Terms and Conditions

Standard Terms and Conditions for Blackbird Products

ACCEPTANCE OF ORDER(S). Blackbird Technologies, Inc. shall be referred to herein as the “Seller”. The party purchasing Seller’s goods and/or services shall be referred to herein as “Buyer”. Seller’s acceptance of any order issued by Buyer shall be expressly limited to the terms and conditions set forth herein. Unless expressly accepted by Seller in writing, Seller shall not be bound by, and specifically objects to, any additional terms set forth or referenced in Buyer’s purchase order. Buyer’s order shall be deemed accepted pursuant and subject to these terms and conditions only, and only after such order has been accepted in writing by an authorized representative of Seller.
LICENSE TO USE. Each product ordered, as identified in Seller’s quote to Buyer, (each a “Product”; collectively the “Products”) contain software, firmware and other computer applications which are owned by Seller and/or Seller’s third party licensors (hereinafter the “Software”). Seller grants Buyer a personal, non-exclusive right to use the Software but only as contained in the Product and only for purposes described in the Product Documentation (defined hereinafter). Buyer agrees (i) not to copy or remove the Software from the Product and (ii) to take all reasonable precautions to maintain the confidentiality of the Software. Buyer shall not reverse compile, disassemble, modify, reverse engineer or otherwise attempt to derive the Software or any source code or reverse engineer any of the Products, or allow any third party to do any of the foregoing. If Buyer desires to transfer or sell any Product, Buyer must obtain Seller’s written consent, which consent may be granted or withheld in Seller’s discretion. Except as set forth herein, Buyer may not assign Buyer’s rights hereunder. In no event shall Buyer be entitled to source code. As used herein, “Product Documentation” shall mean only technical publications relating to the use of a Seller Product that are delivered to Buyer together with the delivery of such Product; such information may include, without limitation, Product user manuals, technical guidelines and systems administration manuals.
PAYMENT. Buyer shall pay for the Products within thirty (30) days from date of invoice. Interest on late payments shall accrue at a rate of 1.5% monthly.
PACKING AND SHIPPING. All Products shall be packed and shipped in accordance with good commercial practices.
TITLE. Title to all Software and documentation shall at all times remain in Seller and, to the extent applicable, to its third party licensors. Title to the physical Products sold hereunder (excluding any Software or intellectual property rights in and to the Products) shall pass to Buyer upon delivery, subject to the security interest, which Seller retains, and which Buyer hereby grants to Seller, regarding the Products purchased until the required and applicable purchase price has been paid in full by Seller.
DELIVERY. Unless otherwise agreed to by Seller in writing, all shipments shall be F.O.B. Seller’s shipment destination (CONUS shipments only). Freight, shipment, insurance and storage charges shall be for the account of the Seller.
INSPECTION AND ACCEPTANCE. Final inspection and acceptance of all Products to be delivered by Seller to Buyer under this order shall be at Seller’s facility and shall be based upon Seller’s standard acceptance test procedures in effect at the time of the delivery. Such final inspection and acceptance by Seller shall be conclusive unless Buyer notifies Seller, in writing, of a material nonconformance based on Buyer’s inspection within ten (10) calendar days of receipt by Buyer. Failure of Buyer to advise Seller in writing of any such nonconformance shall constitute final acceptance by Buyer of all Products. In the event of Buyer’s discovery of such a nonconforming Product, Buyer’s sole and exclusive remedy shall be, at Seller’s option, to exchange such Product for a replacement product, or return the Product to Seller for repair at no charge to Buyer, within a reasonable time.
LIMITED WARRANTY.
1. Product Warranty. Seller warrants that for a period of sixty (60) days from the date of shipment that each Product which is sold hereunder will be free from defects in material or workmanship and will substantially conform to Seller’s Product specifications set forth in applicable Product documentation, provided the Product is used for the normal uses of the Product described in the corresponding Product documentation but subject to the technical limitations described in such documentation. Seller’s sole obligation and Buyer’s sole remedy hereunder shall be limited to, at Seller’s sole option, the repair or replacement of a Product that does not satisfy the foregoing warranty , at no charge to Buyer, provided that a reasonably detailed notice of any such nonconformance hereunder is received by the authorized representative of Seller prior to the expiration date of the warranty period (time being of the essence) and that the affected Product, with Seller’s authorization, is returned to Seller’s facilities within thirty (30) days of Buyer receiving such written authorization. Replacement Product or part(s) thereof will be furnished on an exchange basis and will be of a comparable quality to the parts replaced. Any repair or replacement provided by Seller pursuant to this warranty will be warranted for the remaining portion of the warranty set forth above. Buyer shall bear the cost of transportation and risk of loss during shipment to Seller’s facility of the Product. Seller shall bear the cost and risk of loss of the repaired or replaced Product during return shipment to a location within the continental United States designated by Buyer. However, in the event that the Product is defective, and/or fails to conform, as set forth in Section 7, when the Product is first received by Buyer, then Seller shall bear the cost of shipment to and from Seller’s facility, if required.
2. Warranty Exclusions. Seller shall not be liable for any Product nonconformance in connection with (i) use of a Product in combination with hardware, software, or firmware not approved in writing by Seller; (ii) exposure of the Product to conditions beyond the operating and/or environmental constraints and/or technical limitations set forth in Seller’s Product documentation; (iii) a Product alteration or modification not approved by Blackbird in writing or repairs performed by other than Blackbird; (iv) normal wear and tear, accident, casualty, misuse, neglect, improper storage or acts of God; (v) use of a Product from which Seller’s trademark, logo, or serial number has been altered or removed; or (vi) use of a Product, the case of which has been opened by a party other than Blackbird.
3. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 8(A)-(B) ABOVE, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUITE ENJOYMENT, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED AND EXCLUDED. SELLER DOES NOT MAKE OR PASS ON TO BUYER OR ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION ON BEHALF OF SELLER’S THIRD PARTY LICENSORS OR SUPPLIERS. SELLER DOES NOT WARRANT OR REPRESENT THAT (I) THE PRODUCT WILL MEET BUYER’S SPECIFIC REQUIREMENTS, (II)THE PRODUCT WILL OPERATE IN THE SPECIFIC ENVIRONMENTS OR COMBINATION(S) WHICH MAY BE SELECTED FOR USE BY BUYER, (III) THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR (IV) THAT ALL ERRORS WILL BE CORRECTED.
4. DISCLAIMER FOR CERTAIN PRODUCTS. THIS ADDITIONAL DISCLAIMER APPLIES TO ALL OF SELLER’S TAGGING, TRACKING, AND LOCATING (“TT&L”) PRODUCTS, INCLUDING WITHOUT LIMITATION, THE BAT™, FOX™, AND OUTLAW™. THIS PRODUCT MAY USE SOME OR ALL OF A COMBINATION OF CELLULAR, SATELLITE BASED, AND LAND BASED COMMUNICATIONS SYSTEMS AND IS, THEREFORE, INHERENTLY SUBJECT TO TRANSMISSION AND RECEPTION LIMITATIONS AND UNAVAILABILITY, FROM TIME-TO-TIME. ACCORDINGLY, THIS PRODUCT MAY OPERATE INTERMITTENTLY UNDER CERTAIN CONDITIONS AND SHOULD NOT BE RELIED UPON EXCLUSIVELY FOR TT&L SOLUTIONS. RATHER, IT SHOULD BE USED TOGETHER WITH OTHER TT&L PRODUCTS, SYSTEMS, AND PRACTICES. EXTREME WEATHER OR OBJECTS THAT PREVENT AN UNOBSTRUCTED VIEW OF THE SKY MAY RESTRICT THE RECEPTION OR TRANSMISSION CAPABILITIES OF THIS PRODUCT, INCLUDING, WITHOUT LIMITATION, THE TRANSMISSION OR RECEPTION OF MESSAGES AS WELL AS ACQUISITION OF GPS COORDINATES. IN ADDITION, SERVICE MAY BECOME LIMITED OR TEMPORARILY UNAVAILABLE DUE TO EQUIPMENT FAILURES OR OUTAGES BY THE SERVICE PROVIDERS. ACCORDINGLY, USE OF THIS PRODUCT MAY BE INTERRUPTED FROM TIME-TO-TIME.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, ITS CUSTOMERS OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS ORDER OR THE USE OF OR INABILITY TO USE ANY PRODUCT EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER SHALL NOT BE LIABLE FOR ANY CLAIM AGAINST BUYER OR ITS CUSTOMERS BY ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS ORDER OR ANY PRODUCT AND, EXCEPT AS EXPRESSLY STATED IN SECTION 16, SELLER SHALL HAVE NO LIABILITY TO BUYER OR ITS CUSTOMERS FOR ANY CLAIM THAT ANY PRODUCT OR USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT OF BUYER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS ORDER OR ANY PRODUCT. THE ABOVE LIMITATIONS OF LIABILITY APPLY WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF SELLER, IF ANY, ARISING OUT OF OR IN CONNECTION WITH THIS ORDER SHALL NOT EXCEED THE TOTAL AMOUNT OF THE ORDER PAID BY BUYER FOR PRODUCT.
FORCE MAJEURE. NO PENALTY CLAUSE OF ANY KIND, IN ANY SPECIFICATION OR ORDER, WILL BE EFFECTIVE AGAINST SELLER. Seller shall not be liable for any damages caused by delays beyond reasonable control of Seller, including, without limitation, fire, strike, acts of Buyer, restrictions by civil or military authority, acts of god or the public enemy, transportation failures, or inability to obtain labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
TAXES. Prices quoted do not include any taxes, duties, or imposts of any nature whatsoever. In the event Seller is required to pay any such tax, charge, or duty, Buyer shall promptly reimburse Seller therefore, or in lieu of such payment, shall provide Seller, at the time the order is submitted, with exemption certificates or other documents acceptable to the taxing authorities.
CHANGES. Unless agreed to by both parties as evidenced by a written amendment to the order signed by duly authorized representatives of Buyer and Seller, no changes, extras or other work shall be authorized.
CANCELLATION. Orders accepted by Seller are subject to cancellation by Buyer only with the written consent of Seller and upon payment of a reasonable cancellation charge. Seller shall have the right to cancel any order placed, or to refuse, or to delay, the shipment thereof for failure of the U.S. Government to approve the sale of the Product to Buyer, failure of Buyer to promptly meet payments due to Seller, or for any acts or omission of buyer that delay Seller’s performance.
AUDIT. Notwithstanding any language or provision to the contrary, Buyer shall not be allowed the right to audit or examine Seller’s books or records.
PROPRIETARY INFORMATION. All information disclosed in written, graphic, model, visual or oral form, including, but not limited to drawings, prints, publications, specifications, processes, manufacturing techniques, oral explanations, schedules and financial reports, obtained by Buyer from Seller prior to and during the performance of this order which is identified as proprietary by Seller shall be kept confidential by Buyer and shall remain the property of Seller, and all tangible items and copies thereof shall be returned at Seller’s request. Such information shall be used solely to facilitate Buyer’s use of the Products and shall not be used for other purposes unless agreed to in writing by Seller. Such information shall not be reproduced, published, disseminated or disclosed to any third party, including the U.S. Government, by Buyer without the prior written consent of Seller. Nothing contained herein shall grant, or be construed as granting, to Buyer or any third party, any rights or license to any intellectual property rights of the Seller now or in the future.
PATENT INDEMNITY. Buyer agrees that Seller has the right to defend, or at its option settle, and Seller agrees, at its own expense, to defend or at its option to settle, any claim, suit, or proceeding brought against Buyer that is based on the allegation that any Product made by Seller infringes any United States patent (each such claim, suit, or proceeding, a “Claim”). Seller agrees to pay, subject to the limitations set forth herein, any final judgment entered against Buyer on any Claim defended by Seller. Buyer agrees that Seller, at its sole option, shall be relieved of the foregoing obligations unless Buyer notifies Seller promptly in writing of any such Claim and gives Seller proper and full information and assistance to settle and/or to defend any such Claim. If any such Product, or any part thereof, becomes, or in the option of Seller may become, the subject of any Claim, or in the event of an adjudication that the Product or part thereof infringes any United States patent, or if the use or sale of such Product or part thereof is enjoined, Seller may, at its option and its expense: (i) procure for the Buyer the right under such patent to use such Product or part thereof, or (ii) replace such Product or part thereof with other suitable products or parts or (iii) suitably modify such Product or part thereof, or (iv) if the use of such Product or part thereof shall be prevented by permanent injunction, remove such Product or part thereof and refund an amount equal to the amortized value of the remaining useful life of the Product (assuming a five (5) year, straight-line depreciation schedule). Seller shall have no liability for any such Claim arising from: (i) the combination of any Product or part thereof with any other product or part not furnished by Seller to Buyer, (ii) the modification of such Product or part thereof unless such modification was made by Seller, (iii) the furnishing to Buyer of any information, data, service or application assistance, exclusive of maintenance or operational hand-books supplied with the Product or parts thereof, (iv) any third party software included in the Product, or (v) Seller’s compliance with Buyer’s designs, specifications or instructions. Seller shall not be liable for any costs or expenses incurred without Seller’s written authorization. The foregoing states the entire liability by Seller and the exclusive remedy of Buyer with respect to any alleged patent infringement by any Product or part thereof. SELLER SHALL NOT BE LIABLE FOR ANY COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS. The foregoing states the sole and exclusive liability of Seller for patent infringement and is in lieu of all warranties, expressed or implied, in regard thereto.
GOVERNING LAW. This agreement is governed by the laws of the Commonwealth of Virginia without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act applies to this Agreement. Each party irrevocably consents to the personal jurisdiction of the state courts located in Fairfax County, Virginia and to the United States District Court for the Eastern District of Virginia (Alexandria Division) for any suit or action arising from or related to this agreement, and waives any right such party may have to object to the venue of such courts. Each party further agrees that these courts will have exclusive jurisdiction over any such suit or action initiated by such party against the other party.
ASSIGNMENT. Neither this order nor any interest herein may be assigned, in whole or in part, by Buyer without prior written consent of Seller.
SEVERABILITY. The invalidity in whole or in part of any provision of this order shall not affect the validity of the remaining provisions of this order.
INDEMNITY. In entering into this order, Seller is relying on Buyer’s representation that this sale is not made pursuant to a U.S. Government prime contract and that no Federal Acquisition Regulation (FAR) or Defense Federal Acquisition Regulation Supplement (DFARS) provisions or clauses thereto will be applicable to this order. Buyer shall have no recourse against Seller in the event that it is subsequently determined that applicable U.S. Government requirements have not been included in this order. Further, Buyer agrees to indemnify and hold Seller harmless for any costs, damages or claims whatsoever, including costs suffered, damages assessed or claims pursued by the U.S. Government relating to Seller’s performance under this order to the extent that such costs, damage or claim results directly or indirectly from Buyer’s determination that U.S. Government procurement statutes and regulations are inapplicable and not incorporated into this order.
EXPORT.
1. Buyer expressly agrees to comply with all applicable export laws, rules and regulations, including without limitation, the United States Department of State International Traffic in Arms Regulations as they currently exist and as the same may be amended from time to time. Without limiting the foregoing, Buyer agrees (i) that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Buyer, without the authority of an export license, agreement, or applicable exemption or exception and (ii) that in no event will any item, data, or services be transferred to or used by a business entity or foreign national, of or in, Cuba, Iran, North Korea, Sudan, or Syria.
2. If Buyer is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Buyer represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.
ENTIRE AGREEMENT. This order constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof. There are no agreements, understandings, representations or warranties not expressly incorporated. This order supersedes all proposals, previous negotiations and other communications, oral or written, not expressly incorporated herein.

SUPPLEMENTAL TERMS AND CONDITIONS FOR U.S. GOVERNMENT END USE CONTRACTS

If the Products to be furnished under this order are to be used in the performance of a U.S. Government Prime Contract and if a U.S. Government Prime contract number is identified on buyer’s purchase order, then section no. 20 “Indemnity” is hereby deleted and the following provisions shall apply.

PART I

FAR and DFAR Clauses: The following Federal Acquisition Regulation (FAR) or Department of Defense Federal Acquisition Regulation Supplement (DFARS) clauses current as of the date of this order are hereby incorporated by reference with the same force and effect as though herein set forth in full and made a part of this order, in each case, only to the extent the same are required to be incorporated herein by statute, regulation, or Buyer’s prime contract. Except as otherwise specifically noted below, the following definitions shall apply to these clauses: “Contractor” shall mean Seller, “Subcontractor” shall mean Seller’s subcontractors, “purchase order” or “order” shall mean this order, and “Contracting Officer” shall mean the Contracting Officer for the U.S. Government prime contract under which Buyer’s purchase order is placed, except there shall be no change in meaning so construed to grant patent or data or other intellectual property rights to Buyer or to allow Buyer the right to audit or examine Seller’s financial books and records. All such clauses shall, with respect to the rights, duties, and obligations of the Buyer and Seller thereunder, be interpreted and construed in such manner as to recognize and give effect to the contractual relationship between the Buyer and Seller under this order and the rights of the U.S. Government with respect thereto under the prime contract from which such clauses are derived.

FAR

52.230-5	Covenant Against Contingent Fees
52.203-6	Restrictions on Subcontractor Sales to the Government (applicable to orders > $100K)
52.203-7	Anti-Kickback Procedures (Except subparagraph (c)(ii)) (applicable to orders > $100K)
52.203-11	Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions (applicable to orders > $100K)
52.203-12	Limitation on Payments to Influence Certain Federal Transactions
52.204-2	Security Requirements
52.211-15	Defense Priority and Allocation Requirements
52.215-2	Audit and Records-Negotiations (applicable to orders > $100K)
52.219-8	Utilization of Small Business Concerns
52.222-4	Contract Work Hours and Safety Standards Act – Overtime Compensation (applicable to orders > $100K)
52.222-4	Contract Work Hours and Safety Standards Act – Overtime Compensation (applicable to orders > $100K)
52.222-20	Walsh-Healy Public Contract Act
52.222-26	Equal Opportunity
52.222-35	Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era
52.222-36	Affirmative Action for Workers with Disabilities
52.222-37	Employment Reports on Disabled Veterans and Veterans of the Vietnam Era
52.223-3	Hazardous Material Identification and Material Safety Data
52.225-13	Restriction on Certain Foreign Purchases
52.227-1	Authorization and Consent
52.227-2	Notice and Assistance Regarding Patent and Copyright Infringement (applicable to orders over $100K)
52.227-10	Filing of Patent Applications – Classified Subject Matter
52.230-2	Cost Accounting Standards (applicable to orders over $500K)
52.230-3	Disclosure and Consistency of Cost Accounting Practices (applicable to orders over $500K)
52.230-6	Administration of Cost Accounting Standards (applicable to orders > $500K)
52.245-2	Government Property (Fixed-Price Contracts)
52.246-23	Limitation of Liability
52.247-63	Preference of U.S. Flag Air Carriers
52.247-64	Preference for Privately Owned U.S. Flag Commercial Vessels
52.248-1	Value Engineering (applicable to orders > $100K)

DFARS

252.203-7001	Prohibition on Persons Convicted of Fraud or other Defense Contract Related Felonies
252.204-7008	Export-Controlled Items (April 2010)
252.225-7008	Supplies to be Accorded Duty-Free Entry
252.225-7009	Duty-Free Entry-Qualifying Country Supplies
252.225-7010	Duty-Free Entry-Additional Provisions
252.225-7014	Preference for Domestic Specialty Metals
252.227-7013	Rights in Technical Data and Computer Software (if required pursuant to 227-7103-6(a))
252.227-7014	Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (if required pursuant to 227-7203-6(a)(1))
252.247-7023	Transportation of Supplies by Sea

PART II

COST OR PRICING DATA. If any price, including profit or fee, negotiated under this order was increased by any significant sums because Seller furnished incomplete or inaccurate cost or pricing data or data (if applicable) which was not current as certified in Seller’s Certificate of Current Cost or Pricing Data and is cause for reduction by the Government Contracting Officer of the price of the Buyers prime contract to which this order is charged, Seller shall upon reduction by the Government Contracting Officer of the price of Buyer’s prime contract, pay to Buyer an amount equal to said price reduction excluding that portion of the price reduction attributable to the Buyer’s overhead, cost of money, warranty, general and administrative (G&A) expense, interest and profit or fee. If the Government releases an audit report to Buyer that alleges cost or pricing data from Seller (if applicable) was incomplete or inaccurate cost or pricing data or data which was not current as certified in Seller’s Certificate of Current Cost or Pricing Data, Buyer agrees to furnish such audit report to Seller within five (5) days from receipt of the audit report by the Buyer. Failure to agree to any adjustment under this provision shall be a dispute concerning a question of fact within the meaning of the provision entitled “Disputes”.
COST ACCOUNTING STANDARDS. If any cost/price, including profit or fee, negotiated under this order was affected by any amount because Seller, pursuant to the provision entitled “Cost Accounting Standards”, failed to comply with an applicable cost accounting standard or to follow any practice disclosed pursuant to the cost accounting standard requirement, and such failure is the cause for a reduction by the Government Contracting Officer of the price of the Buyer’s prime contract under which this order is issued, Seller shall, upon a reduction of the price of Buyer’s prime contract, pay to the Buyer an amount equal to said price reduction of the Buyer’s prime contract excluding that portion of the price reduction attributable to Buyer’s overhead, cost of money, warranty, general and administrative (G&A) expense, interest and profit or fee. If the Government releases an audit report to Buyer that alleges Seller has not complied with Cost Accounting Standards, Buyer agrees to furnish such audit report to Seller within five (5) days from receipt of the audit report by the Buyer. Failure to agree to any adjustment under this provision shall be a dispute concerning a question of fact within the meaning of the provision entitled “Disputes”.
COMMERCIAL ITEMS/COMPUTER SOFTWARE. The Products ordered under this Agreement are “commercial items” under applicable provisions of the FAR and DFAR. In the event the Customer is a U.S. Government entity, by accepting the Products, the Government agrees that the Products are “commercial items” and that all associated documentation and technical are likewise “commercial items” within the meaning of the acquisition regulations applicable to this Agreement. The terms and conditions of this Agreement shall pertain to the Government’s use and disclosure of the Products and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the Government’s needs or is inconsistent in any respect with federal law, the Government agrees to return the Products, unused, to Seller.
DISPUTES. Notwithstanding any provisions herein to the contrary, if a decision on any question of fact arising under the prime contract is made by the Contracting Officer and such question of fact is also related to this order, said decision, if binding upon Buyer under the prime contract, shall in turn be binding upon Buyer and Seller with respect to such question of fact under this order provided, however, that within fifteen (15) calendar days of Buyer’s receipt of the decision, (i) Buyer furnishes Seller with a copy of the decision and (ii) Buyer notifies Seller in writing of its decision to appeal or not to appeal a decision. If Seller disagrees with any such decision made by the Contracting Officer, and if Buyer elects not to appeal such decision on its own behalf and at its own expense, Seller shall have the right to appeal, in the name of Buyer to the appropriate Board of Contract Appeals or the Claims Court. Provided Buyer complies with its obligations under this provision and allows Seller the opportunity to participate in such appeal to the extent of Seller’s interest in such action, any decision upon such appeal, if binding upon Buyer shall in turn be binding upon Seller. Pending the making of any decision pursuant to this section, Seller shall proceed diligently with performance. Any dispute arising from this order which is not a question of fact arising from the prime contract and which is not disposed of by agreement of the parties shall be decided by a court of competent jurisdiction in the Commonwealth of Virginia. Buyer and Seller shall each bear their own costs of prosecuting the suit.
GOVERNING LAW. In connection with a U.S. Government prime contract, section 17, Governing Law, shall be considered deleted and this order shall be construed and interpreted in accordance with the federal common law of Government contracts as enunciated and applied by federal judicial bodies and boards of contract appeals. To the extent that the federal common law of Government contracts is not dispositive, this order and performance thereof shall be governed by, and interpreted under the laws of, the Commonwealth of Virginia.
INSPECTION AND ACCEPTANCE. If the Products being sold are for U.S. Government end-use, Seller shall provide and maintain an inspection system, acceptable to the Government covering Products under this order. All Products may be subject to inspection and test by the Government to the extent practicable at all reasonable times and places, prior to final acceptance. Records of all inspection work by Seller shall be kept complete and available to the Government during the performance of this order and for such longer period as may be specified elsewhere in this order.

NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL SELLER BE BOUND BY ANY ITEMS OF THE BUYER’S PRIME CONTRACT UNLESS SUCH TERMS ARE INCORPORATED BY THESE SUPPLEMENTAL TERMS AND CONDITIONS FOR U.S. GOVERNMENT END USE CONTRACTS OR FORMALLY ACCEPTED IN WRITING BY SELLER.