Standard Terms for Sale of Goods Or Services
Standard Terms For Purchases of Goods or Services
Conflict Minerals Policy Statement
Standard Terms for Sale of Goods Or Services
1. Formation of Contract. The terms set forth in this form are the sole terms for the sale of goods and services by Mico Industries, Inc. (“Seller”), unless otherwise specifically provided for by Seller in this document, and shall apply to the exclusion of any inconsistent or additional terms contained in Buyer’s order or acknowledgment or otherwise proposed by Buyer. Buyer’s acceptance of these terms shall be conclusively presumed by Buyer’s signature on this form, by Buyer’s submission of a purchase order in response to this document, or by Buyer’s acceptance of delivery of, or payment for, the goods and services. Any contract made for the sale of goods or services by Seller is expressly conditional on Buyer’s assent to the terms stated in this document. Seller objects to any additional or inconsistent terms proposed by Buyer.
2. Price. All price quotations are offered for prompt acceptance and are subject to change without notice as prices are based on the cost of raw materials at the time of delivery.
a. Exclusions. The quoted price does not include applicable taxes such as city, state or federal, sales, use, or excise taxes. Furthermore, the quoted price does not include any other products, services or work not specifically described in this document. All taxes and charges shall be Buyer’s responsibility and may be added to the invoice as a separate and additional charge to Buyer unless an acceptable exemption certificate is presented to Seller. Seller shall also have the right to separately bill Buyer, at any time, for any taxes and charges that are attributable to this sale that the Seller may be required to pay. Buyer shall reimburse Seller on demand for all such amounts.
b. Price Increases. The price quoted by Seller shall be subject to any increases in Seller’s cost of labor or materials occurring after the date of the quotation and before shipment, as well as any increases based on additional data received by Seller after the date of quotation, including without limitation data gathered following Seller’s receipt of production level part print and/or production level math data. The price shall also be subject to increases to accommodate shipment in any quantities other than Seller’s standard pack unit, in the event Buyer does not desire shipment at one time of all the goods covered by the quotation.
3. Invoicing. All invoices issued by Seller shall be payable according to the terms contained in Paragraph 4, below. Unless otherwise stated by Seller in writing, Seller shall issue invoices to Buyer as follows:
a. Tooling Invoice. Upon the date of Seller’s PPAP submission to Buyer, Seller shall issue to Buyer an invoice for all tooling costs quoted by Seller.
b. Piece Price Invoices. Seller shall issue to Buyer invoices when deliveries of goods are made to Buyer.
4. Payment Terms. Unless otherwise specified by Seller, payment in full on all invoices is due thirty (30) days after the date of the invoice. Invoices not paid within thirty (30) days shall have a service charge added to the amount due of one and one half percent (1 ½ %) per month. No cash discounts shall be allowed. Payments must be made in the manner set forth in the invoice. Buyer shall reimburse Seller for any and all expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any delinquent account or enforcing its rights with respect to Buyer.
5. Security Interest. Buyer hereby grants to Seller a continuing security interest in all goods furnished or to be furnished by Seller to Buyer, together with all tooling, parts, attachments, accessories, dies or appurtenances to such goods, all substitutions, improvements and replacements of such goods, all additions to such goods, and all proceeds of such goods and any of the foregoing. The continuing security interest described in this paragraph may be in the form of a purchase money security interest, a moldbuilder’s lien pursuant to the terms of the Michigan Moldbuilder’s Lien Act (the “Moldbuilder’s Lien Act”), or a special tool builder’s lien pursuant to the terms of the Michigan Special Tool Builder’s Lien Act (the “Special Tool Builder’s Lien Act”). The form of such security interest shall be determined by Seller in its sole discretion.
6. Perfection of Security Interest. Buyer hereby authorizes Seller to cause all financing statements or other instruments in respect of the security interest granted hereby, including without limitation all Uniform Commercial Code, Moldbuilder’s Lien Act, and Special Tool Builder’s Lien Act financing statements, to be filed and recorded or re-filed and re-recorded. Buyer agrees to execute, or otherwise authenticate, and hereby does authenticate, and deliver any statement, instrument or other document requested by Seller for such purpose. Buyer further agrees that it shall execute, or otherwise authenticate, and hereby does authenticate, and deliver to Seller upon Seller’s request such further instruments, assurances and other documents as Seller deems necessary or advisable for the confirmation of perfection of Seller’s rights hereunder. Buyer authorizes Seller to file any such instrument or other document, including without limitation, any Uniform Commercial Code, Moldbuilder’s Lien Act, and Special Tool Builder’s Lien Act financing statements, without Buyer’s signature and, if the signature of Buyer is required thereon, Buyer irrevocably appoints Seller as Buyer’s attorney-in-fact to execute and file any such statement or other instrument in the name and on behalf of Buyer.
7. Shipping and Risk of Loss. Unless otherwise indicated, all quoted prices are F.O.B., Seller’s plant, at which time title shall pass to Buyer. Regardless of the F.O.B. point, Buyer is solely responsible for all costs of shipping and insurance for the goods and shall bear 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. Buyer shall promptly inspect all goods received from Seller and promptly inform Seller of any defects before using the goods.
Shipping dates are estimates only, and based on mutually agreed upon ship dates that are required to be confirmed via written documentation. “Drop in” orders to support just-in-time requirements (via electronic data interchange or otherwise) will be managed on a case-by-case basis where mutually agreed upon ship dates will be developed.
Seller shall not be liable for premium freight requirements in the case of “drop in” orders and/or where mutually agreed upon ship dates have not been developed. Seller may ship all the goods at one time or in portions from time to time. Seller shall have the right to determine the method of shipment and routing of the goods, unless otherwise specified by Buyer. Buyer shall pay such delivery charges as Seller may establish from time to time, which will be included on Seller’s invoice. Delivery in a manner directed by Buyer shall be at Buyer’s sole cost. Seller shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever.
8. Reasonable Efforts. Seller will use commercially reasonable efforts to supply Buyer with goods offered by Seller and ordered by Buyer. If Buyer causes or requests delay in the shipment of products or the provision of services, Buyer shall pay Seller for all expenses and losses of Seller resulting therefrom. In times of short supply, Seller is entitled to allocate products among its customers as it determines in its sole discretion to be appropriate under the circumstances. Under no circumstances will Seller be liable for any failure to deliver goods ordered by Buyer that is caused by the lack of availability of necessary raw materials.
9. Limited Warranty and Disclaimer. Seller warrants to the original Buyer that the goods manufactured by Seller shall be free under normal use from defects in material or workmanship at the time of delivery to Buyer. This warranty does not extend to future performance, nor does it cover any assemblies or parts not manufactured by Seller. The determination of whether a defect exists shall be made solely by Seller. Buyer shall not return any goods to Seller until Seller has been provided a reasonable opportunity to inspect and sample the goods at the Buyer’s premises to determine whether a defect exists and whether the goods should be repaired or replaced. Any shipping cost for returning defective goods shall be paid by Seller. Any goods returned to Seller shall be subject to a reasonable charge to cover Seller’s cost of handling, restocking, and reconditioning the goods to return them to saleable condition. This warranty shall not cover any article that has been misused, neglected, damaged or altered after leaving Seller’s possession. Seller’s obligation under its warranty is limited to Seller’s repair or replacement, at Seller’s sole discretion, of those goods sold by Seller to Buyer that do not satisfy this warranty, provided that written notice of the defect is given to Seller by Buyer within thirty (30) days after the defect is discovered, but not later than six (6) months after delivery of the goods to Buyer. If Buyer shall have approved a sample or drawings of, or specifications for, the goods, then the goods shall not be defective to the extent that they conform to the sample, drawings, or specifications.
DISCLAIMER
NOTWITHSTANDING ANY OTHER PROVISION IN THIS DOCUMENT, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALSO DISCLAIMS AND EXCLUDES ALL LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR ANY OTHER SPECIAL DAMAGES OF BUYER, INCLUDING LOST PROFITS, FOR BREACH OF WARRANTY OR OF CONTRACT OR OTHERWISE. THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER AGAINST SELLER.
10. Buyer’s Design Responsibility. This section shall apply to the extent that Seller’s goods are produced according to Buyer’s specifications. Buyer acknowledges that Buyer is not relying on Seller in any way for design or engineering with respect to the goods or the adequacy of the specifications provided by Buyer. Seller has no responsibility for design, engineering or other advice regarding any product specifications provided by Buyer. Buyer’s responsibility shall include, but not be limited to, responsibility for determining how goods made by Seller will perform when integrated into an assembly or subassembly with goods not made by Seller. Buyer shall defend, indemnify and hold Seller harmless against all product liability, product recall, and other claims, liabilities and expenses, including but not limited to actual attorneys’ fees, incurred by Seller arising out of any claimed design or engineering defect relating to specifications provided by Buyer to Seller.
11. Changes. 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.
12. Quantities. Seller may overrun or underrun the agreed-upon quantities by up to ten percent (10%), and Buyer will pay Seller at the unit price for quantities that Seller delivers within these limits. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods (subject to any adjustment under the preceding sentence) must be submitted to Seller in writing within thirty (30) days after Buyer receives the goods. If Buyer fails to so notify Seller, it will be conclusively presumed that the proper quantity was delivered by Seller.
13. License Regarding Buyer’s Specifications. Buyer grants to Seller an irrevocable nonexclusive license to produce parts 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 parts 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.
14. Indemnification of Seller (General). Buyer shall indemnify, defend, and hold Seller, its agents and employees harmless from all claims, liabilities, and expenses, including but not limited to actual attorney fees, sustained by Seller or its agents or employees that are caused by any action of Buyer relating to the goods or services sold by Seller to Buyer.
15. Indemnification of Seller (Patents). Buyer shall indemnify, defend, and hold Seller, its agents and employees harmless from all claims, liabilities, and expenses, including but not limited to actual attorney fees, arising out of any claim of infringement of a patent, copyright, trademark, trade name, or other proprietary right, or claim of unfair trade or of unfair competition in connection with the manufacture, sale, or use of the goods sold to Buyer, except to the extent that any claim, liability, or expense arises solely from specifications developed by Seller.
16. Cure. If a shipment of goods is rejected by Buyer, Seller shall have the right to cure in any reasonable manner the error, defect, shortage or other nonconformity giving rise to the rejection.
17. Tools. All tools, jigs, dies, fixtures, patterns and equipment furnished to Seller by Buyer to perform the contract, or for which Seller has been reimbursed by Buyer, shall remain the property of Buyer (“Buyer’s Tools”). Seller shall keep Buyer’s Tools in reasonable repair. Seller may charge a storage fee for Buyer’s Tools left at Seller’s place of business for more than 90 days after Seller has completed using them for the manufacturing and delivery of goods. All shipping charges for Buyer’s Tools shall be Buyer’s responsibility. Risk of loss during shipment of Buyer’s Tools shall be on Buyer. All other tools, jigs, dies, fixtures, patterns and equipment used in connection with the goods shall belong to Seller.
Seller and Buyer agree that Seller shall 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 shall have the right to retain possession of all those items until full payment for the goods has been made, without affecting any other rights or remedies available to Seller. Should Buyer desire to move tooling to another production source a tool design charge will be quoted by Seller. If a period of two (2) years shall have elapsed since Seller received orders from Buyer requiring use of Buyer’s Tools, Seller may dispose of such tools and dies without accounting to Buyer for the proceeds therefrom.
18. Force Majeure. Any delay or failure of Seller to perform its obligations will be excused if and to the extent that it is caused by an event or occurrence beyond Seller’s reasonable control, such as: acts of God; governmental actions; embargoes; fires; explosions; natural disasters; riots; wars; sabotage; terrorist acts, utility interruptions, failures or delays by Seller’s vendors (including without limitation the lack of availability of necessary raw materials), or court injunction or order.
19. Cancellation or Change. Except as otherwise agreed by Seller in writing, a sale of goods or services under this document is not subject to cancellation or change. The following terms shall apply to any cancellation approved by Seller in writing except as otherwise agreed in writing:
a. Any items completed at the time Seller receives a written cancellation notice from Buyer will be shipped and invoiced at the contract price.
b. Work on the balance of the order will be stopped as promptly as reasonably possible and Seller shall be reimbursed for all actual expenditures, commitments, liabilities and costs, determined in accordance with generally accepted accounting practice, made or incurred with respect to those items not completed, plus a profit of ten percent (10%) on those expenses, less any net recovery to Seller on disposition of returned goods to others within a period of forty-five (45) days after the cancellation. In addition, Seller has the right to recover from Buyer all damages for cancellation, including but not limited to incidental, consequential and indirect damages and lost profits.
20. Waiver. No right or remedy of Seller shall be deemed to have been waived or renounced, in whole or in part, unless that waiver or renunciation is supported by consideration and is in writing signed by Seller.
21. Confidentiality of Seller’s Information. Any information disclosed by Seller to Buyer is confidential, and Buyer agrees not to use or disclose any of that information without Seller’s prior written consent.
22. Buyer’s Default. Buyer is in default if any of the following occurs:
a. Buyer breaches, repudiates, or threatens to breach any term in the contract evidenced by this document or in any other agreement between Buyer and Seller, including but not limited to a failure to pay all sums when due;
b. Insolvency of Buyer or filing a voluntary or involuntary petition in bankruptcy with respect to Buyer;
c. Appointment of a receiver or trustee for Buyer;
d. Buyer’s credit becomes impaired; or
e. Execution of an assignment for the benefit of creditors of Buyer.
23. Seller’s Remedies. In the event of Buyer’s default, Seller may exercise any remedies available under applicable law, including but not limited to the following remedies:
a. Seller may require payment in advance;
b. Seller may ship goods only via C.O.D.;
c. Seller may suspend performance or cancel all or any part of the balance of any contract with the Buyer;
d. Seller may reduce any unpaid debt of Buyer by enforcing its security interest, created hereby, in all goods (and proceeds therefrom) furnished by Seller to Buyer;
e. Seller may take any other steps necessary or desirable to secure Seller fully with respect to Buyer’s payment for goods and services furnished or to be furnished by Seller to Buyer; and
f. Buyer shall reimburse Seller for all damages suffered due to Buyer’s breach, including but not limited to incidental, consequential, and other damages, as well as lost profits, reasonable attorney fees, and court costs. The remedies in this document shall be cumulative and in addition to any other remedies allowed to Seller under applicable law. No waiver by Seller of any breach or remedy shall be a waiver of any other breach or remedy.
24. Maintenance, Spare Parts. Seller has no obligation to (a) maintain any inventory of spare or replacement parts with respect to any goods or services provided to Buyer, or (b) provide ongoing maintenance or service except as otherwise specifically provided in the description of Seller’s warranty described herein.
25. Insurance. Seller shall have no obligation to maintain insurance in excess of Seller’s usual business needs as determined by Seller in its sole discretion. Buyer shall insure (a) all goods during shipment and afterward, and (b) all of Buyer’s Tools provided to Seller, against loss or damage.
26. Compliance With Laws. Unless otherwise expressly agreed in writing by Seller, Seller shall not be liable to Buyer for, and Buyer agrees to indemnify, defend and hold Seller harmless from, any and all liability arising or alleged to arise out of any failure of the goods sold by Seller to conform to any federal, state or local law, order, regulation or standard.
27. Independent Contractor. Seller shall at all times be deemed to be an independent contractor. Nothing herein shall be deemed to make Seller or its employees or agents an employee, partner or joint venturer of Buyer.
28. Time For Bringing Action. Any action by Buyer against Seller for breach of Seller’s obligations hereunder or for any other claim arising out of or relating to the goods or their design, manufacture, sale or delivery must be brought within one (1) year after the cause of action accrues.
29. No Audit Rights. Unless Seller shall provide its prior written consent, which may be withheld by Seller in its sole discretion, Buyer shall not, under any circumstances, have the right to conduct any audit or review of Seller’s corporate books, records or financial information.
30. General.
a. Compliance with Laws. Buyer warrants that it is and will remain in compliance with all federal, state and local laws, regulations and ordinances relating to Buyer’s ability to perform its obligations under this purchase order.
b. Setoff. Seller has the right to deductions or setoffs of any sums due to Seller from Buyer (whether or not arising from this agreement) against any sums due to Buyer from Seller (whether or not arising from this agreement).
c. Assignment. Buyer shall not assign its rights or delegate its duties under this document without Seller’s prior written consent. Seller may assign to any third party its rights and obligations with respect to Buyer.
d. Entire Agreement and Amendment. This document contains all of the terms of the agreement between Seller and Buyer with regard to its subject matter and supersedes all prior oral or written representations, agreements, and other communications between Seller and Buyer. The contract evidenced by this document may be amended only by a writing signed by Buyer and an officer of Seller.
e. Severability. All terms shall be enforced only to the maximum extent permitted by law. If any term is invalid or unenforceable, all other terms shall remain in effect.
f. State Law. The sale of goods and services in accordance with this document shall be governed in all respects by the laws of the State of Michigan.
g. Jurisdiction and Venue. Seller and Buyer agree that any action arising out of the sale of goods or services in accordance with this document will be brought, heard and decided in Kent County, Michigan. Buyer submits to personal jurisdiction in Michigan.
Standard Terms For Purchases of Goods or Services
1. Formation of Contract. The terms set forth in these Standard Terms For Purchases of Goods or Services and in the corresponding Mico Industries, Inc. (“Buyer”) Purchase Order (the Purchase Order and these Standard Terms For Purchases of Goods or Services are referred to as the “Order”) are the sole terms for the purchase of goods and services by Buyer, and shall apply to the exclusion of any additional or different terms contained in Seller’s quotation, proposal, or acknowledgment, or otherwise proposed by Seller in any manner. Any acceptance by Seller is limited to acceptance of these express terms. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of these terms is hereby objected to and rejected. Any such proposal shall not operate as a rejection of the Order, unless the variances are in the terms of the description, quantity, price, or delivery schedule of the goods or services, but shall be deemed a material alteration. Accordingly, the Order shall be deemed accepted by Seller without such additional or different terms. If the Order shall be deemed an acceptance of a prior offer by Seller, the acceptance is expressly made conditional on assent to the terms of the Order and such acceptance is limited to those express terms. Additional or different terms in Seller’s offer or any attempt by Seller to vary in any degree any of the Order terms shall be deemed material and are objected to and rejected. Seller’s written acknowledgment of, commencement of work under, shipment of any goods or component parts of goods related to, or receipt or procurement of any Tools (as defined below) related to the Order, whichever occurs first, shall be deemed as acceptance of the terms set forth in these Standard Terms For Purchases of Goods or Services and in the corresponding Buyer purchase order (again, the “Order”).
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.
3. Invoicing, Payment, and Price. All invoices must show the Order number. Unless otherwise stated in the Order, the terms of payment for all invoices will be Net 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: (a) the extent the price is adjusted downward as provided by the terms of any productivity savings requirements; (b) price adjustments, if any, agreed to by Buyer under the Order; or (c) 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. 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.
5. Shipping, Packaging, and Logistics. Seller shall deliver to the specific dock identified in the Order. Seller must include a packing list with all shipments. Delivery shall be made in one shipment, unless otherwise specified by Buyer to Seller. Seller shall adhere to shipping directions specified on Buyer’s releases. Seller acknowledges that time is of the essence and Seller shall notify Buyer immediately if Seller believes it cannot meet Buyer’s delivery requirements under the releases. Buyer may from time to time change delivery schedules under the releases. Buyer shall not be liable for payment for goods delivered in excess of the quantities under the releases or after the times specified in Buyer’s delivery instructions to Seller. Unless otherwise stated in the Order, all shipments shall be F.O.B. Buyer’s plant and shall be made at Seller’s expense and risk of loss. Buyer shall have the right to instruct Seller on the method of shipment and packaging. No charges will be allowed for boxing, crating, packing, or other materials or preparation for shipment under the Order. In performing under the Order, Seller shall comply in all respects with all terms of the Buyer Supplier Manual available for review on Seller’s website, at www.micoindustries.com, and any and all other requirements, including, but not limited to, any engineering requirements or labeling or barcode requirements that are included in or attached to the Order or the applicable Request for Quotation (“RFQ”) or the technical specifications attached to the Order, any of which requirements may be amended by Buyer from time to time.
6. Quantity. If no quantity is specifically stated in the Order, or if the Order contains the term “Blanket,” Buyer agrees, for the time period that each Order is in effect and has not been terminated, to purchase from Seller 100% of the goods or services covered by the Order that Buyer requires for the Life of the Program.
7. 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 or services, the required delivery date, the delivery point, and any other pertinent details or instructions as Buyer may deem appropriate. Seller is authorized both to produce and deliver goods or services marked as “Fabrication to” and to purchase raw material for the deliveries marked as “Material to” on the applicable Release. Further, Buyer is not bound to reimburse the Seller for material purchases in excess of the authorized quantity marked as “Material To” in the applicable Release for any reason. The quantities and delivery dates set forth in a Release that does not contain any such mark, shall constitute a non-binding supply forecast only.
If a Release does not include any authorized approval for fabricating parts or for raw material procurements, the Release shall be binding for Buyer and the Seller to the extent as follows:
With regard to delivery dates and related quantities set within the first 4 weeks from the date of issue, the Release shall be considered as a definite order. The quantities and required delivery dates set within an additional period of 4 weeks (calendar weeks 5-8 subsequent to the issuance date of the Release) shall constitute an authorized approval with regard to raw material procurements. For any period beyond the time periods set forth above, the Release shall constitute a non-binding supply forecast only.
As time is of the essence, any and all timing and processes specified by Buyer in relation to deliveries are legally binding. In the event that Seller fails to deliver fully conforming goods or services by the required delivery date in any Release, Buyer, at its option and in addition to any of its other rights or remedies contained in the Order, may: (a) purchase the goods or services from another Seller, and Seller shall be responsible for any resulting increased costs to Buyer; (b) require Seller to expedite delivery of goods or services at Seller’s sole expense; (c) extend the required delivery date; or (d) cancel the applicable Release.
8. Changes. Any agreed-upon changes to the design (including drawings and specifications), processing, methods of packing and shipping, and the date or place of delivery of the goods or services covered by the Order, shall not affect the time of performance or cost of the goods or services, unless Seller notifies Buyer in writing within ten (10) days of receipt by Seller of notice of any change. Without Buyer’s prior written approval, Seller shall not change: (a) any third-party supplier of services, raw materials, or goods used by Seller in connection with its performance under the Order; or (b) the nature, type, or quality of any services, raw materials, or goods used by Seller or its suppliers in connection with the Order.
9. Inspection of Goods; Samples. All goods and services described in this Order shall be subject to Buyer’s inspection and approval. Buyer reserves the right to reject any nonconforming goods or services. Acceptance of any goods or services shall not relieve Seller from any of its other obligations under the Order. Seller shall provide samples of goods or services in the amounts and at the times requested by Buyer.
10. Seller’s Quality Control; Inspection of Seller. Seller agrees to participate in all Buyer Supplier and Development Program(s) and to comply with all quality requirements and procedures specified by Buyer, as revised from time to time. In addition, Seller agrees to establish and maintain quality control procedures to satisfy the requirements of Buyer and Buyer’s Customers, including, but not limited to, all applicable automotive manufacturer and other automotive industry standards. Buyer has the right to periodically inspect Seller’s facility, goods, materials, and property covered by the Order to determine Seller’s compliance with applicable quality control standards, upon reasonable advance notice to Seller. Buyer’s inspection, whether during manufacture, prior to delivery, or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished goods or services. Further, Seller shall continuously monitor the goods and services and promptly report to Buyer any goods and services that do not comply with specifications, drawings, and all other specifications applicable to the Order. The warranties required of Seller in the Order shall apply to all goods and services provided by Seller for Buyer. Seller shall promptly notify Buyer of any defects or deficiencies in design (including if Seller has reason to believe that any specification provided by Buyer are not adequate to provide the goods and services that will function throughout the greater of the expected life of the goods or services or the applicable warranty period), manufacture, or in use-performance of the goods relating to the Order.
11. Customer Requirements. Seller agrees to comply with the applicable terms and conditions of any agreements (“Customer Agreements”) received by Buyer from a third party (each a “Customer”), in which Buyer agrees to supply to Customer, or incorporate into goods supplied to Customer, goods purchased by Buyer from Seller. Buyer may provide Seller with information regarding the Customer Agreements, but Seller shall be responsible for ascertaining any terms and conditions contained in the Customer Agreements that may affect Seller’s obligations under the Order. Seller will do everything within its control to enable Buyer to meet the terms and conditions of the Customer Agreements. If this section conflicts with any other paragraph in the Order, Buyer has the right to elect to have the provisions of this section prevail.
12. Competitiveness. It is agreed and understood between Buyer and Seller that maintaining the competitiveness of the goods is of huge importance for the delivery relationship. “Competitiveness of the Goods” is ensured if the goods correspond to comparable goods of competitors in terms of prices and technology. If a comparable product is offered to Buyer at competitive 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. Seller will promptly prepare a catalogue of actions which Seller will take in order to restore competitiveness of the goods, and will furnish Buyer with such catalogue, together with a corrected offer. By means of such 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.
13. Seller’s Warranties. Seller expressly warrants and guarantees as follows to Buyer, Buyer’s successors, assigns, and Customers, and the users of Buyer’s goods:
a. All goods will in manufacture and design, during the Warranty Period (as defined below), conform to the specifications, standards, drawings, instructions, advertisements, and statements on containers or labels, descriptions, and samples;
b. All goods will in manufacture and design, during the Warranty Period, be free from defects in workmanship and materials and shall be new and of the highest quality;
c. Buyer shall receive title to all goods that is free and clear of any liens, encumbrances, and any actual or claimed patent, copyright, or trademark infringement;
d. All goods will, during the Warranty Period, be merchantable, safe, and fit for Buyer’s intended purposes, which purposes have been communicated to Seller;
e. All goods will, during the Warranty Period, be adequately contained, packaged, marked, and labeled;
f. All goods will, during the Warranty Period, be manufactured in compliance with all applicable federal, state, and local laws, regulations, or orders, and with all applicable agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval or certification of goods, including, by way of illustration and not by way of limitation, the Occupational Health and Safety Act, the Fair Labor Standards Act, and any law or order pertaining to discrimination, including any regulations in force in countries where the goods or Buyer’s Customer’s vehicles equipped with the goods are to be sold;
g. All services performed by Seller shall be performed in a competent, workmanlike manner and in accordance with industry standards;
h. Seller will indemnify and hold Buyer harmless for the cost of recall campaigns and all other corrective service actions that, in Buyer’s reasonable judgment, are required to rectify non-conformities in goods that are the result of a breach of the foregoing warranties, whether mandated by any governmental entity, by any Customer of Buyer, or by Buyer;
i. For purposes of this Agreement, “Warranty Period” shall mean the time period extending for twelve (12) months beyond the expiration of any warranty or indemnification provided by or required to be provided by Buyer to Buyer’s Customers or any other party related to the goods or services or for components that may be impacted by the goods or services related to the Order. Seller may contact Buyer’s representative for information regarding those countries in which vehicles incorporating goods purchased from Seller will be sold. Notwithstanding the foregoing, Seller agrees to waive and extend the expiration of the Warranty Period in the event, in Buyer’s opinion, that there are failures or defects discovered after the Warranty Period of a significant nature or in a significant portion of the goods or services, or a defect is discovered that constitutes a threat of damage to property or to the health and safety of any person; and
j. Seller represents and warrants that the prices for the goods or services under the Order will be no less favorable than those that Seller presently, or in the future, offers to any other customer for the same or similar goods. If Seller offers a lower price for the same or similar goods or services to any other customer, then Seller will immediately offer Buyer the same price for the goods or services on the same terms and conditions as was offered to the other customer.
These warranties shall be in addition to all other warranties, express, implied, or statutory. These warranties shall survive inspection, test, delivery, acceptance, use, and payment by Buyer and shall inure to the benefit of Buyer, its successors, assigns, Customers, and the users of Buyer’s products. These warranties may not be limited or disclaimed by Seller. Buyer’s approval of Seller’s design, material, process, drawing, specifications, or the like shall not be construed to relieve Seller of the warranties set forth herein and shall not be a waiver by Buyer of any Buyer or Customer design, material, process, drawing, specifications, or the like request or any such requirements for the remaining goods to be delivered hereunder, unless so stated by Buyer in writing.
14. Defense, Indemnity, and Insurance. Seller acknowledges and agrees as follows:
a. 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 goods or services;
b. 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; and
c. Seller shall maintain insurance coverage in amounts not less than the following:
i. Workers’ Compensation Statutory Limits for the state or states in which this Order is to be performed (or evidence of authority to self-insure) and Employers Liability insurance for not less than $1 million;
ii. A Comprehensive General Liability policy, including extended products liability insurance, which covers third-party liability claims arising out of the supply of defective goods or services or completed operations.
This policy must comprise coverage for claims due to bodily injury, property damage, and financial losses, such as losses arising out of the non-existence of warranted characteristics, mixing and conjunction of products, further processing, disassembling, assembling costs, and testing and sorting costs.
In addition, the Seller has to provide Buyer with written evidence of an existing automotive products recall insurance policy compensating, among other expenses, for communication, transportation of motor vehicles, disassembling and assembling, warehousing, testing and sorting of goods, and the disposal of faulty goods in the event of a recall initiated by an OEM or applicable authorities.
The limits of indemnity for the aforementioned insurance policy or policies must be at least twelve million USD (USD $12,000,000) per occurrence and per insurance period. The policy or policies have to be maintained during the complete course of business under the Order and for the Warranty Period and shall be confirmed by the Seller’s insurance carrier(s) on request of Buyer;
iii. Automobile Liability insurance covering all owned, non-owned, and hired vehicles with limits of not less than $3 million combined single limit per occurrence; and
iv. Such other liability insurance as may be required by the specific nature of the Order.
Seller shall furnish certificates of the above-required insurance setting forth the amounts of coverage, policy numbers, and dates of expiration for the above-required insurance maintained or procured by or for Seller within ten (10) days of Buyer’s written request. The above-required insurance policies of Seller shall be primary to any self-insurance or insurance policies carried by Buyer. In addition, Seller shall name Buyer as additional insured on the Comprehensive General Liability, Automobile, and Umbrella policy(ies). Such certificates shall provide that Buyer will receive thirty (30) days prior written notification from the insurer of any termination or reduction in the amount or scope of coverages. Seller’s purchase of the above-required insurance coverage and the furnishing of certificates of the above-required insurance shall not release Seller of its obligations or liability under this Order. In the event of Seller’s breach of this provision, Buyer shall have the right to cancel the undelivered portion of any goods or services under the Order and shall not be required to make further payments except for conforming goods or services delivered prior to cancellation. If Seller does not provide Buyer with written certificates of insurance issued by its insurance carrier confirming existence of the above-required insurance policies, Buyer is entitled to purchase the above-required insurance coverage on behalf of Seller. Costs incurred thereby will be charged by Buyer to Seller and may be deducted from the outstanding accounts receivable of Seller arising out of any contractual relationship between Buyer and Seller.
15. Infringement and Proprietary Rights. Seller acknowledges and agrees as follows:
a. 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 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 in Buyer’s 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 products 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;
b. 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;
c. 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
d. 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 matter that is the 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.
16. Directed Buy Status. In the event Buyer’s Customer requires Buyer to source production of certain goods or services to Seller (each, a “Directed Buy”), Seller acknowledges that, notwithstanding Seller’s negotiations with Buyer’s Customer, these terms shall apply to all production of such Directed Buy goods or services as between Buyer and Seller. Further, Seller acknowledges and agrees that it shall indemnify and hold Buyer harmless from any commercial issue that arises out of the supply of Directed Buy goods or services, which shall be resolved between Seller and Buyer’s Customer directly. Seller shall not be entitled to cease or withhold the timely supply of any goods or services under any circumstances, including, but not limited to, any unresolved commercial issue, including an unresolved commercial issue between Seller and Buyer’s Customer on a Directed Buy good or service.
17. Tools. The right, title, and interest to all supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, designs, drawings, specifications, spare parts, trial parts, ancillary products, items owned by Buyer, and other items (“Tools”) for use in manufacturing goods under the Order shall be and remain the property of Buyer. Seller shall bear the costs of maintaining or repairing and the risk of loss of and damage to the Tools. Seller will: (a) properly house and maintain the Tools on Seller’s premises; (b) not use the Tools for any purpose other than for performance under the Order; (c) prominently mark the Tools as property of Buyer; (d) refrain from commingling the Tools with property of Seller or with that of a third party; (e) adequately insure the Tools against loss or damage, including, but not limited to, maintaining full fire and extended coverage insurance for replacement value, and naming Buyer as an additional insured; (f) ensure that the Tools do not become subject to any liens or other claims; and (g) not move the Tools to another location, whether owned by Seller or a third party, without the prior written consent of Buyer (except, in the case of an emergency, Seller may move the Tools provided that it gives Buyer notice that the Tools have been moved and the location of the Tools as soon as practicable). Buyer will have the right to enter Seller’s premises at reasonable times to inspect the Tools and Seller’s records pertaining thereto. Seller expressly waives and releases any and all statutory, equitable, or other liens, including, but not limited to, any molder liens, special tool liens, builder liens, and the like, that Seller has or might have on or in connection with the Tools for any and all work, including, but not limited to, designing, manufacturing, improving, maintaining, servicing, using, assembling, fabricating, or developing the Tools. Seller hereby agrees to indemnify, defend, and hold Buyer harmless from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all attorneys’ fees and any other costs of litigation that are in any way related to releasing, terminating, or otherwise removing any such liens placed on the Tools. Seller will assign to Buyer any claims Seller has against third parties with respect to the Tools. Upon written request, Seller, at its expense, shall immediately deliver the Tools, at Buyer’s option, F.O.B. Carrier Seller’s facility (Ex Works Loaded) or F.O.B. Buyer’s premises (CIF Buyer Plant/Delivered Buyer Plant). The Tools shall be properly packed and marked in accordance with the requirements of the carrier and Buyer. Seller will cooperate fully with Buyer’s removal of the Tools from Seller’s premises. Seller shall assume all risk of death or injury to persons or damage to property arising from the use, maintenance, repair, and shipment of the Tools. Unless otherwise agreed to in writing by Buyer, Seller, at its own expense, shall keep the Tools in good condition and repair, including repair necessitated by wear and tear and other usage by Seller. In the event that it becomes necessary, as determined by either Buyer or Seller, to replace the Tools due to normal use by Seller, or otherwise, said replacement tools shall be at the sole expense of Seller and said replacement tools shall be the property of Buyer. Buyer does not guarantee the accuracy of any Tools or the availability or suitability of any supplies or material furnished by Buyer. Seller assumes sole responsibility for inspecting, testing, and approving all Tools or other materials supplied by Buyer prior to any use by Seller. Seller shall assume all risk of death or injury to persons or damage to property arising from the use, maintenance, repair, and shipment of the Tools or other materials supplied by Buyer and hereby agrees to indemnify Buyer against the same. If Buyer and Seller enter into a specific tooling agreement with respect to certain Tools, to the extent there is any inconsistency between this section and the terms of the specific tooling agreement, the terms of the specific tooling agreement shall prevail.
18. Seller’s Default. Seller will be in default if any of the following occurs (each, a “Seller Default”):
a. Seller breaches, repudiates, or threatens to breach any term in the Order, or in any Customer Agreement, including, but not limited to, failing to deliver goods or services in accordance with Buyer’s required quality and quantity terms;
b. Insolvency of Seller or filing of a voluntary or involuntary petition in bankruptcy with respect to Seller;
c. Appointment of a receiver or trustee for Seller; or
d. Execution of an assignment for the benefit of creditors of Seller.
19. Buyer’s Remedies. In the event of a Seller Default, Buyer may exercise any remedies available under applicable law, including, but not limited to:
a. Seller’s immediate correction, repair, or replacement of the goods and services at Seller’s expense;
b. Suspending payments or performance or canceling all or any part of the balance of any Order with Seller; and
c. Requiring Seller to reimburse Buyer for all damages suffered due to Seller’s breach, including, but not limited to, incidental, consequential, and other damages, as well as lost profits, actual attorney fees, and court costs.
The remedies in this Order shall be cumulative and in addition to any other remedies allowed to Buyer under applicable law, including, but not limited to, the Uniform Commercial Code. No waiver by Buyer of any breach or remedy shall be a waiver of any other breach or remedy.
20. Limitation on Seller’s Remedies. 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.
21. Safety and End of Life Vehicle Directive. Seller acknowledges and agrees as follows:
a. All purchased materials used in the manufacture of goods shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials, as well as environmental, electrical and electromagnetic considerations, applicable to the country of manufacture and sale;
b. Seller must submit a Material Safety Data Sheet (MSDS) to Buyer for review and approval before chemicals, oils, lubricants, finishes, adhesives, fasteners, etc. can be brought into any Buyer facility. Failure to comply with this provision will result in nonpayment for such materials; and
c. Seller agrees to comply with the current End-of-Life Vehicle Directive (ELV) and releases and will hold harmless and indemnify Buyer from any claims, including claims by third parties, resulting therefrom. Seller agrees to undertake the reporting of all necessary information from applicable MSDS sheets into the International Material Data System (IMDS) for all goods or services delivered to Buyer.
22. Service Parts. To the extent the Order relates to production of component parts (“Parts”) for Buyer, then, in addition to the number of Parts sold by Seller to Buyer to allow Buyer to meet its requirements to its Customer, Seller also agrees to sell to Buyer the number of Parts necessary to allow Buyer to fulfill its past model service and replacement parts requirements during the Life of the Program for which the Parts are produced and for fifteen (15) years following the conclusion of the Life of the Program. Unless otherwise agreed to in writing by Buyer, the per-Part price during the first five (5) years following the conclusion of the Life of the Program shall be the last price for such Part(s) prior to the expiration of the Life of the Program. For the remainder of the fifteen (15) year period, the per-Part price shall be increased only by mutual agreement of Buyer and Seller. Upon request by Buyer, Seller shall make service literature and other materials available at no additional charge to support Buyer’s Parts sales activities.
23. Termination.
a. The Order shall be terminable as follows:
i. Breach. Buyer may immediately terminate the Order without further obligation in the event of Seller’s breach of or Default under the Order or any breach of or default under any Customer Agreement. Either party may terminate the Order without further obligation in the event the other party fails to perform any material obligation under the Order, through no fault of the non-breaching party, which remains uncured after giving twenty (20) calendar days written notice of such material breach. Delays in delivery or repeated deliveries of non-conforming goods or services, which result in Seller’s failure to meet its delivery time or goods or services conformity obligations for all goods or services shipped, shall automatically be deemed a failure to perform a material obligation for the purposes of the Order.
ii. Insolvency, Bankruptcy, or Liquidation. Either party may terminate the Order if the other party: (a) becomes insolvent; (b) makes an assignment immediately or the benefit of creditors; (c) files or has filed against it a petition in bankruptcy; (d) has a receiver appointed for its assets; or (e) is dissolved or liquidated.
iii. Termination by Buyer. Seller acknowledges and agrees that, in addition to any other rights of Buyer to terminate this Order, Buyer may, at its option, immediately terminate all or part of the Order or any other agreement between Buyer and Seller, at any time and for any reason, by giving written notice to Seller. Buyer may elect to terminate some, but not all, Orders or other agreements between Buyer and Seller, at Buyer’s discretion. However, upon such termination, Buyer shall pay to Seller the following amounts, without duplication:
1) The contract price for all goods or services that have been completed and delivered in accordance with the terminated Order, or in accordance with any other agreement between Buyer and Seller that is terminated, and not previously paid for; and
2) The actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods and services under the terminated Order, or under any other agreement between Buyer and Seller that is terminated, to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted commercial accounting principles to the terminated portion of the Order, or to any other agreement between Buyer and Seller that is terminated, if any; less, however, the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent, and the cost of any damaged or destroyed goods or materials. Buyer will make no payments for finished goods or services, work-in-process, or raw materials fabricated or produced by Seller in amounts in excess of those authorized by Releases, issued by Buyer prior to the date of termination of the Order, nor will Buyer make any payments for any undelivered goods or services that are in Seller’s standard stock or that are readily marketable. Payments made under this section shall not exceed the aggregate price payable by Buyer for finished good or services that would be produced or performed by Seller under Releases issued by Buyer prior to the date of termination. Except as provided in this section, Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by others, including, but not limited to, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, or general and administrative burden charges from termination of this or any Releases. Within sixty (60) days from the effective date of termination of the Order, or any other agreement between Buyer and Seller that is terminated, if any, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit Buyer’s audit, and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to any termination claim of Seller;
b. In the event that a Program is terminated prior to the conclusion of the estimated Life of the Program, the Order for the Program shall terminate effective immediately;
c. If any competitor of the Seller offers lower goods or services prices and/or payment or delivery conditions, or if the competitive nature of the Seller no longer exists in terms of price, quality, or time schedule for goods and services under the Order, or if Buyer’s Customer cancels a Customer Agreement, Buyer may terminate the impacted Order or any other impacted agreement between Buyer and Seller, without notice. The same shall apply if other technological prerequisites become necessary or there is no further need for the goods or services;
d. No termination of the Order, regardless of the basis for such termination, shall serve to terminate any other Order or any other agreement between Buyer and Seller in effect at the time of such termination. Further, the termination of the Order or of any other agreement between Buyer and Seller, regardless of the basis for such termination, shall not impact, in any way, the enforceability of all other outstanding Orders or other agreements between Buyer and Seller, each of which shall remain in full force and effect; and
e. The Parties agree that clauses 13, 14, 16, 22, 23, 24, 25 and 26 of the terms set forth in these Standard Terms for Purchases of Goods or Services shall survive and continue to apply following the conclusion of the Life of the Program or an earlier termination of the Order or Customer Agreement.
24. Transition of Supply. Upon the expiration or earlier termination of any Order for whatever reason, Seller agrees to take such action as may reasonably be required by Buyer to accomplish the transition from Seller to an alternative seller, including, without limitation, the actions set forth below. The term “alternative seller” expressly includes, but is not limited to, a Buyer-owned facility.
a. Seller shall provide all notices necessary or desirable for Buyer to resource the Order to an alternative seller;
b. Seller shall provide a sufficient bank of goods covered by the Order to ensure that the transition to any alternative seller chosen by Buyer will proceed with an uninterrupted supply of goods. Unless otherwise specified by Buyer on the face of an Order amendment or in a signed writing by Buyer’s designated representatives, a six-week goods inventory bank will be deemed sufficient to accomplish the transition. Such “six-week goods bank” will be calculated using the releases of Buyer from the six weeks immediately preceding the termination/expiration of this Order, not including any temporary interruptions, plant, industry shutdowns, or other reduced schedules;
c. Seller shall provide to Buyer all Tools and any other property furnished by or belonging to Buyer or any of Buyer’s customers in as good of condition as when received, purchased, or fabricated by or for Seller;
d. Seller shall, at Buyer’s option: (i) assign to Buyer any or all supply contracts or orders for raw materials or components relating to the Order; (ii) sell to Buyer, at Seller’s cost, any or all inventory or work-in-process relating to the Order; and (iii) sell to Buyer, at the unamortized portion of the cost of such items, less any amounts Buyer previously paid to Seller for the cost of such items, any or all property owned by Seller (except for Tools, which are or will be, as detailed, above, Buyer’s property) related to production under the Order.
25. Records and Financial Audits. Seller acknowledges and agrees as follows:
a. Records. Seller will maintain, in accordance with generally recognized commercial accounting principles and practices, complete and accurate records of all matters relating to Seller’s performance under the Order to enable Seller to demonstrate compliance with its obligations under the Order. Seller shall maintain such records for the period of time required by the Order; and
b. Right to Audit. Upon reasonable advance notice to Seller, Seller shall provide Buyer and/or its representatives with access to all such Seller records, during normal business hours, for the purpose of auditing Seller’s charges under the Order. Seller will cooperate with Buyer and its representatives as reasonably necessary to facilitate the audit process. Buyer shall be entitled to a refund for all amounts determined in good faith in an audit to have been overpaid to Seller by Buyer.
26. General.
a. Compliance with Laws. Seller warrants that it is and will remain in compliance with all federal, state, and local laws, regulations, and ordinances relating to Seller’s ability to perform its obligations under the Order.
b. Setoff. Buyer has the right to deductions or setoffs of any sums due to Buyer or an affiliate of Buyer, under the Order or any other agreement, from Seller (whether or not arising from the Order) against any sums due to Seller from Buyer or an affiliate of Buyer (whether or not arising from the Order).
c. Assignment. The Order is entered into in reliance upon the Seller’s personal performance of the duties imposed. Seller will not assign or delegate all or substantially all of its substantive duties under the Order, or transfer to another any intellectual property right that is licensed to Buyer under any Order, without Buyer’s prior and express written approval. Any such assignment or delegation without the prior written consent of Buyer, at the option of Buyer, may effect a cancellation of the Order. Any consent by Buyer to an assignment shall not be deemed to waive Buyer’s right to recoupment from Seller and/or its assigns for any claim arising out of any rights under the Order, and shall not prohibit Buyer from enforcing any of its rights against an assignee of the Order. Buyer will have the right to assign any benefit or duty under the Order to any third party upon notice to Seller, with or without Seller’s consent.
d. Confidentiality. Seller shall use reasonable care to prevent disclosing to others and shall use only for the benefit of Buyer: (i) the technical information and data furnished by Buyer or acquired by Seller in its work under the Order or Customer Agreement, prior development agreement, or early sourcing agreement for goods or services related to or using such technical information or data; and (ii) information relating to any portion of Buyer’s business that Seller may acquire in the course of its activities under the Order or any Customer Agreement, prior development agreement, or early sourcing agreement (collectively, the “Confidential Information”). This obligation shall continue for a period of two (2) years after the expiration of the term of the Order. This obligation will not apply to information that is or becomes publicly known through no fault of Seller. Seller will first obtain the written consent of Buyer if the Seller wants to share Confidential Information with any other party;
e. 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;
f. Notices. Any notice, communication, or statement required or permitted to be given under the Order shall be in writing and deemed to have been given when delivered in person or the next business day after being deposited with a nationally recognized overnight mail service such as UPS, or by overnight courier service, addressed to Buyer or Seller at their address set forth in the Order;
g. Remedies. All specific references to remedies available to Buyer in the enforcement of the Order shall be non-exclusive and shall be cumulative together with all legal and equitable remedies available to Buyer, any applicable Customer Agreement, and all applicable laws;
h. Section Headings. All section headings herein are for convenience only and shall not be construed as a limitation of the scope of the particular sections to which they refer;
i. Advertising and Publicity. Seller shall not use the name or any trademark, trade name, logo, or symbol of Buyer or any of Buyer’s affiliates or Customers, or disclose any matters relating to the Order or any Customer Agreement to any one in any way, including, but not limited to, any advertising, promotion, press/publicity releases, written articles, or communications, without the prior written consent of Buyer;
j. Entire Agreement and Amendment. The Order, together with any and all Releases, contain 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;
k. Severability. All terms may be enforced to the maximum extent permitted by law. If any term is invalid or unenforceable, all other terms shall remain in effect;
l. State Law. The sale of goods and services in accordance with this Order shall be governed in all respects by the laws of the State of Michigan. The parties expressly agree that the application of the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall NOT apply to this Order;
m. Jurisdiction and Venue. Seller and Buyer agree that any action arising out of the sale of goods or services related to the Order will be brought, heard, and decided in a court of competent subject matter jurisdiction in a state or federal court located in Kent County, Michigan, and both parties agree to accept personal jurisdiction by such court and the State of Michigan; and
n. Buyer’s Right to Attorneys’ Fees and Costs. In the event that either Buyer or Seller brings any action against the other arising out of the sale of goods or services under the Order, Buyer, and Buyer only, shall have the right to recover from Seller, and Seller is obligated to pay to Buyer, Buyer’s actual attorneys’ fees and any and all costs incurred in or for such action.
Conflict Minerals Policy Statement
Mico Industries is committed to sourcing components and materials from companies that share our values around human rights, ethics and environmental responsibility. We expect all of our suppliers to abide by the requirements of our Supplier Code of Conduct, which prohibits human rights abuses and unethical practices. We also require all suppliers to comply with applicable legal standards and requirements.
On August 22, 2012, the U.S. Securities and Exchange Commission (“SEC”) issued the final conflict minerals rule under Section 1502 the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Conflict Minerals Rule”). The Conflict Minerals Rule requires publicly traded companies to report annually the presence of conflict minerals (tin, tungsten, tantalum and gold, or “3TG”) originating in the Democratic Republic of the Congo or adjoining countries (“Covered Countries”).
Mico Industries supports the goal of ending violence, human rights violations and environmental devastation in the Covered Countries. We are committed to complying with any requirements applicable to our Company under the Conflict Minerals Rule.
Mico Industries will assist our customers in implementing their conflict minerals programs. We strive to work cooperatively with our customers and supply chain partners in implementing conflict minerals compliance programs.
Mico Industries requires all of our suppliers to be compliant to the conflict minerals act. We may reconsider our willingness to partner with suppliers that fail to comply with this Policy