof.

PURCHASE ORDER TERMS AND CONDITIONS SUPPLEMENT 101

SPECIAL U.S. GOVERNMENT PROVISIONS

As of March 9, 2021

This order shall be construed and interpreted in accordance with all Federal law of Government Contracts as enunciated and applied by Federal judicial bodies and Boards of Contract Appeals, and other judicial and quasi-judicial agencies of the Federal Government. To the extent that the Federal law of Government Contracts is not determinative, this order shall be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts.

(a)  Audit: Seller agrees that its books and records and its plants, or such part thereof as may be engaged in the performance of this order, shall at all reasonable times be subject to inspection and audit by any person designated by the head of any executive department of the U.S. Government. Seller agrees that said books and records shall be maintained for three years from final payment of this order, in sufficient form and detail for an audit trail of compliance with requirements and of costs charged to this order.

(b)  Subcontracts: Seller agrees that no subcontract placed under this order shall provide for any payment on a cost plus percentage of cost basis.

(c)  Quality Control:  Except as otherwise provided in this order, Seller’s system of Quality Control during the performance of this order shall be in accordance with the specifications incorporated herein by reference or other Quality Control Specifications as are required by Buyer’s prime contract or higher tier order.

(d)  FAR and FAR Supplement Regulations:

(i) Notwithstanding language to the contrary in subsection (d)(ii), below, if providing only commercial-item goods and services, as defined at FAR 2.101, this section (d) incorporates only FAR 52.244-6 Subcontracts for Commercial Items, as well as the data rights, government property, and labelling provisions described in the next paragraph to the extent necessary for Buyer to perform its prime contract or higher-tier subcontract requirements.  Buyer will provide those excerpts from its contract with its customer upon Seller’s request.

(ii) The following clauses of the Federal Acquisition Regulations (FAR), Department of Defense FAR Supplement (DFARS), and required clauses in other agency supplements to FAR clauses, if any, are incorporated herein by reference and made a part hereof to the extent same are required by statute, regulation or Buyer’s prime contract: 252.204-7000,   Disclosure of information; 252.211-7003 Item unique identification and valuation (but only if any deliverable to Buyer is over $5,000); 52.215-26, Integrity of Unit Prices; 52.225-11, Certain Communist Areas; 52.222-4, Contract Work Hours and Safety Standards Act – Overtime Compensation; 52.222-20, Walsh-Healey Public Contracts Act or “Contracts For Materials, Supplies, Articles, And Equipment Exceeding $15,000”; 52.222-26, Equal Opportunity; 52.227-2, Notice and Assistance Regarding Patent and Copyright Infringement; 252.215-7000, Aggregate Pricing Adjustment; 52.222-35, Pricing of Adjustment; 252.243-7001, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era; 52.222-36, Affirmative Action for Handicapped Workers; 52.223-2, Clean Air and Water; 52.227-3, Patent Indemnity; 52.227-10, Filing of Patent Applications; 52.227-9, Refund of Royalties; 252.227-7013, Rights in Technical Data and Computer Software; 252.227-7030, Technical Data  – Withholding of Payment; 252.227-7039 Patents—reporting of subject inventions; 252.246-7001, Warranty of Technical Data; 252.227-7018, Restrictive Markings on Technical Data; 252.227-7036, Certification of Technical Data Conformity; 252.227-7037, Validation of Restrictive Markings on Technical Data; 52.204-2, Military Security Requirements; 52.219-8, Utilization of Small Business and Small Disadvantaged Business Concerns; 52.215-1, Examination of Records by Comptroller General; 52.212-8, Priorities, Allocations and Allotments; 52.220-3, Utilization of Labor Surplus Area Concerns; 52.208-1, Required Source for Jewel Bearings and Related Items; 252.208-7000, Required Sources for Miniature and Instrument Ball Bearings; 52.215-2, Audit-Negotiations; 252.208-7001, Required Sources of Precision Components for Mechanical Time Devices; 52.210-5, New Material; 52.219-13, Utilization of Women-Owned Business Concerns; 252.225-7009   Restriction on Acquisition of Certain Articles Containing Specialty Metals; 252.225-7011, Preference for Domestic Specialty Metals; 52.227-12, Patent Rights, Retention by the Contractor.

(iii) If this purchase order exceeds $700,000 and no exception to certified cost or pricing data per FAR 15.403-1 exists, the following are incorporated herein by reference: 52.215-10, Price Reduction for Defective Certified Cost or Pricing Data; 52.215-11, Price Reduction for Defective Certified Cost or Pricing Data – Modifications; 52.215-12, Subcontractor Certified Cost or Pricing Data; 52.215-13, Subcontractor Certified Cost or Pricing Data – Modifications; 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data; 52.215-21, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data – Modifications; 52.215-24, Subcontractor Cost and Pricing Data; 52.215-22, Price Reduction for Defective Cost or Pricing Data; 52.230-3, Cost Accounting Standards; 52.230-4, Administration of Cost Accountant Standards; 52.244-6 Subcontracts for Commercial Items; and 252.244 7000 Subcontracts for Commercial Items.

(iv) In all FAR and FAR Supplement clauses incorporated in this order, the term “Contractor” shall mean “Seller”, the term “Contract” shall mean this order, and the term “Contracting Officer” shall mean the Contracting Officer for the U.S. Government prime contract except that in Clauses 252.227-7013, 252.227-7039, and 252.246-7001, 52.215-22, 52.208-1, 252.208-7000, 252.208-7001, and 52.210-5 the term “Contracting Officer” shall mean the “Buyer”. Any reference to a “Default” clause in the above FAR clauses shall mean the “Termination with Cause” clause hereof.

(e)  Government Property:  Seller shall maintain and administer, in accordance with sound industrial practices, a program for the maintenance, repair, protection, and preservation of Government property. Seller shall comply with the provisions of FAR Subpart 45.5, Management of Government Property in Possession of Contractors, as in effect on the date of the prime contract, which Subpart is hereby incorporated by reference and made a part of this order. Seller assumes risk of and shall be responsible for any loss or damage to Government property except for reasonable wear and tear and except to the extent that such property is incorporated in the Goods delivered under this order. Upon completion of this order or at such earlier times as Buyer may request, Seller shall submit, in acceptable form, inventory schedules covering all items of Government property pertaining to this order. To the extent that such use will not interfere with Seller’s performance of this or other orders from Buyer, this clause shall not limit the use by the Seller of property to which the Government has title in the production of end items on direct Government order; however, nothing herein will be deemed to contravene the rights of the Government under FAR 52.245-2, paragraph (b).

(f)  NASA Regulations:  In any individual procurement which references a NASA prime contract, NASA FAR Supplement 1852.227-14, Rights in Data-Generalis incorporated by reference. In addition, in any procurement which references a NASA prime contract and which involves performance of research, experimental design, engineering, or development work, FAR 52.227-11 and NASA FAR Supplement 1852.227-84 shall govern, rather than NASA FAR Supplement 1852.227-70, New Technology, because Buyer is a small business. All NASA orders are subject to FAR 52.215-2, Audit-Negotiation.

(g)  Anti-Kickback Procedures:

(1) Definitions: “Kickback”, as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime Contractor, prime Contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contractor or in connection with a subcontract relating to a prime contract.

“Person”, as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

“Prime contract”, as used in this clause, means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind.

“Prime Contractor employee”, as used in this clause, means any officer, partner, employee, or agent or a prime Contractor.

“Subcontractor”, as used in this clause, (1) means any person, other than the prime Contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract, and (2) includes any person who offers to furnish or furnishes general supplies to the prime Contractor or a higher tier subcontractor.

“Subcontract employee”, as used in the clause, means any officer, partner, employee, or agent of a subcontractor.

(2) The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) (the Act), prohibits any person from
(a) providing or attempting to provide or offering to provide any kickback;

(b) Soliciting, accepting, or attempting to accept any kickback; or

(c) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime Contractor to the United States or in the contract price charged by a subcontractor to a prime Contractor or higher tier subcontractor.

(3)
(a) The contractor shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (2) of this clause in its own operations and direct business relationships.

(b) When the contractor has reasonable grounds to believe that a violation described in paragraph (2) of this clause may have occurred, the Contractor shall promptly report in writing the possible violation. Such reports shall be made to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Department of Justice.

(c) The Contractor shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (2) of this clause.

(d) Regardless of the contract tier at which a kickback was provided, accepted, or charged under the contract in violation of paragraph (2) of this clause, the Contracting Officer may (i) Offset the amount of the kickback against any monies owed by the United States under this contract and /or (ii) direct that the Contractor withhold from sums owed the subcontractor, the amount of the kickback. The Contracting Officer may order that monies withheld under subdivision (3) (d) (ii) of this clause be paid over to the Government unless the Government has already offset those monies under subdivision (3) (d) (i) of this clause. In the latter case, the Contractor shall notify the Contracting Officer when the monies are withheld.

(e) The Contractor agrees to incorporate the substance of this clause, including paragraph (3) (e), in all subcontracts under this contract.