GENERAL TERMS AND CONDITIONS OF PURCHASE
- Scope and Acceptance.
(a) These General Terms and Conditions of Purchase (“Terms”) automatically apply to and are a part of all written and oral Purchase Orders and amendments thereto issued by Buyer (collectively referred to as “Order”). All goods and services (whether or not ancillary to a
sale of goods) to be provided under an Order are included in the term “Goods.”
(b) An Order for which written confirmation is requested may be accepted only by returning a copy thereof signed by Seller within seven days of its date. However, Buyer may elect to consider Seller’s oral acceptance, Seller’s preparation to provide the Goods, or Seller’s
delivery of the Goods, as an acceptance of an Order and its terms (and of no other terms) and enforce an Order. Buyer objects to any additional or contrary terms in a quotation, acceptance, or other communication from Seller and only the terms herein shall be binding upon the parties. An
Order is not a firm offer and may be revoked prior to acceptance.
(c) An Order does not constitute an acceptance by Buyer of any offer to sell, any quotation, or any proposal. Reference in an Order to any such offer to sell, quotation, or proposal shall not constitute an addition to or a modification of any of the terms and conditions of an Order, except that a specific item of an offer to sell, quotation or proposal referenced and adopted by a purchase order shall be included in an Order without adopting any other portion of the offer to sell, quotation or proposal. TERMS AND CONDITIONS IN AN ATTEMPTED ACKNOWLEDGMENT OF AN ORDER OR OTHER DOCUMENT INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF AN ORDER ARE NOT BINDING UPON BUYER UNLESS SPECIFICALLY ACCEPTED BY BUYER IN WRITING, AND BUYER HEREBY OBJECTS THERETO. No course of performance or dealing by the parties shall be construed to waive, modify or otherwise adversely affect Buyer’s rights.
(d) Providing a purchase order number does not constitute an offer or contract for sale, but only a statement of present intent to issue an Order. Issuance of an Order does not constitute an obligation or evidence of an obligation of Buyer to continue to purchase Goods from Seller after expiration of an Order. Seller acknowledges Buyer has no such obligation unless contained in a binding written agreement signed by Buyer.
- Prices, Payment and Audit.
(a) Seller shall furnish the Goods at the prices in an Order. All prices are in U.S. dollars and FOB shipping point. Seller warrants that the prices for the Goods are no less favorable than those extended currently or during the 12 months immediately preceding an Order to any other customer of Seller for the same or similar goods in similar quantities. Buyer shall also
receive the full benefit of all discounts, premiums and other favorable terms of payment customarily offered by Seller to its best customers. If Seller reduces its prices for similar goods to below prices in an Order, Seller shall reduce the price to Buyer to the same price. Seller warrants
that the price in an Order shall be complete, and no additional charges of any type shall be added for any reason without Buyer’s express written consent, including but not limited to, current or
increased costs of materials, labor or transportation, shipping, packaging, labeling, custom duties,
taxes, storage, insurance, boxing and crating. Seller shall submit invoices, in duplicate, which
include Seller’s supplier number, date and number of Buyer’s Purchase Order, Seller’s tax
identification number, the date, place, and quantity of each delivery, and other information
requested by Buyer. All cash discounts shall be computed from the date of receipt by Buyer of a
final correct invoice or receipt of the Goods, whichever occurs later. Cash discounts shall be based
on the full amount of invoice, less freight charges and taxes if itemized separately on the invoice.
Correct invoices must be received by Buyer at least 10 days prior to the cash discount payment date.
Delay in receiving invoices or Goods is considered good cause for withholding payment and shall
extend the cash discount period.
(b) Seller warrants prices for tooling, special equipment and other special items
required specifically for an Order, which are disclosed in quotations or otherwise, shall be Seller’s
net cost after all discounts, rebates and other benefits, whether the prices are to be separately paid
by Buyer or amortized by Seller in the price for Goods.
(c) Buyer may at any reasonable time send its authorized representatives to
examine all pertinent documents and materials in the possession or under the control of Seller
relating to any of Seller’s obligations under an Order or any payments requested by Seller pursuant
to an Order. Seller shall maintain books and records relating to an Order for a period of two years
after completion of final delivery of Goods pursuant to an Order.
- Quantities and Blanket Order.
If an Order is described as a “Blanket” Order or in some other manner which indicates Buyer’s obligation to purchase is limited to those Goods and quantities in releases or other written delivery instructions from Buyer (“Blanket Order”), the quantities and delivery dates in the Order are not binding on Buyer, and Buyer’s obligation to purchase the Goods is expressly contingent upon the issuance of a release or other written delivery instructions (“Releases”) by Buyer identifying the Goods and quantities to be purchased and providing delivery directions. All Orders
for production materials and components are presumed to be Blanket Orders. As to such an Order, Seller shall not fabricate or assemble any Goods, procure required materials, nor ship any Goods, except to the extent specifically authorized by the Order or by written Releases. Seller shall maintain at its expense and risk components, materials and finished Goods at the latest design level. Subject to change by Buyer’s Releases, Seller is authorized to fabricate and assemble up to four
weeks of finished Goods inventory and acquire up to an additional eight weeks of component and materials inventory based on Seller’s latest Releases. Releases may be modified by Buyer at any time to the extent not contrary to specific terms of the Order. Buyer shall be obligated only to purchase Goods and those components and materials fabricated or acquired by Seller in reliance on
a Release that established a firm or fixed quantity. Buyer may temporarily suspend delivery or
modify delivery dates for fixed or firm quantities. Forecasts and planning advisories are not
Releases and may not be relied upon by Seller. Buyer may return overshipments to Seller at Seller’s
expense for all packing, handling, sorting and transportation charges. Releases are included in the
term “Order”. Buyer has and/or will rely upon Seller’s obligations to sell under an Order, and the
obligation of Seller to sell under the prices and other terms of a Blanket Order continues during the
period covered by the Order and thereafter for a reasonable time at the prices in effect at the end of
such period after written notice by Seller that it will no longer supply under such prices so that
Buyer may resource the Goods.
- Directed Supplier Relationship.
If an Order derives from a supplier relationship between Seller and Buyer directed or
required by the original equipment manufacturer or higher tier supplier (“Directing Customer”),
Seller shall comply with all provisions of the Order plus the terms and conditions of the Directing
Customer relating to the Goods. At Buyer’s request, Seller shall negotiate performance, pricing,
quality, warranty and other contract issues relating to the Goods with the Directing Customer to
assure that the Directing Customer’s requirements are adequately developed, described, and met.
Upon Seller’s written request Buyer shall pass through to Seller those non-financial commercial
terms which Seller negotiates with the Directing Customer regarding the Goods, provided such
commercial terms are also provided and granted also to Buyer and do not adversely affect Seller.
Seller is solely responsible to provide in writing all information relating to the Goods including, for
example, the Goods’ design and performance (as approved by the Directing Customer and Buyer),
design for interface of the Goods within Buyer’s products, testing data and reports, tooling
requirements and timing, and other matters which could affect Buyer’s use of the Goods and
performance of its obligations to provide, directly or indirectly, products to the Directing Customer.
Other than for changes to the terms and conditions of purchase of the Directing Customer granted
to Buyer and Seller, Buyer may also require Seller to comply with the Directing Customer’s terms
and conditions of purchase and these Terms, and to the extent there is a conflict, to the provisions
which Buyer elects to apply.
- Delivery, Documentation and Marking.
(a) Delivery must be on the date indicated, if any, and otherwise as requested by
Buyer. If an Order is identified as a Blanket Order or if no delivery schedule is provided, deliveries
are to be made only in quantities and at times specified in Releases. Buyer shall have no liability
for payment of Goods delivered to Buyer which are in excess of quantities specified in an Order or
in Releases. Buyer may, from time to time, change delivery schedules or direct temporary
suspension of scheduled shipments without additional charge. Time is of the essence as to delivery.
(b) All Goods shall be delivered clean and ready for further processing. If any
rust inhibitor or other chemical protection is required, it must be water soluble and approved by
Buyer in writing prior to use.
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(c) All drayage, demurrage, storage, insurance, export and import duties, and
related charges shall be paid by Seller. If Buyer is specifically responsible for such charges
according to the terms of an Order, they shall be prepaid by Seller, and then billed to Buyer.
(d) All Goods shall be suitably packed to avoid damage, marked and shipped in
accordance with the requirements of common carriers in a manner to secure the lowest
transportation costs consistent with the requirements hereof and to increase the Goods arrive in
good condition at the final destination. No additional charge shall be made to Buyer for packaging
or shipping. Packing slips identifying the purchase order number, release number and part number
must accompany each shipment in an envelope marked “Packing slip enclosed”.
(e) Seller shall mark each package with an Order number, and where multiple
packages comprise a single shipment each package shall be shown on packing slips, bills of lading,
and invoices. If Buyer is obligated to pay for shipping, Seller shall pay for all extra charges
incurred because of Seller’s failure to follow Buyer’s shipping instructions, including those related
to delivery schedules, whether or not Seller’s liability for general damages is excused under other
provisions of an Order.
(f) Seller shall describe the Goods on the bill of lading or other shipping receipt
and route shipments, in accordance with instructions issued by Buyer, if any.
(g) Seller shall mark Goods, packaging, and packing as instructed by Buyer and
in otherwise accordance with the standards of the Uniform Commercial Code and Automotive
Industry Action Group (“AIAG”). Markings shall be in English, AIAG format bar code including
completed fields for part number, container quantity, shipping date, and a unique serial number, and
such other form as determined by Buyer.
(h) Seller shall pay all express and other charges necessary to speed delivery to
enable Seller to meet the delivery schedule. Seller shall ship all late shipments by express or other
priority methods of delivery at its expense as requested by Buyer.
(i) Seller shall be responsible for the cleaning, replacement and repair costs of
any reusable dunnage, delivery cartons or other materials delivered to Seller by Buyer.
(j) Seller shall provide all packaging and documentation in compliance with the
law of all countries of shipment, routing, and destination.
(k) Whether or not the Goods will be provided in multiple deliveries, the Order
is for a single contract.
(l) Seller shall comply with C-PAT and other U.S. government programs to
improve security and the movement of goods through U.S. Customs.
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- Risk of Loss and Title to Goods.
(a) All shipments are at the risk of Seller until receipt at the final destination,
regardless of the F.O.B. point unless otherwise assumed by Buyer in writing. If risk of loss is
assumed by Buyer, all risk casualty insurance for replacement value must be provided by Seller for
the benefit of Buyer. The cost of any insurance shall be paid by Seller unless otherwise agreed in
writing by Buyer. Under no condition will the risk of loss be that of Buyer unless such insurance is
provided. Risk of loss shall not be governed by transfer of title.
(b) Title to all Goods shall vest in Buyer the earlier of the date of an Order and
their identification to an Order. Identification shall occur not later than the date Seller acquires or
begins manufacture of the Goods. Buyer’s obligation to pay for Goods is limited by terms of the
- Samples and Specifications.
(a) Seller shall comply with all requirements necessary to complete timely
Buyer’s, Buyer’s Customer’s and original equipment manufacturer’s production part approval
process as adopted from time to time (“PPAP”). Seller shall inspect such samples before delivery
and shall certify inspection results in the manner requested by Buyer. Seller shall not begin the
manufacture of Goods for production prior to the satisfactory completion of PPAP procedures of
Buyer, its Customer, and the original equipment manufacturer. Seller shall not make any changes
in the materials or manufacturing process with completion and approval of a Level 3 PPAP.
(b) Buyer reserves the right at any time to make changes in quantities, drawings,
specifications, testing or quality control, packing, shipment, scope of work and other terms of an
Order. Any purported change shall be binding on Buyer only if made in a writing signed by Buyer.
Any difference in price or time for performance necessarily resulting from such changes shall be
adjusted and an amendment to the Order shall be provided by Buyer in writing, if Seller makes
demand for such adjustments and delivers all supporting documentation within 10 days of receipt of
Buyer’s written notice of change. Time is of the essence for such demand. Notwithstanding anything to the contrary, the price shall be adjusted solely to compensate Seller for increased costs of materials and other direct production costs (excluding overhead and profit) necessarily incurred as a result of the changes and the terms for performance shall be adjusted only for the period actually required to comply with the changes. Seller may not substitute materials or change the specifications of the Goods in any way without written authorization from Buyer. Seller shall diligently perform all changes while its claim is being evaluated and during any period of dispute regarding requested adjustments.
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- Quality, Development and Inspection.
(a) Seller shall, as Seller’s cost, participate in any supplier quality and
development programs and comply with all quality requirements and procedures specified by Buyer from time to time, including ISO-9001 and QS-9000. Buyer may inspect the Goods in process and Seller’s facilities at reasonable times, but such inspection or approval shall not constitute
acceptance of the Goods or a waiver to insist on strict performance. Seller shall design and
manufacture the Goods to be suitable for installation and use in the product to be sold to the end
(b) All Goods shall be received subject to right of inspection and rejection by
Buyer and its Customer. Buyer may rely on Seller’s obligations and is not required to inspect the
Goods prior to use. In addition, Buyer and its Customer shall have a reasonable time, but not less
than 14 days after delivery, to inspect delivered Goods prior to accepting the Goods. Defective
Goods and Goods otherwise not in conformity with Buyer’s specifications or an Order will be held
pending Seller’s instructions at Seller’s risk and expense and, if Seller so directs, may be returned at
Seller’s expense; provided, if Seller fails to provide written instructions within seven days of notice,
Buyer may return the Goods freight collect or otherwise dispose of them at Seller’s expense.
Goods returned as defective or nonconforming shall not be returned to Buyer or replaced without
Buyer’s approval and may, at Buyer’s option, constitute a reduction in quantity of Goods Buyer may
be obligated to purchase. Payment for the Goods prior to inspection shall not constitute an
acceptance thereof or waive Buyer’s right to revoke acceptance. Acceptance, whether or not it has
been revoked, shall not release Seller’s responsibility for defects, non-conformities, warranty, or
(c) All Goods (which term includes for this Section, without limitation, raw
materials, components, intermediate assemblies, end products, tooling and accessories) shall be
subject to inspection and test by Buyer, its “Customer” (which term includes, without limitation,
Buyer’s immediate customers, subsequent original equipment manufacturers and end-users), and
federal and state governments, at all times and places to the extent practicable, and in any event
prior to final acceptance by Buyer and its Customer.
(d) If any inspection or test is made on the premises of Seller or its supplier,
Seller without additional charge shall provide all reasonable facilities and assistance for the safety
and convenience of the inspectors in the performance of their duties. All inspections and tests on
the premises of Seller or its supplier shall be performed in such a manner as not to unduly delay
(e) Seller shall provide and maintain an inspection and process control system
acceptable to Buyer and its Customer covering the Goods. Records of all manufacture, testing and
inspection by Seller of the Goods shall be kept complete, separate and available to Buyer and its
Customer during the performance of an Order and for such longer periods as may be specified in an
Order, but not less than ten years after the last delivery of the Goods to Buyer.
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- Safe Use.
Seller shall provide with the Goods, in English and in writing, all information necessary for
the safe installation, use, maintenance and repair of the Goods and to maximize the efficient use
and useful life of the Goods. Prior to and with the shipment of the Goods, Seller shall furnish to
Buyer sufficient warning and notice in writing (including material safety data sheets and
appropriate labels on the Goods, containers and packing) of any hazardous material that is an
ingredient or a part of any of the Goods, together with such special handling instructions as may be
necessary to advise carriers, Buyer, and their respective employees, how to exercise that measure of
care and precaution that will best prevent bodily injury or property damage in the handling,
transportation, processing, use or disposal of the Goods, containers and packing shipped to Buyer.
If requested by Buyer, Seller shall promptly furnish to Buyer in such form and detail as Buyer may
direct, in addition to standard material safety data sheets: (a) a list of all ingredients in the Goods;
(b) the amount of all ingredients; and (c) information concerning any changes in or additions to
- Electronic Data Interchange.
Seller shall, at Buyer’s request and Seller’s expense, connect to Buyer’s electronic data
interchange (“EDI”) system. All transactions initiated under EDI shall be governed by the terms
contained in Buyer’s transmissions, except that standard terms and conditions which may be a part
of Buyer’s EDI system shall be supplemented by, and superceded to the extent inconsistent with, the
terms of these Terms. A transmission shall be deemed signed if it contains the name of the
individual authorizing the transaction and is otherwise in accord with authentication and other
provisions of Buyer’s EDI system.
- Confidentiality and Intellectual Property.
(a) At all times prior to, during, and after an Order, Seller shall (i) maintain the
confidentiality of any information disclosed by Buyer or any of its parents, subsidiaries, affiliates,
customers, and contractors, including but not limited to any technical, process or economic
information derived from drawings, specifications and other data furnished by Buyer in connection
with an Order, whether or not identified as “confidential” upon disclosure (“Confidential
Information”); (ii) not disclose or permit the disclosure of any Confidential Information to any
person other than its employees for whom such knowledge is essential for performance of an Order;
and (iii) not use Confidential Information except for performance of an Order. Seller shall
immediately notify Buyer of any disclosure of any Confidential Information that is not permitted by
these Terms and Conditions or other misuse of any Confidential Information or breach of these
Terms and Conditions. Except as required for the efficient performance of an Order, Seller shall
not use such information or make copies or permit copies to be made of such drawings,
specifications, or other data without the prior written consent of Buyer and may not sell to any third
party any Goods which are constructed with or incorporate such information disclosed to Seller, or
reversed engineered from the Goods. If any copies are made with prior consent, notice referring to
the requirements of this Subsection shall be placed on the copies. Without limiting the direct
liability of Seller’s employees and others who may have received Confidential Information directly
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or indirectly from Seller, Seller shall be responsible for the improper disclosure or other misuse of
Confidential Information by Seller’s employees and others, and Seller shall immediately take such
steps as may be necessary to terminate any continuing improper disclosure or misuse by any of
Seller’s employees and others of which Seller becomes aware. Buyer makes no representation or
warranty of any kind, express or implied, with respect to any Confidential Information. Buyer may,
at its sole discretion, elect at any time, by written notice to Seller, to terminate Seller’s further use of
Confidential Information for any purpose. Upon receipt of such notice, Seller shall, and shall cause
Seller’s employees to, promptly cease all further use of Confidential Information, return to Buyer
all physical materials containing Confidential Information, whether the materials were originally
provided by Buyer or copied or otherwise prepared by Seller or any of Seller’s employees, and erase
or otherwise destroy any Confidential Information kept by Seller or any of Seller’s employees in
electronic or other non-physical form. Such termination by Buyer shall not affect Seller’s
continuing obligations in this Subsection.
(b) Any knowledge or information disclosed by Seller or on its behalf to Buyer,
its affiliates or contractors, which in any way relates to an Order, shall not, unless otherwise
specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information,
and shall be acquired by Buyer, free from any restrictions (other than a claim for patent
infringement), as part of the consideration for an Order.
(c) Seller at its expense shall defend, indemnify and hold harmless Buyer and its
successors, assigns, Customers, and users with respect to every claim that may be brought against
Buyer or others that use the Goods of an Order, for any actual or alleged infringement of any
present or future patent, copyright, industrial design right or other proprietary right based on
Seller’s activity under an Order, or the manufacture, sale, or sue of the Goods (i) alone; (ii) in
combination by reason of their content, design or structure; or (iii) in combination in accordance
with Seller’s recommendations. Seller shall investigate and defend or otherwise handle every such
claim, and at Buyer’s request, assist Buyer in Buyer’s investigation, defense, or handling of any
such claim. Seller shall pay all expenses and damages or settlement amounts that Buyer and others
selling buyer’s products or using the Goods of an Order may sustain by reason of each such
indemnified claim. If the use or sale of the Goods is enjoined, Seller shall, at its own expense and
at Buyer’s option, either: (i) procure the right to continue using the Goods; (ii) replace same with a
non-infringing equivalent; or (iii) remove the Goods and refund the purchase price and the
transportation and installation costs thereof. Seller’s obligations shall apply even though Buyer
furnishes all or any portion of the design and specifies all or any portion of the processing used by
(d) Any copyrightable materials created during the performance of an Order
shall be work for hire and be the exclusive property of Buyer and to the extent it cannot qualify as
work for hire, Seller assigns all such copyrightable material to Buyer.
(e) Seller shall promptly inform Buyer in writing of the full details of all
inventions, discoveries, concepts, and all copyright material, ideas, information and improvements
relating to the Goods or Buyer’s business (“Developments”), whether patentable or not, including,
but not limited to: hardware and apparatus, processes and methods, designs, formulae, computer
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programs and techniques, as well as any improvements and related knowledge, which Seller
conceives, develops, makes, contributes to or reduces to practice (whether alone or jointly with
others) while developing or supplying Goods. Seller shall grant, and hereby does grant, an
irrevocable, paid-up worldwide license to make, sell, use, and exploit the Developments (with the
right to sublicense), to Buyer or Buyer’s designee, all Developments; all trademarks, copyrights and
mask work rights in Developments; and all patent applications filed and patents granted on any
Development, including those in foreign countries, necessary or convenient to the use, sale, or
manufacture of the Goods, or any improvements or derivatives. Seller shall execute any papers
and take such further actions as Buyer may consider necessary or helpful to obtain, maintain,
defend and enforce patent, copyright, trademark or other intellectual property rights, and all related
expenses shall be paid by Buyer.
(f) Seller shall specifically identify in a writing delivered to Buyer prior to any
shipment, all patented components, processes, tooling or equipment used in the production of the
Goods now or in the future.
(g) Seller grants to Buyer a permanent, paid-up, nonexclusive, worldwide
license, including a license to any operating software incorporated into the Goods sold hereunder
with a right to grant a sublicense to others, to make, have made, use, have used and sell the Goods
or any improvements or derivatives thereof under any patents or intellectual property now or
hereafter owned or controlled by Seller.
(h) Seller grants to Buyer, and agrees to grant to any entity designated by Buyer,
a nonexclusive license, on reasonable terms and conditions, to make, have made, use, have used
and sell under any other patents or technology now or hereafter owned or controlled by Seller which
cover any application of the technology embodied in the information or data Seller acquires or
develops in the course of Seller’s activities under an Order or convenient for the manufacture, use
and sale of the Goods or products of the same general type of the Goods.
- Service and Replacement Parts.
Seller shall sell to Buyer Goods as ordered by Buyer for use as service and replacement
parts, at the price set forth in the Order. If the Goods are systems or modules, Seller shall sell to Buyer as ordered by Buyer the system or module, or the components or parts that comprise the system or module. The prices for the components or parts shall not, in the aggregate, exceed the price of the system or module less assembly costs. During the 15 years after Buyer completes production for use by an original equipment manufacturer’s current model purchases, Seller shall sell Goods to Buyer as ordered to fulfill Buyer’s past model service and replacement parts requirements. Unless otherwise agreed to by Buyer, the price during the first five years of this period shall be those in effect at the conclusion of purchases for production for the original equipment manufacturer. For the remainder of this period, the price for Goods shall be as agreed to
by the parties, not to exceed the lower of (a) the cost of manufacturer and a reasonable contribution to overhead and profit; (b) the price at which Buyer is obligated to sell to its Customer; and (c) the
price at the conclusion of production for use by an original equipment manufacturer’s current models. When requested by Buyer, Seller shall make service literature and other materials available at no additional charge to support Buyer’s service part sales activities. Notwithstanding
the foregoing, this is not a requirements contract, and Buyer is only obligated to purchase Goods as
stated in an Order.
(a) Seller warrants and represents to Buyer, its Customer, and any other original end user, that all Goods shall be: (i) merchantable; (ii) free from failure in the final product as sold to the end user for the periods of all Buyer’s warranties to its Customer but not less than the lesser of five years or 50,000 miles; (iii) free from all defects including for example design, workmanship and materials; (iv) fit for the particular purposes for which they are purchased; (v) in strict compliance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer as of the date of delivery or such other date provided by Buyer in writing; (vi) composed of all new materials and components; (vii) produced and provided with the highest degree of care; (viii) furnished promptly; (ix) provided by experienced and well trained personnel; and (x) to the satisfaction of Buyer and its Customers. Any attempt by Seller to limit, disclaim, or restrict any such warranties or any remedies of Buyer, by
acknowledgement or otherwise, in accepting or performing an Order, shall be null, void, and ineffective without Buyer’s prior written consent. Approval by Buyer of Seller’s design drawings, specifications, samples, etc. does not waive or limit any warranty. (b) Seller warrants that it shall engage in the continuous improvement of the Goods, other than Goods which by their nature cannot be improved, and advise Buyer in writing promptly of any possible changes to the Goods which would result in cost savings or quality improvement. (c) If Seller is certified under ISO-9000, QS-9000, or any original equipment manufacturer quality program, Seller shall maintain such certification during the performance of any Order. If Seller is not so certified, Seller shall begin and continue the certification process under ISO-9000 or QS-9000 in a diligent manner. Seller warrants that its performance of an Order shall be in compliance with the provisions of those sections of ISO-9000 (e.g., 9001, 9002, or 9003) applicable to the obligations of Seller under the Order, whether or not Seller is certified or registered under such standards. (d) No prison, forced, or involuntary labor shall be used by Seller or its subcontractors. (e) All warranties and remedies provided by these Terms are in addition to those provided by law.
- Liability, Indemnity, and Insurance.
(a) Seller shall defend and indemnify Buyer against all liabilities, claims or
demands for injuries or damages to any person or property arising out of the performance of an
Order, by Seller, its servants, employees, contractors, agents, or representatives or from the storage
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or use of the Goods. Seller shall furnish an insurance carrier’s certificate showing that Seller has
adequate insurance coverage in the following minimum amounts: workmen’s compensation –
statutory limits for jurisdictions in which work is to be performed; employer’s liability – $100,000;
general liability – bodily injury $10,000,000 single limit; automobile liability – bodily injury
$1,000,000 per person and $10,000,000 per occurrence; and property damage $5,000,000. All
policies shall be issued by an insurer licensed to do business in Michigan. Liability coverage shall
include completed products, completed operations, and (if available) recall. Buyer shall be named
as an additional insured under the policies. Seller shall furnish to Buyer a Certificate of Insurance
completed by its insurance carrier(s) certifying that the required insurance coverages are in effect
and will not be canceled or materially changed until 30 days after prior written notice has been
delivered to Buyer. The certificate must set forth the amount of each coverage, number of policy,
date of expiration, and Seller as an additional insured. If Seller is a self-insurer of workers
compensation liability, Seller shall furnish Buyer a certificate of the Department of Labor of the
jurisdiction in which any labor is to be performed approving the self-insurance. The purchase of
such insurance coverage or the furnishing of a certificate shall not be a satisfaction of Seller’s
liability hereunder, or in any way modify Seller’s obligation to indemnify Buyer.
(b) If Seller’s work under an Order involves operations by Seller on the premises
of Buyer or one of its Customers, Seller shall take all necessary precautions to prevent the
occurrence of any injury to persons or damage to property during the progress of such work, and
except to the extent that any such injury or damage is due solely and directly to Buyer’s negligence,
Seller shall defend and indemnify Buyer against any claim which may result in any way from any
act or omission of Seller, its agents, employees or subcontractors.
- Termination for Convenience.
In addition to any other rights of Buyer to cancel or terminate an Order or any Releases
issued pursuant to an Order, Buyer may at its option immediately terminate all of any part of an
Order or any Releases issued pursuant to an Order for Buyer’s convenience, at any time and for any
or no reason by giving 30 days’ written notice to Seller. Upon such termination for convenience,
Buyer shall pay to Seller the following amounts without duplication: (i) the Order price for all
conforming Goods which have been completed in accordance with an Order not previously paid;
and (ii) the actual direct costs of work in process and raw materials incurred by Seller in furnishing
the Goods under an Order or any Releases issued pursuant to an Order to the extent such costs are
reasonable in amount and are properly allowable or apportionable, under generally accepted
accounting principles, to the terminated portion of an Order or any Releases issued pursuant to an
Order; less, however, the reasonable value or cost (whichever is higher) of any Goods or materials
subsequently used or sold by Seller with Buyer’s written consent and of the cost of any damaged or destroyed Goods or materials. Notwithstanding the foregoing or any transfer to Buyer, Buyer shall not be liable to pay for finished Goods, work in process or raw materials obtained, fabricated or processed by Seller in amounts in excess of those authorized in Releases (if Releases are required by an Order), for any undelivered Goods which are Seller’s standard stock or which are readily marketable, or for any finished Goods which are not promptly delivered to Buyer after request by Buyer. Payments made under this Section shall not exceed the aggregate price payable by Buyer for finished Goods which would be produced by Seller under Releases outstanding at the date of termination. Except as provided in this Section, Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for loss of anticipated profit, unabsorbed overhead, product development and engineering costs, facilities and equipment, rearrangement cost or rental, unamortized depreciation costs, general and administrative burden charges arising from termination of an Order, or interest on claims. Within 60 days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer with sufficient supporting data to permit Buyer’s audit and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer or its agent shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller. Buyer, however, shall have no obligation to Seller if Buyer terminates its purchase obligations under an Order or any releases issued pursuant to an Order other than for Buyer’s convenience. Payment under this Section shall constitute the exclusive liability of Buyer if an Order is terminated by Buyer for its convenience.
- Default and Remedies.
(a) Seller shall be in default: (1) if Seller fails to perform any obligation within the time specified herein or any extension thereof or upon Buyer’s demand if no time has been specified; or (2) if Seller fails to make progress in the performance of any obligation so as to make Buyer reasonably apprehensive about Seller’s ability or willingness to perform its obligations; and if in either of these two circumstances Seller does not cure such failure within five days or such longer period as Buyer may authorize in writing after receipt of notice from Buyer specifying such failure.
Upon such default, Buyer may by written notice of default to Seller (i) terminate the whole or any part of an Order; and (ii) procure alternative product or services upon such terms as it shall deem appropriate. Seller shall continue performance of an Order to the extent not terminated and shall be
liable to Buyer for any excess costs for such similar Goods and other direct, incidental, and consequential damages. As an alternative remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect: (x) to extend the delivery schedule; (y) procure alternative Goods
upon such terms and for such periods as it deems proper; and/or (B) to waive other deficiencies in Seller’s performance; in which case an equitable reduction in an Order price shall be established by Buyer to compensate Buyer for its damages. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of an Order, Seller shall promptly notify Buyer in writing of the potential default, the cause thereof, and the estimated length of the anticipated default. Buyer is under no obligation to waive any default. (b) If any of the Goods are found at any time to be defective in design, material or workmanship, or otherwise not in conformity with the requirements of an Order, Buyer, in addition to such other rights, remedies and choices as it may have under an Order or by law, at its
option and sole discretion may: (i) reject and return such Goods at Seller’s expense; or (ii) require Seller to inspect the Goods and remove and replace nonconforming Goods with Goods that conform to an Order. If Buyer elects option (ii) and Seller fails to promptly make the necessary
inspection, removal and replacement, Buyer may at its option and Seller’s cost, inspect and repair or replace the Goods. (c) Seller grants Buyer a security interest in the Goods to secure Seller’s return of any deposits and performance of other obligations of Seller, and grants Buyer an irrevocable power of attorney coupled with an interest to execute and file appropriate financing statements evidencing such interest and the interests of Buyer and its Customers in property furnished by them. (d) Seller’s continued holding of the Goods, Furnished Property or Required Property (as defined herein), after demand has been made by Buyer for delivery, will substantially impair their value, and Buyer shall be entitled to a court order for possession without bond. Seller shall continue to sell Goods under an Order during any dispute with Buyer provided Buyer continues to pay Seller amounts owed in excess of any right of offset. (e) If Buyer or Seller shall be sued by any third party, including original
equipment manufacturers, distributors or dealers, for loss, damage to property or for personal injury or death that is alleged or may have been caused by a failing of Goods supplied by Seller to conform to Seller’s warranties, Seller and Buyer will cooperate with each other and provide
technical assistance in defending such suit, provided that Buyer and Seller give the other prompt notice of any such suit. Buyer and Seller shall use their best efforts to defend and minimize any damages and costs in connection with such suit or a settlement thereof. If it shall be alleged that failure of the Goods supplied by Seller to conform to any of Seller’s warranties is a proximate cause of any damage, losses, injuries or claims asserted in such lawsuits, then Seller shall defend, indemnify and hold harmless Buyer, its affiliates, subsidiaries, directors, officers, employees, agents and other representatives from and against any and all claims for loss, property damage, death or
personal injury, including, without limitation, product liability claims, directly resulting from such
breach of Seller’s warranties.
(f) In the event of any service program, general recall or similar action
(“Recall”) involving the Goods, whether initiated by Buyer, Seller, an original equipment manufacturer, or any regulatory or other governmental body, both Buyer and Seller shall use reasonable commercial efforts to minimize costs in connection with such Recall. If it shall be alleged or determined that failure of Goods supplied by Seller to conform to Seller’s warranty is a proximate cause of any Recall, Seller shall defend, indemnify and hold harmless Buyer, its affiliates, subsidiaries, directors, officers, employees, agents and other representatives from and against all expenses and costs of such Recall.
(g) Buyer’s remedies under this Section and the U.C.C. shall be cumulative and additional to any other or further remedies provided under these Terms or by statute, law or equity, including, but not limited to, the recovery of direct, incidental and consequential damages and the
entry of injunctive relief, but Buyer shall be entitled to only one full recovery of all of its damages and enforcement of all its rights.
(h) A delay in notification of a breach or making a claim shall not constitute a waiver of a breach or remedy. No waiver of a breach of any provision of an Order by Buyer shall constitute a waiver of any other breach, or of the breached provision itself. No claim or right of Buyer arising under, or related to, an Order can be discharged in whole or in part by a waiver or renunciation unless supported by additional consideration and in writing signed by Buyer. (i) Seller acknowledges that Buyer may supply to Customers the Goods as purchased from Seller or as a component of a system. Seller’s rights and remedies against Buyer shall be limited to the extent Buyer’s rights against the Customers are limited. (j) Termination of an Order or any Release by Buyer for any reason permitted by the Order does not affect Seller’s obligations under the Order as to Goods delivered or obligations not directly dependent upon the delivery of Goods. (k) Seller’s remedies for breach of contract or other theory are limited to money
damages, as limited by the Terms. Seller may not allege breach of contract or other theory of
recovery without providing a written notice of breach, documentation supporting the claim, and a
reasonable time for Buyer to cure any breach and otherwise resolve the claims.
(l) UNDER NO CIRCUMSTANCE SHALL BUYER BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES.
- Limitations of Seller’s Liability.
Seller shall not be liable for incidental or consequential damages because of delays or other defaults due to causes beyond its control and without its fault or negligence. However, any such delay due to default of subcontractor, material supplier or carrier will be excused as to incidental and consequential damages only if beyond the control, and without the fault or negligence of, both Seller and its subcontractor, material supplier or carrier, and if Seller establishes that it could not obtain components, materials or services from any other source in time to meet the delivery schedule. Buyer, at its option, may acquire possession of all finished Goods, work in process, and parts and materials produced or acquired for the performance of Seller’s obligations, and Seller shall deliver such articles to Buyer, at Buyer’s option F.O.B. carrier, Seller’s facility or F.O.B. Buyer’s facility, freight collect. This Section shall apply only if: (a) Seller provides immediate
written notice to Buyer of any delay which Seller does or could reasonably anticipate, of the length thereof, and of the reasons therefore; (b) Seller provides 30 days written notice to Buyer of the expiration date of its collective bargaining agreement and those of its subcontractors and suppliers which expire prior to anticipated delivery date of the Goods; and (c) Seller promptly complies with other instructions of Buyer. The limitations on incidental and consequential damages in this
Section shall not affect Buyer’s right to cancel, reduce quantities in delivery schedules or Releases, or any other remedy. This is a full statement of Seller’s rights to rely on the doctrines of force
majeure, impracticability, impossibility and similar doctrines.
- Property Purchased or Furnished by Buyer and Its Customer for Seller’s Use. (a) Unless otherwise agreed in a writing signed by Buyer, all tooling, equipment or material of every description furnished to Seller by Buyer or its Customer, or paid for or to be paid for by Buyer, and any materials affixed or attached thereto and replacement thereof, all of which constitutes “Furnished Property,” shall be and remain exclusively the personal property of Buyer or its Customer and held in trust for the benefit of Buyer or its Customer. Seller shall install, maintain, repair, replace, and return Furnished Property in good condition, reasonable wear and tear
excepted, at Seller’s cost. All Furnished Property must be maintained in a condition that is
adequate for at least one year of production based on Buyer’s forecasts and historical production
levels. Furnished Property, and wherever practical each individual item thereof, shall be plainly
marked or otherwise adequately identified by Seller as the property of Buyer or its Customer and
shall be safely stored separate and apart from Seller’s property. Seller shall maintain the character
of Furnished Property as personal property. Buyer and its Customers may enter Seller’s premises
and inspect Furnished Property and all related records during normal business hours. Seller shall
not substitute any of its own property for Furnished Property and shall not use or permit others to
use Furnished Property except to fill Orders. Seller shall not move the Furnished Property from any
location without the prior written consent of Buyer. Seller shall not, under any circumstance, sell or
transfer any product or service produced with the Furnished Property except to Buyer. Title to Furnished Property to be produced by Seller and its contractors and the components thereof shall vest in Buyer upon their acquisition or production, even though the Furnished Property is not
completed. Seller accepts delivery of the Furnished Property “AS IS” and without any
representation, warranty or duty from Buyer. Furnished Property while in Seller’s custody or
control shall be held at Seller’s risk and shall be kept insured by Seller at Seller’s expense in an
amount equal to the replacement cost with loss payable to Buyer or its Customer as their interests
may appear. Seller shall deliver to Buyer certificates of insurance evidencing such coverage. Such
insurance shall be primary. All additions, attachments, accessories, and repairs to the Furnished
Property, and replacements thereof, shall be deemed part of the Furnished Property and shall
become the exclusive property of Buyer or its Customer without payment. Seller shall use
Furnished Property in a careful and safe manner and shall defend and indemnify Buyer from any
claims, liabilities, expenses, and damages arising from or related to the installation use, storage, or
repair of the Furnished Property. Furnished Property may be removed at any time by Buyer, at
Buyer’s written request, whether or not Buyer and Seller are engaged in litigation or other dispute,
in which event Seller shall prepare Furnished Property for shipment and shall redeliver it to Buyer
or its Customer in the same or equal condition as originally received by Seller, reasonable wear and
tear excepted, all at Seller’s expense. All consumable Furnished Property not used in the
manufacture of the Goods shall, as directed, be returned to Buyer at Buyer’s expense and if not
accounted for or returned, shall be paid for by Seller to Buyer at Buyer’s cost. Seller shall have no
right to retain possession of Furnished Property to secure payment of amounts owed or for any
other reason, as a claim for damages is an adequate remedy.
(b) Orders for tooling, equipment and materials to be purchased by Buyer or its
Customer (“Purchased Tooling”) shall be subject to the following additional terms and conditions:
(i) Seller shall submit to Buyer biweekly (or more frequently if
requested by Buyer) status reports on the manufacture and/or acquisition of Purchased
Tooling. Each status report shall set forth percentage of completion of Purchased Tooling,
the status of each stage of manufacture, the scheduled arrival dates of components of
Purchased Tooling, and estimated time for completion and delivery of the Purchased
Tooling. Seller shall advise Buyer when Seller becomes aware of any event (including an
actual or potential labor dispute) which may delay Seller’s timely performance of an Order.
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(ii) Upon completion of Purchased Tooling, Seller shall submit a Part
Submission Warrant (“PSW”) package, sample Goods manufactured with Purchased
Tooling, and any other tangible and intangible items or information requested by Buyer.
Upon approval by Buyer and its Customer, a written PSW approval shall be issued to Seller.
(iii) Buyer shall not pay for any Purchased Tooling without: (x) the
issuance of the written PSW approval without condition for all Purchased Tooling ordered;
and (y) receipt by Seller of a waiver of lien of the manufacturer and Seller’s supplier of the
(iv) Seller shall permanently mark Purchased Tooling with the name of
Buyer and the part number of the Goods it manufactures.
(v) Seller, at its sole cost and expense, shall furnish appropriate safety
systems for Purchased Tooling as integrated into the production process to meet OSHA and
any other applicable safety rules and regulations.
- Required Tooling.
Seller, at its own expense, shall furnish, keep in good condition, and replace when necessary
all tooling, jigs, dies, gages, fixtures, molds, patterns, other, and other personal property, whether or
not they are Furnished Property or they are owned or leased by Seller, which are necessary for the
production of the Goods without defects and in accordance with an Order (“Required Tooling”).
All Required Tooling must be maintained in a condition that is adequate for at least one year of
production based on Buyer’s forecasts and historical production levels. The cost of changes to
Required Tooling necessary to make design changes and specification changes authorized by Buyer in writing shall be paid for by Seller unless otherwise provided in an Order. Buyer may inspect Required Tooling and Seller’s facilities during normal working hours upon reasonable notice to Seller. Seller shall advise Buyer of any required repair or replacement of Required Tooling and be responsible for obtaining any required production part approval process. Seller shall insure Required Tooling with fire and extended coverage insurance for its replacement value and provide Buyer with certificates of insurance evidencing such coverage. Seller grants Buyer an irrevocable option to take possession of and title to some or all of the Required Tooling (including leases thereof) that is not Furnished Property as selected by Buyer and is special for the production of Goods upon tender to Seller of the book value thereof less any amounts Buyer has previously paid to Seller in any manner for the cost of Required Tooling (e.g., by separate payment or an allocated portion of the price); provided, however, that this option shall not apply to any Required Tooling used to produce products that are standard stock of Seller. Seller grants Buyer a security interest in Required Tooling to secure Buyer’s rights in Required Tooling and waives any rights which may conflict with this Section. Seller shall have no right to retain possession of Required Tooling to secure payment of amounts owed or for any other reason, as a claim for damages is an adequate remedy.
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In addition to any rights to indemnification or remedy provided by the U.C.C., Seller shall
indemnify Buyer and its employees for any and all damages and reasonable expenses (including
reasonable attorney fees) incurred because of property damages, personal injury, or other claims
arising out of the condition, labeling, engineering, use, sale, storage, design, safety, etc. of the
Goods whether or not incorporated in another product, if the damages claimed were not caused
solely by Buyer. Seller waives the application of the doctrine of comparative negligence and other
doctrines that may otherwise allocate the liability covered by Seller’s indemnity. Seller shall
maintain general liability and completed operations insurance and waives subrogation.
If Seller ceases to conduct its operations in the normal course of business, including
inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or
insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for,
or an assignment for the benefit of creditors is made by Seller, Buyer may terminate an Order
without liability, except for Goods previously delivered and for Goods covered by an Order then
completed and subsequently delivered in accordance with the terms of an Order.
- Maintenance and Safe Use; Compliance with Laws.
(a) Seller shall provide to Buyer appropriate installation, operation and
maintenance manuals in English to maximize the useful life and performance of the Goods. Seller shall also provide Buyer with any and all specific warnings or instructions regarding the safe installation, operation and maintenance of the Goods which should be reasonably provided to the ultimate users of the Goods. Seller shall promptly furnish to Buyer (i) upon written request a list of all materials in the Goods and, as necessary, the quantities of such and (ii) thereafter information concerning any change in the composition of the Goods. Seller shall provide material safety data sheets for the Goods. (b) Seller shall comply with any provisions, representations or agreements, or contractual clauses required thereby to be included or incorporated by reference or operation of law in the contract resulting from acceptance of an Order and dealing with, Equal Employment Opportunity, Employment of Veterans, Employment of the Handicapped, Employment Discrimination Because of Age, Utilization of Disadvantaged Business Enterprises, and the related Acts and Executive Orders as now or hereafter amended or codified.
(c) Seller warrants that it is, and shall continue to be, in compliance with the requirements for non-segregated facilities set forth in 41 CFR Chapter 601.8 and is an equal opportunity employer.
(d) Seller warrants that each chemical substance constituting or contained in the Goods sold is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 U.S.C. Sec. 2601 et. seq.) as amended, and that the Goods are not hazardous under any state or federal law except as clearly stated on the shipping and storage containers. Seller shall defend and indemnify Buyer from any claim alleging improper or illegal dispositions of the Goods except for
grossly negligent dispositions by Buyer.
(e) Seller warrants that the Goods shall be in compliance with applicable
sections of the Federal Consumer Product Safety Act (15 U.S.C. Sec. 2051 et seq.) as amended, and the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) as amended, and lawful standards and regulations thereunder.
(f) Seller warrants that the Goods shall be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including Section 12(a) and Seller shall insert a certificate to that effect on all invoices submitted in connection with an Order.
(g) Seller shall comply with all applicable industry standards and United States, federal, state and local laws, rules, regulations and ordinances applicable to the Goods and performance of an Order.
(h) Seller warrants that it and the Goods shall comply with all federal, state and provincial statutes, rules and regulations directly or indirectly relating to the manufacture of vehicles, vehicle equipment, vehicle materials or vehicle supplies, as well as compliance with similar statutes and rules effective in North America, including, but not limited to, the North American Free Trade Agreement and the North American Free Trade Agreement Implementation
Act, American Automobile Labeling Act, Section 329 of the Motor Vehicle and Cost Savings Act,
as amended, Fastener Quality Act, the Hazardous Materials Transportation Act, as amended, as
well as all laws and regulations related or applicable thereto (including, but not limited to, 49
C.F.R. Part 171 et seq.), and all laws, rules, regulations and orders in North America, the Federal
Motor Vehicle Safety Standards and rules, regulations and procedures promulgated by the National
Highway Traffic Safety Administration of the United States Department of Transportation under
the Safety Acts, and rules, regulations and procedures promulgated by the National Institute of
Standards and Technology of the Department of Commerce to implement the provisions of the
Fastener Quality Act. Seller shall provide to Buyer originals or copies of the test reports and reports
to government agencies related to the satisfaction of such legal requirements upon the earliest of
their availability or the date required by law or Buyer.
- Non-Assignment and Subcontracting.
Assignment of an Order or any interest herein of any payment due or to become due
hereunder, without the prior written consent of Buyer, shall be void and not binding on Buyer.
Buyer may not subcontract any part of an Order without the prior written consent of Buyer. Buyer
shall not be obligated to any subcontractor. Seller is responsible for all actions or inactions of any
subcontractor and shall bind its subcontractors for the benefit of Seller and Buyer to perform its
obligations under these terms.
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Buyer shall have the right to reduce and set-off against amounts payable under an Order any indebtedness or other claim which Buyer, its parent, subsidiaries or affiliates, may have against Seller, its parent, subsidiaries and affiliates, under an Order or any other agreement between or among Seller, Buyer, and/or such third parties.
- Foreign Purchases.
The following applies to all transactions involving imported Goods:
(a) Seller warrants that all sales made hereunder are or will be made at not less than fair value under the United States Anti-Dumping Law (19 U.S.C. Sec. 160 et. seq.) and Seller will indemnify, defend and hold Buyer harmless from and against any costs or expenses (including
but not limited to any anti-dumping duties which may be imposed) arising out of or in connection with any breach of this warranty.
(b) Buyer shall not be a party to the importation of the Goods, the transaction(s) represented by an Order will be consummated subsequent to importation, and Seller will neither cause nor permit Buyer’s name to be shown as “Importer of Record” on any customs declaration.
(c) Upon request and where applicable, Seller shall provide Buyer U.S.
Customs Form 7543 entitled “Certificate of Delivery” (or its replacement) properly executed. Upon
request, Seller shall furnish promptly all documents required for customs drawback purposes,
properly completed in accordance with government regulations applicable thereto. Unless
otherwise stated herein, all customs drawback will be credited to Buyer.
(d) Upon request, Seller shall furnish promptly to Buyer certificates of local
value added and certificates of origin in accordance with applicable government regulations.
(e) An Order includes all related customs duty and import drawback rights, if
any, including rights developed by substitution and rights that may be acquired from Seller’s
supplier(s) that Seller can transfer to Buyer.
- Applicable Law, Jurisdiction, Waiver of Liens.
(a) An Order shall be construed and enforced under the laws of Michigan. The
parties adopt the law governing sales of goods in such jurisdiction at the time of an Order as the law
governing the sale of Goods hereunder, including the Uniform Commercial Code (“UCC”). The
Convention on the International Sales of Goods shall not apply. The parties consent to the
exclusive jurisdiction and the convenience of the courts of Michigan, including the Circuit Court
for any county in which Buyer has an administrative office. If a claim arises under an Order, by or
against Seller, which is related to a similar claim by or against Seller in another jurisdiction or in an
arbitration, Seller consents on the request of Buyer to the resolution of such claims by or against
Seller in such jurisdiction or arbitration proceeding, which shall be binding on the parties and
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enforceable in a court of record. Any declaration of unenforceability of a provision hereof shall be as narrow as possible and shall not void an Order or any other provision.
(b) Seller warrants that no lien shall be filed by Seller or anyone claiming under or through Seller against Buyer, the Goods, the Furnished Property, the site for delivery or installation of the Goods, or Buyer’s Customer, for materials, labor, services, equipment, or goods furnished as part of the Goods or Furnished Property. Seller waives any right it may have pertaining to, and agrees not to file or otherwise assert or prosecute or suffer or permit any mechanic’s, materialman’s, or other type of liens to be filed or continued against any property. Seller shall insert the prior sentence in any lower tier subcontract or purchase order for labor, equipment or materials furnished. If any such lien shall be filed by Seller’s direct subcontractor, or
any of its lower tier subcontractors, Buyer shall take any and all steps necessary for the immediate release and discharge of such lien, in the manner required by the law upon demand by Buyer. Seller shall defend and indemnify Buyer and its Customer from and against all liens, losses, damages,
claims, debts and actions of any kind whatsoever, which might be asserted at any time whatsoever, arising in any way out of the recording of a lien by subcontractor or any lower tier subcontractor under it, including without limitation all costs, reasonable attorney fees and expenses incurred by Buyer or its Customer in the releasing, satisfying and discharging of such liens and enforcement of this clause. Further, Seller shall secure and furnish to Buyer and its Customer, upon request, a waiver of lien from each lower tier subcontractor under it.
If both parties agree in writing or if Buyer elects, any controversy or claim arising out of or relating to these terms or an Order, shall be settled by arbitration before three arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall be held in Southfield, Michigan. In rendering an award, the arbitrators are bound by the Order and must apply the substantive law of Michigan. Each party has the right before or during the arbitration to seek and obtain from the appropriate court provisional
remedies such as attachment, claim and delivery, preliminary injunction, replevin, etc., to avoid irreparable harm, maintain the status quo or preserve the subject matter of the arbitration. The arbitrator shall not award any punitive, exemplary or consequential damages and shall otherwise
be bound by the terms of the Order. All expenses and fees of the arbitration shall borne equally
by the parties and each party shall pay its own attorney fees.
Without obtaining the prior written consent of Buyer, Seller shall not in any manner
advertise or publish the fact that Seller has contracted to furnish Goods to Buyer (or Buyer’s
Customers), or use any trademark or tradenames of Buyer (or Buyer’s Customers) in Seller’s
advertising or promotional materials. If Seller breaches this Section, Buyer shall have the right to
cancel the undelivered portion of any Goods covered by an Order and shall not be required to make
further payments except for conforming Goods delivered or services rendered prior to cancellation.
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- Ethical Standards.
Seller shall not: (a) give or offer to give any gift or benefit to Buyer’s employees; (b) solicit
or accept any information, data, services, equipment, or commitment from Buyer’s employees
unless it is (i) required under a contract between Buyer and Seller, or (ii) made pursuant to a written
disclosure agreement between Buyer and Seller, or (iii) specifically authorized in writing by Buyer’s
management; (c) solicit or accept favoritism from Buyer’s employees; (d) enter into any outside
business relationship with Buyer’s employees or suppliers without full disclosure to, and prior approval of Buyer’s management; or (e) provide to or accept from suppliers any information regarding Buyer or its business. For the purposes of this Section: “employee” includes members of the employee’s immediate family and household, plus any other person who is attempting to benefit
from his or her relationship to the employee; “Seller” includes all employees and agents of Seller;
“gift or benefit” includes money, goods, services, discounts, favors and the like in any form but excluding items with a value of $25.00 or less; “supplier” includes prospective, current and past suppliers; and “favoritism” means partiality in promoting the interest of Seller over that of other suppliers. Such activity by Seller shall constitute a material default by Seller of every contract and Order with Buyer and may further result in Seller’s debarment from doing business with Buyer.
- Third Party Representatives. Seller represents and warrants that Seller has not and will not pay any third parties any commissions, fees, or other compensation for acquiring or attempting to acquire an Order without providing Buyer with written notice thereof at the time an Order is solicited.
- Entire Agreement and Modifications. An Order (including these Terms) is intended by the parties as a complete and exclusive statement of the terms of their agreement. It supersedes all prior agreements, written or oral. No course of prior dealings between the parties and no usage of the trade may be used by Seller to supplement or explain any term used in an Order. All modifications must be in a writing signed by Seller and Buyer, except as otherwise provided in an Order.
- No Implied Waiver.
The failure of either party at any time to require performance by the other party of any provision of an Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision of an Order constitute a waiver of any succeeding breach of the same or any other provision.
- Relationship of Parties.
Seller and Buyer are independent contracting parties and nothing in an Order shall make either party the agent, joint venturer or legal representative of the other for any purpose whatsoever, or grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Although third parties may be referenced, there are no third party beneficiaries to an
If any term of an Order is invalid or unenforceable under any statute, regulation, ordinance, or any other rule of law, such term shall be reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of an Order shall remain in full force and effect.
COMMUNICATIONS FROM SELLER CONCERNING CLAIMS OF SELLER,
INCLUDING AN INSTRUMENT TENDERED AS FULL SATISFACTION OF A DEBT OR CLAIMS, MUST BE SENT TO THE PRESIDENT OF BUYER.