Luna Purchase Order - Terms & Conditions
Purchase Order - Terms & Conditions
Revision 2 – November 9, 2022
Equal Opportunity Employer/ Affirmative Action
This contractor and subcontractor shall abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
Purchase Order General Provisions
A) COUNTERFEIT WORK
(a) For purposes of this clause, Work consists of those parts delivered under this Contract/Purchase Order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). "Counterfeit Work" means Work that is an unlawful or unauthorized reproduction, substitution, or alteration of items misrepresented as having been designed and/or produced under an: approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair, however it is altered and misrepresented as acceptable.
(b) SELLER shall not deliver Counterfeit Work to Luna under this Contract/Purchase Order.
(c) SELLER shall only purchase products to be delivered or incorporated as Work to Luna directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by Luna.
(d) SELLER shall immediately notify Luna with the pertinent facts if SELLER becomes aware or suspects that it has delivered Counterfeit Work. When requested by Luna, SELLER shall provide OCM/OEM documentation that authenticates traceability of the affected items lo the applicable OCM/OEM.
e) In the event that Work delivered under this Contract/Purchase Order constitutes or includes Counterfeit Work, SELLER shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Contract. Notwithstanding any other provision in this Contract/Purchase Order, SELLER shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation Luna's 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 Luna may have at law, equity or under other provisions of this Contract.
(f) SELLER shall include paragraphs (a) through (e) 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 Luna.
B) CONFLICT MINERALS
Seller shall disclose any "Conflict Minerals" included in the products, components, or materials supplied, manufactured or Contracted lo be manufactured by Seller for Buyer under this Agreement. The term "Conflict Minerals" shall have the meaning ascribed to it under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, meaning wolframite, cassiterite, columbite-tantalite (coltan), gold and their derivative metals: tantalum, tin and tungsten. Such information will be disclosed to Buyer using the Conflict Minerals Reporting Template developed by the Electronic Industry Citizenship Coalition ("EICC"). The information will be submitted prior to the time of delivery of materials, components, or products to Buyer. Seller shall obtain Buyer's prior written consent before providing any materials, components: or products to Buyer that include Conflict Minerals that originated from the Democratic Republic of Congo ("DRC") or the nine adjoining conflict countries; Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia. Seller shall maintain effective accounting procedures, internal controls and audit procedures' necessary to verify that any conflict Minerals included in materials, components, or products provided to Buyer did not originate from the DRC or the nine adjoining countries, and to verify compliance with this Article. Buyer shall be permitted to audit such records as reasonably necessary to confirm Seller's compliance with this Article. Seller shall indemnify and hold Buyer harmless for all fines, penalties, expenses or other losses sustained by Buyer as a result of Seller's breach of this Article.
C) Prohibited Telecom
(a) Supplier recognizes that Luna Innovations Inc, Buyer, and their respective Affiliates are subject to Section 889 of the National Defense Authorization Act for Fiscal Year 2019 (“Section 889”), which prohibits prime contractors to the U.S. government from using (regardless of end use) “covered telecommunications equipment or services”, as such term is defined in Section 889 (“Prohibited Telecom”).
(b) Supplier represents that it shall not furnish to Buyer any Goods or Services that use or contain Prohibited Telecom.
(c) Supplier commits to (i) have in place processes to determine whether it furnishes, or has furnished, to Buyer Goods, separately identifiable items or components of Goods, or Services that use or contain Prohibited Telecom; (ii) notify Buyer, within 1 business day of Supplier’s identification, of the use or existence of Prohibited Telecom in the Goods and/or Services it furnishes, or has furnished, to Buyer (a “Prohibited Telecom Use Notice”), which shall include the brand, model number, and item description of such Goods and/or Services; and (iii) within 10 business days of Supplier’s submission of a Prohibited
Telecom Use Notice, provide Buyer with such further available information as Buyer may request about such Supplier’s use of Prohibited Telecom in the Goods and/or Services it furnishes, or has furnished, to Buyer, and the efforts Supplier has taken, and will take, to prevent the use of Prohibited Telecom in the Goods and/or Services it furnishes to Buyer.
(d) Supplier shall require its subcontractors to satisfy the requirements of this Section.
D) INCORPORATION OF FAR AND DFARS CLAUSES
1) The Federal Acquisition Regulations (FARS) and Department of Defense Federal Acquisition Regulations (DFARS) clauses referenced below are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable, including any notes following the clause citation, to this Contract. If the date or substance of any of the clauses listed below is different from the date or substance of the clause incorporated in the Prime Contract referenced by number herein, the date or substance of the clause incorporated by said Prime Contract shall apply.
2) The following notes apply to the clauses incorporated by reference below only when specified in the parenthetical phrase following the clause title and date.
a. Substitute "LUNA" for "Government" or "United States" throughout this clause.
b. Substitute "LUNA BUYER" for "Contracting Officer", "Administrative Contracting Officer", and "ACO" throughout this clause.
c. Insert "and LUNA" after "Government" throughout this clause.
d. Insert "or LUNA" after "Government" throughout this clause.
e. Communication with LUNA SPONSOR shall be through LUNA.
f. Insert "and LUNA" after "Contracting Officer", throughout the clause.
g. Insert "or LUNA BUYER" after "Contracting Officer", throughout the clause.
E) AMENDMENTS REQUIRED BY PRIME CONTRACT
1) SELLER agrees that upon the request of LUNA it will negotiate in good faith relative to amendments to this Contract to incorporate additional provisions herein or to change provisions hereof, as LUNA may reasonably deem necessary in order to comply with the provisions of the applicable Prime Contract (or) with the provisions of amendments to Prime Contract. If any amendment to this Contract causes an increase or decrease in the cost of, or the time required for, performance of any part of the Work under this Contract, an equitable adjustment shall be made pursuant to the "Changes" clause of this contract.
FAR 12.103 COMMERCIALLY AVAILABLE OFF-THE-SHELF (COTS) ITEMS (OCT 2022)
FAR 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JUN 2020) (Applies if Contract exceeds $150,000.)
FAR 52.203-15 WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (JUN 2010)
FAR 52.204-21 BASIC SAFEQUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS (NOV 2021)
FAR 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2022)
FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES (APR 2015)
FAR 52.222-26 EQUAL OPPORTUNITY (SEP 2016)
FAR 52.222-35 EQUAL OPPORTUNITY FOR VETERANS (JUN 2020)
FAR 52.222-36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN 2020)
FAR 52.222-37 EMPLOYMENTS REPORT ON VETERANS (JUN 2020)
FAR 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT (DEC 2010)
FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (NOV 2021)
FAR 52.222-55 MINIMUM WAGES FOR CONTRACTOR WORKERS UNDER EXECUTIVE ORDER 14026 (JAN 2022)
FAR 52.225-26 CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS OUTSIDE THE UNITED STATES (OCT 2016)
FAR 52.232-40 PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (NOV 2021)
FAR 52.244-6 SUBCONTRACTS FOR COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (OCT 2022)
FAR 52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S. FLAG COMMERCIAL VESSELS (NOV 2021)
DFARS 252.204-7012 SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING (DEC 2019)
DFARS 252.225-7007 PROHIBITION ON ACQUISITION OF CERTAIN ITEMS FROM COMMUNIST CHINESE MILITARY COMPANIES (DEC 2018)
DFARS 252.225-7009 RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (DEC 2019)
DFARS 252.225-7052 RESTRICTION ON THE ACQUISITION OF CERTAIN MAGNETS, TANTALUM AND TUNGSTEN (AUG 2022)
DFARS 252.244-7000 SUBCONTRACTS FOR COMMERCIAL ITEMS (JAN 2021)