BASIC ORDERING AGREEMENT WITH NC3A *

1. TERM
1. This Agreement is effective for an Initial Term of one (1) year from the Effective Date which is given on page 2. Thereafter, it will continue unless and until one Party gives to the other a written thirty (30) day notice of its intention to terminate.
2. Any expiration or termination of this Agreement will not alter the rights, duties and obligations of EMCON or Purchaser, or any discounts granted, for any Orders accepted by EMCON under this Agreement prior to the date of expiration or termination of the Agreement.
2. DEFINITIONS
1. "Parties" means NC3A and EMCON.
2. "Eligible Purchaser" means the entity identified in 3.0 below which may benefit of the terms and conditions of this agreement, if they express so in any subsequent agreement between them and EMCON.
3. "Purchaser" means NC3A and any other entity identified as "Eligible Purchasers".
4. NATO means the North Atlantic Treaty Organisation.
5. "NATO bodies" means any entity created by the North Atlantic Council (or Defence Planning Committee) and to which either the Agreement on the Status of the North Atlantic Treaty Organisation, National Representatives and International Staff (20 September 1951) or the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty (28th August 1952) applies.
6. "Partnership for Peace (PfP) Countries" means those countries who are signatories to the Partnership for Peace Agreement dated 10 January 1994.
7. "Contractor" means any entity working on a specific project, for NATO, a NATO body, or a Government agency of a NATO Member Nation or any other Eligible Purchaser.
8. "Governmental Agency" means any governmental agency, including military forces, of a NATO Member Nation.
9. "Authorised Representative of NC3A" means the General Manager, Deputy General Manager or Chief of Contracts.
10. "Authorised Representative of NATO" means the General Manager, Deputy General Manager or Chief of Contracts of NC3A and any other designated representative of an Eligible Purchaser.
11. "Authorised Representative of EMCON" means President & CEO.
12. "Order" means any instrument/document, e.g. Delivery Order, Task Order or a Purchase Order, used for the procuring of Products and/or Engineering Services under this Agreement.
13. "Purchase Order" means any agreement concluded between the Purchaser and EMCON.
14. "Task Order" means any instrument, in the form of a statement of work to be performed by EMCON, as concluded between the Purchaser and EMCON.
15. "Standard Terms and Conditions" are the Terms and Conditions contained in this Agreement.
16. "Effective Date" is the date specified on the signature page when the Initial Term of this Agreement begins.
17. "Products" means Equipment, Software and related goods and services, such as Training and Documentation.
1. "Equipment" shall mean the hardware components of Products.
2. "Software" shall mean each software program provided by EMCON in machine readable, object, printed or interpreted form.
18. "Engineering Services" means professional services which members of the engineering/computer science profession may logically perform including studies, investigations, test, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications and preparation of operating and maintenance manuals.
3. ELIGIBLE PURCHASERS
1. In addition to NC3A, the following entities are eligible to reference and use the terms and conditions of this Agreement, subject to the provisions specified in paragraph 4 below:
1. NATO
2. NATO bodies
3. Contractors performing work on behalf of NATO or Government agencies.
4. Governmental agencies, including military forces, of a NATO Member Nation
2. Partnership for Peace countries may be eligible to the terms and conditions of this Agreement, subject to a case-by-case agreement between NC3A and EMCON.
4. ORDERING PROCEDURE
1. All Orders under this Agreement shall contain, as a minimum, the information detailed in Exhibit A.1, and shall be subject to acceptance by EMCON. Orders may be placed with EMCON, EMCON regional offices and affiliates for the products identified on Exhibit C at the Firm Prices listed therein or as otherwise published and agreed to by NC3A or the Eligible Purchaser. Orders may be placed hereunder for products not included herein, subject to determination of availability and price by EMCON.
1. EMCON accepts that NC3A shall not be liable in any form for any purchase order issued and concluded between a Purchaser, other than by NC3A itself, and EMCON.
2. Engineering Services shall be procured by a separate Task Order. The Task Order shall identify the specific task; the specific skills required; the labour rate; the person's name; security requirements; the place of performance; the period of performance; and the acceptance criteria as a minimum.
2. In the case of Government Agencies or companies performing work on behalf of NATO, NATO Bodies or NATO Member Nations, EMCON may request the Authorised Representative of NATO, NATO body or NATO Member Nation, to verify that the purchaser is eligible to use the Agreement.
3. Assignment: Authorised Representatives of NATO may assign orders at their discretion provided there is no further change to the terms of the Agreement, especially as regards payment. EMCON reserves the right to approve any assignment involving any NATO Country, or any contractor.
4. In the case of Contractors, EMCON may request the Authorised Representative of NATO, NATO body or NATO Member Nation to verify that the Contractor is in fact performing work on a project or for a NATO body or governmental agency of a NATO Member Nation and that the Products and/or Engineering Services are required for such purpose and the Authorised Representative of NATO shall provide such verification in the form of Exhibit B.
5. DELIVERY
1. EMCON is authorised to accelerate the requested delivery schedule or to complete the performance of each Order issued hereunder prior to the time set forth therein, provided, however that nothing contained herein, or in any said Order obligates the Purchaser to perform any of its obligations at an earlier date than would otherwise be the case.
6. PRICES
1. All Product prices hereunder shall be quoted as firm fixed prices in accordance with Exhibit C pricing practices as disclosed and agreed to by NC3A or any other Eligible Purchaser.
2. All EMCON Engineering Services shall be quoted as firm rates per hour by category.
3. All Product prices are quoted FOB Nepean, Ontario, Canada. For any other destination Purchaser to request pricing for actual shipment charges.
7. WARRANTY
1. Hardware Warranty. Unless otherwise agreed between the Purchaser and EMCON, or as otherwise specified, EMCON warrants its Equipment against defects in workmanship of materials for one (1) year from the date of either shipment or EMCON-performed installation. Purchasers should return the Equipment in EMCON packaging and bear the cost of outbound carriage. EMCON will carry out and repair and bear the cost of return carriage to the Purchaser. The repaired unit will be shipped within four (4) working days from the receipt at the repair facility.
2. Software Warranty. EMCON warrants that the licensed Software shall substantially conform to its user's manual, as it exists at the date of delivery, for ninety (90) days from the date of shipment.
8. MILLENNIUM COMPLIANCE OF ADP EQUIPMENT
1. EMCON shall ensure and certify that neither performance nor functionality of all hardware, software and firmware delivered under this Agreement are affected by dates prior to, during or after the year 2000. In particular, in respect of hardware, software and firmware:
1. No value for the current date shall cause any interruption in operation (e.g. if a standing order is set up to operate on the first of each month it will continue to operate from 1st November 1999, 1st December 1999, 1st January 2000 and onwards without any problem);
2. Date based functionality shall behave consistently for dates prior to, during and after the year 2000, e.g. Date Roll-overs, Day of Week calculations, Duration and Time-Span processing, Date Sorting and any other equivalent calculations shall be computed correctly;
3. In all interfaces and data storage, the century in any date shall be specified either explicitly or by unambiguous algorithms;
4. Year 2000 shall be recognised as a leap year.
9. PAYMENTS
1. Payment shall be made within 45 (forty-five) calendar days from the date of acceptance, as specified in the order, and receipt of properly supported and certified invoices, unless otherwise agreed between EMCON and the Purchaser. The payment terms for Engineering Services shall be specified on each Task Order.
2. Payment of invoices shall be made to the address shown below:

EMCON Emanation Control Ltd.

11 Tristan Court

Nepean, Ontario, Canada, K2E 8B9

Attn.: Attn.: Anita Lavryssen

For Electronic Funds Transfer:

Bank: Royal Bank of Canada

Main Branch 90 Spark Street

Ottawa, Ontario, Canada, K1P 5T6

Account Name: "EMCON Emanation Control Ltd."

Account Number: 4006706

ABA Number: Bank number 003, Transit Number 00006

10. MISCELLANEOUS
1. Failure by either Party to enforce any provision shall not be deemed a waiver of future enforcement of that or any other provision. In the event that any portion or provision of this Agreement shall be held unenforceable or one is declared void, the remaining portions and/or provisions of this Agreement shall remain in full force and effect.
2. EMCON may re-assign any Order under this Agreement to a third party after prior written approval by Purchaser, which will not be unreasonably withheld. EMCON or his legal successor shall always be responsible for his obligations under this Agreement and for actions of his assigned representatives..
3. EMCON may subcontract its responsibilities in relation to this Agreement with the understanding that EMCON shall remain responsible for all obligations under this Agreement.
4. Purchaser shall have the right to take possession of and to use any partial delivery of an Order for Products and such possession or use shall not of itself constitute acceptance of the Products.
5. All formal communications as required and specified in the clauses of Part II of this Agreement shall be given by receipted personal delivery or by recorded delivery or registered post, with postage prepaid. The addresses and nominated personnel of the Parties (until change of notice shall be given) shall be as follows:

EMCON: Peter Doig

President and CEO

EMCON Emanation Control Ltd.

11, Tristan Court

Nepean, Ontario

Canada K2E 8B9

Tel.: +1 613 7231838

Fax: _1 613 7232752

E-Mail: PETER@emcon.com

 

NC3A: J.A. Wager

Acquisition Division/ASB

NATO C3 Agency

Rue de GenĖve, 8

B-1140 Brussels

Belgium

Fax: +32 2 707 8770

E-Mail: jim.wager@nc3a.nato.int

 

PART II - GENERAL PROVISIONS

11. NOTICE OF SHIPMENT
1. EMCON shall, as appropriate and prior to the delivery of any shipment, give notice of shipment to the Purchaser and to such other persons as may reasonably be designated by the Purchaser. Unless otherwise specified by the Purchaser, delivery will be made to the address specified in the country of purchase on Purchaser's Order. The scheduled delivery date shall be that date acknowledged by EMCON. EMCON shall consider any date requested by the Purchaser.
2. The Notice of Shipment shall contain, as appropriate, the request for Customs Form 302, or equivalent document, which shall enable any carrier to effect duty free import/export clearance through customs for the Purchaser on behalf of NATO. The Form 302 is an official Customs Clearance Declaration issued in advance of shipment to provide certified information as to the import/export, or transit of NATO countries.
3. The Notice of Shipment and request for Form 302 shall contain the following information, as appropriate:
1. Purchaser's Order Number;
2. Order Item Number, Designation and Quantities;
3. Destination;
4. Number and Description of Packages (gross and net weight);
5. Consignor's Name and Address;
6. Consignee's Name and Address;
7. Method of Shipment (i.e. road, rail, sea, air, etc.);
8. Name and Address of Freight Forwarder.
4. Forwarding Agents, Carriers or other responsible organisations shall be informed by EMCON of the availability of FORM 302 and how the form should be utilised to avoid the payment of custom duties.
12. CONTRACTOR PERSONNEL WORKING AT PURCHASER'S FACILITIES
1. The term "Purchaser Facilities" as used in this clause shall be deemed to include sites, property, utilities, ships or vessels owned or controlled by NATO or a national government or NATO contractor and the term "Facility Representative" shall be deemed to refer to the authority designated by the NATO responsible for such site, property, utility, ship or vessel.
2. The Facility Representative shall provide such available administrative and technical facilities for EMCON's personnel working at the Purchaser's Facilities for the purpose of the Agreement as in the opinion of the Facility Representative may be necessary for the effective and economical discharge of work under this Agreement. These facilities may be provided at no cost at the discretion of the Facility Representative. EMCON shall be responsible for ascertaining what necessary facilities may be provided and whether they will be provided free of charge, or determining what charges are payable.
3. EMCON shall, except as otherwise provided for in the Agreement, make good or, at the option of the Purchaser, pay compensation for all damage occurring to any Purchaser's Facilities occasioned by EMCON or by his servants, agents or subcontractors, arising from his or their presence on Purchaser Facilities in connection with the Agreement; provided that this Condition shall not apply to the extent that EMCON is able to show that any such damage was not caused by EMCON's gross neglect or wilful default, or the gross neglect or wilful default of EMCON's servants, agents or subcontractors.
4. All property of EMCON while at a Purchaser Facility shall be at risk of EMCON and the Purchaser shall accept no liability for any loss or damage, except to the extent that any loss or damage is the result of a wilful act or gross negligence on the part of the Purchaser's employees or agents.
13. PURCHASER FURNISHED PROPERTY
1. The term "Purchaser Furnished Property" as used in this clause refers to items of equipment, material or property furnished by the Purchaser to EMCON which shall be subject to overhaul, repair, modification, test, embodiment or other work as specified in any Order under this Agreement to be performed by EMCON.
2. The Purchaser shall deliver to EMCON, for use only in connection with any Order under this Agreement, the property described in the schedule or specifications (hereinafter referred to as "Purchaser Furnished Property"), at the times and locations stated therein. In the event that Purchaser Furnished Property is not delivered by such time or times stated in the Schedule, or if not so stated, in sufficient time to enable EMCON to meet such delivery or performance dates the Purchaser shall, upon timely written request made by EMCON, and if the facts warrant such action, equitably adjust any affected provision of the Order pursuant to the procedures of the "Changes" clause hereof.
3. In the event that Purchaser Furnished Property is received by EMCON in a condition not suitable for its intended use, EMCON shall immediately notify the Purchaser. The Purchaser shall within a reasonable time of receipt of such notice replace, re-issue, authorise repair or otherwise issue instructions for the disposal of Purchaser Furnished Property agreed to be unsuitable. The Purchaser shall, upon timely written request by EMCON, equitably adjust any affected provision of the Order pursuant to the procedures of the "Changes" clause hereof.
4. Title to Purchaser Furnished Property shall remain in the Purchaser. EMCON shall maintain adequate property control records of Purchaser Furnished Property in accordance with sound industrial practice.
5. Unless otherwise provided in the Order, EMCON, upon delivery to him of any Purchaser Furnished Property, assumes the risk of, and shall be responsible for, any loss thereof or damage thereof except for reasonable wear and tear, and except to the extent that such property is consumed in the performance of the Order.
6. Upon completion of the Order, or at such earlier dates as may be specified by the Purchaser, EMCON shall submit, in a form acceptable to the Purchaser, inventory schedules covering all items of Purchaser Furnished Property not consumed in the performance of the Order or not theretofore returned to the Purchaser. EMCON shall prepare for shipment, deliver FOB origin, or otherwise dispose of Purchaser Furnished Property as may be directed or authorised by the Purchaser. The net proceeds of any such disposal shall be credited to the contract price or paid in such other manner as the Purchaser may direct.
7. EMCON shall not modify any Purchaser Furnished Property unless specifically authorised by the Purchaser or directed by the terms of the Order.
14. INDEMNIFICATION
1. EMCON shall indemnify and hold the Purchaser harmless against claims for injury to EMCON employees, agents, or subcontractors, or damages to property of EMCON or others arising from EMCON's possession or use of Purchaser Furnished Property or Facilities in the performance of work as specified in an Order; except to the extent that EMCON is able to show any such injury or damage was caused by Purchaser's wilful act or negligence.
15. TITLE AND RISK OF LOSS
1. Unless the Order specifically provides for earlier passage of title, title to supplies covered by the Order shall pass to the Purchaser upon acceptance as specified in the Order, regardless of when or where the Purchaser takes physical possession.
2. Unless the Order specifically provides otherwise, risk of loss or damage to supplies covered by this Agreement and any Order shall remain with EMCON until, and shall pass to the Purchaser upon:
1. delivery of supplies as specified in accordance with the Agreement; or
2. acceptance by the Purchaser or receipt of supplies by the Purchaser at the destination specified in the Order, whichever is the later.
3. Notwithstanding 5.2 above, the risk of loss or damage to supplies which fail to conform to the requirements of the Order shall remain with EMCON until cure or acceptance, at which time 5.2 above shall apply.
4. Notwithstanding 5.2 above EMCON shall not be liable for the loss of or damage to supplies caused by the negligence of officers, agents or employees of the Purchaser acting within the scope of their employment under the terms and conditions of this Agreement.
16. TRANSFER REQUIREMENTS
1. EMCON shall not give, bargain, sell, assign, sub-let or otherwise dispose of any order under this Agreement or any part thereof or the benefit or advantage of the Order or any part thereof without the previous consent in writing of the Purchaser.
17. INSPECTION, ACCEPTANCE AND REJECTION
1. Unless otherwise specifically provided for in the Agreement, all equipment, materials and supplies incorporated in the work covered by this Agreement are to be new and of the most suitable grade of their respective kinds for the purpose, notwithstanding the requirements for testing, inspection and performance as required under this Agreement. All workmanship shall be as required under the Order or, if not specified, best commercial (National and International) standard.
2. All supplies (which term throughout this clause includes without limitation raw materials, components, intermediate assemblies, end products, data including software and firmware) and services may be subject to inspection and test by the Purchaser, or his authorised representative to the extent practicable at all times and places prior to acceptance, including the period of manufacture, or after delivery, or as otherwise specified in the Order. For the purposes of inspection and testing the Purchaser may delegate as his representative the authorised National Quality Assurance Representative (NQAR) in accordance with STANAG 4107.
3. No representative or NQAR appointed by the Purchaser for the purpose of determining the Contractor’s compliance with the technical requirements of the Order shall have the authority to change any of the specifications. Such changes may only be made by the Contracting Authority in writing in accordance with the clause of this Agreement entitled "Changes".
4. The presence or absence of an NQAR or other Purchaser representative shall not relieve EMCON from any of the requirements of this Agreement.
5. In the event that any supplies, or lots thereof, or services are defective in design, material, workmanship or manufacturing quality, or as a result of undue wear and tear or otherwise not in conformity with the requirements of the order, including any characteristic or condition which is or becomes at variance to the performance specifications and to the intended function of the supplies, the Purchaser shall have the right either to reject them (with or without instructions as to their disposition) or to require their correction or replacement. Supplies, or lots thereof or services which have been rejected or required to be corrected or replaced shall, at the expense of EMCON, be removed, or, if permitted or required by the Contracting Authority, corrected in place by EMCON promptly after notice, and shall not thereafter be tendered for acceptance by EMCON unless the former rejection or requirement of correction or replacement is disclosed. If EMCON fails promptly to remove, replace or correct such supplies or lots thereof, or services, the Purchaser either:
1. may by Order or otherwise return, replace or correct such supplies or services and charge EMCON the cost incurred by the Purchaser, or
2. may terminate this Agreement for default as provided in the clause of this Agreement entitled "Termination for Default".
6. Unless EMCON corrects or replaces such supplies or services within the delivery schedule, the Purchaser may require the delivery of such supplies or services at a reduction in price which is equitable under the circumstances. Failure to agree to such reduction of price shall be a dispute within the meaning of the clause of this Agreement entitled "Disputes".
7. If any inspection or test is made by the Purchaser's representatives on the premises of EMCON or sub-contractor, EMCON, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the Purchaser’s representatives in the performance of their duties. The NQAR or other Purchaser representatives shall have the right of access to any area of EMCON's or his sub-contractor’s premises where any part of the contractual work is being performed. If Purchaser inspection or test is made at a point other than the premises of EMCON or sub-contractor, it shall be at the expense of the Purchaser except as otherwise provided in this Agreement; provided that in case of rejection the Purchaser shall not be liable for any reduction in value of samples used in connection with such inspection or test. All inspections and tests by the Purchaser shall be performed in such a manner as not to unduly delay the work. The Purchaser reserves the right to charge to EMCON any additional cost of Purchaser inspection and test when supplies or services are not ready at the time such inspection and test is requested by EMCON or when re-inspection or retest is necessitated by prior rejection. Acceptance or rejection of the supplies or services shall be made as promptly as practicable after delivery, except as otherwise provided in the Order, but failure to inspect and accept or reject supplies or services shall neither relieve EMCON from responsibility for such supplies or services as are not in accordance with the Order requirements nor impose liability on the Purchaser thereof.
8. The inspection and test by the Purchaser of any supplies or lots thereof, or services does not relieve EMCON from any responsibility regarding defects or other failures to meet the contract requirements which may be discovered prior to acceptance. Except as otherwise provided in the Order, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud.
9. Acceptance of supplies or services shall take place when the Purchaser confirms acceptance of the supplies or services in accordance with the procedure specified in the Order, or if none is so specified then the Purchaser shall be deemed to have accepted the supplies or services without prejudice to any other remedies, when and as soon as any of the following events have occurred:
1. The Purchaser has taken the supplies or services into use;
2. The Purchaser has not exercised its right of rejection of the supplies or services within any period specified for that purpose in the Order;
3. There being no period of exercising the right of rejection specified in the Order, a reasonable time, all the circumstances having been taken into account, has elapsed since delivery of the supplies or services was effected in accordance with the Order.
10. Unless otherwise specified in this Agreement, EMCON shall have or establish, implement and maintain an effective and economical quality control system, planned and developed in conjunction with other contractor functions necessary to satisfy the contract requirement. The system shall be acceptable to the Purchaser and its authorised representatives. The system shall provide for the early and prompt detection of deficiencies, trends and conditions which could result in unsatisfactory quality, and for timely and effective corrective action. Objective evidence that the system is effective shall be readily available to the Purchaser and its authorised representatives. Records of all inspection and testing work by EMCON shall be kept complete and available to the Purchaser’s representatives during the performance of any Order under this Agreement and for such longer periods as may be specified elsewhere in the Order.
11. Product acceptance shall be accomplished by using test procedures and/or programs established by EMCON which are applicable to the Products, unless otherwise agreed in writing by the Purchaser and EMCON. Such acceptance shall be at the time of completion of final tests at EMCON's facilities, except as otherwise specified below. If Purchaser has conveyed in writing its intention to witness final tests in Eligible Purchaser's Order, EMCON will give Purchaser prior notice of the date of such tests. Purchaser shall be responsible for any charges that may be associated with witnessing said tests. If installation by EMCON is included in the purchase price, acceptance will be at any installation site specified by the Purchaser, when EMCON demonstrates that the applicable diagnostic and/or verification programs work properly. If EMCON's demonstration of the programs at the installation site is delayed for more than fifteen (15) calendar days, except due to the fault of EMCON, the Products will be deemed accepted.
18. PREFERRED CUSTOMER
1. EMCON warrants that the prices set forth in this Agreement, and appendices thereto, are as favourable as those extended to any Government, Agency, Company, Organisation or individual purchasing or handling like quantities of equipment and/or parts covered by the Agreement under similar conditions. In the event that prior to complete delivery under this Agreement EMCON offers any of such items in substantially similar quantities to any customer at prices lower than those set forth herein, EMCON shall so notify the Purchaser and the prices of such items shall be correspondingly reduced by a supplement to this Agreement. Price in this sense means "Base Price" prior to applying any bonus, export tax reduction, turn-over tax exemptions and other reductions based on National Policies.
19. PRICE FIXING
1. Offers for sole source procurement, changes, modifications, and claims in excess of $500,000 shall be priced in accordance with this provision and the Purchaser's Pricing Principles as set out in Appendix 1 to this provision, or the National Government Pricing Rules and Regulations for EMCON's own country where in force
2. This provision shall also apply to follow-on contracts of any nature including maintenance and supply of spare parts which exceed $500,000. Should such contracts be placed by SHAPE, NAMSA, other NATO Authorities or National Authorities of the Participating Nations, such organisations shall be entitled to all rights, powers and privileges that the Purchaser has under this Agreement.
3. To the extent the product proposed is a Commercial Off The Shelf (COTS) or COTS derivative item which has been sold to the general public or which is being developed for sale to the general public, including services normally provided for maintenance and installation, and consistent with, for example, the Rules of the Federal Acquisition Regulation (FAR), said items will be defined as "COMMERCIAL" and shall not be subject to paragraphs 9.4 or 9.5.
1. For the purposes of verifying that cost or pricing data submitted in conjunction with paragraphs 9.1 and 9.2 above are accurate, complete and current, the Purchaser shall, until the expiration of three (3) years from the date of final payment of all sums due under the Agreement, have the right of access to EMCON's facilities to examine those books, records, documents and other supporting data which will permit adequate evaluation and verification of the cost or pricing data submitted along with the computations and projections used therein which were available to EMCON as of the date of EMCON's price proposal.
4. EMCON, when the price exceeds $500,000, and subject to paragraph 9.3 above, shall require its Subcontractors to provide to the Purchaser, either directly or indirectly:
1. cost or pricing data or substantiation of commercial product status;
2. access to Subcontractor's facilities and records by the National Audit Agency for the purpose of verification of such cost or pricing data; and
3. a Certificate of Current Cost or Pricing Data when required.
5. Price Reduction for Defective Cost or Pricing Data.
1. If any price, including profit or fee, negotiated in connection with this Agreement or any cost reimbursable under this Agreement was increased by any significant sums because,
1. EMCON furnished cost or pricing data which was not complete, accurate and current as certified in EMCON's Certificate of Current Cost or Pricing Data provided in accordance with paragraph 9.6 below.
2. A Subcontractor, pursuant to paragraph 9.4 above or any subcontract clause therein required, furnished cost or pricing data which was not complete, accurate and current as certified in the Subcontractor's Certificate of Current Cost or Pricing Data.
3. A Subcontractor or prospective Subcontractor furnished cost or pricing data which was required to be complete, accurate and current and to be submitted to support a Subcontract cost estimate furnished by EMCON but which was not complete, accurate and current as of the date certified in EMCON's Certificate of Current Cost or Pricing Data; or
4. EMCON or a Subcontractor or prospective Subcontractor furnished any data, not within paragraphs 9.5.1.1, 9.5.1.2 or 9.5.1.3 above, which was not accurate as submitted. Then the price or cost shall be reduced accordingly and the Order shall be modified in writing as may be necessary to reflect such reductions.
6. Certificate of Current Cost or Pricing Data.
1. At the time of negotiating any price, including profit or fee, EMCON shall be required to submit a Certificate of Current Cost or Pricing Data as required by paragraph 9.4.3.
2. Such Certificate will certify that, to the best of EMCON's knowledge and belief, cost or pricing data submitted to the Purchaser in support of any proposal for a price, price adjustment or claim, are accurate, complete and current, as per the completion of the negotiations or, in the case of a claim, as per the submission date of the claim.
3. All such certificates shall be in the format shown below and shall be dated and signed by a responsible officer of the company.

CERTIFICATE OF CURRENT COST OR PRICING DATA

This is to certify that, to the best of my knowledge and belief, cost or pricing data as submitted, either actually or by specific identification in writing to the Purchaser or his representative in support of _________________________ are accurate, complete and current as of _______________________.

day month year

Firm _____________________________

Name _____________________________

Title ____________________________

____________________________

Date of Execution

7. EMCON shall insert the substance of this Clause in each Subcontract where applicable.
20. TAXES AND DUTIES
1. Purchaser and "NATO bodies" and certain Eligible Purchasers are exempt from all taxes and all customs duties on Products and Services imported or exported hereunder. EMCON therefore, certifies that the prices stipulated under this Agreement do not include amounts to cover such taxes or customs duties. EMCON shall be responsible for determining whether such exemptions apply for other Purchasers, as defined under paragraphs 3.1.3, 3.1.4 and 3.2 of Part I, Special Provisions of BOA above.
2. In cases where taxes and duties are levied, EMCON should seek reimbursement directly from the authorities concerned in compliance with the applicable procedures. The Purchaser shall provide reasonable assistance in claiming reimbursement.
3. In the event that reimbursement is not made by the authorities concerned, and providing that EMCON has complied with applicable procedures, Purchaser shall reimburse the full amount of the payments upon receipt of EMCON's invoice indicating such tax or duty as a separate item or cost and fully identified by reference to any governmental law, regulation and/or instruction pursuant to which such tax or duty is enforced.
4. Following payment by the Purchaser of the taxes and/or duties pursuant to paragraph 10.3 above, should EMCON receive a rebate of any amount paid by Purchaser, EMCON shall immediately notify Purchaser, and the amount of such rebate shall be credited or reimbursed to the Purchaser, as directed. EMCON shall be responsible for taking any and all action that could reasonably be required in order to obtain such rebate.
21. INVOICES
1. Invoices shall be prepared and submitted by EMCON in a manner as agreed with Purchaser and shall contain: BOA number, Order number (if any), description of Products, sizes, quantities, unit prices, and extended totals (exclusive of taxes and duties for which relief is available). Details of Bills of Lading or Freight Warrant numbers and weight of shipment shall be identified on each invoice as appropriate.
2. In addition, where applicable and on request by Purchaser, documentary evidence of acceptance (as defined in the Agreement) shall be submitted together with each invoice.
3. All invoices shall be addressed to the designated authority specified by Purchaser.
22. CHANGES
1. The Purchaser may at any time, by written order designated or indicated to be a change order, and without notice to the sureties, if any, make changes within the scope of any Order, in any one or more of the following:
1. Specifications (including drawings and designs) except to Commercial Products;
2. Method and manner of performance of the work;
3. Marking, method of shipment and packing;
4. Time and place of delivery; and
5. Purchaser Furnished Property and Facilities (including Equipment, materials, services or sites).
2. Any other written or oral order (which, as used in this paragraph 12.2, includes direction, instruction, interpretation, or determination) from the Purchaser that causes a change shall be treated as a change order under this clause, provided, that EMCON gives the Purchaser written notice within thirty (30) days after receipt of such change order stating:
1. the date, circumstances, and source of the order and
2. that EMCON regards the order as a change order, and that the order is accepted in writing by the Purchaser as a change order. The timely written notice requirement, as detailed above, remains in force in all cases, even where, for example, the Purchaser has positive knowledge of the relevant facts.
3. Except as provided in this clause, no order, statement, or conduct of the Purchaser shall be treated as a change order under this clause or entitle EMCON to an equitable adjustment.
4. If any such change order causes an increase or decrease in EMCON's cost of, or the time required for the performance of any part of the work under the Order, whether or not changed by any such order, the Purchaser shall make an equitable adjustment and modify the Order in writing accordingly. However, except for a "proposal for adjustment" (hereafter referred to as "proposal") based on defective specifications, no proposal for any change under paragraph 12.2 above shall be allowed for any costs incurred more than thirty (30) days before EMCON gives written notice as required. In the case of defective specifications for which the Purchaser is responsible, the equitable adjustment shall include any increased cost reasonably incurred by EMCON in attempting to comply with the defective specifications. Where the cost of property made obsolete or excess as a result of a change is included in the EMCON's claim for adjustment, the Purchaser shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute within the meaning of the clause of this Agreement entitled "Disputes." However, nothing in this clause shall excuse EMCON from proceeding with the Order as changed.
5. EMCON must submit any proposal under this clause within thirty (30) days after
1. receipt of a written change order under paragraph 12.1 above or
2. the furnishing of a written notice under paragraph 12.2, by submitting to the Purchaser a written statement describing the general nature and amount of the proposal, unless this period is extended by the Purchaser. The statement of proposal for adjustment may be included in the notice under paragraph 12.2 above.
6. No proposal by EMCON for an equitable adjustment shall be allowed if asserted after final payment and acceptance under the Order.
23. PURCHASER DELAY OF WORK
1. If the performance of all or any part of the work is delayed or interrupted by an act of the Purchaser in the administration of the Order, which act is not expressly or implicitly authorised by the Order, or by his failure to act within the time specified in the Order (or within a reasonable time if not time is specified), an adjustment shall be made for any increase in the cost of performance of the Order caused by such a delay or interruption and the Order modified in writing accordingly. Adjustments shall be made also in the delivery or performance dates and any other contractual provision affected by such delay or interruption. However, no adjustment shall be made under this clause for any delay or interruption
1. to the extent that performance would have been delayed or interrupted by any other clause, including the fault or negligence of EMCON; or
2. for which an adjustment is provided under any other provision of this Agreement.
2. No claim under this clause shall be allowed
1. for any costs incurred more than twenty (20) days before EMCON shall have notified the Purchaser in writing of the act or failure to act involved; and
2. unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of such delay or interruption, but not later than the date of final payment under the Order.
24. STOP WORK ORDER
1. The Purchaser may, at any time, by written order to EMCON, require EMCON to stop all, or any part, of the work called for by the Order for a period of ninety (90) days after the order is delivered to EMCON, and for any further period to which the Parties may agree. Any such order shall be specifically identified as a Stop Work Order issued pursuant to this clause. Upon receipt of such an order, EMCON shall forthwith comply with its terms and take all reasonable steps to minimise costs incurred allocable to the work covered by the order during the period of work stoppage. Within a period of ninety (90) days after a stop work order is delivered to EMCON, or within any extension of that period to which the Parties shall have agreed, the Purchaser shall either:
1. cancel the stop work order, or
2. terminate the work covered by such order in accordance with paragraph 20, TERMINATION FOR CONVENIENCE OF THE PURCHASER.
2. If a stop work order issued under this clause is cancelled or the period of the order or any extension thereof expires, EMCON shall resume work. An equitable adjustment shall be made in the delivery schedule or Contract price, or both, and the Order shall be modified in writing accordingly, if:
1. the stop work order results in an increase in the time required for, or in EMCON's cost properly allocable to, the performance of any part of the Order, and
2. EMCON asserts a claim for such adjustment within thirty (30) days after the end of the period of work stoppage; provided that, if the Purchaser decides the facts justify such action, he may receive and act upon any such claim asserted at any time prior to final payment under any Order.
3. If a stop order is not cancelled and the work covered by such order is terminated for the convenience of the Purchaser, the reasonable costs resulting from the stop work order shall be allowed in arriving at the termination settlement.
25. ORDER OF PRECEDENCE
1. In the case of any inconsistencies herein, the BOA provisions shall take precedence over the Exhibits and appendices. The Special and the General Provisions of BOA contained in this Agreement shall apply to all orders placed with EMCON under this Agreement, except as mutually agreed by the Purchaser and EMCON.
2. Except where inconsistency between the terms of this Agreement and those contained in any Order have been expressly agreed between the Purchaser and EMCON, the terms of this Agreement shall take precedence.
26. APPLICABLE LAW
1. This Agreement and each subsequent Order under this Agreement between NC3A and EMCON shall be governed by and construed in accordance with the private contract law of the Kingdom of Belgium. Orders signed between EMCON and any other Purchaser under this Agreement shall be governed by the laws applicable to the country of the Purchaser, unless otherwise agreed between the Purchaser and EMCON.
27. DISPUTES AND ARBITRATION
1. In the event of a dispute under this Agreement or any Order issued hereunder, the Parties shall attempt to settle their difference in an amicable manner. However, in the event that a settlement cannot be made under this Agreement within a reasonable period of time, the Parties agree to institute arbitration proceedings in the manner provided in the following Arbitration provision and such disputes shall finally be settled thereby, unless otherwise agreed between the Purchaser and EMCON.
1. EMCON agrees to submit to the Arbitration Tribunal only such issues, facts, evidence and proof which EMCON had beforehand identified and submitted to the Purchaser for decision. The jurisdictional authority of the Arbitration Tribunal shall be restricted to consider only those identical issues, facts, evidence and proof so identified and submitted to the Purchaser.
2. The party instituting the arbitration proceedings shall advise the other party by registered letter, with official notice of delivery, of his desire to have recourse to arbitration. Within a period of thirty days from the date of receipt of this letter, the parties shall jointly appoint an arbitrator. In the event of failure to appoint an arbitrator the dispute or disputes shall be submitted to an Arbitration Tribunal consisting of three arbitrators, one being appointed by the Purchaser, another by EMCON and the third, who shall act as President of the Tribunal, by these two arbitrators. Should one of the parties fail to appoint an arbitrator during the fifteen days following the expiration of the first period of thirty days, or sh