1. Acceptance of Terms; Governing Documents.
1.1 Supplier’s signature or any other conduct by Supplier that recognizes the existence of an Order (defined below), including shipment of Products, constitutes Supplier’s acceptance of the terms and conditions stated herein (the “Terms”). Any proposal for additional or different terms is hereby objected to and rejected, irrespective of Purchaser’s acceptance of or payment for the Products or any other conduct by Purchaser, but such proposal will not operate as a rejection of this offer but will be deemed a material alteration thereof, and these Terms will be deemed accepted by Supplier without said additional or different terms. If these Terms are deemed an acceptance of a prior offer by Supplier, such acceptance is limited to the express terms herein.
1.2 Except as provided below, these Terms supersede all prior written and oral communications and documents and contains the complete and final agreement between Purchaser and Supplier relating to their subject matter and no other agreement or document will be binding on Purchaser unless made in a writing signed by Purchaser’s authorized representative. These Terms will apply to all purchases by Purchaser from Supplier of any Products, regardless of whether these Terms are expressly referenced in any Order. Any and all terms on the backside of a Supplier quotation, acknowledgement or invoice which are inconsistent with any of the various terms and conditions herein are hereby canceled and rendered null and void to the extent of such conflict and/or inconsistency, and these Terms will control.
2. Supply.
2.1 Supplier agrees to furnish, at its own cost and expense, all labor, materials, tools, equipment and facilities necessary to supply Products in accordance with these Terms and the applicable Order, which is a part of these Terms. An “Order” is any purchase order or other request for Products by or on behalf of Purchaser. Orders, and any other notice by Purchaser under these Terms, may be written, electronic and/or oral, and may be placed in person, by phone, by mail, by fax, by e-mail and/or by or through any other media or mode of communication selected by Purchaser. Supplier shall pay all sales, consumer use and other similar taxes required by law.
2.2 Unless otherwise agreed to by Purchaser, no variation in the quantity of any Products is authorized, and Purchaser will have the right to reject a delivery that varies in the quantity authorized for shipment.
2.3 In the event Supplier agrees to supply a specific quantity of Products for a project and/or under an Order, and Supplier cannot adequately supply such quantity of Products, Supplier shall reimburse and pay Purchaser for all costs, fees and expenses incurred or paid by Purchaser resulting therefrom, including, without limitation, amounts for alternative Products, labor, production stoppage, and Purchaser’s other remedial and curative efforts (collectively, “Costs”).
2.4 Purchaser expressly reserves the right to employ other suppliers to supply Products contemplated under an Order if, in Purchaser’s sole discretion, the additional suppliers are necessary to comply with the progress schedule of Purchaser. Supplier shall have no claim against Purchaser should Purchaser employ additional suppliers.
3. Shipment. Time is of the essence. Supplier agrees to supply the Products promptly, diligently, to such location(s) as Purchaser may direct, and in such order and sequence as Purchaser may direct, including Saturdays and/or Sundays. Purchaser will have the right, from time to time, to change delivery schedules and to direct temporary suspensions of scheduled shipments. Purchaser may refuse to accept all or any part of a shipment of Products that is not received by the time specified, or if no delivery date is specified, then within a reasonable time from the date of the Order. Purchaser may withhold payment so long as Products remain undelivered. Acceptance of late delivery will not waive Purchaser’s rights.
4. Inspection. Purchaser and its agents will have the right to inspect and test all Products, and all tooling, materials, workmanship, facilities and quality assurance and manufacturing records relating thereto, at all times and places, including during the period and at the place of manufacture. Purchaser and its agents will have the right to verify at Supplier’s premises that the Products conform to all requirements. No inspection or failure to inspect by or on behalf of Purchaser will limit Purchaser’s rights or Supplier’s obligations.
5. Rejection, Rights and Remedies.
5.1 Purchaser may, at its option, reject and/or revoke acceptance of any Products that do not strictly comply with these Terms and/or the applicable Order, to return such Products, to recover all payments therefore and expenses incident thereto, to require correction, repair or replacement of such Products, to receive a credit for such Products and/or recover damages.
5.2 In the event that Purchaser rejects and/or revokes acceptance of any non-conforming or defective Products, Supplier shall reimburse and pay Purchaser for all Costs incurred or paid by Purchaser resulting therefrom. Pending resolution of any dispute, Supplier will proceed diligently with performance of its obligations under these Terms and/or the applicable Order.
6. Title and Risk of Loss. At the time of sale, Supplier will convey to Purchaser good and marketable title to the Products, free of all liens, claims and encumbrances. Unless Purchase has expressly agreed otherwise in writing, risk of loss of the Products shall not pass until the Products are delivered to Purchaser at the location specified by Purchaser under the applicable Order. Supplier shall be responsible for and bear the expense of preparing and filing claims against carriers for loss or damage to the Products in transit.
7. Price and Payment.
7.1 Prices or billing amounts shall not exceed the prices agreed to between the parties, without the prior written consent of Purchaser. The prices include packing, crating, and transportation F.O.B. destination, unless Purchaser agrees otherwise. Supplier agrees that any price reduction applicable to the ordered Products subsequent to the Order date but prior to delivery will be applicable to the Order.
7.2 Supplier shall mail the invoice for the Products to Purchaser at the address specified by Purchaser. Unless otherwise agreed to in writing by Purchaser, payment shall be net thirty (30) days from the later of the receipt of the ordered Products or receipt of invoice. Any cash discount period will date from Purchaser’s receipt of the ordered Products, or from the receipt of invoice, whichever is later. Purchaser will not be responsible for any charge not agreed to under the Order.
7.3 No payment made under any Order(s) shall be conclusive evidence of the performance of these Terms and/or any Order(s), either in whole or in part, and no payment shall be construed to be an acceptance of defective Products. Supplier is to insure its own risk, said risk to be considered as the unpaid balance due at any time.
7.4 Supplier acknowledges that monies owed under any Order(s) are subject to offsets by Purchaser resulting from Supplier’s breach(es) of these Terms and/or any Order(s), Supplier’s breaches of other agreements between Supplier and Purchaser and/or its affiliates, and/or claims or amounts due to Purchaser and/or its affiliates, regardless of whether arising out of any Order(s), these Terms or otherwise. Supplier further acknowledges that should Purchaser have reason to terminate any Order(s) as a result of Supplier’s failure to comply with the terms and conditions of the Order(s) and/or these Terms then Purchaser and/or its affiliates shall have the right, in their sole discretion, to terminate any other agreements between Supplier and Purchaser and/or its affiliates.
7.5 In the event Supplier breaches these Terms and/or any Order(s), Purchaser shall have the right to stop all payments to Supplier until such time as Purchaser can accurately ascertain its damages resulting from the breach at which time Purchaser is authorized to deduct the damages and/or any Costs from any monies owed Supplier.
7.6 Supplier shall not delay the delivery of Products by reason of Purchaser’s failure to make any payments if the failure is a result of a dispute as to the amount of the payment or whether payment is due.
8. Supplier Conduct.
8.1 Supplier shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with performance of its obligations under these Terms and all Orders. While at a Purchaser facility, Supplier’s employees and contractors of any tier will conduct themselves in a business-like and professional manner and will comply with Purchaser’s reasonable requests, rules, and regulations regarding personal conduct, including all safety and security rules and regulations. Supplier, its employees and contractors shall comply with all applicable federal, state and local laws, statutes,
regulations, ordinances, rules, codes and/or orders applicable to the performance of Supplier’s obligations under this Agreement.
8.2 Supplier represents and warrants that it: (a) will perform its obligations and deal with Purchaser in good faith and with fair dealing; (b) will conduct its business in a manner which reflects favorably on Purchaser; (c) will not engage in any deceptive, misleading, illegal or unethical business practices; (d) has not and will not, directly or indirectly, request, induce, solicit and/or accept any bribe, kickback, illegal payment and/or excessive gifts or favors to or from Purchaser or any Purchaser employee, and/or any third party acting on Purchaser’s behalf; and/or (e) has not engaged in and will not engage in any anticompetitive behavior, price fixing and/or other unlawful restraints of trade.
9. Termination.
9.1 Purchaser will have the right to terminate any Order(s), with or without cause, effective upon notice to Supplier. A termination “for cause” includes, but is not limited to, circumstances where: (a) Supplier fails to comply with these Terms and/or any Order(s); (b) Supplier repudiates any of these Terms and/or any Order(s); (c) Purchaser is insecure and requests assurances of Supplier’s ability or willingness to perform and Supplier fails to provide written assurances satisfactory to Purchaser within the time requested by Purchaser; (d) in the event of any proceedings by or against Supplier in bankruptcy, insolvency of Supplier, any proceedings for appointment of a receiver or trustee or an assignment for the benefit of creditors or any other similar event; (e) Supplier refuses or neglects to supply a sufficient quantity of Products of proper quality; (f) Supplier fails to make prompt payment to its suppliers, laborers, materialmen and/or subcontractors for materials or labor; and/or (g) Supplier violates any laws, statutes, regulations, ordinances, rules, codes and/or orders of any public authority having jurisdiction.
9.2 Purchaser’s total liability to Supplier upon termination of any Order(s) without cause shall be limited to payment for completed Products delivered and accepted by Purchaser. However, in the event that Purchaser terminates any Order(s) for cause, Purchaser may, at its option, immediately provide any required labor and Products and Supplier shall reimburse and pay Purchaser for all Costs incurred or paid by Purchaser resulting therefrom, and/or Purchaser may deduct all such Costs from any money then due or thereafter to become due to Supplier under any Order(s).
9.3 All provisions of these Terms which by their nature should survive termination of any Order(s) shall so survive termination, including, without limitation, those provisions related to confidentiality, indemnification and limitations of liability.
10. Warranties.
10.1 Supplier warrants that all Products furnished by Supplier shall be new, free from defects and free of all liens, security interests, claims, or encumbrances.
10.2 Supplier warrants that, for a period of one (1) year from delivery of the Products, the Products shall operate in conformance with its applicable specifications. If during the applicable warranty period, any Products do not comply with the warranties set forth in this Section, then Supplier shall promptly repair or replace such Products, at Supplier’s sole cost and expense for all associated materials and labor. In the event Supplier fails or refuses to timely fulfill any of its warranty obligations described in this Section, Purchaser may repair or replace the applicable Products and Supplier shall reimburse and pay Purchaser for all Costs incurred or paid by Purchaser resulting therefrom.
11. Notice of Adverse Actions. To the extent permissible under applicable law or agreement, Supplier shall notify Purchaser promptly of: (a) any litigation and/or arbitration brought against Supplier related to Products supplied by Supplier under any Order(s); (b) any actions taken or investigations initiated by any government agency in connection with the Products supplied by Supplier under any Order(s); (c) any legal actions initiated against Supplier by governmental agencies or individuals regarding fraud, abuse, false claims, or kickbacks; (d) any voluntary or involuntary recalls of any Products supplied by Supplier under any Order(s); and/or (e) any proceedings by or against Supplier in bankruptcy, insolvency of Supplier, any proceedings for appointment of a receiver or trustee or an assignment for the benefit of creditors or any other similar event. Upon Purchaser’s request, and to the extent permissible under applicable law or agreement, Supplier shall provide to Purchaser all known details of the nature, circumstances, and disposition of any of the foregoing.
12. Indemnification. To the full extent permitted by law, Supplier shall, at its sole expense, defend, indemnify and hold harmless Purchaser and its agents and employees against all actions, liability, claims, judgments, suits, expenses, penalties, citations, fees (including reasonable attorneys’ fees) and/or demands for damages, of whatsoever kind, character or description, arising out of, resulting from, or relating to the Products and/or Supplier’s performance of its obligations under these Terms (“Claims”), including, without limitation, Claims related to: (a) the manufacture, operation, use, sale, design or transfer of any Products supplied to Purchaser by Supplier; (b) defects in the Products supplied to Purchaser by Supplier; (c) any Claim of patent, copyright, trademark or other intellectual property infringement; and/or (d) Supplier’s negligence, intentional misconduct and/or breach of these Terms and/or of any Order(s).
13. Insurance. Supplier will at all times maintain, at its own expense, adequate insurance to cover its activities, Products and/or obligations under these Terms and all Order(s), including, without limitation, commercial general liability insurance (including product liability coverage and blanket contractual liability coverage), workers’ compensation insurance in accordance with any applicable statutory requirements, employer’s liability, comprehensive automobile liability insurance, and “all risks” property insurance on a full replacement cost basis, with no co-insurance requirement. Upon request, Supplier shall provide to Purchaser certificates of insurance, or other satisfactory proof, for all the above referenced insurance coverages.
14. Confidentiality. Supplier acknowledges that in the course of performing its obligations under these Terms and all Order(s), Supplier may be exposed to certain confidential and/or proprietary information held or disclosed by Purchaser regarding Purchaser’s business, processes, or products, including but not limited to any information, technical data or know-how which relates to the business, services, products, or customers of Purchaser or a third party, including without limitation, any compensation information, research, products, services, developments, inventions, processes, techniques, strategies, programs (both software and firmware) designs, distribution, engineering, marketing, financial, merchandising and/or sales information, individual customer profiles, customer lists, and/or aggregated customer data which is disclosed by Purchaser or on its behalf, before or after the date of these Terms, to Supplier or its employees or agents, directly or indirectly, in writing, orally, via electronic means or by drawings or inspection (collectively “Confidential Information”). Supplier agrees not to use the Confidential Information for its own use or for any purpose except as necessary to carry out these Terms and all Order(s). Supplier further agrees that it will not disclose Confidential Information to any person other than Supplier’s employees who are directly involved in performing Supplier’s obligations under these Terms and all Order(s). Supplier agrees it shall take reasonable measures to preserve and protect the secrecy of, and avoid improper disclosure or misuses of the Confidential Information. Supplier agrees to promptly advise Purchaser in writing of any misappropriation or misuse of such Confidential Information which may come to its attention. Supplier acknowledges the misuse of Confidential Information will result in irreparable and continuing damage to Purchaser for which there shall be no adequate remedy at law. In the event of such misuse, Purchaser shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper. The provisions of this Section shall survive termination of any Order(s) for so long as Confidential Information is maintained by Purchaser as confidential.
15. Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, flood, war, embargo, riot, or the intervention of any government authority. Should Supplier be delayed in performing its obligations by the act, neglect, or default of Purchaser or by damage caused by fire or other casualty for which Supplier is not responsible, and in no way caused by, or resulting from, default or collusion on the part of Supplier, then the time herein fixed for the performance of the applicable obligations shall be extended the number of days that said Supplier has been thus delayed, but no allowance or extension shall be made unless a claim therefore is presented in writing to Purchaser within forty-eight (48) hours for the onset of such delay.
16. Assignment. Supplier shall not delegate any duties nor assign any rights or claims under these Terms and/or any Order(s) without the express prior written consent of Purchaser. Any assignment or delegation made without Purchaser’s consent shall be null and void. Purchaser will have the right to assign any of these Terms and/or any Order(s) without notice to or consent of Supplier.
17. Independent Supplier Relationship. The relationship between Purchaser and Supplier is that of independent contractor. Nothing in these Terms or any Order(s) shall be construed as creating a relationship between Purchaser and Supplier of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
18. General.
18.1 Waiver by Purchaser of any provision of these Terms and/or any Order(s) will not affect Purchaser’s right to require strict performance thereafter. A waiver by Purchaser of any breach or violation by Supplier of any provision thereof shall not constitute a waiver of any further or additional breach of such provision or of any other provision.
18.2 These Terms and the rights and obligations of the parties relating to the Products will be governed by the laws of the State of Michigan without regard to principles of conflicts of laws. Supplier consents to exclusive jurisdiction of the courts of the state from which the applicable Order was issued by Purchaser.
18.3 All warranties provided by Supplier, and all of Purchaser’s rights and remedies set forth in these Terms, are cumulative and are in addition to all other warranties, rights and remedies provided to Purchaser by these Terms, all Order(s), any other document, or at law, in equity or otherwise, including all warranties, rights and remedies under the Uniform Commercial Code.
18.4 Subject to Purchaser’s rights under these Terms, Supplier’s exclusive remedy is limited to recovery of the price for the Products in the applicable Order under which the claim arose. Notwithstanding anything to the contrary, IN NO EVENT WILL PURCHASER BE LIABLE FOR ANY (A) INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF PURCHASER IS AWARE OF THEIR POSSIBILITY; (B) LOST PROFITS, LOST REVENUES, LOST BUSINESS EXPECTANCY AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR (C) DIRECT DAMAGES IN EXCESS OF THE PRICE PAID AND PAYABLE UNDER THE APPLICABLE ORDER WHICH THE CLAIMS AROSE. Any claim by Supplier arising out of these Terms and/or any Order(s) must be initiated within two (2) years of the date Supplier knew, or reasonably should have known, of the existence of such claim.
18.5 Supplier will deliver all reports and other documents and take all actions reasonably requested by Purchaser in connection with these Terms and/or any Order(s).
18.6 With the exception of Purchaser and Supplier and the parties expressly stated to be entitled to the benefits of the indemnification and/or warranty provisions, no person or entity will have the right to claim any rights by virtue of these Terms and/or any Order(s).
18.7 To the extent permitted by applicable law, Supplier hereby waives its right to claim any and all liens against any real property upon or in which Products supplied to Purchaser by Supplier are delivered, used and/or installed, including, but not limited to, any statutory mechanic’s lien.
18.8 If any provision of these Terms and/or any Order(s) is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of these Terms and all Order(s) shall remain in full force and effect.
18.9 If Purchaser takes any action to enforce any provision of these Terms and/or any Order(s) because of a default by Supplier, Supplier will pay Purchaser’s reasonable attorneys’ fees and costs to the extent that Purchaser prevails.
18.10 FOR THEIR MUTUAL BENEFIT, PURCHASER AND SUPPLIER WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THESE TERMS AND/OR ANY ORDER(S).