PD Power Systems Terms and Conditions

 

Effective Date: May 1, 2020
Last Updated: October 31, 2025

Terms Of Agreement

The purchase order (PO), together with these terms and conditions, and any attachments, exhibits, specifications, drawings, notes, instructions and/or other information, whether physically attached or incorporated by reference, represents the entire and exclusive agreement between the PD Power Systems company (“PD Power Systems”) and the supplier (the “Supplier”) identified in the Purchase Order. No additional terms and conditions proposed by the Seller accepting this PO which are different from or in addition to these terms and conditions set forth with this PO shall be binding upon PD Power Systems unless PD Power Systems expressly accepts those additions/changes in writing by an authorized representative of PD Power Systems. Supplier’s electronic acceptance, acknowledgement of this PO, or commencement of performance represents the Supplier’s acceptance of these terms and conditions. However, if a master agreement with the Supplier covering procurement of the Products or Work described in the PO exists between Supplier and PD Power Systems, the terms of such master agreement shall prevail over any inconsistent terms contained in these Terms and Conditions

Definitions

“Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work) on or before the Delivery Date.

“Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.

“Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.

“Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

“Counterfeit Work” means Work that is or contains unlawful or unauthorized reproductions, substitutions, or alterations that have been knowingly mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified part from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitution includes used Work represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics.

“Suspect Counterfeit Work” means Work for which credible evidence (including, but not limited to, visual inspection or testing) provides reasonable doubt that the Work part is authentic.

“Product” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.

“Services” means the services that the Supplier is to perform for PD Power Systems specified in the Purchase Order.

“Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for PD Power Systems.

“Work” means the Deliverables, Products, and Services specified in the Purchase Order, including any SOW.

Acceptance of Purchase Order/Terms And Conditions

This Purchase Order integrates, merges, and supersedes any prior offers, negotiations, and agreements concerning the subject matter hereof and constitutes the entire agreement between the parties.

Supplier’s acknowledgment, acceptance of payment, or commencement of performance shall constitute Supplier’s unqualified acceptance of this Purchase Order.

Unless expressly accepted in writing by PD Power Systems, additional or differing terms or conditions proposed by Supplier or included in Supplier’s acknowledgment are objected to by PD Power Systems and have no effect.

Assignment And Subcontracting

Supplier may not subcontract any of its rights or obligations under the Purchase Order without PD Power Systems’ prior written consent, which PD Power Systems will not unreasonably withhold. If PD Power Systems consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify PD Power Systems for all damages and costs of any kind, subject to the limitations in Section Indemnification, incurred by PD Power Systems or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to pay a Subcontractor in a timely manner for work performed, PD Power Systems will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Suppliers will defend, indemnify, and hold PD Power Systems harmless for all damages and costs of any kind, without limitation, incurred by PD Power Systems and caused by Supplier’s failure to pay a Subcontractor.

To the extent allowed by applicable law, no person who is not a party to this Purchase Order shall be entitled to enforce or take the benefit of any of its terms, whether as a result of applicable legislation, custom, or otherwise.

Any assignment of Supplier’s Purchase Order rights or delegation of Supplier’s duties shall be void unless prior written consent is given by PD Power Systems. Nevertheless, Supplier may assign rights to be paid amounts due, or to become due, to a financing institution if PD Power Systems is promptly furnished with a signed copy of such assignment reasonably in advance of the due date for payment of any such amounts. Amounts assigned shall be subject to setoff or recoupment for any present or future claims of PD Power Systems against Supplier. PD Power Systems shall have the right to make settlements and/or adjustments in price without notice to any assignee financing institution.

Data

Seller acknowledges that it has in its possession all applicable specifications, drawings, and documents (including, without limitation, statements of work) necessary to perform its obligations under this purchase order at the price and schedule stated on this purchase order or its attachments. All such documentation shall be deemed to be a part of this purchase order.

Price and Payment

Unless different payment terms are expressly stated on this purchase order, payment terms shall be five (5) days from PD Power Systems’ receipt of payment from the government and the Seller’s correctly presented invoice. A “correctly presented” invoice will contain the purchase order number sent to the billing address on the purchase order. Seller represents that prices quoted to or paid by PD Power Systems shall not exceed current prices charged to any other customer of Seller for deliverables which are the same or substantially similar to, and in the same or substantially similar quantities as the Deliverables. Seller shall refund or PD Power Systems may set off against subsequent invoices any amounts paid by PD Power Systems in excess of such price(s).

Each payment made shall be subject to reduction to the extent of amounts deemed by PD Power Systems or the Supplier not to have been properly payable and shall also be subject to reduction for overpayments. The Supplier shall promptly notify PD Power Systems of any such overpayments and remit the overpaid amount, unless otherwise directed by PD Power Systems.

PD Power Systems shall have the right to set off against payments due or at issue under this Purchase Order or any other Purchase Order between the parties.

Unless otherwise specified, prices include all applicable federal, state, and local taxes, duties, tariffs, and similar fees imposed by any government, all of which shall be listed separately on the invoice.

Inspection and Acceptance

The Materials supplied hereunder shall be of good quality, free from any faults and defects, in conformance with this Order, and shall at all times be subject to PD Power Systems inspection before acceptance by PD Power Systems. Neither, however, PD Power Systems inspection nor failure to inspect shall relieve Seller of any obligations, representations, or warranties hereunder. If the Materials fail to conform to PD Power Systems specifications or are otherwise defective, Seller shall promptly replace same at Seller’s sole expense. Any services supplied hereunder shall be of good quality, free from any faults or defects, and in conformance with this Order. All services not conforming to these requirements, including substitutions not properly approved and authorized, shall be considered defective and Seller shall promptly correct such defective services at Seller’s sole expense. No payment for or acceptance of Materials, including services, by PD Power Systems hereunder shall constitute a waiver of any of the foregoing, nor shall anything herein contained be construed to exclude or limit any of Seller’s warranties implied by law.

PD Power Systems and its customers may inspect all Work at reasonable times and places, including, when practicable, during manufacture and before shipment. Supplier shall provide all information, facilities, and assistance necessary for safe and convenient inspection without additional charge.

No such inspection shall relieve the Supplier of its obligations to furnish and warrant all Work in accordance with the requirements of this Purchase Order. PD Power Systems’ final inspection and acceptance shall be at destination.

If Supplier delivers non-conforming Work, PD Power Systems may, in addition to any other remedies available at law or at equity: (i) accept all or part of such Work at an equitable price reduction; or (ii) reject such Work; or (iii) require Supplier, at Supplier’s cost, to make all repairs, modifications, or replacements at the direction of PD Power Systems necessary to enable such Work to comply in all respects with Purchase Order requirements.

Supplier shall not re-tender rejected Work without disclosing the corrective action taken.

Counterfeit Work Prevention

Supplier shall not deliver Counterfeit Work or Suspect Counterfeit Work to PD Power Systems under this Purchase Order.

Suppliers shall only purchase products to be delivered or incorporated as Work to PD Power Systems directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Suppliers may use another source only if (i) the foregoing sources are unavailable, (ii) Supplier’s inspection and other counterfeit risk mitigation processes will be employed to ensure the authenticity of the Work, and (iii) Supplier obtains the advance written approval of PD Power Systems.

Supplier shall maintain counterfeit risk mitigation processes in accordance with industry-recognized standards and with any other specific requirements identified in this Purchase Order.

Supplier shall immediately notify PD Power Systems with the pertinent facts if Supplier becomes aware that it has delivered Counterfeit Work or Suspect Counterfeit Work. When requested by PD Power Systems, Supplier shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM. Supplier, at its expense, shall provide reasonable cooperation with PD Power Systems in conducting any investigation regarding the delivery of Counterfeit Work or Suspect Counterfeit Work under this Purchase Order.

This clause applies in addition to and is not altered, changed, or superseded by any quality provision, specification, statement of work, regulatory flowdown, or other provision included in this Purchase Order addressing the authenticity of Work.

In the event that Work delivered under this Purchase Order constitutes or includes Counterfeit Work, Supplier shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Purchase Order. Notwithstanding any other provision in this Purchase Order, Supplier shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation PD Power Systems’ costs of removing Counterfeit Work, of installing replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged. The remedies contained in this paragraph are in addition to any remedies PD Power Systems may have at law, equity, or under other provisions of this Purchase Order.

Supplier shall include paragraphs (a) through (f) and this paragraph (g) of this clause or equivalent provisions in lower-tier subcontracts for the delivery of items that will be included in or furnished as Work to PD Power Systems.

Representations and Warranties

Supplier represents and warrants that (i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (ii) it has the right and unrestricted ability to assign the Work to PD Power Systems including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors (provided subcontractors have been approve by PS Systems); (iii) the Work, and PD Power Systems use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (iv) Supplier will not disclose to PD Power Systems, bring onto PD Power Systems premises, or induce PD Power Systems to use any confidential or proprietary information that belongs to anyone other than PD Power Systems or Supplier which is not covered by a non-disclosure agreement between PD Power Systems and Supplier; (v) Software supplied by Supplier does not contain any Harmful Code; (vi) Supplier’s Work conforms to PD Power Systems specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use; and (vii) no Products contain or include components (a) containing PCB’ (polychlorinated biphenyls) chemical substances, (b) manufactured using a cadmium plating process or contain a chemical substance or mixture that is or becomes subject to a reporting requirement under Section 8(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment.

Supplier warrants that all Work furnished pursuant to this Purchase Order shall strictly conform to applicable specifications, drawings, samples, descriptions, and other requirements of this Purchase Order and be free from defects in design, material, and workmanship. This warranty shall begin upon final acceptance and extend it for a period of one (1) year. If any nonconforming Work is identified within the warranty period, Supplier, at PD Power Systems’ option, shall promptly repair, replace, or reperform the Work. Transportation of replacement Work, return of nonconforming Work, and reperformance of Work shall be at the Supplier’s expense. If repair, replacement, or reperformance of Work is not timely, PD Power Systems may elect to return, reperform, repair, replace, or reprocure the non-conforming Work at Supplier’s expense. All warranties shall run to PD Power Systems and its customers.

PD Power Systems warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.

TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Indemnification

Seller warrants that it has full right, title and interest in, and full title, power and authority to use any Personal Data it uses, provides or supplies in connection with the performance of this purchase order and shall be fully and solely liable for any third party claims arising out of or relating to any violation of law in connection with the Personal Data subject to this purchase order, breach of this purchase order in connection with the Personal Data subject to this purchase order, intentional and/or negligent handling of the Personal Data subject to this purchase order by Seller.

Supplier shall defend, indemnify, and hold harmless PD Power Systems, its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, and expenses, including attorney’s fees, all expenses of litigation and/or settlement, and court costs, arising from any act or omission of Supplier, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Purchase Order.

Intellectual Property

Supplier warrants that the Work performed or delivered under this Purchase Order will not infringe or otherwise violate the intellectual property rights of any third party in the United States or any foreign country. Supplier shall defend, indemnify, and hold harmless PD Power Systems, its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, and expenses, including attorney’s fees, all expenses of litigation and/or settlement, and court costs, arising out of any action by a third party that is based upon a claim that the Work performed or delivered under this Purchase Order infringes or otherwise violates the intellectual property rights of any person or entity.

To the extent that any pre-existing inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other information or materials are used, included, or contained in the Work or deliverable items and not owned by PD Power Systems pursuant to this or a previous agreement with Supplier, Supplier grants to PD Power Systems an irrevocable, nonexclusive, world-wide, royalty-free license to: (i) make, have made, sell, offer for sale, use, execute, reproduce, display, perform, distribute (internally or externally) copies of, transfer computer software, and prepare derivative works based upon, such pre-existing inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other information or materials and derivative works thereof; and (ii) authorize others to do any, some or all of the foregoing.

Delivery

Delivery according to schedule is a major condition of this purchase order. Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the appropriate part number for each of the Products (if applicable), a description, and the quantity of each of the Products, and the date of shipment. Unless PD Power Systems expressly instructs otherwise, Supplier will deliver all work to PD Power Systems plant at the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges, including, without limitation, customs, duties, costs, taxes, and insurance. Risk of loss of the Work passes to PD Power Systems upon final inspection. Deliverables shall be suitably packed to secure the lowest transportation costs and in accordance with the requirements of the carriers of the releases or orders subject to this purchase order. Seller shall use the carrier(s) selected by PD Power Systems if PD Power Systems so requests. PD Power Systems order numbers must be plainly marked on all packages, bills of lading, and shipping orders. PD Power Systems’ count or weight shall be conclusive. Seller shall not ship in advance of schedule or make partial shipments unless otherwise agreed in writing by PD Power Systems. Risk of loss shall be retained by Seller until delivery of the Deliverables at the location specified on this purchase order and upon inspection and acceptance. Time is of the essence in Supplier’s performance of its obligations under this Purchase Order. Supplier will immediately notify PD Power Systems if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. PD Power Systems’ acceptance of Supplier’s notice will not constitute PD Power Systems’ waiver of any of Supplier’s obligations. If Supplier delivers Work after the Delivery Date, PD Power Systems may reject such Work. PD Power Systems will hold any Work rejected under this Purchase Order at Supplier’s risk and expenses, including storage charges, while awaiting Supplier’s return shipping instructions. Suppliers will bear all return shipping charges, including, without limitation, insurance charges PD Power Systems incurs on Supplier’s behalf. PD Power Systems may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which PD Power Systems does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.

A complete packing list shall be enclosed with all shipments. Suppliers shall mark containers or packages with necessary lifting, loading, and shipping information, including the PD Power Systems Purchase Order number, item number, dates of shipment, and the names and addresses of the consignor and consignee. Bills of lading shall include this Purchase Order number.

Unless otherwise specified, delivery shall be FOB Place of Shipment.

Changes

PD Power Systems may, at any time, change the Work by changing (i) the quantity of the Work (ii) the scope of Services; (iii) the Delivery Date; (iv) applicable drawings, designs, and specifications, (v) the method of shipment or packing; (vi) the place of delivery of the Work; or (vii) the location for Services to be performed. If a change by PD Power Systems causes an increase or decrease in the cost of or the time required for Supplier’s performance, then the price, Delivery Date, or both will be equitably adjusted, and the parties will amend the Purchase Order accordingly in writing. Supplier will request an equitable adjustment no later than 20 days from Supplier’s receipt of PD Power Systems’ notification of a change; provided, however, that PD Power Systems may extend the request period upon Supplier’s request. Supplier will proceed with the Work, both changed and unchanged, pending negotiation of an equitable adjustment and amendment of the Purchase Order.

The PD Power Systems Procurement Representative may at any time, by written notice, and without notice to sureties or assignees, make changes within the general scope of this Purchase Order in any one or more of the following: (i) drawings, designs, or specifications; (ii) method of shipping or packing; (iii) place of inspection, acceptance, or point of delivery; and (iv) delivery schedule.

If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of this Purchase Order, PD Power Systems shall make an equitable adjustment in the Purchase Order price and/or delivery schedule and modify this Purchase Order accordingly. Changes to the delivery schedule will be subject to a price adjustment only.

Suppliers must assert their right to an equitable adjustment under this clause within thirty (30) days from the date of receipt of the written change order from PD Power Systems. If Supplier’s proposed equitable adjustment includes the cost of property made obsolete or in excess by the change, PD Power Systems shall have the right to prescribe the manner of disposition of the property.

Failure to agree to any adjustment shall be resolved in accordance with the “Disputes” clause of this Purchase Order. However, nothing contained in this “Changes” clause shall excuse Supplier from proceeding without delay in the performance of this Purchase Order as changed.

SEVERABILITY If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Each clause, paragraph, and subparagraph of this Purchase Order is severable, and if one or more of them are declared invalid, the remaining provisions of this Purchase Order will remain in full force and effect.

Force Majeure

PD Power Systems shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. In the event PD Power Systems is so excused, either party may terminate the Agreement and PD Power Systems shall at its expense and risk, return any Goods received to the place of shipment.

General

Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated on the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.

If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:

A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.

A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.

A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.

A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.

Insurance

Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect PD Power Systems in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as are customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.

Termination

At any time, PD Power Systems, at its option, may terminate this order for convenience in whole or in part by written notice. A stop work order or any other form of written notice requiring Seller to immediately cease performance under this purchase order shall obligate Seller to immediately stop work and take any actions necessary to mitigate the impact of such notice. If PD Power Systems does not give Seller written notice to resume work within twenty (20) days after its initial stop work order, this purchase order shall then be deemed terminated for PD Power Systems’ convenience as of the twenty-first (21st) day after the initial stop work order. Any claim of Seller shall not exceed reasonable, demonstrated costs it has incurred in performance of this purchase order prior to notice of termination and shall in no event exceed the total amount of this purchase order. PD Power Systems shall remit to Seller any payment due to Seller for documentable and reasonable costs incurred before receipt of PD Power Systems’ notice of termination in performance of this purchase order.

Supplier shall continue all work not terminated.

In no event shall PD Power Systems be liable for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the total Purchase Order price. Supplier’s termination claim shall be submitted within ninety (90) days from the effective date of the termination.

STOP WORK Supplier shall stop Work for up to ninety (90) days in accordance with any written notice received from PD Power Systems, or for such longer period of time as the parties may agree and shall take all reasonable steps to minimize the incurrence of costs allocable to the Work during the period of Work stoppage.

Within such period, PD Power Systems shall either terminate in accordance with the provisions of this Purchase Order or continue the Work by written notice to Supplier. In the event of continuation, an equitable adjustment in accordance with the principles of the “Changes” clause shall be made to the price, delivery schedule, or other provision(s) affected by the Work stoppage, if applicable, provided that the claim for equitable adjustment is made within thirty (30) days after date of notice to continue.

Default

PD Power Systems, by written notice, may terminate this Purchase Order for default, in whole or in part, if Supplier (i) fails to comply with any of the terms of this Purchase Order; (ii) fails to make progress so as to endanger performance of this Purchase Order; (iii) fails to provide adequate assurance of future performance; (iv) files or has filed against it a petition in bankruptcy; or (v) becomes insolvent or suffers a material adverse change in financial condition. Supplier shall have ten (10) days (or such longer period as PD Power Systems may authorize in writing) to cure any such failure after receipt of notice from PD Power Systems. Defaults involving delivery schedule delays, bankruptcy, or adverse change in financial condition shall not be subject to the cure provision.

Following a termination for default of this Purchase Order, Supplier shall be compensated only for Work actually delivered and accepted. PD Power Systems may require Supplier to deliver to PD Power Systems any supplies and materials, manufacturing materials, and manufacturing drawings that Supplier has specifically produced or acquired for the terminated portion of this Purchase Order. PD Power Systems and Supplier shall agree on the amount of payment for these other deliverables.

Upon the occurrence and during the continuation of a default, PD Power Systems may exercise any and all rights and remedies available to it under applicable law and equity, including, without limitation, cancellation of this Purchase Order. If, after termination for default under this Purchase Order, it is determined that Supplier was not in default, such termination shall be deemed a termination for convenience.

Disputes

All disputes under this Purchase Order that are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under, or in connection with this Purchase Order.

Until final resolution of any dispute hereunder, Supplier shall diligently proceed with the performance of this Purchase Order as directed by PD Power Systems.

Compliance with Laws

Each party shall comply with all applicable local and national laws, including, without limitation, government export control, and privacy and data protection laws.

Governing Law

This Purchase Order and any matter arising out of or related to this Purchase Order shall be governed by the laws of the State of the Commonwealth of Virginia, without regard to its conflicts of law provisions. Supplier, in the performance of this Purchase Order, shall comply with all applicable local, state, and federal laws, orders, rules, regulations, and ordinances. Suppliers shall procure all licenses/permits, pay all fees, and other required charges, and shall comply with all applicable guidelines and directives of any local, state, and/or federal governmental authority. Supplier, at its expense, shall provide reasonable cooperation to PD Power Systems in conducting any investigation regarding the nature and scope of any failure by Supplier or its personnel to comply with applicable local, state, and federal laws, orders, rules, regulations, and ordinances that may affect the performance of Supplier’s obligations under this Purchase Order.

Export Control

Supplier shall comply with all applicable U.S. export control laws and economic sanctions laws and regulations, specifically including but not limited to the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; the Export Administration Regulations, 15 C.F.R. 730-774; and the Foreign Assets Control Regulations, 31 C.F.R. 500-598 (collectively, “Trade Control Laws”).

Supplier shall notify PD Power Systems if applicable Trade Control Laws restrict any deliverable under this Purchase Order Before providing PD Power Systems any item or data controlled under any of the Trade Control Laws, Supplier shall provide in writing to the PD Power Systems Procurement Representative the export classification of any such item or controlled data (i.e. the export classification under the EAR, ITAR, EU List of Dual Use Items and Technology, Wassenaar Arrangement’s List of Dual-Use Goods and Technologies or other applicable export control list) and shall notify the PD Power Systems Procurement Representative in writing of any changes to the export classification information of the item or controlled data. Supplier represents that an official authorized to bind the Supplier has determined that the Supplier or the designer, manufacturer, supplier, or other source of the Work has properly determined their export classification.

Supplier shall not export, re-export, transfer, disclose or otherwise provide or make accessible PD Power Systems’ technical data and/or hardware controlled by Trade Control Laws (“Export Controlled Information”) to any persons, or entities not authorized to receive or have access to the data, services and/or hardware, including third country/dual national employees, lower-tier subcontractors and sub-licensees, or modify or divert such Export Controlled Information to any military application unless Supplier receives advance, written authorization from PD Power Systems and verification of any required export authorization is in place. Supplier shall not provide a defense service as defined by the Trade Control Laws using any or all of PD Power Systems’ technical data and/or hardware. Upon PD Power Systems’ request, Supplier shall demonstrate to PD Power Systems’ reasonable satisfaction Supplier’s and Supplier’s lower-tier subcontractors’ compliance with this clause and all Trade Control Laws. To the extent Supplier’s Work provided under this Purchase Order includes packing, labeling, processing, and/or handling exports for PD Power Systems, Supplier shall maintain an auditable process that assures accurate packing, labeling, processing, and handling of such exports. Suppliers shall also promptly notify PD Power Systems if they become aware of any failure by Supplier or Supplier’s lower-tier subcontractors to comply with this clause and shall cooperate with PD Power Systems in any investigation of such failure to comply.

Quality Control System

Supplier shall provide and maintain a quality control system to an industry-recognized Quality Standard and in compliance with any other specific quality requirements identified in this Purchase Order.

Records of all quality control inspection work by Supplier shall be kept complete and available to PD Power Systems and its customers.

Far Clauses Incorporated By Reference

52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES.

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

52.203-3 GRATUITIES (APR 1984)

52.203-5 COVENANT AGAINST CONTINGENT FEES (MAY 2014)

52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUN 2020)

52.203-7 ANTI-KICKBACK PROCEDURES (JUN 2020)

52.203-8 CANCELLATION, RESCISSION, AND RECOVERY OF FUNDS FOR ILLEGAL OR IMPROPER ACTIVITY (MAY 2014)

52.203-10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER ACTIVITY (MAY 2014)

52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JUN 2020)

52.204-18 COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (AUG 2020)

52.204-23 PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE, AND SERVICES DEVELOPED OR PROVIDED BY KASPERSKY LAB AND OTHER COVERED ENTITIES (DEC 2023)

52.204-25 PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (NOV 2021)

52.209-6 PROTECTING THE GOVERNMENT’S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT, OR VOLUNTARILY EXCLUDED (OCT 2015)

52.209-9 UPDATES OF PUBLICLY AVAILABLE INFORMATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)

52.209-10 PROHIBITION ON CONTRACTING WITH INVERTED DOMESTIC CORPORATIONS (NOV 2015)

52.210-1 MARKET RESEARCH (NOV 2021)

52.211-5 MATERIAL REQUIREMENTS (AUG 2000)

52.211-15 DEFENSE PRIORITY AND ALLOCATION REQUIREMENTS (APR 2008)

52.215-10 PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA (AUG 2011)

52.215-11 PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA MODIFICATIONS – (AUG 2011)

52.215-13 SUBCONTRACTOR CERTIFIED COST OR PRICING DATA–MODIFICATIONS (JUN 2020)

52.215-14 INTEGRITY OF UNIT PRICES (OCT 2010)

52.215-15 PENSION ADJUSTMENTS AND ASSET REVERSIONS OCT/2010

52.215-18 REVERSION OR ADJUSTMENT OF PLANS FOR POSTRETIREMENT BENEFITS OTHER THAN PENSIONS (PRB) (JUL 2005)

52.215-23 LIMITATIONS ON PASS-THROUGH CHARGES (OCT 2009)

52.219-8, UTILZATION OF SMALL BUSINESS CONCERNS (JAN 2025) (15 U.S.C. 637(d) (2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $550,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219-8 in lower-tier subcontracts that offer subcontracting opportunities.

52.225-13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (FEB 2021)

52.227-2 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT (JUN 2020)

52.227-3 PATENT INDEMNITY (APR 1984)

52.227-9 REFUND OF ROYALTIES (APR 1984)

52.232-9 LIMITATION ON WITHHOLDING OF PAYMENTS (APR 1984)

52.232-39 UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS (JUN 2013)

52.233-1 DISPUTES (MAY 2014)

52.233-4, APPLICABLE LAW FOR BREACH OF CONTRACT CLAIM (OCT 2004)

52.244-6 SUBCONTRACTS FOR COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (JAN 2025)

52.245-1 GOVERNMENT PROPERTY (JAN 2021)   

52.245-9 USE AND CHARGES (APR 2012)

52.246-24 LIMITATION OF LIABILITY–HIGH-VALUE ITEMS (FEB 1997)

52.249-2 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (APR 2012)

52.249-8 DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984)

252.204-7012 SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING (MAY 2024)

252.225-7013 DUTY-FREE ENTRY (JUNE 2023)

252.204-7018 PROHIBITION ON THE ACQUISITION OF COVERED DEFENSE TELECOMMUNICATIONS EQUIPMENT OR SERVICES (JAN 2023)

252.225-7048 EXPORT-CONTROLLED ITEMS (JUN 2013)

252.225-7052 RESTRICTION ON THE ACQUISITION OF CERTAIN MAGNETS, TANTALUM, AND TUNGSTEN (MAY 2024) (IAW DFARS 225.7018-5)

252.225-7972 PROHIBITION ON THE PROCUREMENT OF FOREIGN-MADE UNMANNED AIRCRAFT SYSTEMS (DEVIATION 2020-O0015) (MAY 2020)

252.227-7015 TECHNICAL DATA–COMMERCIAL ITEMS (JAN 2025)