Attached files
EXHIBIT 10.26
Portions
of this Exhibit 10.26 have been omitted based upon a request for confidential
treatment. This Exhibit 10.26, including the non-public information, has been
filed separately with the Securities and Exchange Commission “*” designates
portions of this document that have been redacted pursuant to the request for
confidential treatment filed with the Securities and Exchange
Commission.
GENERAL
TERMS AGREEMENT
between
THE
BOEING COMPANY
and
TITANIUM
METALS CORPORATION
GTA – * dated 01-01-2011
TABLE OF
CONTENTS
TITLE
PAGE
TABLE OF
CONTENTS
AMENDMENT
PAGE
RECITAL
PAGE
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1.0
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7
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2.0
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8
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2.1
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Issuance
of Orders
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8
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2.2
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Acceptance
of Orders
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9
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2.3
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Written
Authorization to Proceed
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9
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3.0
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9
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4.0
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10
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4.1
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Schedule
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10
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4.2
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Reserved
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10
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4.3
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Notice
of Labor Negotiations
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10
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5.1
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Review
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10
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|
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5.2
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Resident
Representatives
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11
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6.0
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12
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6.1
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Seller
Information
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12
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6.2
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Subcontractor/Supplier
Information
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12
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7.0
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12
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7.1
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General
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12
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7.1.1
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Shipping
Documentation
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13
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7.1.2
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Insurance
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13
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7.1.3
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Shipping
Container Labels
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13
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7.1.4
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Carrier
Selection
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13
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7.1.5
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Invoices
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13
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7.1.6
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Noncompliance
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13
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7.1.7
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Reserved
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14
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7.2
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Barcode
Marking and Shipping
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14
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8.1
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Controlling
Document
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14
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8.2
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Seller's
Inspection
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14
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8.2.1
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Seller's
Disclosure
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14
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8.2.2
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Seller’s
Acceptance
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15
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|
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8.3
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Boeing's
Inspection and Rejection
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15
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GTA –
*
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8.4
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Rights
of Boeing’s Customers and Regulators to Perform Inspections, Surveillance,
and Testing
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16
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8.5
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Retention
of Records
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16
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8.6
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Inspection
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17
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8.7
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Reserved
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17
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8.8
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Regulatory
Approvals
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17
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9.0
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18
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10.0
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18
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10.1
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Changes
Clause
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18
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11.1
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Language
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19
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11.2
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Currency
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19
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11.3
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Import/Export
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19
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12.0
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20
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12.1
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Basis
for Termination; Notice
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20
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12.2
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Termination
Instructions
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20
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12.3
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Seller's
Claim
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22
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12.4
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Failure
to Submit a Claim
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22
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12.5
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Partial
Termination
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23
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12.6
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Product
Price
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23
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12.7
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Exclusions
or Deductions
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23
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12.8
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Partial
Payment/Payment
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23
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12.9
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Seller's
Accounting Practices
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25
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12.10
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Records
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25
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13.0
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25
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|
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13.1
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Events
of Default
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25
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13.2
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Remedies
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28
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14.0
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28
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15.0
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29
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17.0
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30
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18.0
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30
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GTA –
*
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21.0
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34
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21.1
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Compliance
with Laws
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34
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21.2
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Government
Requirements
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35
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21.3
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Ethics
and Code of Conduct
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35
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21.4
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Code
of Basic Working Conditions and Human Rights
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36
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22.0
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36
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25.0
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38
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25.1
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Program
Termination
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38
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25.2
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Termination
Liability
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38
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26.0
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38
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27.0
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39
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27.1
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Insurance
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39
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27.2
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Certificate
of Insurance
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39
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27.3
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Notice
of Damage or Loss
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39
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28.0
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40
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28.1
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Subcontracting
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40
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28.2
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Reliance
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40
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28.3
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Assignment
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41
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29.0
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41
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30.0
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41
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31.0
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41
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32.0
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42
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33.0
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42
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34.0
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42
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35.0
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42
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35.1
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Inclusion
of Taxes in Price
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42
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35.2
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Litigation
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43
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35.3
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Rebates
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43
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GTA –
*
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36.0
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43
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GTA –
*
AMENDMENTS
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Amend
Number
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Description
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Date
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Approval
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GTA –
*
GENERAL
TERMS AGREEMENT
RELATING
TO
PRODUCTS
OR SERVICES
THIS
GENERAL TERMS AGREEMENT (“GTA”) is entered into as of enter date of GTA, by and
between Titanium Metals
Corporation, a Delaware corporation, with
its principal office in
Dallas, Texas, ("Seller"), and The Boeing Company, a Delaware corporation
with an office in Seattle, Washington ("Boeing"). Hereinafter, the
Seller and Boeing may be referred to jointly as “Parties” hereto.
Now, therefore, in
consideration of the mutual covenants set forth herein, the Parties agree as
follows:
AGREEMENTS
1.0 DEFINITIONS
The
definitions set forth below shall apply to this GTA, any Order, and any related
Special Business Provisions ("SBP") (collectively "the
Agreement"). Words importing the singular shall also include the
plural and vice versa.
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A.
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"Customer"
means any owner, lessee or operator of an aircraft or commodity, or
designee of such owner, lessee or
operator.
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B.
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"FAA"
means the United States Federal Aviation Administration or any successor
agency thereto.
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C.
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"FAR"
means the Federal Acquisition Regulations in effect on the date of this
Agreement.
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D.
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"Procurement
Representative" means the individual designated by Boeing as being
primarily responsible for interacting with Seller regarding this Agreement
or any Order.
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E.
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“On-Time
Delivery” by Seller shall be defined as Seller having * Product available
to ship on * as established in accordance with Section 2.2
below.
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F.
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"Order"
means each purchase contract and purchase order issued by Boeing and
either accepted by Seller under the terms of this GTA and SBP or issued
within Boeing’s authority under this GTA and
SBP.
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GTA –
*
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G.
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"Product"
means titanium product of the specific grade, form and size enumerated on
Attachment 1 to the SBP furnished or to be furnished to Boeing under any
Order * assemblies for Boeing and Boeing Entities (as defined in the
applicable SBP).
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H.
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“Services”
means the work to be performed by Seller under an Order for Boeing as set
forth in the statement of work and Specifications established in the
applicable SBP.
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I.
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“Service
Provider” means TMX Aerospace or any other entity designated by Boeing as
its agent from time to time for the purpose of interacting with Seller in
the administration of Orders.
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J.
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“Specifications”
means chemical, physical and other specifications (which may include
processing, procedures and inspecting and testing criteria) for
Products.
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K.
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"Tooling"
means all tooling, used in production or inspection of Products or
Services, either provided to Seller or supplied by Seller whereby Boeing
agrees to pay Seller for the manufacture of the
tooling.
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2.0
ORDERING
2.1 Issuance
of Orders
Boeing or
its Service Provider may issue Orders to Seller from time to
time. Each Order shall contain a description of the Products or
Services ordered, a reference to the applicable specifications, drawings or
supplier part number, the quantities and prices, the delivery schedule, the
terms and place of delivery and any special conditions. Prices for
Products shall be as set forth on Attachment 1 to the SBP and incorporated
herein by this reference.
Boeing
and Seller shall agree in writing upon the scheduled delivery date for any
Product requested for delivery in less than the lead time expressly established
for such Product in the * (as such term is used in the applicable SBP) * issued
by Seller to Boeing.
Each
Order shall be governed by and be deemed to include the provisions of this GTA
and the applicable SBP. Each Order shall reference the SBP number, or
shall be corrected by Boeing or its Service Provider within * of Seller’s
acknowledgement of the original Order. * Any other Order
terms and conditions, which conflict with this Agreement, do not apply unless
specifically agreed to in writing by the Parties.
GTA –
*
2.2 Acceptance
of Orders
Each
Order is Boeing's offer to Seller and acceptance is strictly limited to its
terms. Unless specifically agreed to in writing by the Procurement
Representative of Boeing, Boeing objects to, and is not bound by, any terms or
condition that differs from or adds to the Order. Seller shall
respond with its written acknowledgement within * of receipt of an
Order. Any Order not acknowledged with * shall be deemed
automatically accepted; provided that, the Order contains terms consistent with
this Agreement, is for Products represented in the the applicable SBP, conforms
to established and accepted Specifications, the delivery date shall
*. Boeing may revoke any Order prior to Boeing’s receipt of Seller’s
written acceptance.
Any
rejection by Seller of an Order shall specify the reasons for rejection and any
changes or additions that would make the Order acceptable to Seller; provided,
however, that Seller may not reject any Order for reasons inconsistent with the
provisions of this Agreement or the applicable SBP.
2.3 Written
Authorization to Proceed
Boeing's
Procurement Representative may give written or electronic authorization to
Seller to commence performance before Boeing issues an Order. If
Boeing’s authorization specifies that an Order will be issued, Boeing and Seller
shall proceed as if an Order had been issued; provided that if the Order, once
issued, contains terms that differ from those contained in the written
authorization to proceed, such Order shall be regarded by Seller as a change to
the Order under Section 10.1 of this GTA. This Agreement, the
applicable SBP and the terms stated in the authorization shall be deemed to be a
part of Boeing's offer and the Parties shall promptly and in good faith agree on
any open Order terms. If Boeing does not specify in its authorization
that an Order shall be issued, Boeing's obligation is strictly limited to the
terms of the authorization.
If Seller
commences performance before an Order is issued or without receiving Boeing's
prior authorization to proceed, such performance shall be at Seller's risk and
expense.
3.0 TITLE AND RISK OF LOSS
Except as
otherwise agreed in writing by the Parties, title to and risk of any loss of or
damage to the Products shall pass at the *. or Incoterm point as specified in
the applicable Order, except for loss or damage thereto resulting from Seller's
fault or negligence. Title and risk of loss shall pass at (i) * for
all U.S. domestic shipments (* as defined in the Uniform Commercial Code of the
State of Washington) and (ii) * for all international shipments (* as defined in
INCOTERMS 2000).
GTA –
*
4.0 DELIVERY
Except as
otherwise agreed in writing by the Parties, the terms of delivery shall be (i)
*.
4.1 Schedule
Seller
shall strictly adhere to the shipment, delivery or completion schedules
specified in the Order. In the event of any anticipated or actual
delay, including but not limited to delays attributed to labor disputes, Seller
shall: (i) promptly notify Boeing in writing of the reasons for the delay and
the actions being taken to overcome or minimize the delay; and (ii) provide
Boeing with a written recovery schedule. If Boeing requests, Seller
shall, at Seller’s expense (unless the delay is caused by Boeing or the Service
Provider in which case Boeing shall be liable for any additional expense), ship
via air or other expedited routing to avoid the delay or minimize it as much as
possible. Seller shall not deliver Products or Services prior to the
scheduled delivery dates unless authorized in writing by Boeing.
Boeing
shall, at no additional cost to Boeing, retain goods furnished in excess of the
specified quantity or in excess of any allowable overage unless, within * of
shipment, Seller requests return of such excess. In the event of such
request, Seller shall reimburse Boeing for reasonable costs associated with
storage and return of excess.
If
Products or Services are manufactured with reference to Boeing Proprietary
Information or Materials (as defined in GTA Section 20.0), Seller agrees that
pursuant to the Proprietary Information and Items GTA Section 20.0 of this
Agreement, it will not sell or offer such Products or Services for sale to
anyone other than Boeing without Boeing’s prior written consent.
4.2 Reserved.
4.3 Notice
of Labor Negotiations
When
requested by Boeing, Seller will provide notice to Boeing of any actual or
threatened labor dispute and of the fact of labor contract negotiations that
would be expected to disrupt the timely performance of the
Order. Seller shall require a similar notice from Seller’s
subcontractors or suppliers, except as may be prohibited by law.
5.0 ON-SITE REVIEW AND RESIDENT REPRESENTATIVES
5.1 Review
Seller
hereby grants, and shall cause any of its subcontractors or suppliers to grant,
to Boeing the right to visit the facility of Seller or any of its subcontractors
or suppliers during normal operating hours and with reasonable prior notice to
review progress and performance with respect to production, schedule, cost
(consistent with the limitations contained in GTA Section 9.0), quality and
protection of Boeing's proprietary rights under any Order. Any Boeing
representative shall be allowed access to all areas used for the performance of
the Agreement. Such access shall be subject to the regulations of any
governmental agency regarding admissibility and movement of personnel on the
premises of Seller or any of its subcontractors or suppliers and the normal
workplace rules and regulations with respect to safety, security and
confidentiality.
Boeing
shall notify Seller prior to any visit. Such notice shall contain the
names, citizenship and positions of the visiting personnel and the duration and
purpose of such visit.
GTA –
*
5.2 Resident
Representatives
Boeing
may, in its sole discretion, and for such period, as it deems necessary, locate
resident personnel ("Resident Team") at Seller's facility. The Resident Team
shall function under the direction of a resident Boeing manager, if appropriate,
or a manager located at Boeing who will supervise Resident Team
activities. The Resident Team shall be subject to the regulations of
any governmental agency regarding admissibility and movement of personnel on the
premises of Seller or any of its subcontractors or suppliers and the normal
workplace rules and regulations with respect to safety, security and
confidentiality.
The
Resident Team shall be allowed access to or to review, as the case may be, all
work areas, program status reports and management reviews used for or relating
to Seller's performance of the Agreement, but may not have access to any of
Seller’s Product cost or similar information except for the process as set forth
in GTA Section 9.0.
Seller
shall supply the Resident Team with office space, desks, facsimile machines,
telephones, high-speed access to internet services (if available from local
providers), stationery supplies, filing cabinets, communication facilities,
secretarial services and any other items reasonably requested by
Boeing. A reasonable portion of the Resident Team's working area
shall be dedicated to space for private telephone calls, meetings and similar
Boeing activities. All costs and expenses for such facilities and
services, if required, shall be paid by Seller.
Notwithstanding
such assistance, access and review, Seller remains solely responsible for
performing in accordance with each Order.
GTA –
*
6.0 CREDIT OFFICE VISIBILITY
6.1 Seller
Information
Seller
shall send financial data from information made available to the general public
via 10-K and 10-Q reporting requirements to the Boeing Corporate Credit
Office. In the event the Seller is no longer required to disclose
financial information to the general public via 10-K and 10-Q reporting
requirements, Seller shall provide *, or as requested to the Boeing Corporate
Credit Office for *. Said data shall include but not be limited to
*. Copies of such data are to be made available within * of any
written request by Boeing’s Corporate Credit Office. Boeing shall
treat all such information as confidential.
6.2 Subcontractor/Supplier
Information
Seller
shall maintain a process to evaluate and assess on an on-going basis the
financial health of its subcontractor(s) and supplier(s) supporting this
Agreement. Boeing Corporate Credit reserves to right to review and evaluate
Seller’s process. Seller will include provisions as part of its
subcontracts that allow information to be shared with Boeing Corporate Credit
and allow Boeing Corporate Credit to evaluate and assess the financial health of
such subcontractors and suppliers directly. In addition, Seller shall
ensure that Boeing may disclose to Seller any financial information received by
Boeing Corporate Credit as part of this GTA Section 6.2. No action by Boeing
Corporate Credit shall relieve Seller from its responsibilities under this
Section 6.0 or any other obligation under this Agreement.
7.0 PACKING AND SHIPPING
7.1 General
Seller
shall pack the Products in accordance with Boeing Document D37522-6 “Supplier
Packaging” as amended from time to time. Said document is incorporated herein
and made a part hereof by this reference. Seller shall comply with
carrier tariffs. Unless the Order specifies otherwise,
*. Unless otherwise specified in the Order, *. For
Products shipped domestically, Seller shall *. In such event, Seller
shall *. Boeing may charge Seller for damage to or deterioration of
any Products resulting from (i) packing that does not meet Boeing’s
Specifications or packing requirements or (ii) packaging that does not meet
Boeing’s Specifications or packaging requirements. Seller shall
comply with any special instructions stated in the applicable Order; provided
that, if such special instructions deviate from Boeing’s Specifications, such
instruction will be governed by the terms of GTA Section
10.0. *.
GTA –
*
7.1.1 Shipping
Documentation
Shipments
by Seller or its subcontractors or suppliers must include packing
sheets. Each packing sheet must include at a minimum the following:
a) Seller's name, address, phone number; and supplier code number b) Order and
item number; c) ship date for the Products; d) total quantity shipped and
quantity in each container, if applicable; e) legible packing slip number; f)
nomenclature; g) unit of measure; h) “ship to” information if other than Boeing;
i) warranty data and certification, as applicable; j) rejection tag, if
applicable; k) Seller's certification that Products or Services comply with
Order requirements; and, l) identification of optional material used, if
applicable. A shipment containing hazardous and non-hazardous
materials must have separate packing sheets for the hazardous and non-hazardous
materials. Items shipped on the same day will be consolidated on one
bill of lading or airbill, unless Boeing’s Procurement Representative authorizes
otherwise. The shipping documents will describe the material
according to the applicable classification or tariff rating. The
total number of shipping containers will be referenced on all shipping
documents. Originals of all government bills of lading will be
surrendered to the origin carrier at the time of shipment.
7.1.2 Insurance
Seller
will not insure any shipment designated origin, place of shipment, or applicable
Incoterm where Boeing is responsible for transportation unless authorized by
Boeing.
7.1.3 Shipping
Container Labels
Seller
will label each shipping container with the Order number and the number that
each container represents of the total number being shipped (e.g., Box 1 of 2,
Box 2 of 2).
7.1.4 Carrier
Selection
Boeing
will select the carrier and mode of transportation for all shipments where
freight costs will be charged to Boeing.
7.1.5 Invoices
Seller
will include copies of documentation supporting prepaid freight charges (e.g.,
carrier invoices or shipping log/manifest), if any, with its
invoices.
7.1.6 Noncompliance
If Seller
is unable to comply with the shipping instructions in an Order, Seller will
contact Boeing’s Supply Chain Logistics organization or Boeing’s Procurement
Representative.
GTA –
*
7.1.7 Reserved
7.2 Barcode
Marking and Shipping
For
Orders from Boeing locations that have approved Seller to utilize barcode
labeling for shipping and packaging, Seller shall mark and package such
shipments in accordance with the applicable barcode requirements for that
location. Where approved and pursuant to applicable Specifications,
Seller will utilize barcoding technology for part marking Products.
8.0 QUALITY ASSURANCE, INSPECTION, REJECTION, &
ACCEPTANCE
8.1 Controlling
Document
The
controlling quality assurance document for Orders shall be as set forth in the
SBP.
8.2 Seller's
Inspection
Seller
shall inspect or otherwise verify that all Products or Services, including those
components procured from or furnished by subcontractors or suppliers or Boeing,
comply with the requirements of the Order prior to shipment to Boeing or
Customer. Seller shall be responsible for all tests and inspections
of the Product during receiving, manufacture and Seller's final inspection.
Seller agrees to furnish copies of test and/or control data upon request from
Boeing’s Procurement Representative.
8.2.1 Seller's
Disclosure
Seller
shall provide written notification to Boeing within * when a nonconformance is
determined to exist, or is suspected to exist, on Product already delivered to
Boeing under any Order and the following is known:
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A.
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Affected
process or Product number and name;
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B.
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Description
of the problem (i.e., what it is and what it should
be);
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C.
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Quantity
and dates delivered; and
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D.
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Suspect/affected
serial number(s) or date codes, when
applicable.
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The
Seller shall notify the Seller’s “ship-to” customer, Boeing’s Service Provider,
the Boeing Procurement Representative and the Boeing Procurement Quality
Assurance Field Representative for the Boeing location where the Product was
delivered.
If the
nonconforming condition has been previously identified by Boeing, using a
Nonconformance Record or other equivalent means and requesting a corrective
action response, the Seller shall notify the Boeing investigator identified on
the corrective action request that additional Product is affected.
GTA –
*
8.2.2 Seller’s
Acceptance
Seller
shall provide with all shipments the following evidence of acceptance by its
quality assurance department: (a) certified physical and
metallurgical or mechanical test reports where required by controlling
Specifications, or (b) a signed, dated statement on the packing sheet certifying
that its quality assurance department has inspected the Products or Services and
they adhere to all applicable drawings and/or Specifications.
8.3 Boeing's
Inspection and Rejection
Boeing
will accept the Products or Services or give Seller notice of rejection or
revocation of acceptance (“rejection” herein), notwithstanding any payment,
prior test or inspection, or passage of title. No inspection, test
delay or failure to inspect or test or failure to discover any defect or other
nonconformance shall relieve Seller of any obligations under any Order or impair
any right or remedy of Boeing.
If Seller
delivers non-conforming Products or Services, Boeing may at its option and at
Seller’s expense (i*; (ii) *; (iii) *; or, (iv) *. These remedies
*.
Seller
shall not redeliver corrected or rejected goods without disclosing to Boeing’s
Service Provider, the Boeing Procurement Representative and the Boeing
Procurement Quality Assurance Field Representative (and, upon request by
Boeing’s Quality Assurance Field Representative, the “ship-to” customer) the
former rejection or requirement for correction. Seller shall disclose
any corrective action taken. Repair, replacement and other correction
and redelivery shall be completed within the original delivery schedule or such
later time as Procurement Representatives of Boeing may reasonably
direct.
*incurred
as a result of or in connection with nonconformance and repair, replacement or
other correction may be recovered from Seller by * or * to be applied against
amounts that may be owed to Seller under this Agreement or
otherwise.
Acceptance
of any Product by Boeing following * pursuant to this Section 8.3 shall not
alter or affect the obligations of Seller or the rights of Boeing under the
Agreement.
GTA –
*
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8.4
|
Rights
of Boeing’s Customers and Regulators to Perform Inspections, Surveillance,
and Testing
|
Boeing's
rights to perform inspections, surveillance and tests and to review procedures,
practices, processes and related documents related to quality assurance, quality
control, flight safety, and configuration control shall extend to the Customers
of Boeing that are departments, agencies or instrumentalities of the United
States Government and to the FAA and any successor agency or instrumentality of
the United States Government. Boeing may also, at Boeing's option, by
prior written notice from Boeing’s Procurement Representative, extend such
rights to other Customers of Boeing and to agencies or instrumentalities of
other governments equivalent in purpose to the FAA. Seller shall
cooperate with any such United States Government or Boeing directed inspection,
surveillance, test or review without additional charge to Boeing. Nothing in
this Agreement shall be interpreted to limit United States Government access to
Seller's facilities pursuant to law or regulation.
Where
Seller is located in or subcontracts with a supplier or subcontractor located in
a country which does not have a bilateral airworthiness agreement with the
United States, Seller will obtain and maintain on file and require its affected
supplier(s) or subcontractor(s) to obtain and maintain on file, subject to
review by Boeing, or copies provided to Boeing upon request, a letter from the
applicable government where the Product or subcontracted element is to be
manufactured stating that Boeing and the FAA will be granted access to perform
inspections, surveillance and tests and to review procedures, practices,
processes and related documents related to quality assurance, quality control,
flight safety, and configuration control.
8.5 Retention
of Records
For
Orders supporting BCA, Seller shall maintain, on file at Seller’s facility,
Quality records traceable to the conformance of product/part numbers delivered
to Boeing. Seller shall make such records available to regulatory authorities
and Boeing’s authorized representatives. Seller shall retain such records for a
period of not less than * from the date of shipment under each applicable Order
for all product/part numbers unless otherwise specified on the Order. Seller
shall maintain all records related to the current first article inspection (FAI)
for * past final delivery of the last Product covered by the FAI.
At the
expiration of such period set forth above and prior to any disposal of records,
Seller will notify Boeing of records to be disposed of and Boeing reserves the
right to request delivery of such records. In the event Boeing chooses to
exercise this right, Seller shall promptly deliver such records to Boeing * on
media agreed to by both parties.
GTA –
*
8.6 Inspection
*,
Products or Services or portions thereof, may be subject to inspection,
surveillance and test at reasonable times and places, including Seller’s
subcontractors’ or suppliers’ locations. Boeing will perform
inspections, surveillance and tests so as not to unduly interfere with Seller’s
performance under an Order or the Agreement. Seller shall maintain an
inspection system acceptable to Boeing for the Products or Services purchased
under any Order. Access to Seller’s facilities shall be subject to
the regulations of any governmental agency regarding admissibility and movement
of personnel on the premises of Seller or any of its subcontractors or suppliers
and the normal workplace rules and regulations with respect to safety, security
and confidentiality.
If Boeing
performs an inspection or test on the premises of Seller or its subcontractors
or suppliers, Seller shall furnish and require its subcontractors or suppliers
to furnish, *, reasonable facilities and assistance for the safe and convenient
performance of these duties.
Seller's
documentation accompanying the shipment containing inspected Products or
Services, or portions thereof must reflect evidence of this
inspection.
8.7 Reserved
8.8 Regulatory
Approvals
For
aircraft regulated by the FAA or non-U.S. equivalent agency, regulatory approval
may be required for Seller to make direct sales (does not include “direct ship”
sale through Boeing) of modification or replacement parts to owners/operators of
type-certificated aircraft. Regulatory approval, such as Parts
Manufacturer Approval (PMA), is granted by the FAA or appropriate non-U.S.
equivalent regulatory agency. Seller agrees not to engage in any such direct
sales of Products or Services under this Agreement without regulatory
approval. Any breach of this provision will be deemed a material
breach of this Agreement. For Seller proprietary parts, Seller agrees
to notify Boeing of application for PMA or other applicable regulatory approval
and subsequent approval or denial of same. Upon receipt of proof of
PMA or other applicable regulatory approval, Boeing may list Seller in the
illustrated parts catalog as seller of that part.
GTA –
*
9.0 EXAMINATION OF RECORDS
Seller
shall maintain complete and accurate records showing the sales volume of all
Products or Services. Such records shall support all services
performed, allowances claimed and costs incurred by Seller in the performance of
each Order, including but not limited to those factors which comprise or affect
direct labor hours, direct labor rates, material costs, burden rates and
subcontracts. Such records and other data (except for cost or similar
information) shall be capable of verification through audit and analysis by
Boeing and be available to Boeing at Seller's facility for Boeing's examination,
reproduction, and audit at all reasonable times from the date of the applicable
Order until * after final payment under such Order. If Seller
reasonably determines * directly to Boeing, Seller shall *. Seller
shall provide assistance to interpret such data if requested by
Boeing. Other than the limitation related to * set forth hereinabove,
such examination shall provide Boeing with complete information regarding * for
use in price negotiations with Seller relating to existing or future orders for
Products or Services, including but not limited to negotiation of equitable
adjustments for changes and termination/obsolescence claims pursuant to GTA
Section 10.0 and GTA Section 12.0. Boeing shall treat all information
disclosed under this GTA Section as confidential, except as otherwise required
by U.S. Government contracting regulation(s).
10.0 CHANGES
10.1 Changes
Clause
Boeing’s
Procurement Representative may, without notice to sureties, in writing direct
changes within the general scope of this Agreement or an Order in any of the
following: (i) technical requirements and descriptions, Specifications,
statement of work, drawings or designs; (ii) shipment or packing methods; (iii)
place of delivery, inspection or acceptance; (iv) reasonable adjustments in
quantities or delivery schedules or both; (v) amount of Boeing-furnished
property; and, if this Agreement includes services, (vi) description of services
to be performed; (vii) time of performance (i.e., hours of the day, days of the
week, etc.); and (viii) place of performance. Seller shall comply
immediately with such direction.
*. Unless
otherwise agreed in writing, Seller must assert any claim for adjustment to
Boeing’s Procurement Representative in writing within * and deliver a fully
supported proposal to Boeing’s Procurement Representative within * after
Seller’s receipt of such direction. Boeing shall modify the Order in
writing accordingly. Boeing may, at its sole discretion, consider any
claim regardless of when asserted. If Seller’s claim includes the
cost of property made obsolete or excess by the change, Boeing may direct the
disposition of the property. Subject to the limitations set forth in
GTA Section 9.0, Boeing may examine Seller’s pertinent books and records
supporting Seller’s claim. Subject to resolution through the
provisions of GTA Section 33, *.
If Seller
considers that Boeing’s conduct constitutes a change, Seller shall notify
Boeing’s Procurement Representative immediately in writing as to the nature of
such conduct and its effect upon Seller’s performance. Pending
direction from Boeing’s Procurement Representative, Seller shall take no action
to implement any such change.
GTA –
*
11.0 GENERAL & INTERNATIONAL REQUIREMENTS
11.1 Language
The
Parties hereto have agreed that this Agreement be written in American English
only. Where Seller resides in Quebec, Canada, les parties aux
presentes tes ont convenu de rediger ce contrat en Anglais
seulement. All contractual documents and all correspondence,
invoices, notices and other documents shall be submitted in American
English. Any necessary conversations shall be held in
English. Boeing shall determine whether measurements will be in the
English or Metric system or a combination of the two systems. When
furnishing documents to Boeing, Seller shall not convert measurements, which
Boeing has stated in an English measurement system into the Metric
system.
11.2 Currency
Unless
specified elsewhere herein, all prices shall be stated in and all payments shall
be made in the currency of the United States of America (U.S.
Dollars). No adjustments to any prices shall be made for changes to
or fluctuations in currency exchange rates.
11.3 Import/Export
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A.
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In
performing the obligations of this Agreement, both Parties will comply
with all applicable export, import and sanctions laws, regulations,
orders, and authorizations, as they may be amended from time to time,
applicable to the export (including re-export) or import of goods,
software, technology, or technical data (“Items”) or services, including
without limitation the Export Administration Regulations (“EAR”),
International Traffic in Arms Regulations (“ITAR”), and regulations and
orders administered by the Treasury Department’s Office of Foreign Assets
Control (collectively, “Export/Import
Laws”).
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B.
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The
Party conducting the export or import shall obtain all export or import
authorizations which are required under the Export/Import Laws for said
party to execute their obligations under this Agreement. Each
Party shall reasonably cooperate and exercise reasonable efforts at its
own expense to support the other Party in obtaining any necessary licenses
or authorizations required to perform its obligations under this
Agreement. Reasonable cooperation shall include providing reasonably
necessary documentation, including import, end-user and retransfer
certificates.
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C.
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The
Party providing Items or services under this Agreement shall, upon
request, notify the other Party of the Items or services’ export
classification (e.g. the Export Control Classification Numbers or U.S,
Munitions List (USML) category and subcategory) as well as the export
classification of any components or parts thereof if they are different
from the export classification of the Item at issue. The
Parties acknowledge that this representation means that an official
capable of binding the Party providing such Items or services knows or has
otherwise determined the proper export classification. Each
Party agrees to reasonably cooperate with the other in providing, upon
request of the other Party, documentation or other information that
supports or confirms this
representation.
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GTA –
*
12.0 TERMINATION FOR CONVENIENCE
12.1 Basis
for Termination; Notice
Boeing
may, from time to time terminate all or part of any Order issued hereunder, by
written notice to Seller. Any such written notice of termination
shall specify the effective date and the extent of any such
termination.
12.2 Termination
Instructions
On
receipt of a written notice of termination of all or part of any Order under
this Agreement, unless otherwise directed by Boeing, Seller shall:
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A.
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Immediately
stop work as specified in the
notice;
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B.
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Incur
no further contractual obligations for materials, services or facilities,
except as necessary to complete any continued portion of this Agreement or
any Order issued hereunder.
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C.
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Immediately
terminate its subcontracts and purchase orders relating to work
terminated;
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D.
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Assign
to Boeing, if directed by Boeing, all right, title, and interest of Seller
under its subcontracts terminated, in which case Boeing shall have the
right to settle or to pay any termination settlement proposal arising out
of those terminations.
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E.
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Settle
any termination claims made by its subcontractors or suppliers; provided,
that Boeing shall have approved the amount of such termination claims in
writing prior to such settlement;
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F.
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Preserve
and protect all terminated inventory and Products in which Boeing has or
may acquire an interest;
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G.
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At
Boeing's request, transfer title (to the extent not previously
transferred) and deliver to Boeing or Boeing's designee all supplies and
materials, work-in-process, Tooling and manufacturing drawings and data
produced or acquired by Seller for the performance of this Agreement and
any Order, all in accordance with the terms of such
request;
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GTA –
*
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H.
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Be
compensated for such items to the extent provided in GTA Section 12.3
below;
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I.
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Take
all reasonable steps required to return, or at Boeing's option and with
prior written approval to destroy, all Boeing Proprietary Information and
Items, as set forth in GTA Section 20.0, in the possession, custody or
control of Seller or any of its subcontractors or
suppliers;
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J.
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Take
such other action as, in Boeing's reasonable opinion, may be necessary,
and as Boeing shall direct in writing, to facilitate termination of the
Order; and
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K.
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Complete
performance of the work not terminated in which Boeing has or may acquire
an interest.
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GTA –
*
12.3 Seller's
Claim
If Boeing
terminates an Order in whole or in part under this Agreement, Seller shall have
the right to submit a written termination claim to Boeing in accordance with the
terms of this GTA Section 12.3. Such termination claim shall be
asserted to Boeing within * and all documentation supporting said claim must be
asserted not later than * after Seller's receipt of the termination notice and
shall be in the form prescribed by Boeing. Such claim must contain
sufficient detail describing the amount claimed, including detailed inventory
schedules, a detailed breakdown of all costs claimed separated into categories
(e.g., materials, purchased parts, finished components, labor, burden, general
and administrative), and documentation supporting the claim reasonably requested
by Boeing, including without limitation, invoices, proof of payment, etc., and
an explanation underlying the basis for allocation of any other
costs. In no event shall claims for non-recurring engineering be
considered or paid by Boeing to Seller. With regard to the amount
compensatable to Seller under a termination of all or part of an Order under
this Agreement, Seller shall be entitled to compensation in accordance with and
to the extent allowed under the terms of *.
Notwithstanding
the other claim amounts that Seller may be entitled to include in a termination
claim hereunder, Boeing and Seller agree that termination charges for work in
process or completed Product shall be payable *with respect to each Product
covered by the termination notice as of the committed ship date, in relation to
the stage of manufacturing the affected Product is at upon the date of the
termination notice.
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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*
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Seller
shall indemnify Boeing and hold Boeing harmless from and against (i) any and all
claims, suits and proceedings against Boeing by any subcontractor or supplier of
Seller in respect of any such termination and (ii) any and all costs, expenses,
losses and damages incurred by Boeing in connection with any such claim, suit or
proceeding.
12.4 Failure
to Submit a Claim
Notwithstanding
any other provision of this GTA Section 12.0, if Seller fails to submit a
termination claim within the time period set forth above, Seller shall be barred
from submitting a claim and Boeing shall have no obligation for payment to
Seller under this GTA Section 12.0 except for those Products or Services
previously delivered and accepted by Boeing.
GTA –
*
12.5 Partial
Termination
Any
partial termination of an Order shall not alter or affect the terms and
conditions of the Order or any Order with respect to Products or Services not
terminated.
12.6 Product
Price
Termination
of all or part of an Order under this GTA Section 12.0 shall not result in any
change to Prices (as defined in the applicable SBP) for Products or Services not
terminated.
12.7 Exclusions
or Deductions
The
following items shall be excluded or deducted from any claim submitted by
Seller:
*
12.8 Partial
Payment/Payment
Payment,
if any, to be paid under this GTA Section 12.0 shall be made * after settlement
between the Parties or as otherwise agreed to between the
Parties. Boeing may make partial payments and payments against costs
incurred by Seller for the terminated portion of the Order. If the
total payments exceed the final amount determined to be due, Seller shall repay
the excess to Boeing upon demand.
After
receipt of supporting documentation of the claim by Boeing from Seller, Boeing
shall have a *
“Exploration Period” to request additional documentation from
Seller.
The
Parties shall reach agreement for determining undisputed payment amounts within
*
following the expiration of the Exploration Period. Boeing may
continue to request of Seller additional information to support Seller’s claim
with respect to the amounts claimed by Seller to be due. The Parties
shall cooperate in good faith to make and respond to all information requests in
timely fashion to ensure the matter can be resolved in the allotted time
frame. The last day of the *
period shall be referred to as the “*”.
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A.
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Undisputed
Amounts:
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“Undisputed
Amounts”, if any, owing to Seller under this GTA Section 12.0 shall be due and
payable no later than *
after the earlier to occur of (i) the *
or (ii) the date the Parties have agreed on Undisputed Amounts.
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B.
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Disputed
Amounts:
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GTA –
*
If after
the *
(or any earlier date on which Boeing pays the Undisputed Amounts), there remain
disputed claim amounts, the Parties shall continue to negotiate the settlement
of these claims in good faith, for a period not to exceed *. Within
*
after the date(s) the Parties have agreed (the “Agreement Date”), in whole or in
part, on the amounts that are owed by Boeing in respect of the disputed claim
amounts (“Resolved Amount”) or were overpaid by Boeing in respect of the
original claim amount, (“Overpayment Amount”), then either: (a)
Boeing shall pay Seller (i) the Resolved Amount, if any, and (ii) an
uncompounded interest charge on the Resolved Amount computed over the period
from the *
until the Agreement Date using the *;
or (b) Seller shall reimburse Boeing (i) the Overpayment Amount, if any, and
(ii) an uncompounded interest charge on the Overpayment Amount computed over the
period from the *
until the Agreement Date using the *.
If after
*
there remains a disputed claim amount, both Seller and Boeing agree to elevate
resolution of the dispute to management in their respective senior Finance
organizations.
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C.
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Late
Payments:
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Amounts
determined to be due, either as a Resolved Amount or Overpayment Amount, by the
procedures outlined above by one Party to the other Party under this Article
12.8 that are not paid when due will also be subject to a late charge on the
amount due computed over the period *.
D. Interest
Calculation:
Any
interest charge that may be due under GTA Sections 12.8 B. above shall be
calculated using the following formula:
Interest
Charge = *
Where:
*
Any
interest charge that may be due under GTA Sections 12.8 C. above shall be
calculated using the following formula:
Interest
Charge = *
Where:
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*
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GTA –
*
12.9 Seller's
Accounting Practices
Boeing
and Seller agree that Seller's "normal accounting practices" used in developing
the price of the Product(s) shall also be used in determining the allocable
costs at termination of all or part of an Order. For purposes of this
GTA Section 12.9, Seller's "normal accounting practices" refers to Seller's
method of charging costs as either a direct charge, overhead expense, general
administrative expense, etc.
12.10 Records
Unless
otherwise provided in this Agreement or by law, Seller shall maintain all
financial records and documents relating to the terminated portion of the Order
for * after final settlement of Seller's termination claim.
13.0 CANCELLATION FOR DEFAULT
13.1 Events
of Default
The
occurrence of any one or more of the following events shall constitute an "Event
of Default".
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A.
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Any
failure by Seller to deliver, when and as required by this Agreement or
any Order, any Product or any failure to achieve a milestone in any agreed
milestone recovery plan entered into by the Parties pursuant to GTA
Section 13.2(A)(2), except as either such failure is excusable provided in
GTA Section 14.0; or
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B.
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Any
failure by Seller to provide an acceptable Assurance of Performance after
the Parties have followed the procedures in GTA Section 17.0, or otherwise
in accordance with applicable law;
or,
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C.
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Any
failure by Seller to perform or comply with any obligation set forth in
GTA Section 20.0; or,
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D.
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Seller
is or has participated in the sale, purchase or manufacture of airplane
parts without the required approval of the FAA or appropriate non-U.S.
equivalent regulatory agency; or
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E.
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Boeing
revokes Seller’s Quality Assurance System approval, if applicable;
or,
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F.
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Any
failure by Seller to perform or comply with any obligation (other than as
described in the foregoing GTA Sections (13.1.A, 13.1.B, 13.1.C, 13.1.D
and 13.1.E) set forth in this Agreement and such failure shall continue
unremedied for a period of * or more following receipt by Seller of notice
from Boeing specifying such failure;
or
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GTA –
*
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G.
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(1)
the suspension, dissolution or winding-up of Seller's business, (2)
Seller's insolvency, or its inability to pay debts, or its nonpayment of
debts, as they become due, (3) the institution of reorganization,
liquidation or other such proceedings by or against Seller or the
appointment of a custodian, trustee, receiver or similar person for
Seller's properties or business, (4) an assignment by Seller for the
benefit of its creditors, or (5) any action of Seller for the purpose of
effecting or facilitating any of the
foregoing.
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13.2 Remedies
If any
Event of Default shall occur:
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A.
|
Cancellation
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Boeing
may, by giving written notice to Seller, immediately cancel all or portion of
any Order, any SBP or the Agreement, in whole or in part subject to the
limitation described below, and Boeing shall not be required after such notice
to accept the tender by Seller of any Products or Services subject to the
cancellation.
1. Boeing’s
right to cancel this Agreement or the SBP due to any Event of Default under 13.1
A shall be limited
as follows: Boeing may either (i) exercise its rights under Section
13.2(B) below * hereunder for the applicable Products; or (ii) exercise its
rights under Section 13.2(C). In either case, and notwithstanding
Section 13.2(G) below, Boeing’s election under this GTA Section 13.2(A)(1) shall
be the sole and exclusive remedy for such Event of Default unless the conditions
in GTA Section 13.2(A)(2) below related to On-Time Delivery or Quality
Performance have been met.
2. If
Seller for any consecutive *,
either (i) has an On-Time Delivery rate less than *
or (ii) has a Seller’s Quality Performance rating less than *,
then, Boeing may pursue any and all of the remedies set forth in GTA Section
13.2, unless the Parties have agreed to a milestone recovery plan, in which case
so long as Seller complies with the obligations in such recovery plan, Boeing’s
remedies shall remain limited to those set forth in this GTA Section
13.1(A)(1).
B. Cover
Boeing
may manufacture, produce or provide, or may engage any other entity to
manufacture, produce or provide, any Products or Services in substitution for
the Products or Services to be delivered or provided by Seller. In
addition to any other remedies or damages available to Boeing hereunder or at
law or in equity, *.
C.
Re-schedule
Re-schedule
Seller’s performance of any or all of the Services or Additional Services or the
delivery date for the Product(s). For any shipment of a Product that
is not On-Time and is delivered *.
GTA –
*
D. Rework or
Repair
Where
allowed by the applicable regulatory authority, Boeing or its designee may
rework or repair any Product in accordance with GTA Section 8.3, or as may
otherwise be allowed under the Agreement;
E.
Setoff
Boeing
shall, at its option, have the right to *.
F. Tooling and other
Materials
As
partial compensation for the additional costs which Boeing will incur as a
result of the transfer of production capabilities from Seller to Boeing or
Boeing's designee, Seller shall upon the request of Boeing, transfer and deliver
to Boeing or Boeing's designee title to any or all (1) Tooling, (2)
Boeing-furnished material, (3) raw materials, parts, work-in-process, incomplete
or completed assemblies, and all other Products or parts thereof in the
possession or under the effective control of Seller or any of its subcontractors
or suppliers (4) Proprietary Information of Boeing and Materials of Boeing
including without limitation planning data, drawings and other Proprietary
Information and Materials (as defined in GTA Section 20.0) relating to the
design, production, maintenance, repair and use of Tooling, in the possession or
under the effective control of Seller or any of its subcontractors or suppliers,
in each case free and clear of all liens, claims or other rights of any
person.
Seller
shall be entitled to receive from Boeing reasonable compensation for any item
accepted by Boeing which has been transferred to Boeing pursuant to this GTA
Section 13.2.E (except for any item the price of which has been paid to Seller
prior to such transfer); provided, however, that such compensation shall not be
paid directly to Seller, but shall be setoff against any damages payable by
Seller to Boeing as a result of any Event of Default.
G. Remedies
Generally
No
failure on the part of Boeing in exercising any right or remedy hereunder, or as
provided by law or in equity, shall impair, prejudice or constitute a waiver of
any such right or remedy, or shall be construed as a waiver of any Event of
Default or as acquiescence therein. No single or partial exercise of
any such right or remedy shall preclude any other or further exercise thereof or
the exercise of any other right or remedy. No acceptance of partial
payment or performance of any of Seller's obligations hereunder shall constitute
a waiver of any Event of Default or a waiver or release of payment or
performance in full by Seller of any such obligation. All rights and
remedies of Boeing hereunder and at law and in equity shall be cumulative and
not mutually exclusive and the exercise of one shall not be deemed a waiver of
the right to exercise any other. Nothing contained in this Agreement
shall be construed to limit any right or remedy of Boeing now or hereafter
existing at law or in equity.
GTA –
*
14.0 EXCUSABLE DELAY
If
delivery of any Product is delayed by unforeseeable circumstances beyond the
control and without the fault or negligence of Seller or of its suppliers or
subcontractors (any such delay being hereinafter referred to as "Excusable
Delay"), the delivery of such Product shall be extended for a period to be
reasonably agreed by the parties but no longer than the period of such Excusable
Delay. Excusable Delays may include, but are not limited to, acts of
God, war, terrorist acts, riots, acts of government, fires, floods, epidemics,
quarantine restrictions, freight embargoes, strikes, labor disputes or unusually
severe weather, but shall exclude Seller's noncompliance with any legal
requirement as required by GTA Section 21.0 “Compliance with
Laws”. However, the above notwithstanding, Boeing expects Seller to
take all action, including, without limitation, pay overtime, expand shifts,
utilize outside converters, use other of Seller’s production plants in order to
mitigate the impact of any Excusable Delay, both during and after such Excusable
Delay in order to continue production and recover lost time and support a
schedule reasonably agreed by the parties. Therefore, it is
understood and agreed that (1) delays of less than * duration shall not be
considered to be Excusable Delays unless such delays shall occur within *
preceding the scheduled delivery date of any Product and (2) *. If
delivery of any Product is delayed by any Excusable Delay for more than *,
Boeing may, without any additional extension, by written notice to Seller,
cancel all or part of any Order with respect to the delayed Products or
Services, and exercise any of its remedies in accordance with GTA Section 13.2,
*.
GTA –
*
15.0 SUSPENSION OF WORK
Boeing
may at any time, by written order to Seller, require Seller to stop all or any
part of the work called for by any Order for up to * days hereafter referred to
as a "Stop Work Order" issued pursuant to this GTA Section 15.0. If
the circumstances that cause Boeing to provide Seller with a Stop Work Order
would constitute an Excusable Delay under Section 14.0 hereof, the period of the
Stop Work Order in that circumstance be increased from * to up to
*. On receipt of a Stop Work Order, Seller shall promptly comply with
its terms and take all reasonable steps to minimize the occurrence of costs
arising from the work covered by the Stop Work Order during the period of work
stoppage. Within the period covered by the Stop Work Order (including
any extension thereof) Boeing shall either (i) cancel the Stop Work Order or
(ii) terminate or cancel the work covered by the Stop Work Order in accordance
with the provisions of this Agreement, including without limitation, GTA Section
12.0 or 13.0. . Unless Boeing has canceled the Stop Work
Order within the permitted thirty (30) or * as the case
may be following its issuance, Seller will be entitled to treat the portion of
the given Order subject to the Stop Work Order as having been terminated in
accordance with the provisions of Section 12 above. Provided,
however, that Boeing may elect to extend a Stop Work Order beyond the permitted
* or up to *, as applicable, * for an additional period of * provided that
Boeing pays Seller a monthly inventory carrying charge of * during the Stop Work
Order Period. In the event the Stop Work Order is canceled by Boeing or the
period of the Stop Work Order (including any extension thereof) expires, Seller
shall promptly resume work in accordance with the terms of the Agreement. The
applicable scheduled delivery date under such Order shall be deemed to have been
extended by the number of days elapsing from the date of Seller’s receipt of the
Stop Work Order until the date of its receipt of notice of cancellation of the
Stop Work Order, plus * days to allow for the material to be worked back into
the existing production schedule in an orderly fashion.
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16.0
|
TERMINATION OR WRONGFUL
CANCELLATION
|
Boeing
shall not be liable for any loss or damage resulting from any termination of all
or a portion of an Order under this Agreement, except as expressly provided in
GTA Section 12.3 or any cancellation under GTA Section 13.0 except to the extent
that such cancellation shall have been determined to have been wrongful, in
which case such wrongful cancellation shall be deemed a termination of all or a
portion of an Order pursuant to GTA Section 12.1 and therefore, Boeing’s
liability shall be limited to the payment to Seller of the amount or amounts
identified in GTA Section 12.3 and any payments due under the applicable
SBP.
GTA –
*
17.0 ASSURANCE OF PERFORMANCE
Seller to Provide
Assurance
If Boeing
determines, at any time or from time to time, that it is not sufficiently
assured of Seller's full, timely and continuing performance hereunder, or if for
any other reason Boeing has reasonable grounds for insecurity, Boeing may
request, by written notice to Seller setting forth in reasonable detail and
providing objective criteria and data supporting its issues with Seller’s
performance, written assurance (hereafter an "Assurance of Performance") with
respect to any specific matters affecting Seller's performance hereunder, that
Seller is able to perform all of its respective obligations under any Order when
and as specified herein. Each Assurance of Performance shall be
delivered by Seller to Boeing as promptly as possible, but in any event no later
than * following Boeing's request therefore and each Assurance of Performance
shall be accompanied by any information, reports or other materials, prepared by
Seller, as Boeing may reasonably request. Except as to payment for
accepted goods, Boeing may suspend all or any part of Boeing's performance
hereunder until Boeing receives an Assurance of Performance from Seller
satisfactory in form and substance to Boeing.
Meetings and
Information
Prior to providing an
Assurance of Performance under Section 17.0(A), either party either Party
may request one or more meetings with senior management (at least, Director or
Vice President of Boeing and at least President of Seller) for the purpose of
discussing any request for Assurance of Performance or any Assurance of
Performance. Such meeting will take place within ten days of such
request at a location reasonably selected by Boeing. Seller shall
make such persons available to meet with representatives of Boeing, and Seller
shall make available to Boeing any additional information, reports or other
materials in connection therewith as Boeing may reasonably request.
18.0 RESPONSIBILITY FOR PROPERTY
GTA –
*
Seller
shall clearly mark, maintain an inventory of, and keep segregated or
identifiable all of Boeing’s and Customer’s supplied property and all property
to which Boeing has acquired an interest. Seller assumes all risk of
loss, deterioration, destruction or damage of such property and lost paperwork,
e.g. 8130, etc. while in Seller’s or its subcontractors’ or suppliers’
possession, custody or control. Deterioration does not include items
deteriorated due to the lapse of shelf-life or other inherent
deterioration. Upon request, Seller shall provide Boeing with
adequate proof of insurance against such risk of loss. Seller shall
not use such property other than in performance of an Order without prior
written consent from Boeing. Seller shall promptly notify Boeing’s
Procurement Representative if Boeing’s property is lost, damaged or
destroyed. As directed by Boeing, upon completion, termination or
cancellation of the Agreement or all or a portion of any Order, Seller shall
deliver such property, to the extent not incorporated in delivered end products,
to Boeing in good condition subject to ordinary wear and tear and normal
manufacturing losses. Nothing in this GTA Section 18.0 limits
Seller’s use, in its direct contracts with the government, of property in which
the government has an interest.
19.0 LIMITATION OF SELLER'S RIGHT TO ENCUMBER ASSETS
*, Seller
warrants to Boeing that it has good title to all inventory, work-in-process,
tooling and materials to be supplied by Seller in the performance of its
obligations under any Order. Pursuant to the provisions of such
Order, Seller will transfer to Boeing good and marketable title to such
inventory, work-in-process, tooling and materials whether transferred separately
or as part of any Product delivered under the Order, free of any liens, charges,
encumbrances or rights of others.
20.0 PROPRIETARY INFORMATION AND ITEMS
A. Boeing
and Seller shall each keep confidential and protect from disclosure all (a)
confidential, proprietary, and/or trade secret information; (b) tangible items
containing, conveying, or embodying such information; and (c) tooling obtained
from and/or belonging to the other in connection with this Agreement or any
Order (collectively referred to as "Proprietary Information and
Materials").
GTA –
*
B. Boeing
and Seller shall each use Proprietary Information and Materials of the other
only in the performance of and for the purpose of this Agreement and/or any
Order. Provided, however, that despite any other obligations or
restrictions imposed by this GTA Section 20.0, Boeing shall have the right to
use, disclose and copy Seller's Proprietary Information and Materials for the
purposes of testing, certification, use, sale, or support of any item delivered
under this Agreement, an Order, or any airplane including such an item; and any
such disclosure by Boeing shall, whenever appropriate, include a restrictive
legend suitable to the particular circumstances; provided that all such use,
disclosure, copying and the like shall be done in such a manner as to, and made
only to such persons who have also agreed to, maintain Seller’s Proprietary
Information and Materials as confidential and protect the same from disclosure
in accordance with the terms of this Agreement. The restrictions on
disclosure or use of Proprietary Information and Materials by a receiving Party
shall apply to all materials derived by a Party or others from the disclosing
Party’s Proprietary Information and Materials.
C. Upon
the disclosing Party's request at any time, and in any event upon the
completion, termination or cancellation of this Agreement, the receiving Party
shall return all of the disclosing Party's Proprietary Information and
Materials, and all materials derived from the disclosing Party's Proprietary
Information and Materials to the disclosing Party unless specifically directed
otherwise in writing by disclosing Party.
D. Seller
shall not, without the prior written authorization of Boeing, sell or otherwise
dispose of (as scrap or otherwise) any parts or other materials containing,
conveying, embodying, or made in accordance with or by reference to any
Proprietary Information and Materials of Boeing. Prior to disposing
of such parts or materials as scrap, Seller shall render them
unusable. Boeing shall have the right to audit Seller's compliance
with this GTA Section 20.0. Seller may disclose Proprietary Information and
Materials of Boeing to its subcontractors or suppliers or Seller’s “ship-to”
customer as required for the performance of an Order, provided that each such
subcontractor first assumes, by written agreement, the same obligations imposed
upon Seller under this GTA Section 20.0 relating to Proprietary Information and
Materials; and Seller shall be liable to Boeing for any breach of such
obligation by such subcontractor or supplier.
E. Notwithstanding
anything in this Section 20 to the contrary, either Party may make disclosure of
the Agreement to (a) any of its accountants, auditors or lawyers having a need
to know such information provided such person agrees not to disclose the
information to any other person or outside of such firm, except as disclosure is
required by applicable law, regulation or court order and (b) any of its bankers
or credit rating agencies having a need to know such information, provided
persons at such companies agree in writing not to disclose the information to
any other person or outside of such company, except as disclosure is required by
applicable law, regulation or court order. The foregoing shall not
apply to matters already public other than by reason of a breach of this Section
20.
GTA –
*
Seller
may also file such reports (including, without limitation, Current Reports on
Form 8-K, Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K)
regarding or containing information about the Agreement or any provisions
thereof that Seller shall deem necessary or prudent under applicable laws and
regulations after giving good faith consideration to the protection of Boeing
proprietary information. Seller may also file a copy of the Agreement
as an exhibit to any such report filed by Seller, provided that Seller shall, in
good faith, give due consideration to redacting Boeing proprietary information
from these documents. Seller shall also provide Boeing with a written
copy of these documents as redacted prior to their filing, with sufficient time
for Boeing to submit additional, suggested redactions. Seller shall
give good faith consideration to inclusion of such Boeing suggested redactions
before filing the documents. Seller may discuss matters pertaining to
the Agreement in investor calls to the extent such matters are specifically
reported in either Seller's press release or any other report publicly made by
Seller. The Parties specifically intend that the filing of such
reports by Seller shall not be deemed a breach of this Section 20.0 or of
Seller’s obligations under the Agreement, provided that the provisions of this
Section 20.0 (E) are met.
F. If
the receiving Party or any of its representatives becomes legally compelled (by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose any of the Proprietary Information and
Materials of the disclosing Party, the receiving Party will advise and consult
with the disclosing Party prior to any such disclosure, so that the disclosing
Party may seek a protective order or other appropriate remedy and/or waive
compliance with the Agreement. If such protective order or other
remedy is not obtained, or compliance with the Agreement is waived as above, the
receiving Party will disclose only that portion of the Proprietary Information
and Materials which the receiving Party is advised by counsel is legally
required and the receiving Party will exercise reasonable efforts to obtain
assurance that confidential treatment will be accorded such of the Proprietary
Information and Materials as is disclosed. Any disclosure made in
accordance with the provisions of this Section 20.0 shall not be regarded as a
breach of the obligations of the receiving Party pursuant to the
Agreement.
G. Nothing
in this Section 20.0 shall be construed as granting or conveying to the
receiving Party any right or license to use Proprietary Information and
Materials of the disclosing Party (except for the purposes contemplated in the
Agreement) or to practice any inventions described and claimed in any pending
patent applications or issued patents which are owned or controlled by the
disclosing Party relating to such Proprietary Information and
Materials.
H. Each
of the Parties hereto acknowledges and agrees that the other Party could be
damaged irreparably in the event any of the provisions of this Section 20.0 are
not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to seek an injunction or injunctions to prevent breaches
of the provisions of this Section 20.0 and to enforce specifically the terms of
this Section 20.0.
GTA –
*
21.0 COMPLIANCE
21.1 Compliance
with Laws
Seller
shall be responsible for complying with all legal requirements, including, but
not limited to the provisions of any statute, ordinance, rule, regulation,
judgment, decree, order, permit, approval, license or registration
applicable to its performance under this Agreement. Seller shall notify Boeing
of any aspect of Seller’s performance that is prohibited under any legal
requirements, at the earliest opportunity, but in all events sufficiently in
advance of Seller’s performance of such obligation, so as to identify and
implement alternative methods of performance. Seller shall notify
Boeing in writing at the earliest possible opportunity of any aspect of its
performance, which becomes subject to any additional legal requirement after the
date of execution of this Agreement or which Seller reasonably believes will
become subject to additional regulation during the term of this
Agreement. Seller agrees to indemnify and to hold harmless Boeing
from any failure by Seller to comply with any legal requirement.
GTA –
*
21.2 Government
Requirements
If any of
the work to be performed under this Agreement is performed in the United States,
Seller shall, via invoice or other form satisfactory to Boeing, certify that the
Products or Services covered by the Order were produced in compliance with
Sections 6, 7, and 12 of the Fair Labor Standards Act (29 U.S.C. 201-291), as
amended, and the regulations and orders of the U.S. Department of Labor issued
there under. In addition, the following FARs are incorporated herein
by this reference except "Contractor" shall mean "Seller": Other Government
clauses, if any, are incorporated herein either by attachment to this document
or by some other means of reference.
FAR
52.222-26 "Equal
Opportunity"
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FAR
52.222-35
|
"Affirmative
Action for Disabled Veterans and Veterans of the Vietnam
Era”
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FAR
52.222-36 "Affirmative
Action for Workers with Disabilities”
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FAR
52.247-64
|
“Preference
for Privately Owned U.S.-Flagged Commercial
Vessels”
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FAR 52.222-39
|
“Notification
of Employee Rights Concerning Payment of Union Dues or
Fees”
|
21.3 Ethics
and Code of Conduct
Boeing is
committed to conducting its business fairly, impartially, and in an ethical and
proper manner. Boeing expectation is that Seller will also conduct
its business fairly, impartially and in an ethical and proper manner. Boeing
further expects that Seller will have (or will develop) and adhere to a code of
ethical standards. If Seller has cause to believe that Boeing or any
employee or agent of Boeing has behaved improperly or unethically under this
Agreement, Seller shall report such conduct to The Boeing Company Ethics
hotline. Copies of The Boeing Company Code of Conduct and contacts
for such reports are available on www.boeing.com
under "Ethics and Business Conduct." Although Boeing will not use the
failure to report improper or unethical behavior as a basis for claiming breach
of contract by Seller under this Agreement, Seller is encouraged to exert
reasonable efforts to report such behavior when warranted.
GTA –
*
21.4 Code
of Basic Working Conditions and Human Rights
Boeing is
committed to providing a safe and secure working environment and the protection
and advancement of basic human rights in its worldwide operations. In
furtherance of this commitment, Boeing has adopted a Code of Basic Working
Conditions and Human Rights setting out in detail the measures it takes to
ensure this commitment is fulfilled. The Boeing Code may be downloaded at
http://www.boeing.com/employment/culture/code.html. Boeing strongly encourages
Seller to adopt and enforce concepts similar to those embodied in the Boeing
Code, including conducting Seller’s operations in a manner that is fully
compliant with all applicable laws and regulations pertaining to fair wages and
treatment, freedom of association, personal privacy, collective bargaining,
workplace safety and environmental protection. Seller will promptly cooperate
with and assist Boeing in implementation of and adherence to the Boeing
Code.
Any
material breach of this Section 21.4 by Seller may be considered an Event of
Default under this Agreement for which Boeing may elect to cancel any open
Orders between Boeing and the Seller, for cause, in accordance with the
provisions of this Agreement, or exercise any other right of Boeing for an Event
of Default under this Agreement.
22.0 INTEGRITY IN PROCUREMENT
Seller
warrants that neither it nor any of its employees, agents or representatives
have offered or given, or will offer or give any gratuities to Boeing’s
employees, agents or representatives for the purpose of securing any Order or
securing favorable treatment under any Order.
23.0 UTILIZATION OF SMALL BUSINESS CONCERNS
Seller
agrees to actively seek out and provide the maximum practicable opportunities
for small businesses, small disadvantaged businesses, women-owned small
businesses, minority business enterprises, historically black colleges and
universities and minority institutions, historically underutilized business zone
small business concerns and U.S. veteran and service-disabled veteran owned
small business concerns to participate in the subcontracts Seller awards to the
fullest extent consistent with the efficient performance of this
Agreement.
GTA –
*
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24.0
|
BOEING'S RIGHTS IN SELLER'S PATENTS, COPYRIGHTS, TRADE
SECRETS, AND TOOLING
|
Seller
hereby grants to Boeing *, but Boeing hereby covenants not to * and if one or
more of the following situations occur:
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A.
|
Seller
discontinues or suspends business operations or the production of any or
all of the *;
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B.
|
Seller
is acquired by or transfers any or all of its rights to manufacture any
Product to any third party, whether or not related, without Boeing’s prior
written concurrence;
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C.
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Boeing
cancels this Agreement or any Order for cause pursuant to GTA Section 13.0
herein;
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D.
|
In
Boeing's judgment it becomes necessary, in order for Seller to comply with
the terms of this Agreement or any Order, for Boeing to provide support to
Seller (in the form of design, manufacturing, or on-site personnel
assistance) substantially in excess of that which Boeing normally provides
to its suppliers;
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E.
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Seller's
trustee in bankruptcy (or Seller as debtor in possession) fails to assume
this Agreement and all Orders by formal entry of an order in the
bankruptcy court within * after entry of an order for relief in a
bankruptcy case of the Seller, or Boeing elects to retain its rights to *
under the bankruptcy laws;
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F.
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Seller
is at any time insolvent (whether measured under a balance sheet test or
by the failure to pay debts as they come due) or the subject of any
insolvency, receivership or assignment for the benefit of creditors
proceeding under state or non-bankruptcy law;
or
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G.
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Seller
voluntarily becomes a debtor in any case under bankruptcy law or, in the
event an involuntary bankruptcy petition is filed against Seller, such
petition is not dismissed within *.
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As a part
of the * granted under this GTA Section 24.0, Seller shall, at the written
request of Boeing and at no additional cost to Boeing, promptly deliver to
Boeing any and all * considered by Boeing to be necessary to satisfy Boeing's
requirements for * and their substitutes.
GTA –
*
25.0 TERMINATION OF AIRPLANE PROGRAM
25.1 Program
Termination
The
parties acknowledge and agree that Boeing may, in its sole discretion, terminate
all or part of this Agreement, including any Order issued hereunder, by written
notice to Seller, if Boeing decides not to initiate or continue production of
the program which the Product supports, by reason of Boeing’s determination that
there is insufficient business basis for proceeding with such
program. In the event of such a termination, Boeing shall have no
liability to Seller except as expressly provided in GTA Section 25.2
below.
25.2 Termination
Liability
In the
event of a termination of the program as described in 25.1 above, Boeing shall
have no liability whatsoever to Seller, except to the extent of (i) any
guaranteed minimum purchase, if any, as set forth in SBP Section 10.0, and (ii)
any Orders issued prior to the date of the written notice to Seller identified
in 25.1 above. Termination of such Orders shall be governed by GTA
Section 12.0 herein.
26.0 PUBLICITY
Without
Boeing’s prior written approval, Seller shall not, and shall require that its
subcontractors or suppliers shall not, release any publicity, advertisement,
news release or denial or confirmation of the same, regarding any Order or
Products or Services, or the program to which they may
pertain. Seller shall be liable to Boeing for any breach of such
obligation by any subcontractor or supplier.
GTA –
*
27.0 PROPERTY INSURANCE
27.1 Insurance
Seller
shall obtain and maintain continuously in effect a property insurance policy
covering loss or destruction of or damage to all property in which Boeing does
or could have an insurable interest pursuant to this Agreement, including but
not limited to Tooling, Boeing-furnished property, raw materials, parts,
work-in-process, incomplete or completed assemblies and all other Products or
Services or parts thereof, and all drawings, Specifications, data and other
materials relating to any of the foregoing in each case to the extent in the
possession or under the effective care, custody or control of Seller or any
agent, employee, affiliate, subcontractor or supplier of Seller, in the amount
of full replacement value thereof providing protection against all perils
normally covered in an "all risk" property insurance policy (including without
limitation fire, windstorm, explosion, riot, civil commotion, aircraft,
earthquake, flood or other acts of God). Any such policy shall be
with insurers reasonably acceptable to Boeing and shall (a) provide for payment
of loss thereunder to Boeing, as loss payee, as its interests may appear and (b)
contain a waiver of any rights of subrogation against Boeing, its subsidiaries,
and their respective directors, officers, employees and agents.
27.2 Certificate
of Insurance
Upon
written request from Boeing, Seller shall provide to Boeing's Procurement
Representative certificates of insurance reflecting full compliance with the
requirements set forth in GTA Section 27.1. Such certificates shall
be kept current and in compliance throughout the period of this Agreement and
shall provide for * advanced written notice to Boeing's Procurement
Representative in the event of cancellation, non-renewal or material change
adversely affecting the interests of Boeing.
27.3 Notice
of Damage or Loss
Seller
shall give prompt written notice to Boeing's Procurement Representative of the
occurrence of any damage or loss to any property required to be insured
herein. If any such property shall be damaged or destroyed, in whole
or in part, by an insured peril or otherwise, and if no Event of Default shall
have occurred and be continuing, then Seller may, upon written notice to Boeing,
settle, adjust, or compromise any and all such loss or damage not in excess of *
in any one occurrence and * in the aggregate. Seller may settle,
adjust or compromise any other claim by Seller only after Boeing has given
written approval, which approval shall not be unreasonably
withheld.
GTA –
*
28.0 RESPONSIBILITY FOR PERFORMANCE
Seller
shall be responsible for performance of its obligations under this
Agreement. Seller shall bear all risks of providing adequate
facilities and equipment to perform each Order in accordance with the terms
thereof. If any use of any facilities or equipment contemplated by Seller for
use in performing Orders will not be available for any reason, Seller shall be
responsible for arranging for similar facilities and equipment at no cost to
Boeing, and any failure to do so shall not relieve Seller from its
obligations.
Seller
shall notify and Boeing prior to moving work to be performed under this
Agreement between Seller’s various facilities, and Seller shall be responsible
for all additional costs or charges (including, without limitation, additional
shipping costs, duties, taxes and the like) that result from Seller’s election
to supply any Products from from such of Seller’s facilities as have not been
among the traditional supply facilities for such Products.
28.1 Subcontracting
Seller
shall maintain complete and accurate records regarding all subcontracted items
and/or processes. Seller’s use of subcontractors or suppliers shall
comply with Seller’s quality assurance system approval for said subcontractors
or suppliers. Unless Boeing’s prior written authorization or approval
is obtained, Seller may not purchase completed or substantially completed
Products or Services. For purposes of this GTA Section and this GTA
Section only, completed or substantially completed Products or Services shall
not include components of assemblies or subassemblies. No
subcontracting by Seller shall relieve Seller of its obligation under the
applicable Order. Utilization of a Boeing-approved source does not constitute a
waiver of Seller's responsibility to meet all specification
requirements.
Seller
shall include as part of its subcontracts those elements of the Agreement that
protect Boeing's rights including but not limited to right of entry provisions,
proprietary information and rights provisions and quality control
provisions. In addition, Seller shall provide to its subcontractor's
sufficient information to document clearly that the work being performed by
Seller's subcontractor is to facilitate performance under this Agreement or any
Order. Sufficient information may include but is not limited to Order
number, GTA number or the name of Boeing's Procurement
Representative.
28.2 Reliance
Seller
will not deny any responsibility or obligation hereunder to Boeing on the
grounds that Boeing provided recommendations or assistance in any phase of the
work involved in producing or supporting the Products or Services, including but
not limited to Boeing's acceptance of Specifications, test data or the Products
or Services.
GTA –
*
28.3 Assignment
Except as
provided in GTA Section 28.1, Seller shall not assign any of its rights or
interest in this Agreement or any Order, or subcontract all or substantially all
of its performance of this Agreement or any Order, without Boeing’s prior
written consent. Seller shall not delegate any of its duties or
obligations under this Agreement. Seller may assign its right to monies due or
to become due. No assignment, delegation or subcontracting by Seller, with or
without Boeing’s consent, shall relieve Seller of any of its obligations under
this Agreement or prejudice any rights of Boeing against Seller whether arising
before or after the date of any assignment. This article does not
limit Seller’s ability to purchase standard commercial supplies or raw
materials.
The
prohibition set forth in this GTA Section 28.3 includes, without limitation (and
the following shall be deemed to be "assignments"): *.
29.0 NON-WAIVER/PARTIAL INVALIDITY
Any
failures, delays or forbearances of Boeing in insisting upon or enforcing any
provisions of any Order, or in exercising any rights or remedies under this
Agreement, shall not be construed as a waiver or relinquishment of any such
provisions, rights or remedies; rather, the same shall remain in full force and
effect. If any provision of any Order is or becomes void or
unenforceable by law, the remainder shall be valid and enforceable.
30.0 HEADINGS
Section
headings used in this Agreement are for convenient reference only and do not
affect the interpretation of the Agreement.
31.0 LICENSING
Seller
agrees that the use of Boeing Proprietary Information and Materials as defined
in GTA Section 20.0 beyond that authorized by this Agreement shall be subject to
a license agreement or other written instrument as determined by the Boeing
Commercial Airplane Intellectual Property Management organization (BCA IPM) of
Boeing.
GTA –
*
32.0 RESERVED
33.0 DISPUTES
Boeing
and Seller shall use their best reasonable efforts to resolve any and all
disputes, controversies, claims or differences between Boeing and Seller,
arising out of or relating in any way to the Agreement or a Party’s performance
thereunder, including, but not limited to, any questions regarding the
existence, validity or termination hereof ("Disputes"), through
negotiation. If a Dispute cannot be resolved by the functional
representatives of Boeing and Seller, it shall be referred up through management
channels of the Parties or their respective designees, for further
negotiation.
Any
dispute that arises under or is related to this Agreement that cannot be settled
by mutual agreement of the parties shall be resolved only as provided in SBP
Section 5. Pending final resolution of any dispute, Seller shall
proceed with performance of this Agreement according to Boeing’s instructions so
long as Boeing continues to pay amounts not in dispute.
34.0 RESERVED
35.0 TAXES
35.1 Inclusion
of Taxes in Price
Unless
this Agreement, specifies otherwise, *. Prices shall not include any
taxes, impositions, charges or exactions for which Boeing has furnished a valid
exemption certificate or other evidence of exemption. With regard to
value added taxes (VAT) imposed on or measured by this Agreement, Seller and
Boeing also agree to work together to administer VAT so that it can be reclaimed
if legally possible; provided that Boeing shall assign Orders to “ship-to”
customers. If VAT cannot be reclaimed via reasonable business means,
Boeing will be responsible for that instance of VAT only if the VAT charge is
directly related to the unilateral selection of title transfer and delivery
location by Boeing. * Prices shall not include any taxes,
impositions, charges or exactions for which Boeing has furnished a valid
exemption certificate or other evidence of exemption.
GTA –
*
35.2 Litigation
In the
event that any taxing authority has claimed or does claim payment for sales
taxes, Seller shall promptly notify Boeing, and Seller shall take such action as
Boeing may direct to pay or protest such taxes or to defend against such
claim. The actual and direct expenses, without the addition of profit
and overhead, of such defense and the amount of such taxes as ultimately
determined as due and payable shall be paid directly by Boeing or reimbursed to
Seller. If Seller or Boeing is successful in defending such claim,
the amount of such taxes recovered by Seller, which had previously been paid by
Seller and reimbursed by Boeing or paid directly by Boeing, shall be immediately
refunded to Boeing.
35.3 Rebates
If any
taxes paid by Boeing are subject to rebate or reimbursement, Seller shall take
the necessary actions to secure such rebates or reimbursement and shall promptly
refund to Boeing any amount recovered
36.0 INDUSTRIAL PARTICIPATION
To the
exclusion of all others, Boeing or its assignee shall be entitled to all
industrial benefits or offset credits which might result from this Agreement or
Order. Seller shall provide documentation or information, which
Boeing or its assignee may reasonably request to substantiate claims for
industrial benefits or offset credits. Seller agrees to use
reasonable efforts to identify the foreign content of goods, which Seller either
produces itself or procures from other companies for work directly related to
this Agreement. Promptly after selection of a non-U.S. subcontractor
or supplier for work under this Agreement, Seller shall notify Boeing of the
name, address, subcontract point of contact (including telephone number) and
dollar value of the subcontract.
EXECUTED
in duplicate as of the date and year first set forth above by the duly
authorized representatives of the Parties.
BOEING
SELLER
THE
BOEING
COMPANY
TITANIUM METALS CORPORATION
|
Signature:
/s/ Jeffry L. Melville
|
Signature:
/s/James M. Buch
|
|
Printed
Name: Jeffrey L. Melville
|
Printed
Name: James Buch
|
|
Title:
Procurement Agent
|
Title:
Vice President – Commercial
|
|
Date:
11/09/09
|
Date:
November 12, 2009
|
GTA –
*