Big Rapids Products, Inc.
STANDARD TERMS FOR SALES OF GOODS OR SERVICES
1) Applicability and Scope
1.1) These Standard Terms for Sales of Goods or Services (these “Terms”) are the only terms that govern the sale of parts, components, systems, or other goods (the “Goods”) or installation, testing, maintenance, or other services (the “Services”) by Big Rapids Products, Inc. (the “Seller”) to the purchaser (the “Buyer”) of those Goods or Services. These Terms prevail over any terms and conditions proposed by Buyer in any manner. Shipment of Goods, performance of Services, or invoicing for Goods or Services after Buyer issues a purchase order or similar document does not constitute acceptance of Buyer’s order or any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. If Seller is found to have accepted any offer made by Buyer, such acceptance is expressly limited to these Terms. Any additional or different terms in Buyer’s offer or proposal are material and are hereby objected to and rejected by Seller.
1.2) Seller’s quotation, proposal, order acknowledgment, or similar form (“Quote”) for the sale of Goods or Services is an offer that includes and is governed by these Terms exclusively. The first occurring expression of acceptance by Buyer, including without limitation (a) issuing a purchase order for, or otherwise ordering, the Goods or Services covered by the Quote; (b) issuing an award letter, letter of intent, or similar document awarding the Goods or Services to Seller; (c) written acceptance; (d) “kicking off” Seller on any tooling, materials, components, or similar items for the Goods and Services; (e) receipt of, or payment for, any Goods or Services; (f) failure to object to the Quote, in writing, within five (5) days after receipt; (g) any other conduct that indicates Buyer’s acceptance, shall constitute an acceptance of Seller’s offer, including these Terms. If Buyer objects, Buyer’s objections are deemed waived if Buyer subsequently orders the Goods or Services without an express written modification signed by an authorized representative of Seller. Any acceptance of Seller’s Quote is expressly limited to, and conditioned upon, Buyer’s assent to these Terms. The contract formed by Seller’s Quote and these terms (or otherwise between Buyer and Seller) will be referred to as the “Agreement” or as an “Order.”
1.3) Buyer agrees that these Terms and any terms included on Seller’s Quote are the exclusive statement of the terms and conditions of the Agreement and that they supersede all proposals and other communications between the parties, oral or written.
2) Quantity, Term, Prices, Invoices, and Payment
2.1) Prices quoted are only for the Goods and Services specifically referenced in Seller’s Quote. The quoted price does not include any freight, insurance, custom duties, tariffs, fees, or Federal, State, Municipal, or Local excise, use, service, property, or other similar taxes or assessments, all of which are Buyer’s responsibility. If Buyer does not supply Seller, prior to sale, with appropriate sales use and Federal excise exemption certificates, Seller will have the right to invoice for all applicable taxes, duties, tariffs, and other governmental charges.
2.2) Seller reserves the right to change prices from time to time. Goods will be billed at prices in effect at the time of shipment. Services will be billed at prices in effect at the time of performance. Within ten (10) days after notice of a price increase, Buyer may cancel any unshipped or unperformed portion of any Order that is subject to price increase by providing a written cancellation notice to Seller. Upon cancellation, Buyer will have no liability to Seller for the canceled portion of the Order except as to Goods already manufactured or in process and tooling, equipment, components, or raw materials procured or ordered by Seller for performance of the cancelled Order. Cancellation of part of an Order under this section does not relieve Buyer of its liability for Goods or Services previously supplied under the Order.
2.3) The price quoted by Seller may be increased before shipment if there are any increases in any of Seller’s costs, including without limitation the cost of labor, materials, or component parts, as well as any increases based on additional data received by Seller after the date of the Quote, including without limitation data gathered following Seller’s receipt of production level part print and/or production level math data. The price may also be increased to accommodate shipment in any quantities other than Seller’s standard pack unit if Buyer does not desire shipment at one time of all the goods covered by the Quote.
2.4) Buyer will reimburse Seller for all actual travel and out-of-pocket expenses incurred by Seller in connection with the performance of Services.
2.5) Payment will be due as stated on the invoice or, in the absence of a stated due date, net thirty (30) days from the date of the invoice. If there is no date on the invoice, payment will be due within thirty (30) days of delivery of the Goods or performance of the Services being invoiced. For tooling, Seller will invoice all remaining tooling costs quoted by Seller upon Seller’s PPAP submission to Buyer, and such invoice shall be due in accordance with this section.
2.6) Buyer will pay interest on all late payments at the lesser rate of 1.5% per month, or the highest rate permissible under applicable law, calculated daily and compounded monthly. No cash discounts are allowed, and all payments must be made at Seller’s offices in Michigan in United States Dollars. Buyer will reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, Seller’s actual attorneys’ fees and all costs of litigation. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller is entitled to suspend the delivery of any Goods or the performance of any Services if Buyer fails to pay any amount due to Seller, regardless of whether the amount owed is in connection with the same order for the suspended Goods or Services.
2.7) Buyer grants to Seller a security interest and right of possession in all Goods supplied or to be supplied to Buyer, along with a security interest in all related tooling, parts, and proceeds. This security interest secures all of Buyer’s obligations to Seller. Seller has the right to determine the form of the security interest. Buyer agrees to provide Seller with any documents that Seller may deem necessary to enforce this security interest, and Buyer authorizes Seller to take actions necessary to maintain and perfect the security interest, including filing documents on Buyer’s behalf.
2.8) Seller’s offer is subject to Seller’s current credit policies and practices. Seller reserves the right, in its sole discretion, to approve, disapprove, or change Buyer’s credit limit or to impose credit terms, including requiring cash-in-advance payments.
2.9) If at any time Seller determines that Buyer’s financial condition or credit is or has become impaired or otherwise unsatisfactory to Seller, Seller may require proof of financial solvency, advance cash payments, shortened payment terms, posting of satisfactory security, or other similar financial accommodations. Buyer agrees that Seller may withhold delivery of Goods or the performance of any Services until Buyer complies with Seller’s financial requirements.
2.10) Buyer will not withhold payment of amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
2.11) The Order is for the quantity of Goods or Services stated on the Quote. If no quantity is stated on the Quote, then the following quantity terms apply:
For specially-manufactured Goods (including those made to Buyer’s (or Buyer’s customer’s) specifications), then the Order is an output contract, under which Buyer is obligated to purchase, and Seller is obligated to sell, 100% of Seller’s output of the Goods during the term of the Order. Seller’s output is limited by its actual production constraints (including, by way of example and not limitation, Seller’s equipment capacity, production capacity, labor, normal operating hours, and raw material or sub-component availability) and commitments to other customers. Buyer acknowledges that Seller’s actual output may vary from estimates, and Buyer assumes the risk of such variance. Nothing in the Order shall be interpreted to require Seller to interrupt or reduce its production for other customers.
For Goods that are part of Seller’s standard stock (e.g., off-the-shelf products), the quantity will be stated in order acknowledgements or similar documents issued by Seller to Buyer from time-to-time. Seller shall sell, and Buyer shall purchase, the quantities stated in all such order acknowledgements.
2.12) The duration of the Order is stated on the Quote. If no duration is stated on the Quote, then the duration of the Order shall be for (1) year, beginning on the date the Quote is issued. The Order shall automatically renew for successive one-year terms unless it is terminated in accordance with these Terms. The parties agree that this is a definite duration.
3) Design, Licenses, and Tools
3.1) Buyer acknowledges that it has relied on its own expertise and judgment in selecting the Goods and in determining the specifications of the Goods. Buyer has made its own determination about how the Goods will perform when used with other components. Buyer agrees that it is not depending on any statements or representations made by Seller, and Buyer assumes all risks associated with the accuracy and suitability of any specifications that have been provided.
3.2) Buyer grants to Seller an irrevocable nonexclusive license to produce Goods pursuant to any specifications provided by Buyer. Buyer warrants that it has the authority to grant this license to Seller and that neither the granting of this license nor Seller’s manufacture and sale of Goods produced according to Buyer’s specifications will violate any agreement to which Buyer is subject, any patent or other intellectual property right to any party, or any applicable law.
3.3) Seller shall have the right to make design or engineering changes in its parts, equipment, processes, and methods of manufacture, but shall make no changes in operational or dimensional specifications submitted by Buyer without Buyer’s prior approval. Seller has no obligation to make any changes to the Goods or Services requested by Buyer unless and until Buyer and Seller agree on any modification to the price or time for performance or any other contract term requested by Seller.
3.4) All tools, jigs, dies, fixtures, patterns, and equipment furnished to Seller by Buyer or for which Seller has been reimbursed by Buyer are the property of Buyer (“Buyer’s Tools”). Buyer represents and warrants that Buyer’s Tools are in good and usable condition and are capable of producing the Goods or providing the Services that are the subject of these Terms utilizing Seller’s standard process(es). Seller will keep Buyer’s Tools in reasonable repair, but Seller is not liable for any damage to Buyer’s Tools not caused by Seller. Seller may charge a storage fee for Buyer’s Tools left at Seller’s place of business for more than ninety (90) days after Seller has finished using them. All shipping charges for Buyer’s Tools are Buyer’s responsibility. Risk of loss during shipment of Buyer’s Tools is on Buyer. All other tools, jigs, dies, fixtures, patterns and equipment used in connection with the goods belong to Seller. Seller and Buyer agree that Seller will have a security interest in Buyer’s Tools as security for payment of any sums owing from Buyer to Seller at any time for any reason. Seller has the right to retain possession of all Buyer’s Tools until Buyer pays in full all amounts due Seller for any reason, without affecting any other rights or remedies available to Seller. Should Buyer desire to move Buyer’s Tools to another production source, Buyer will pay for all costs and expenses associated with such move at Seller’s standard rates. If a period of one (1) year passes since Seller supplied Goods or Services to Buyer requiring use of Buyer’s Tools, Seller may dispose of such tools and dies as Seller deems appropriate, in its sole discretion, without accounting to Buyer for the proceeds therefrom and without liability to Buyer of any kind. Seller may charge Buyer storage fees at Seller’s standard rates for any of Buyer’s Tools that, in Seller’s sole opinion, are not being actively used by Seller for the production of Goods or performance of Services.
4) Delivery of Goods and Performance of Services
4.1) Unless otherwise agreed in writing by the parties, all deliveries are made FOB, Seller’s facility where the Goods are produced, which means the risk of loss passes to Buyer once the Goods are placed with the carrier. Buyer is solely responsible for all costs of shipping and insurance for the goods, and Buyer bears all risk of loss or damage to the goods during transit. Freight may be prepaid by Seller at its option and added to the invoice. Upon delivery, Buyer will unload and release all transportation equipment promptly so that Seller incurs no demurrage or other expense.
4.2) Delivery or completion dates are estimates only and are therefore non‑binding. Seller will not be liable for any delays, loss, or damage in transit. Nor shall Seller be responsible for expedited freight under any circumstances. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether shipment is in whole or partial fulfillment of Buyer’s purchase order. In times of short supply, Seller is entitled to allocate products or services among its customers as it determines, in its sole discretion, to be appropriate under the circumstances.
4.3) If for any reason Buyer fails to accept delivery, or delays shipment, of any of the Goods, or if Seller is unable to deliver the Goods because Buyer has not provided appropriate instructions, documents, licenses, or authorizations, the Goods will still be deemed to have been delivered and Seller may, at its option, store the Goods until Buyer picks them up, whereupon Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4) Buyer will inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any nonconforming Goods during the Inspection Period and furnishes written evidence or other documentation to support its claim of nonconformity as required by Seller.
4.5) The quantity of Goods recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller is not liable for non-delivery of any Goods unless Buyer provides written notice of the non-delivery within five (5) days of the date when the Goods would, in the ordinary course of events, have been received. Any liability of Seller for non-delivery of the Goods is limited to the replacement of the Goods within a reasonable time or the adjustment of the invoice to reflect the quantity of Goods actually delivered, at Seller’s sole option. Buyer acknowledges and agrees that the remedies set forth in this provision are Buyer’s exclusive remedies for non-delivery of any Goods.
4.6) If Seller delivers to Buyer a quantity of Goods up to 5% more or less than the quantity set forth in the purchase order, Buyer is not entitled to object or reject the Goods or any portion of them by reason of the surplus or shortfall, and Buyer will pay for the Goods at the Order price adjusted pro rata.
4.7) Seller will use reasonable efforts to meet any performance dates for Services specified in a Quote, but such dates are estimates only and non-binding.
5) Termination
5.1) Either party may terminate this Agreement if the other party fails to cure a breach of this Agreement within thirty (30) days after written notification of the breach has been provided to the breaching party.
5.2) Seller may terminate this Order for its convenience, with or without reason, by providing written notice to Buyer. Buyer may not terminate this Order for convenience, because it is deemed to be a contract of indefinite duration, or for any reason other than an uncured material breach as stated in the above section.
5.3) Upon the expiration or termination of this Order for any reason, Buyer shall immediately pay to Seller the following amounts: (a) all sums due to Seller as of the date of expiration or termination; (b) the contract price for all finished Goods or Services; (c) Seller’s actual cost for all raw materials and works-in-process for the Goods or Services, plus 20%; and (d) all costs of equipment, tooling, spare parts, or similar items purchased or obtained by Seller for producing the Goods or performing the Services that have not been recovered by Seller through performance of the Order.
5.4) Nothing contained in this Agreement is intended to create any express or implied obligation on either party to renew or extend this Agreement or to create any right to continue this Agreement on the same terms.
5.5) The terms contained in this Agreement that by their sense and context are intended to survive the performance of this Agreement by either or both parties will survive both the completion of performances and the termination of the Agreement.
6 ) Buyer’s Acts or Omissions
6.1) If Seller’s performance of its obligations under this Agreement is prevented or delayed by an act or omission of Buyer or its agents, subcontractors, consultants, representatives, or employees, Seller will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7) Limited Warranty
7.1) Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (“Warranty Period”) such goods will materially conform to the specifications provided to Seller by Buyer and will be free from functional defects in material and workmanship.
7.2) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
7.3) Seller warrants to Buyer that it will perform the Services using personnel of required skill, experience, and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services.
7.4) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.3, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED.
7.5) Seller will not be liable for a breach of the warranties set forth in Section 7.1 or Section 7.3 unless: (a) Buyer gives written notice of the defective or non-conforming Goods or Services, described with particularity, to Seller within thirty (30) days of the time when Buyer discovers or should have discovered the defect; (b) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of warranty to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost for the examination to take place there; and (c) Seller reasonably verifies Buyer’s claim that the Goods or Services are defective or non-conforming.
7.6) Seller will not be liable to Buyer for a breach of warranty if: (a) Buyer makes any further use of the allegedly defective or non-conforming Goods after giving notice; (b) the defect arises because of any misuse, abuse, improper storage, improper handling or shipment, integration with other goods, or improper maintenance of the Goods by Buyer or any third party; or (c) the defect arises because of any alteration, handling, or repair of the Goods by Buyer or any third party without Seller’s express prior written consent.
7.7) Subject to Section 7.5 and Section 7.6, with respect to any Goods that are discovered to be allegedly defective during the Warranty Period, Seller will, in its sole discretion, either: (a) repair or replace the Goods or (b) credit or refund the price of the Goods at the pro rata contract rate, provided that, if Seller requests, Buyer will, at Buyer’s expense, return the Goods to Seller.
7.8) Subject to Section 7.5, with respect to any Services that are allegedly in breach of warranty, Seller will, at its sole discretion, either: (a) repair or re-perform the Services or (b) credit or refund the price of such Services at the pro rata contract rate.
7.9) THE REMEDIES SET FORTH IN SECTION 7.7 AND SECTION 7.8 ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND REFLECT SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1 AND SECTION 7.3.
7.10) Seller’s warranties contained in this Agreement extend only to Buyer. No other party will be considered a beneficiary of those warranties, nor will any other party be entitled to make a warranty claim against Seller.
7.11) These warranties will not be enlarged absent a specific written agreement between Buyer and Seller, and no obligation or liability will arise out of Seller’s rendering technical advice, assistance, or other support services. The warranties do not extend to future performance of the Goods.
8) Limitation of Liability
8.1) SELLER’S TOTAL, CUMULTIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE IS LIMITED TO THE PRICE OF GOODS AND SERVICES SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, VENDORS, SUCCESSORS, OR ASSIGNS) WILL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, SPECIAL PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION: DAMAGES RELATING TO REPUTATION; LOSS OF BUSINESS OPPORTUNITIES, PROFITS, REVENUE, OR GOODWILL; BUSINESS INTERRUPTION OR DOWNTIME; CUSTOMER CHARGES; OR OTHER LOSS WHATSOEVER ARISING OUT OF, CAUSED BY, OR RELATED TO A BREACH OF ANY OBLIGATION UNDER THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, WHETHER BASED IN CONTRACT, TORT, STRICT, LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES EXPRESSLY AGREE THAT THE ABOVE LIMITATION ON DAMAGES IS AN ALLOCATION OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR THIS AGREEMENT. SELLER WILL NOT BE LIABLE FOR, AND BUYER ASSUMES ALL LIABILITY FOR, ALL PERSONAL INJURY AND PROPERTY DAMAGES CONNECTED WITH THE HANDLING, TRANSPORTATION, OR FURTHER MANUFACTURE, FABRICATION, ASSEMBLY, PROCESSING OR USE OF THE GOODS. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSES OF ANY WARRANTY OR OTHER REMEDY SPECIFIED IN THIS AGREEMENT.
9) Indemnity
9.1) To the fullest extent permitted by law, Buyer agrees to indemnify, hold harmless, and defend Seller and its affiliated companies, their respective directors, officers, employees, and agents (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all Indemnitee attorneys’ fees and any other costs of litigation (collectively, “Liabilities”) that are in any way related to (a) any acts or omissions of Buyer or Buyer’s customer and their respective directors, officers, employees, and agents; (b) any element of the design of the Goods or Services; (c) any conditions of any kind on Buyer’s property or premises; (d) any materials, components, or subcontractors required or suggested by Buyer or Buyer’s customer; or (e) Buyer’s performance or obligations under the Order. Buyer’s obligation to defend and indemnify under this section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except for claims that arise as a result of the sole negligence of Seller.
9.2) Buyer agrees to indemnify, hold harmless, and defend Indemnitees from and against all Liabilities arising out of actual or alleged infringement, including infringement of any patent, trademark, copyright, or any other intellectual property right relative to the Goods or Services.
10) Insurance
10.1) Buyer will, at its own expense, maintain and carry in full force and effect insurance with a financially sound and reputable insurer adequate to cover (a) the Goods against loss or damage during shipment and (b) the Buyer’s Tools against loss or damage while in Seller’s possession. The insurance amount should be sufficient to cover the replacement value of both the Goods and the Tools. Buyer agrees to provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in this Section. Buyer will provide Seller with thirty (30) days advance written notice in the event of a cancellation or material change in Buyer’s insurance policy.
11) Confidential Information
11.1) Any information disclosed by Seller to Buyer, whether disclosed orally or in any other manner, is confidential, and Buyer agrees to use such information only for the purpose of fulfilling this Agreement. Buyer agrees not to copy or disclose information provided by Seller without Seller’s prior written consent. A violation of this Section will be considered a breach of the contract and will entitle Seller to injunctive relief.
12) Force Majeure
12.1) Neither party will be held liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in performing any obligations under this Agreement if such failure or delay is caused by or results from circumstances beyond the party’s reasonable control (a “Force Majeure”). A Force Majeure may include, but is not limited to, acts of God, acts of terrorism, acts of a government authority (whether legitimate or illegitimate), disease, pandemic or epidemic, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, unavailability of materials, strikes, labor disputes, increases in the cost of raw materials, or court injunction or order. The party affected by such an event will notify the other party as soon as practicable, will inform the other party of how long the failure or delay is expected to last, and will use diligent efforts to end the failure or delay and to ensure that the effects of the failure or delay are minimized as much as possible. This clause does not relieve either party of its obligations to make payments under this Agreement. Buyer’s economic hardship or changes in market conditions will not be considered a Force Majeure.
13) General Provisions
13.2) The Order contains all terms between Seller and Buyer with regard to the subject matter of the Order and supersedes all prior oral or written representations, agreements, or other communications between Seller and Buyer. Any Order issued under protest or with a reservation of rights, whether stated in the Order or in another writing, shall not supersede any prior Order, and the prior Order shall remain the contract. No modifications to this Agreement will be effective unless they are agreed upon in writing by both parties.
13.3) Except as specifically provided in these Terms, Buyer will have no right to return Goods to Seller. Buyer further agrees that any action brought by Buyer in connection with this Agreement, or the Goods or Services, must be brought no later than one (1) year after the cause of action accrues.
13.4) The failure of either party to insist in any one or more instances upon the performance of any of terms, covenants, or conditions in this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition or the future exercise of any such right. The remedies reserved in this Order shall be cumulative and not alternative and may be exercised separately or together, in any order or combination, and are in addition to any other remedies provided for or allowed by law, at equity or otherwise.
13.5) No right, interest, or obligation in this Agreement may be assigned or delegated by either party without the written permission of the other party, except as provided herein. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors. Seller may assign this Agreement, in whole or in part, and without the consent of Buyer to (a) any affiliate or subsidiary or (b) to a third party in the event of merger, stock sale, recapitalization, conversion, consolidation, or other business combination or sale of all, or substantially all, of the assets of Seller to such a third party.
13.6) All terms of this Agreement will be enforced only to the maximum extent permitted by law. If any term is invalid or unenforceable, all other terms will remain in effect.
13.7) Section headings used in this Agreement are for convenience only and are not to be deemed or construed to be part of the Agreement.
13.8) This Agreement will be governed and interpreted in all respects in accordance with the laws of the State of Michigan, without regard to its choice of law rules that might require application of another jurisdiction’s law.
13.9) All disputes, claims, or actions arising out of this Agreement will be brought exclusively in a state or federal court of competent subject matter jurisdiction in Mecosta County, Michigan. Buyer submits to personal jurisdiction in Michigan, and waives any arguments or defenses that such courts are an inconvenient or improper forum.
13.10) To the extent that Seller prevails in any action, litigation, arbitration, mediation, appeal, or other legal proceeding against Buyer relating to this Agreement, Seller (and Seller only) is entitled (in addition to other remedies, damages, and relief that may be granted) to costs and expenses, including but not limited to actual attorneys’ fees, costs, and charges billed by or on behalf of legal counsel, along with court fees and expenses.
13.11) The relationship of Seller to Buyer is that of an independent contractor, and nothing contained in the Order or otherwise shall be deemed to create any other relationship, including, but not limited to, an employment, partnership, agency, or joint venture relationship between Seller and Buyer. Neither party shall have any authority to employ any person as agent or employee for or on behalf of the other, or to bind, or attempt to bind, the other to any obligation with any third party. Seller has and retains full control and supervision over the performance of its obligations under the Order and over the employment, direction, compensation, and discharge of all of Seller’s employees, agents, and subcontractors that Seller utilizes in the performance of such obligations. Each party is and shall be responsible for its own acts and omissions and those of its employees, agents, and subcontractors.
13.12) Buyer shall not, and shall cause each of its shareholders, officers, directors, employees, agents, representatives and advisors not to engage, solicit, or recruit for employment or services, in each case, either on a full time or part time basis, or in a consultancy or other non-employee role, any employee of Seller or encourage or induce any such individual to leave his or her employment or relationship with Seller, whether for itself or any other person.
13.13) The provisions of UCC 1-308 / MCL 440.1308 apply regardless of whether the Order is for Goods or Services. By performing under protest or with a reservation of rights, Seller preserves, and does not waive, all rights, claims, defenses, and arguments against Buyer.
Big Rapids Products Standard Terms of Purchase of Goods or Services
These Standard Terms and Conditions of Purchase (“Standard Terms”) are part of each purchase order issued by Big Rapids Products, Inc., including any of its current or subsequent parents, subsidiaries, or affiliates. The term “Order” means the applicable purchase order issued by Buyer, together with these Standard Terms and any Releases or revisions issued by Buyer under the purchase order. “Buyer” means Big Rapids Products, Inc. or any of its subsidiaries identified on the face of this Order. “Seller” is the entity identified in the Order that is selling the Goods or Services.
1) Agreement
Each Order issued by Buyer is an offer to Seller for the purchase of goods and/or services and includes and is governed by the express terms contained on the face of this Order, these purchase order terms and conditions, and the terms contained in any addendum or supplement to this Order, any supplier manual provided by Buyer to Seller, and any other document incorporated by reference in this Order or in these purchase order terms and conditions (collectively, the “Terms”). The first occurring expression of acceptance of this Order by Seller, including Seller’s (i) written acceptance, (ii) commencement of work on the goods subject to this Order (the “Goods”), (iii) shipment of the Goods, (iv) commencement of performance of all or any portion of the services subject to this Order (the “Services”), (v) failure to object to this Order, in writing, within ten (10) days of receipt of this Order, and (vi) conduct that indicates Seller’s acceptance, including preparation for Seller’s performance, shall constitute an acceptance of Buyer’s offer. If Seller objects, Seller’s objections are deemed waived if Seller subsequently commences work on the Goods, or upon shipment of the Goods or performance of the Services without an express written modification made by Buyer as provided for in paragraph 37. Any acceptance of this Order is limited to and conditional upon Seller’s acceptance of the Terms. Any proposal for additional or different terms or any attempt by Seller to vary any of the Terms, whether in Seller’s quotation form, acknowledgement form, invoice, correspondence or otherwise, shall be deemed material and is hereby objected to and rejected by Buyer, but any such proposal or attempted variance shall not operate as a rejection of this Order if Seller accepts Buyer’s offer by commencement of work, shipment of the Goods or performance of the Services, or by other means acceptable to Buyer, in which case this Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. This Order does not constitute an acceptance of any prior offer or proposal by Seller, and any reference in this Order to any such prior offer or proposal is solely to incorporate the description or specifications of the Goods and the Services in such offer or proposal, but only to the extent that such description or specifications are not directly in conflict with the description and specifications in this Order. If this Order is found to be an acceptance of any prior offer or proposal by Seller, such acceptance shall be limited to the Terms. Any additional or different terms in such prior offer or proposal shall be deemed material and are hereby objected to and rejected by Buyer. Buyer may cancel all or any part of this Order at any time prior to Buyer’s actual knowledge of acceptance by Seller.
2) Term
The Program covered by the Order has an estimated life (the “Life of the Program”). Unless a specific term is otherwise set forth on the Order, the term of the Order shall be for the Life of the Program. Seller acknowledges and agrees that the Life of the Program is an estimate only, that the Life of the Program may be terminated or extended at any time by Buyer or Buyer’s customers (whether direct or indirect), and that any termination or extension of the Life of the Program shall serve to modify the time period of the Order, related to that Program, to end the Order on the expiration of the Life of the Program. Such termination or extension shall not alter the other terms of the order nor provide grounds for alteration of such terms. Seller agrees that the Life of the Program is a definite duration.
3) Price and Payment
All invoices must show the Order number. Unless otherwise states in the Order, the term of payment for all invoices will be Net sixty (60) days. Payment does not constitute acceptance of Goods or Services. Pricing shall be as set forth in the Order and shall be firm for the Life of the Program covered by the Order with the sole and limited exceptions of: (i) the extent the price is adjusted downward as provided by the terms of any productivity savings requirements; (ii) price adjustments, if any, agreed to by Buyer under the Order, or (iii) other adjustments agreed to in writing by Buyer. The price stated in the Order shall not be increased unless specifically authorized in writing by issuance of a revised Order signed by Buyer.
4) Customer Requirements
Where the Goods or Services under this Order are or will be sold, or incorporated into goods or services that are or will be sold by Buyer to an original equipment manufacturer of vehicles, whether directly or indirectly through an upper tier supplier, or any other third party customer (collectively, the “Customer”), Seller shall take such steps, provide such disclosure, comply with such requirements and do all other things as Buyer deems necessary or desirable and within Seller’s control to enable Buyer to meet Buyer’s obligations under the terms and conditions of any contract or purchase order or other document (the “Customer Terms”) that may be applicable to Buyer from time to time regarding its direct or indirect supply of such goods or services to the Customer, including: delivery, packaging and labeling requirements; warranties and warranty periods; intellectual property rights and indemnification; confidentiality; access to facilities and records; and replacement and service parts. Buyer may, from time to time, in its sole discretion, provide Seller with information regarding the applicable Customer Terms, but, in any event, Seller shall be responsible for ascertaining the Customer Terms that may affect Seller’s obligations hereunder and hereby agrees to be bound to such Customer Terms.
4.1) If there is any conflict between the provisions of the Customer Terms and any provisions of this Order, Buyer shall have the right to have the provisions of the Customer Terms prevail to the extent necessary or desirable to resolve such conflict.
4.2)In the event that the Customer directly suffers an Insolvency Event (as such term is defined in paragraph 26 and, in the course of any proceedings relating to such Insolvency Event and in connection with actual or threatened termination by the Customer of its contract(s) with Buyer (by rejection or otherwise), Buyer permits a reduction in the prices paid to Buyer for products incorporating the Goods and/or the Services; then the prices paid to Seller for the Goods and/or the Services from and after the date of such reduction will be automatically adjusted proportionally by the same percentage as the price paid to Buyer by the Customer, and this Order will otherwise remain in effect without modification.
4.3) In the event Customer fails to pay Buyer for products incorporating the Goods and/or Services supplied by Seller, Buyer reserves the right to assign Seller the right to collect such amounts from the Customer, in whole or in part, and Seller agrees to accept such assignment as payment for any invoices due from Buyer to Seller on a dollar for dollar basis.
4.4) In addition to any other rights or remedies provided for in this Order, if the Customer directed, recommended or requested that Seller be the source from whom Buyer is to obtain the Goods and/or the Services: (i) Buyer will pay Seller for the Goods and/or Services only after and to the extent of, and in proportion to, Buyer’s actual receipt of payment from the Customer for those goods into which the Goods and/or the Services are incorporated; (ii) any lengthening of the Customer’s payment terms to Buyer for those goods into which the Goods and/or Services are incorporated will automatically lengthen the payment terms as between Buyer and Seller by the same amount of time; and (iii) within three (3) business days of any change in price, specifications or other terms negotiated or proposed between Seller and the Customer, Seller shall notify Buyer in writing and immediately adjust its invoices to reflect any price reduction, provided that no change will be binding on Buyer without Buyer’s specific written consent.
5) Taxes
No sales, use, excise, or other taxes, whether federal, state, or local, shall be added to the Order’s purchase price unless otherwise stated in the order.
6) Packaging and Shipping
The Goods are to be suitably prepared for shipment and must be labeled, packed and shipped as required by law and in accordance with Buyer’s specifications, as specified in this Order and/or in any written directions and/or instructions as may be provided by Buyer to Seller from time to time. If the Goods are not shipped in accordance with Buyer’s specifications, Seller shall pay or reimburse Buyer for any excess costs occasioned thereby.
6.1) Unless otherwise expressly stated in this Order, Seller shall not charge Buyer for labeling, packing, boxing or crating.
7) Quantity
If no quantity is specifically stated in the Order, or if the Order contains the term “Blanket,” “Blanket Order,” “Scheduling Agreement,” or similar term, then Seller agrees, for the time period that each Order is in effect per paragraph 2, to furnish to Buyer 100% of the goods or services covered by the Order that Buyer requires for the Life of the Program, at the price and terms contained in the order and these Standard Terms. If the Order states a different percentage or other portion of Buyer’s requirements, then such percentage or portion shall control over the percentage stated in this paragraph.
8) Releases
Periodically, during the Life of the Program, Seller will provide goods or services to Buyer, pursuant to individual releases (each a “Release”) issued by Buyer to Seller. Each release shall set forth the quantity of goods and/or services, the required delivery date, the delivery point, and any other pertinent details or instructions as Buyer may deem appropriate. Releases are part of the Order and are not independent contracts.
9) Delivery and Production
Time is of the essence for this Order. Seller shall deliver the Goods in the quantities and on the delivery dates and times specified in this Order. Seller shall immediately notify Buyer in writing if Seller is unable to deliver the Goods in the quantities and on the delivery dates and times specified in this Order. Goods delivered in excess of the quantities or in advance of delivery dates or times specified in this Order shall be at Seller’s risk and may be returned to Seller by Buyer, and all transportation charges both to and from the original destination shall be paid by Seller. Buyer may, upon notice to Seller, change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Seller to a modification of the price of the Goods or the Services covered by this Order.
9.1) Buyer shall not be required to make payment for any Goods delivered to Buyer that are in excess of the quantities specified in this Order. Unless otherwise expressly stated in this Order or authorized in writing by Buyer, quantities and delivery dates within the first four (4) weeks after the date of issue of a Release are firm orders. The quantities and delivery dates for the next four (4) weeks (calendar weeks 5-8 after the issue date of the Release) are an authorized approval for raw material procurement. For any period beyond these time periods, the Release is a non-binding supply forecast only.
9.2) Seller warrants that any representation made in a quote or otherwise regarding its production capacity shall be considered a warranty that Seller can manufacture or produce the stated quantity of the Goods or the Services without the imposition of overtime charges or other surcharges. Seller acknowledges that any estimates or forecasts of production volumes or length of program, whether from Buyer or the Customer, are subject to change from time to time, with or without notice to Seller, and shall not be binding upon Buyer. Unless otherwise expressly stated in this Order, Buyer makes no representation, warranty, guarantee or commitment of any kind or nature, whether express or implied to Seller regarding Buyer’s quantitative requirements for the Goods or the Services or the term of supply of the Goods or the Services.
9.3) Unless the Order is for 100% of Buyer’s requirements of the Goods or Services, Buyer shall not be required to purchase the Goods or the Services exclusively from Seller.
10) Delays in Delivery or Acceptance
If Seller fails or refuses to proceed with this Order or fails to deliver the Goods or perform the Services within the delivery dates and times specified in this Order, Buyer may, without limiting or affecting its other rights or remedies available hereunder or at law, cancel the then remaining balance of this Order, unless the delay is an excusable delay (as defined in paragraph 10.1). In addition, if Seller fails to meet the delivery dates or times of the Goods, other than by reason of an excusable delay, Buyer may, without limiting or affecting its other rights or remedies available hereunder or at law, direct expedited shipment and/or incur premium freight or transportation costs, and Seller shall pay upon demand all excess costs incurred thereby, including additional handling charges and other expenses (whether related or not) resulting therefrom. Seller shall be responsible for all other direct, consequential, and incidental damages incurred by Buyer as a result of Seller’s failure to meet the delivery dates or times, other than by reason of an excusable delay, as defined in the paragraph below, including the cost of any line shutdown and the cost of obtaining Goods from an alternate source, and the time spent by Buyer’s employees and representatives in addressing such failure. Buyer’s actions in obtaining substitute or replacement products shall not limit the rights and remedies available hereunder or at law.
10.1) The term “excusable delay” means any delay in making or accepting deliveries or performance which results without fault or negligence on the part of the party involved and which is due to causes beyond its reasonable control, such as acts of God or of a public enemy, any preference, priority or allocation order issued by government or any other act of government, fires, floods, epidemics, freight embargoes, explosions, riots, war, and terrorism. The term “excusable delay” shall not, however, mean or include any delay arising from or as a result of: (i) Seller’s financial difficulties; (ii) a change in cost or availability of materials or components based on market conditions or supplier actions affecting Seller; or (iii) any labor strike or other labor disruption applicable to Seller or to any of its subcontractors or suppliers that are engaged in manufacturing or providing goods or services to Seller in connection with Seller’s obligations under this Order.
10.2) An excusable delay shall not constitute a default hereunder, provided that if Seller is subject to one or more excusable delays that persist for more than thirty (30) days in the aggregate, Buyer may cancel the then remaining balance of this Order, without limiting or otherwise affecting its other rights or remedies available hereunder or at law.
10.3) Seller, at its expense, shall use its best efforts to mitigate any adverse effects or costs to Buyer due to any actual or potential delay, including: (i) the implementation of a production contingency plan; and (ii) upon Buyer’s express written authorization, increasing Seller’s inventory of finished Goods to a level sufficient to sustain deliveries during such delay.
10.4) Whenever any actual or potential delay threatens to delay deliveries or Seller’s performance under this Order, Seller shall immediately give written notice thereof to Buyer. Such notice shall include all relevant information with respect to such delay, including the anticipated duration and impact of such delay. In addition, Seller will notify Buyer in writing: (i) at least sixty (60) days prior to the expiration of any labor contract or collective agreement; and (ii) as soon as Seller becomes aware of any actual or threatened labor strike or other labor disruption; in each case as may be applicable to Seller or to any of its subcontractors or suppliers that are engaged in manufacturing or providing goods or services to Seller in connection with Seller’s obligations under this Order.
10.5) Buyer may delay acceptance of delivery of the Goods or performance of the Services by reason of an excusable delay, in which case Seller shall hold the Goods and/or delay performance of the Services, at Buyer’s direction, until the cause of the excusable delay has been removed.
10.6) If, under the terms of this Order, Buyer grants Seller exclusive or “single source” rights to supply the Goods or the Services to Buyer, such rights shall not restrict Buyer’s right to procure goods or services similar to the Goods or the Services in substitution therefor in the event of any excusable delay.
10.7) Without limiting Seller’s obligations hereunder, in the event of any supply allocation by Seller, including as a result of an excusable delay, Seller shall give preference to Buyer for all of the Goods and the Services ordered under this Order.
11) Seller’s Quality Control and Inspection of Seller
Buyer has the right to inspect any and all of the Goods, both prior to and after making payment therefor. Seller acknowledges and agrees that Buyer may choose not to perform incoming inspections with respect to the Goods, without prejudice to any rights or remedies available to Buyer hereunder or at law, and Seller waives any rights to require Buyer to conduct such inspections.
11.1) Buyer also has the right to inspect or test all materials and workmanship utilized by Seller in the performance of this Order, and Seller shall permit such inspection or testing by Buyer and/or the Customer to the extent practicable at all times and places, including during the period of manufacture. If any such inspection or testing is made on Seller’s premises, Seller shall provide, without additional charge, all reasonable facilities and assistance. Inspection and approval at Seller’s premises does not preclude rejection or other relief for any defects subsequently discovered. Seller shall provide and maintain, without additional charge, a testing and inspection system (which shall include documented quality control and reliability procedures) acceptable to Buyer covering the materials and workmanship utilized in the performance of this Order.
11.2) At Buyer’s option, Buyer and/or the Customer may from time to time review and inspect Seller’s testing, inspection, quality control and reliability procedures, as well as the records and data supporting the same. Seller shall comply with Buyer’s most recently adopted quality control specifications, inspection standards and quality assurance manuals as may be supplied by Buyer to Seller directly, or as may be posted on Buyer’s Website from time to time. Seller shall, if requested by Buyer, furnish certificates indicating such compliance.
11.3) Buyer’s payment for and/or acceptance of the Goods or the Services shall not relieve Seller from any of its obligations and/or warranties under this Order. Subject to Buyer’s rights under paragraph 12 regarding Buyer’s title to the Goods upon payment therefor, in no event shall payment for the Goods or the Services be deemed to constitute acceptance by or on behalf of Buyer for any other purposes hereunder or at law.
11.4) Seller will conform to the quality control standards and inspection systems, as well as related standards, policies and systems, that are established or required by Buyer and, to the extent directed by Buyer, the Customer. Seller agrees to meet the full requirements of industry Production Part Approval Processes (PPAP) as specified by Buyer and the Customer, as applicable, and agrees to present this information to Buyer upon request, at the level requested, unless otherwise specifically agreed by Buyer in writing.
12) Materials, Equipment, Tools, and Facilities
Unless otherwise expressly stated in this Order, Seller shall supply at its own expense all materials, equipment, tools, jigs, dies, fixtures, patterns, drawings, specifications, samples and facilities required to perform this Order (the “Seller’s Property”). Seller grants Buyer an irrevocable option to take possession of and title to the Seller’s Property that is special for the production of the Goods, upon payment to Seller of its net book value less any amounts that Buyer has previously paid to Seller for the cost of such items; provided, however, that this option shall not apply if the Seller’s Property is used to produce goods that are the standard stock of Seller or if a substantial quantity of similar goods are being sold by Seller to others.
12.1) Notwithstanding any other provision in this Order, Seller expressly acknowledges and agrees that: (i) all materials, parts, components, assemblies, equipment, tools, jigs, dies, fixtures, patterns, drawings, specifications, samples and facilities, including any replacements thereof, any materials affixed or attached thereto and any special tooling produced by Seller for the performance of its obligations under this Order (“Tooling”), that are furnished to Seller or specifically paid for, in whole or in part, by Buyer (including pursuant to paragraph 12) or by the Customer; and (ii) all of the Goods that have been paid for, in whole or in part, by Buyer, whether or not Buyer has exercised its rights of inspection in respect thereof (all items in clauses (i) and (ii) above, collectively the “Buyer’s Property”), shall be held by Seller on a bailment basis and remain the property of, with both title and the right of possession in, Buyer and without limitation to any rights and remedies available hereunder or at law. The Buyer’s Property, while in Seller’s custody or control or while in the custody or control of Seller’s suppliers, contractors or agents, shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense against loss or damage in an amount equal to the replacement cost thereof, and shall be subject to removal at Buyer’s written request. Seller shall promptly notify Buyer of the location of the Buyer’s Property, if any are located at any place other than Seller’s facility. Unless otherwise expressly stated in this Order, Seller shall maintain accounting and property control records for the Buyer’s Property in accordance with sound industrial practices. Seller shall, at Seller’s expense, maintain the Buyer’s Property in good condition and repair, and shall replace any of the Buyer’s Property if, as and when necessary or reasonably required. Buyer does not provide any warranties with respect to the Buyer’s Property. Upon completion or termination of this Order, Seller shall retain on a bailment basis for Buyer, as aforesaid, the Buyer’s Property still then in the physical possession of Seller, at Seller’s expense, until disposition directions are received from Buyer. Upon receipt of Buyer’s demand or disposition directions, Seller shall, at Seller’s expense, prepare the Buyer’s Property for shipment, including disassembly and packing, and shall deliver it to such locations as may be specified by Buyer. The Buyer’s Property shall be in the same condition as originally received by Seller, reasonable wear and tear excepted. If Buyer or Seller defaults under this Order, Seller shall upon Buyer’s demand immediately deliver the Buyer’s Property to Buyer and, if Buyer so requests, grant Buyer access to Seller’s premises for the purpose of removing the Buyer’s Property.
12.2) All materials, supplies and services to be manufactured, produced or provided in conjunction with this Order must be in strict accordance with the specifications set forth in this Order or as otherwise specified by Buyer to Seller.
12.3) Seller shall use the Buyer’s Property solely for the purpose of performing its obligations under this Order.
13) Changes
Buyer reserves the right to make changes, or to cause Seller to make changes, to the drawings, specifications, sub-suppliers, sub-contractors, and other provisions of this Order. If any such change results in an increase or a decrease in the cost of, or the time required for, manufacturing or delivering the Goods or performing the Services, an equitable adjustment may be made in the price or delivery schedule, or both, and this Order shall, subject to the agreement of Buyer and Seller, be modified in writing accordingly. No claim under this paragraph shall be asserted by Seller after fourteen (14) days following the notification of the change by Buyer.
13.1) Seller shall not, without Buyer’s prior written authorization, make any changes to specifications, designs, materials or part numbers (or other types of identification), any major changes in processes or procedures, or any changes in the location of the facilities used by Seller for the performance of its obligations under this Order.
14) Service Parts
Except as otherwise expressly agreed in writing, for thirty (30) years after a vehicle design or specific part concludes production, Seller shall supply all of Buyer’s requirements of “service parts” for the same Goods, Services, component parts and materials, at the prices set forth in this Order plus any actual cost differential for special packaging. If the Goods are systems or modules, Seller shall sell each component or part at a price that does not, in the aggregate, exceed the system or module price specified in this Order, less assembly costs, plus any actual cost differential for packaging. Seller’s obligation with respect to service or replacement parts shall survive the termination or expiration of this Order.
14.1) At Buyer’s request, Seller shall make service literature and other materials available at no additional charge to support Buyer’s service part sales activities.
15) Transportation Charges, Customs, Taxes, and Exports
Unless otherwise expressly stated in this Order, all Goods shall be delivered by Seller “DDP – Buyer’s plant” (as defined in Incoterms 2010), in which case: (i) all transportation charges (including terminal switching charges) shall be at Seller’s expense; and (ii) Buyer shall not be liable for any insurance, storage, parking or detention charges.
15.1) Unless otherwise expressly stated in this Order, prices include customs duties and expenses, tariffs and all federal, provincial, state and local taxes (including all import taxes, excise taxes and sales taxes) applicable to the manufacture, sale or provision of the Goods or the Services.
15.2) Any reduction in Seller’s cost resulting from a reduction in transportation charges, customs duties, import taxes, excise taxes and/or sales taxes from those in effect on the date of this Order shall be paid to Buyer by Seller as a reduction of the price.
15.3) Seller agrees to fulfill any customs related obligations, including properly declaring the value of the Goods and complying with the appropriate origin or labeling requirements. Upon request, Seller shall promptly furnish to Buyer all documents and other information required for customs drawback purposes, properly completed in accordance with applicable governmental regulations. Unless otherwise expressly stated in this Order, all customs drawback shall be reserved and retained for, or credited to, Buyer.
15.4) Export licenses or authorizations necessary for the export of the Goods shall be the responsibility of Seller unless otherwise expressly stated in this Order, in which case Seller shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorizations. Seller shall undertake such arrangements as necessary for the Goods to be covered by any duty deferral or free trade zone programs of the country of import.
15.5) To the extent that any Goods covered by this order are to be imported into the United States of America, Seller shall, upon Buyer’s request, comply with all applicable recommendations or requirements of the United States Bureau of Customs and Border Protection’s Customs-Trade Partnership Against Terrorism initiative or any successor or replacement initiative or program. To the extent that any Goods covered by this Order are to be imported into Canada, Seller shall, upon Buyer’s request, participate in the Canada Border Services Agency’s Partners in Protection program or any successor or replacement initiative or program. Upon request, Seller shall certify in writing its compliance with the foregoing. Seller shall indemnify and hold Buyer harmless from and against all liabilities, demands, claims, losses, costs, damages, and expenses of any nature or kind (including legal and other professional fees) arising from or relating to Seller’s non-compliance with the foregoing.
16) Competitiveness
Seller warrants the prices for the Goods and the Services are, and shall ensure that such prices remain, not less favorable to Buyer than the prices currently extended to any other customer of Seller for the same or substantially similar goods or services in the same or substantially similar quantities and delivery requirements. If Seller reduces the prices of such same or substantially similar goods or services during the term of this Order, Seller shall reduce the prices of the Goods and the Services under this Order correspondingly.
16.1) Seller warrants that the prices in this Order shall be complete, and no surcharges, premiums or other additional charges of any type shall be added, without Buyer’s prior written consent. Seller expressly assumes the risk of any event or cause (whether or not foreseen) affecting such prices, including any foreign exchange rate changes, increases in raw materials costs, inflation, increases in labor and other manufacturing costs.
16.2) Maintaining the competitiveness of the Goods and/or Services is of the essence. “Competitiveness of the Goods” is ensured if the Goods or Services correspond to comparable goods or services of competitors in terms of price, quality, durability and technology. If a comparable product or service is offered to Buyer at competitive prices and conditions, Buyer will notify Seller thereof in writing and will set a reasonable period of time for Seller to restore full competitiveness of the Goods or Services. Seller will promptly prepare a catalogue of actions which Seller will take in order to restore competitiveness of the Goods or Services, and will furnish Buyer with such catalogue, together with a corrected offer, Seller shall restore competitiveness of the Goods within the period of time set by Buyer. The obligation to maintain competitiveness shall be a material contractual obligation. In the event of any violation of such obligation, Buyer may demand adjustment or terminate the agreement in whole or in part for cause.
17) Seller’s Warranties Concerning the Goods and the Services
Seller expressly warrants that the Goods and the Services, including any special tools, dies, jigs, fixtures, patterns, machinery and equipment, that are obtained at Buyer’s expense for the performance of this Order and/or are or become the property of Buyer (including the Buyer’s Property) shall: (i) conform to all drawings, specifications, samples and other descriptions furnished, specified or adopted by Buyer; (ii) comply with all applicable laws, regulations, rules, codes and standards of the jurisdictions in which the Goods or the Services, and the products containing the Goods and Services, are to be sold; (iii) be merchantable; (iv) be free from any defects in design, to the extent furnished by Seller or any of its subcontractors or suppliers, even if the design has been approved by Buyer; (v) be free from any defects in materials and workmanship; (vi) be fit, sufficient and suitable for the particular purpose for which Buyer intends to use the Goods or the Services, including the specified performance in the component, system, subsystem and vehicle location and the environment in which they are or may reasonably be expected to perform; and (vii) be free of all liens, claims and encumbrances whatsoever. For the purposes of clause (vi) above, Seller acknowledges that Seller knows the particular purpose for which Buyer intends to use the Goods or the Services. Seller further expressly warrants that, unless otherwise expressly stated in this Order, the Goods are manufactured entirely with new materials and none of the Goods is, in whole or any part, governmental or commercial surplus or used, remanufactured, reconditioned or of such age or condition so as to impair its fitness, usefulness or safety. The warranties in this paragraph are referred to as the “Seller’s Warranties.”
17.1) The Seller’s Warranties are available to, and for the benefit of, Buyer, its subsidiaries and affiliates, their respective successors and assigns, the Customer and users of products containing the Goods or the Services. The Seller’s Warranties shall extend to future performance of the Goods or Services. The warranty period shall be five (5) years after the Goods or Services are put into service by the end user, except that if Buyer is obligated to provide a longer warranty period pursuant to the Customer Terms or applicable law, such longer period shall apply. The Seller’s Warranties shall be in addition to all other warranties available under applicable law.
17.2) Seller shall indemnify and hold Buyer and the Customer, and their respective representatives, employees, agents, customers, invitees, subsidiaries, affiliates, successors and assigns, harmless from and against all liabilities, claims, demands, losses, costs, damages and expenses of any nature or kind (including consequential and special damages, personal injury, property damages, lost profits, recall or other Customer field service action costs, costs allocated under a Customer warranty allocation program, production interruption costs, inspection, handling and reworking charges, professional and other legal fees, and any other costs associated with Buyer’s administrative time, labor and materials) arising from or as a result of: (i) any breach of the Seller’s Warranties; and (ii) any other acts, omissions or negligence of Seller or of any of its subcontractors or suppliers in connection with Seller’s performance of its obligations under this Order. No limitations on Buyer’s rights or remedies in any of Seller’s documents shall operate to reduce or exclude such indemnification.
17.3) Seller acknowledges that Buyer may defend any claim brought by the Customer that the Goods or Services are in breach of the Seller’s Warranties or are otherwise defective and do not meet the contractual requirements of this Order. Seller agrees that Buyer’s action to defend such claims is in the interest of both Buyer and Seller and is done to mitigate damages. Seller waives the right to argue that Buyer’s defense of such claims in any way limits Buyer’s right to seek indemnity from Seller or assert a claim against Seller that Seller has breached the Seller’s Warranties or otherwise failed to meet the legal and contractual requirements of this Order.
17.4) During the time period this Order remains in effect, Seller warrants that it will not supply the Goods or Services directly to the Customer or the original equipment manufacturer of the vehicle into which the Goods or the Services are incorporated without Buyer’s prior written consent.
18) Indemnity
To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Buyer and its affiliated companies, their respective directors, officers, employees, agents, and Customers (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all Indemnitee attorneys’ fees and any other costs of litigation (collectively, “Liabilities”) that are in any way related to Seller’s performance or obligations under the Order, including claims arising out of a breach hereof or thereof, warranty claims, product recall claims, product liability claims, injuries to persons (including death), or damage to property caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of Seller, including, without limitation, breach of contract, breach of warranty, or product liability. Seller’s obligation to defend and indemnify under this section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except for claims that arise as a result of the sole negligence of Buyer. Seller agrees to indemnify, hold harmless, and defend Indemnitees from and against all Liabilities arising out of actual or alleged infringement, including infringement of any patent, trademark, or copyright relative to the Goods or Services.
18.1) If Seller provides Goods or Services to Buyer on Buyer’s premises, Seller will examine the premises to determine whether they are safe for such Goods or Services and will advise Buyer promptly of any situation it deems to be unsafe. Seller’s employees, contractors, and agents will not possess, use, sell, or transfer illegal drugs, medically unauthorized drugs, controlled substances, or unauthorized alcohol, and will not be under the influence of alcohol or drugs on Buyer’s premises. Seller shall be exclusively responsible for, shall bear, and shall relieve Buyer from liability for all loss, expense, damage, or claims resulting from bodily injury, sickness, or disease, including death, at any time resulting therefrom, sustained by any person or persons, or on account of damage to or destruction of property, including that of Buyer, arising out of, or in connection with the performance of work on Buyer’s premises, except that Seller shall not be responsible for or relieve Buyer from liability for claims arising from the willful misconduct or the sole negligence of Buyer.
19) Insurance
Seller shall maintain and carry: (i) property and general liability insurance, including public liability, property damage liability, product liability and contractual liability coverages and professional liability coverage as Buyer may require based on the Goods or Services; and (ii) workers’ compensation and employers’ liability insurance covering all employees engaged in the performance of this Order; in each case in such amounts and with such limits (subject to paragraph 19.1) and with such insurers that are reasonably acceptable to Buyer and which are licensed to provide insurance coverage in the jurisdictions in which any Goods are manufactured or Services are conducted or otherwise are applicable to Seller. Each policy shall expressly state that it provides primary coverage to any other insurance coverage available to Buyer and shall include an endorsement under which the insurer waives any rights of subrogation it may have against Buyer.
19.1) Unless otherwise expressly stated in this Order, Seller’s liability insurance policies shall have combined single limits of no less than five million U.S. dollars ($5,000,000 USD) per occurrence and in the aggregate; provided that such limits shall not limit Seller’s liability under this Order. Seller’s property insurance policies shall be written on a “replacement cost” basis and Seller’s workers’ compensation policies shall be in compliance with applicable statutory requirements and limits.
19.2) Seller shall furnish Buyer with certificates or other satisfactory proof of insurance confirming the foregoing insurance coverages within ten (10) days of Buyer’s request. Any such insurance and the certificates shall provide for terms and conditions satisfactory to Buyer whereby, among other things: (i) Buyer is designated as an Additional Insured or Loss Payee, as interests may appear, or as may be requested by Buyer from time to time; and (ii) each policy shall contain an endorsement that the coverage will not be cancelled or materially changed or amended in any way without at least thirty (30) days prior written notice to Buyer. Buyer shall have the right, but not the obligation, to maintain such insurance coverage prior to the expiration of such notice. The receipt or review of such certificates or other proof of insurance coverage at any time by Buyer shall not relieve Seller from its liability or its insurance obligations hereunder or reduce or modify such insurance obligations.
20) Defective or Non-Conforming Goods or Services
If any of the Goods or the Services fail to meet the Seller’s Warranties, Seller shall, upon notice thereof from Buyer at any time, promptly repair, replace or otherwise satisfactorily deal with the same in a manner acceptable to Buyer, all at Seller’s expense and without limiting or affecting Buyer’s other rights or remedies available hereunder or at law. The Seller’s Warranties shall also apply to such repaired, replaced or otherwise satisfactorily dealt with the Goods or the Services.
20.1) If Seller fails to repair, replace or otherwise deal with any defective or non-conforming Goods or Services in a manner acceptable to Buyer, Buyer may, without limiting or affecting Buyer’s other rights or remedies available hereunder or at law, cancel this Order as to the particular Goods or Services and/or cancel the then remaining balance of this Order.
20.2) After notice to Seller, all defective or non-conforming Goods shall be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such defective or non-conforming Goods to Seller at Seller’s risk, and Seller shall promptly pay, upon Buyer’s demand, all transportation and other applicable charges, both to and from the original destination.
20.3) Any payment made by Buyer for defective or non-conforming Goods or Services shall be refunded by Seller, except to the extent that Seller promptly replaces or corrects the same at Seller’s expense.
20.4) None of Buyer, its subsidiaries or affiliates, or their respective successors, assigns, representatives, employees, agents or customers shall be liable for, or be obligated to indemnify or hold any of Seller, its subsidiaries or affiliates, or their respective successors, assigns, representatives, employees, agents, subcontractors or suppliers harmless from and against any liabilities, claims, demands, costs, damages or expenses of any kind or nature (including personal injury, property damage, consequential or special damages) arising from or as a result of the improper, unsafe or defective materials, workmanship or design of the Goods or the Services.
21) Infringement and Proprietary Rights
Seller, at its expense, will indemnify and hold Buyer and all others harmless with respect to every claim that may be brought against Buyer or others that use the Goods or Services delivered under the Order, for any alleged infringement of any present or future patent, copyright, industrial design right, or other proprietary right related to one of the Goods or Services under the Order, or the manufacture, sale, or use of goods alone, or in combination, by reason of their content, design or structure. Seller will investigate and defend or otherwise handle every such claim and, at Buyer’s request, assist Buyer and all others’ investigation, defense, or handling of any such claim. Seller will pay all expenses and damages or settlement amounts that Buyer, Buyer’s Customers, and all others using Buyer’s product may sustain by reason of each such indemnified claim. Seller’s obligations will apply even though Buyer furnishes all or any portion of the design and specifies all or any portion of the processes used by seller;
21.1) Seller grants to Buyer, for the period the Order is effective, a nonexclusive, royalty free, permanent, paid-up, irrevocable license related to the goods or services under the Order with a right to Buyer to grant a sublicense to rebuild and have rebuilt goods under the Order;
21.2) Seller will neither assert nor transfer to another a right to assert against Buyer and/or any of Buyer’s affiliates, dealers, Customers, or suppliers thereof, any intellectual property right of seller that is applicable to any works of authorship related to the goods or services under the Order; and
21.3) Seller will not sell, transfer, or otherwise dispose of any goods or services that incorporate any trademark, patentable invention, copyright work, industrial design, or other material that is subject of any intellectual property right of Buyer or any of Buyer’s affiliates to any party other than Buyer, except where specifically authorized by Buyer in writing.
21.4) To the extent that Seller creates or develops any patents, industrial designs, technical information, know-how, processes of manufacture or other intellectual property in the performance of Seller’s obligations under this Order, Seller shall: (i) assign to Buyer each invention, discovery or improvement (whether or not patentable) that is conceived or first reduced to practice by Seller, or by any person employed by or working under the direction of Seller, in the performance of Seller’s obligations under this Order; and (ii) promptly disclose in an acceptable form to Buyer all such inventions, discoveries or improvements and cause Seller’s employees to sign any papers necessary to enable Buyer to obtain title to and to file.
21.5) Seller shall not manufacture or provide, or offer to manufacture or provide, any Goods or Services that are based in whole or in part upon Buyer’s intellectual property and/or the drawings or specifications regarding the Goods or the Services, or any derivative thereof, whether for its own purposes (other than to satisfy its obligations under this Order), for the Customer or any other third parties, without Buyer’s prior written consent. The foregoing restriction shall not apply regarding “off-the-shelf” or “catalogue” goods or services that have been routinely manufactured or provided by Seller and developed by Seller, in each case prior to this Order and independently of its relationship with Buyer.
22) Confidentiality and Non-Use
Seller shall consider and treat all Information (as defined in paragraph 22.1) as confidential and shall not disclose any Information to any other person, or use any Information itself for any purpose other than pursuant to and as required by this Order, without Buyer’s prior written consent. Buyer retains all rights with respect to the Information, and Seller shall not acquire, nor attempt to obtain, any patent, trademark, copyright, license or other rights regarding the Information. Seller shall not allow any Information to be reproduced, communicated or in any way used, in whole or in part, in connection with services or goods furnished to others, without Buyer’s prior written consent.
22.1) For the purposes of this Order, “Information” means all drawings, reproductions, specifications, designs, engineering instructions, photographs, reproducible copy, parts lists, plans, reports, working papers, computations and other information furnished by Buyer and shall include all terms and conditions and any other information relating to this Order.
22.2) Seller shall not advertise or otherwise disclose the fact that Buyer has contracted to purchase the Goods or the Services from Seller without Buyer’s prior written consent.
22.3) Unless otherwise expressly stated in this Order and except as may be agreed in a prior written agreement between Buyer and Seller, no commercial, financial or technical information furnished or disclosed in any manner or at any time by Seller to Buyer shall be deemed to be secret or confidential, and Seller shall have no rights against Buyer or the Customer with respect to any use or disclosure of such information.
23) Compliance with Code of Conduct and Laws
Seller’s performance of its obligations under this Order shall be in compliance with all of Buyer’s policies and all federal, provincial, state and local laws, ordinances, rules, codes, standards and regulations that are applicable to this Order, including but not limited to the United States Foreign Corrupt Practices Act, the Canadian Corruption of Foreign Public Officials Act, the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act and the Export Administration Regulations, including the requirement for obtaining any export license or agreement, if applicable (collectively, “Laws”). Seller shall furnish Buyer with certificates of compliance, where required under such applicable Laws or when requested by Buyer. Each invoice rendered to Buyer under this Order shall constitute written assurance by Seller that Seller has fully complied with all applicable Laws. Seller will participate in or respond to, at Seller’s expense, any audit, investigation, inquiry, certification or screening process reasonably requested by Buyer or its third-party vendors to verify Seller’s compliance with this paragraph.
23.1) Seller shall package, label and transport the Goods and their containers, in particular those which constitute a health, poison, fire, explosion, environmental, transportation or other hazard, in compliance with all applicable Laws in effect in the place to which the Goods are shipped or as otherwise specified by Buyer.
23.2) Seller represents that: (i) neither it nor any of its subcontractors or suppliers will either engage in or permit substandard working conditions in the supply of the Goods or the Services under this Order, (ii) child labor or underage labor, as defined by applicable law, will not be utilized, (iii) it will not allow any form of forced or compulsory labor, (iv) workers, without fear of reprisal, intimidation or harassment, shall have the right to associate freely and join labor unions and workers’ councils or to otherwise refrain from joining such organizations as they so choose, in accordance with applicable laws, (v) workers shall be protected against any form of harassment and discrimination in any form, including but not limited to gender, age, religion, disability and political beliefs, (vi) workers shall have a safe and healthy workplace that meets or exceeds all applicable standards for occupational health and safety, (vii) workers shall be compensated with wages and benefits that comply with applicable law, including minimum wages, overtime hours and legally mandated benefits and (viii) working hours shall comply with all applicable laws regulating hours of work.
23.3) Upon request, Seller shall furnish Buyer with such written verification or information as Buyer deems necessary to certify the origin of any ingredients or materials in the Goods. Seller shall also promptly furnish to Buyer all documents and other information requested by Buyer so that Buyer may comply in a timely manner with all applicable laws governing consumer protection, conflict minerals or similar materials or ingredients.
23.4) Seller shall indemnify and hold Buyer, its subsidiaries and affiliates, their respective successors, assigns, representatives, employees and agents, and the Customer harmless from and against all liabilities, claims, demands, losses, costs, damages and expenses of any kind and nature (including personal injury, property damage, consequential and special damages) arising from or as a result of Seller’s failure to comply with this paragraph.
24) Termination for Convenience by Buyer
In addition to any other rights of Buyer to terminate this Order, Buyer may, in its sole discretion, upon thirty (30) days prior written notice to Seller or, if applicable, such shorter period as may be required by the Customer, terminate this Order for convenience or any other reason, in whole or in part at any time, and notwithstanding the existence of any excusable delay or other events or circumstances affecting Seller. Buyer’s notice to Seller may be given by facsimile, e-mail or other form of electronic transmission, and shall state the extent and effective date of termination. Seller may not terminate this Order for convenience or any other reason, except as otherwise expressly provided in this Order.
24.1) Upon receipt of notice of termination from Buyer, Seller shall, to the extent directed by Buyer or its representatives: (i) stop work under this Order and any other orders related to work terminated by such notice; and (ii) protect all property in Seller’s possession or control in which Buyer has or may acquire an interest, including the Buyer’s Property. Seller shall promptly submit to Buyer any claims relating to such termination, and in any event within sixty (60) days (unless Buyer agrees otherwise) from the effective date of such termination. Buyer has the right to audit and inspect Seller’s books, records and other documents relating to any termination claims.
24.2) Buyer shall, in addition to making payment of the price specified in this Order for the Goods and/or the Services delivered or performed and accepted by Buyer prior to the effective date of termination, pay to Seller the following amounts, without duplication: (i) the price specified in this Order for the Goods and the Services manufactured or provided in accordance with the terms of this Order but not previously paid for; and (ii) the actual costs of work-in-process and parts and raw materials incurred by Seller in performing its obligations under this Order, to the extent such costs are reasonable in amount and are properly allocated or apportioned under generally accepted accounting principles to the terminated portion of this Order. Buyer shall not be obligated to make any payment for: (x) the Goods, the Services, or work-in-process or parts or raw materials inventory that are manufactured, provided or procured by Seller in amounts in excess of those authorized in any Release, that are damaged or destroyed or that are not merchantable or useable; (y) any undelivered Goods that are in Seller’s standard stock or that are readily marketable; or (z) work-in-process or parts or raw materials inventory that can be returned to Seller’s suppliers or subcontractors for credit. Payments made in connection with a termination of this Order shall not exceed the aggregate price for the Goods or Services that would be manufactured or provided by Seller under any Release outstanding at the effective date of termination. Except as provided in this paragraph, Buyer shall not be liable for and shall not be required to make payments to Seller, directly or indirectly (whether on account of claims by Seller’s subcontractors or otherwise), for any loss arising from or attributable to failure to realize anticipated revenue, savings or profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment costs or rental, unamortized depreciation cost or general and administrative burden charges from a termination of this Order. In the event of a termination of this Order by Buyer as a result of Buyer ceasing to be a supplier to the Customer for the vehicle program which Buyer issued this Order, Buyer shall only be obligated to compensate Seller for any costs under this paragraph if, when and to the extent that the Customer reimburses Buyer for such costs.
25) Termination Upon Seller’s Default or Change of Control
Buyer may terminate this Order, in whole or in part, for default occasioned by Seller’s: (i) breach of any term of this Order; (ii) failure to perform in accordance with the requirements of this Order; or (iii) failure to make progress so as to endanger timely and proper delivery of the Goods or completion of the Services. Seller shall be liable for all costs, damages and expenses caused by or resulting from its default under this Order.
25.1) Buyer may terminate this Order, in whole or in part, in the event of a change of control of Seller. For the purposes of this Order, a “change of control” includes: (i) any sale, lease or exchange of a substantial portion of Seller’s assets used in connection with Seller’s performance of its obligations under this Order; (ii) any sale or exchange of a sufficient number of shares of Seller, or of any affiliate that controls Seller, to effect a change in management of Seller; or (iii) the execution of a voting or other agreement of control in respect of Seller, or of any affiliate that controls Seller. Seller shall notify Buyer in writing within ten (10) days of any change of control of Seller, and Buyer may terminate this Order by giving written notice to Seller at any time up to sixty (60) days after Buyer’s receipt of Seller’s notice of change of control.
25.2) Any termination under this paragraph shall be without liability to Buyer, except for the Goods delivered or the Services performed by Seller and accepted by Buyer. If Buyer’s termination under this paragraph is determined by a final, unappealable judgment to be improper, then such termination shall be deemed a termination for convenience under paragraph 24.
26) Termination Upon Insolvency, Bankruptcy, Etc.
Either party may terminate this Order, without liability to the other party: (i) in the event of the insolvency, bankruptcy, reorganization, receivership or liquidation by or against the other party; (ii) in the event that the other party makes an assignment for the benefit of its creditors or ceases to carry on business in the ordinary course; or (iii) if a receiver is appointed regarding the other party or all or part of its property (collectively, an “Insolvency Event”). In the event of such termination, the other party shall be liable for all costs, damages and expenses suffered by the party that terminates this Order. Any such termination shall not affect the entitlement of Buyer with respect to the Buyer’s Property.
26.1) In the event that Buyer does not terminate this Order upon the occurrence of an event in paragraph 26 regarding Seller, Buyer may make such equitable adjustments in the price and/or delivery requirements under this Order as Buyer deems appropriate to address the change in Seller’s circumstances, including Seller’s ongoing liability to perform its obligations regarding warranty, defective Goods or Services or other requirements under this Order.
27) Transition of Supply
In connection with Buyer’s termination or non-renewal of this Order, or Buyer’s other decision to source the Goods and/or the Services from any alternate supplier(s), Seller will cooperate with Buyer in the transition of supply of the Goods and/or the Services, including the following: (i) Seller will continue production and delivery of all Goods and/or Services as ordered by Buyer, including building a bank of Goods sufficient to support the transition of supply, as determined by Buyer in its sole discretion, at the prices and other terms stated in this Order, without premium or other condition, during the entire period reasonably needed by Buyer to complete the transition to the alternate supplier(s), such that Seller’s action or inaction causes no interruption in Buyer’s ability to obtain the Goods and/or Services as needed; (ii) at no cost to Buyer, Seller will promptly provide all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of the Goods and/or Services and components; and (iii) subject to Seller’s reasonable capacity constraints, Seller shall provide special overtime production, storage and/or management of extra inventory of the Goods, extraordinary packaging and transportation and other special services (collectively, “Transition Support”) as expressly requested by Buyer in writing.
27.1) If the transition of supply occurs for reasons other than Buyer’s termination of this Order pursuant to paragraphs 25 or 26, Buyer shall, at the end of the transition period, pay the reasonable, actual cost of Transition Support as requested by Buyer and incurred by Seller, provided that Buyer has approved Seller’s estimate of such costs prior to Seller incurring such amounts.
28) Right to Audit and Financial Review
Seller grants to Buyer and to Buyer’s authorized agents and representatives access to all pertinent information, including books, records, payroll data, receipts, correspondence and other documents, for the purpose of auditing Seller’s charges under this Order and compliance with its terms, during the term of this Order and for an additional five (5) years after the final payment under this Order. Seller shall preserve such information for such period (or longer, if required by applicable law). In addition, all work, materials, inventories and other items provided for under this Order must at all times be accessible to Buyer and to Buyer’s authorized agents and representatives, including parts, tools, fixtures, gauges and models. Seller shall segregate its records and otherwise cooperate with Buyer so as to facilitate any such audit.
28.1) If such audit shows any price discrepancy or Seller’s noncompliance, Seller shall reimburse Buyer for such discrepancy or other loss caused by its noncompliance with this Order, together with interest at an annual rate of twelve percent (12%) (or such maximum rate allowed by applicable law, if lower), plus the cost of such audit.
28.2) Buyer, or a third party designated by and acting on behalf of Buyer, may at any time review the financial condition of Seller and its affiliates, and Seller shall fully cooperate in such review and shall make its financial managers available for discussions during reasonable business hours. Buyer and any such designated third party shall keep confidential any non-public information about Seller and its affiliates obtained in such financial review and shall use such information only for purposes of such financial review, except as otherwise needed to enforce this Order.
29) Buyer’s Website
Buyer’s internet website (or such other website as may be directed through links available on such website) as specified on the face of this Order (“Buyer’s Website”) may contain specific additional requirements for certain items covered by this Order, including labeling, packaging, shipping, delivery and quality specifications, procedures, directions and/or instructions. Any such requirements shall be deemed to form part of the Terms and this Order. Buyer may periodically update such requirements by posting revisions thereto on Buyer’s Website. In the event of any inconsistency between this Order and Buyer’s Website, the terms of this Order shall prevail, unless the requirements specified on Buyer’s Website expressly provide otherwise.
29.1) Buyer may modify these purchase order terms and conditions from time to time by posting revised purchase order terms and conditions to Buyer’s Website. Such revised purchase order terms and conditions shall apply to all purchase orders, purchase order revisions, and Releases issued on or after the effective date thereof. Seller shall review Buyer’s Website periodically.
30) Independent Contractor
The relationship of Seller to Buyer is that of an independent contractor, and nothing contained in the Order, any Customer Agreement, or otherwise shall be deemed to create any other relationship, including, but not limited to, an employment, partnership, agency, or joint venture relationship between Seller and Buyer. Neither party shall have any authority to employ any person as agent or employee for or on behalf of the other, or to bind, or attempt to bind, the other to any obligation with any third party. Seller has and retains full control and supervision over the performance of its obligations under the Order and over the employment, direction, compensation, and discharge of all of Seller’s employees, agents, and subcontractors that Seller utilizes in the performance of such obligations. Each party is and shall be responsible for its own acts and omissions and those of its employees, agents, and subcontractors;
31) Subcontracts
Seller will ensure that the terms of its contracts with its sub-suppliers and sub-contractors provide Buyer and the Customer with all of the rights specified in this Order.
32) Assignments
Seller shall not assign this Order or any portion hereof or work hereunder or any interest herein, except with Buyer’s prior written consent.
32.1) Buyer shall have the right to assign this Order or its interest herein, without Seller’s consent, to any of its affiliates or to any purchaser or successor to Buyer’s business.
33) Nonsolicitation of Employees
Buyer shall not, and shall cause each of its shareholders, officers, directors, employees, agents, representatives and advisors not to engage, solicit or recruit for employment or services, in each case, either on a full time or part time basis, or in a consultancy or other non-employee role, any employee of Seller or encourage or induce any such individual to leave his or her employment or relationship with Seller, whether for itself or any other person.
34) Right of Buyer to Perform
If Seller fails to perform any of its obligations under this Order, Buyer and its agents may, without limiting or affecting its other rights and remedies available hereunder or at law, but shall not be obligated to, perform such obligations without waiving or releasing Seller from such obligations. Where applicable, Buyer and its agents shall be entitled to enter upon Seller’s premises to perform, or to remove tooling and all materials necessary to perform, such obligations. All costs, damages and expenses incurred directly or indirectly by Buyer in connection with the foregoing, including legal and other professional fees and Buyer’s administrative time, labor and materials, shall be paid by Seller to Buyer on demand or, at Buyer’s sole option, may be set off against and deducted from any amounts then owing by Buyer to Seller.
34.1) The provisions of MCL 440.1308 apply regardless of whether the Order is for Goods or Services. By making any payment or other performance under protest or with a reservation of rights, Buyer preserves, and does not waive, all claims against Seller.
35) Remedies
The remedies reserved in this Order shall be cumulative and not alternative and may be exercised separately or together, in any order or combination, and are in addition to any other remedies provided for or allowed by law, at equity or otherwise.
35.1) Seller expressly acknowledges and agrees that any failure of Seller to deliver the Goods or provide the Services on the delivery dates and times as specified in this Order will cause irreparable harm to Buyer and that Buyer shall be entitled to equitable relief, including injunction without bond or escrow, in such event.
35.2) If Buyer breaches any term in the Order or in any Customer Agreement, Buyer shall not be liable for any incidental, consequential, indirect, or any other special damages of Seller, including, but not limited to, Seller’s lost profits, attorney fees, and any and all costs of any litigation. Any action against Buyer arising out of the Order must be filed within one (1) year after Seller’s claim accrues.
36) Waiver
Either party’s failure to insist on the performance by the other party of any Term or failure to exercise any right or remedy reserved in this Order, or either party’s waiver of any breach or default hereunder by the other party shall not, thereafter, waive any other terms, conditions, rights, remedies, breaches or defaults, whether of the same or a similar type or not.
37) Modifications
No modification of this Order, including any waiver of or addition to any of the Terms, shall be binding upon Buyer, unless made in writing and signed by Buyer’s authorized representative.
38) Severability
If any provision of this Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Order shall remain in full force and effect.
39) Notices
Except as otherwise expressly stated in this Order, any notice given or other communication sent under this Order shall be in writing and shall be properly delivered to its addressee by hand, prepaid courier, registered mail, e-mail (receipt confirmed) or facsimile (receipt confirmed) at the applicable address noted on the face of this Order. Any notice or communication given, as provided herein, shall be deemed to have been received at the time of its delivery if delivered by hand, on the business day following its dispatch if transmitted by courier, e-mail or facsimile or on the third business day following its mailing if transmitted by registered mail. Either party may notify the other party, in the manner provided for herein, of any change of address, for the purpose of giving notices or sending communications under this Order.
39.1) Seller’s failure to provide any notice, claim or other communication to Buyer in the manner and within the time periods specified in this Order shall constitute a waiver by Seller of any and all rights and remedies that otherwise would have been available to Seller upon making such notice, claim or other communication.
40) Complete Agreement
The Order contains all terms between Seller and Buyer with regard to the subject matter of the Order and supersedes all prior oral or written representations, agreements, or other communications between Seller and Buyer. The contract evidenced by the Order may be amended only by a writing signed by Seller and an officer of Buyer. Any Order issued under protest or with a reservation of rights, whether stated in the Order or in another writing, shall not supersede any prior Order, and the prior Order shall remain the contract.
41) Survival
The obligations of Seller to Buyer, which, by their nature, are intended to survive the expiration or termination of this Order, including without limitation paragraphs 17-21, shall survive termination or expiration of this Order, except as otherwise expressly stated in this Order.
42) Governing Law and Jurisdiction
This Order shall be interpreted and enforced in accordance with the laws of the State of Michigan, exclusive of the choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Order.
42.1) Seller and Buyer agree that any action arising out of the sale of Goods or Services in accordance with this Order will be brought, heard and decided in Mecosta County, Michigan or in the Federal Courts for the Western District of Michigan. Buyer submits to personal jurisdiction in Michigan and waives any argument or defense that the courts specified in this section are an inconvenient or improper forum.