Terms and Conditions
Standard Terms and Conditions of Sale
Thank you for doing business with Highland Plastics, Inc.
Highland takes pride in its work and relationships with its customers. To that end, Highland believes it is in all parties’ interests to clearly state the terms of business. Those terms are described below.
1. Acceptance of Quotation, Entire Agreement, Authorized Officer, and Modification.
A. Each quotation, including revisions to quotations, supplements, and amendments (“Quotation”) issued by Highland Plastics, Inc. (“Seller”) offering to sell goods and/or services to the Buyer (defined below) is governed by these terms and conditions of sale (“Terms and Conditions of Sale”), and these Terms and Conditions of Sale are fully incorporated into and made a part of each Quotation.
B. The term “Quotation,” “the Quotation,” or “a Quotation” refers to the quotation issued by Seller to Buyer which incorporates these Terms and Conditions of Sale. If Seller has issued multiple Quotations to Buyer, these Terms and Conditions of Sale are incorporated in each and every Quotation. The term “Goods” refers to all goods and products (tangible and intangible) and all services to be provided under a Quotation or that are otherwise the subject matter of a Quotation. The term “Buyer” refers to the entity to which a Quotation is addressed. If any affiliate, successor, assignee, or other entity that is not addressed in the Quotation attempts to accept a Quotation, Seller may, in its sole discretion, elect to treat the Quotation as accepted and that entity will be the Buyer for all purposes, otherwise the Quotation is null and void.
C. A Quotation is an offer to sell. Under no circumstances may a Quotation be construed as an acceptance of any offer or proposal issued by Buyer. Any offer or proposal made by Buyer is specifically rejected. A Quotation is the sole offer regarding the Goods; Seller does not accept any offer by way of performance.
D. Any acceptance of a Quotation will be strictly limited to the terms of the Quotation and these Terms and Conditions of Sale. Any and all different or additional terms and conditions included in or referred to by any acceptance are excluded and will not become part of the agreement between Buyer and Seller. Buyer accepts the Quotation, including these Terms and Conditions of Sale, by (i) accepting the Quotation in writing, (ii) issuing a purchase order or other writing requesting that Seller commence work, produce and/or deliver the Goods, (iii) accepting delivery of the Goods, or (iv) any other conduct that recognizes the existence of a contract with respect to the Goods. Any purchase order issued by Buyer to Seller for the Goods referenced in a Quotation is an acceptance of the Quotation and these Terms and Conditions of Sale, whether or not the purchase order purports to be an offer or an acceptance, and whether or not the purchase order purports to restrict the agreement to the terms contained in the purchase order. No other or additional terms contained or referenced in the purchase order will apply. If Buyer disagrees with any item in the Quotation, including any item in these Terms and Conditions of Sale, Buyer must identify the items in disagreement. At Seller’s discretion, a new quote may be issued. Seller will not be bound to any modifications except as specifically set forth in Section 1.G, below. Once accepted by Buyer as set forth above, the Quotation and these Terms and Conditions of Sale constitute the binding agreement and contract between Buyer and Seller for the purchase and sale of the Goods. Buyer and Seller agree to be bound by the Quotation and these Terms and Conditions of Sale.
E. Each Quotation, together with these Terms and Conditions of Sale, and the attachments, exhibits, specifications, and supplements specifically referred to in the Quotation, are intended by Seller and Buyer as a complete and exclusive statement of the terms of their agreement and supersedes all prior agreements, written or oral. No course of prior dealings between Seller and Buyer and no usage of the trade may be used by Buyer to supplement or explain any term used in a Quotation or these Terms and Conditions of Sale. Any terms or conditions included on any purchase order, acknowledgement, correspondence or any other writing from Buyer are expressly not incorporated into a Quotation and will have no force or effect whatsoever.
F. Each Quotation and any other writing, representation, waiver, warranty, agreement, or modification of any kind relating to the Quotation or the Goods is binding on Seller only if contained in writing and signed by an authorized officer of Seller (“Authorized Writing”). Except for a Quotation, a signature block contained on email correspondence or similar electronic communications does not constitute an Authorized Writing. With respect to a Quotation only, a signature block of an authorized officer of Seller contained on email correspondence with an attached Quotation constitutes an Authorized Writing.
G. Any modification of these Terms and Conditions of Sale must be expressly stated in an Authorized Writing expressly referring to the Quotation and evincing Seller’s intent to modify the terms of the Quotation. No oral modification or modification by email correspondence will be binding on Seller. No change, amendment, or modification is binding on Seller without an Authorized Writing. Any change, amendment, or modification is subject to these Terms and Conditions of Sale, and no inconsistent or additional terms are binding on Seller, except as agreed by Seller as set forth in this Section 1.G.
2. Pricing and Payments.
A. Buyer agrees to pay for all deliveries when due. Unless specified otherwise on the face of a Quotation, all payments are due 30 days after the date on the invoice.
B. Pricing includes only those items specifically referenced on the face of a Quotation. Seller is not responsible for any other or additional costs, including but not limited to delivery, packaging, taxes, and transportation costs unless the Quotation states otherwise.
C. Manufacturing, sales, and excise taxes, including all federal, state and local taxes, if any, are payable by Buyer. All custom duties, tariffs, and other charges are payable by Buyer. The prices stated in a Quotation are based on Seller’s cost under existing laws and regulations. If Seller’s cost is increased at any time by any tax, regulation, statute, act, ordinance or other law, the prices may be adjusted by Seller to fully compensate Seller for the increased costs.
D. Buyer’s obligation to pay Seller for each delivery is an independent obligation, not contingent on any other debts, liabilities, defaults, claims, or actions. Buyer may not setoff or delay any amounts owing to Seller for any reason. If Buyer disputes any amount claimed as due and owing by Seller, Buyer will pay all undisputed amounts to Seller as they become due and owing. Seller has no obligation to deliver any Goods if any amount due and owing remains unpaid by Buyer regardless if it is in dispute.
3. Delivery.
A. Unless otherwise specified on the face of a Quotation or in an Authorized Writing, Seller will make all Goods available for pickup FOB Seller’s facility in Shepherd, Michigan. Buyer is responsible for any storage costs and any other costs and labor incurred by Seller if Buyer fails to timely accept delivery and remove the Goods as scheduled. Regardless if Seller arranges for transportation of the Goods, title and risk of loss transfer to Buyer at the time the Goods are loaded into transport at Seller’s facility. Buyer obtains no interest in the Goods until title transfers.
B. If Seller has agreed in a Quotation or an Authorized Writing to deliver the Goods to Buyer at Seller’s cost, Buyer is responsible for any and all increases in shipping, transportation, customs and related costs.
C. Buyer will bear the costs of any premium or expedited shipping.
4. Acceptance of Goods, Defective Goods, Warranty.
A. Buyer accepts all Goods at the point of delivery. Buyer agrees to inspect all Goods upon receipt and to provide prompt notice of any rejections and proof of non-conformity. Buyer’s right to reject Goods expires upon Buyer shipping Goods to its own customer(s), including any product incorporating Goods. At Seller’s direction, any rejected Goods must be returned to Seller. Rejected Goods not required to be returned to Seller must be made available for inspection by Seller at Buyer’s facility.
B. Seller agrees to replace or issue credit for, at Seller’s option, all defective Goods timely and properly rejected as set forth above.
C. Other than as set forth in these Terms and Conditions of Sale, Seller makes no representations or warranties, express or implied, of any nature whatsoever, including any warranty of merchantability or fitness for a particular purpose.
5. Releases and Quantities.
A. Unless otherwise stated on the face of a Quotation, Buyer agrees to buy and Seller agrees to sell the minimum quantity of Goods stated on the Quotation.
B. Deliveries of Goods will commence as soon as Seller’s schedules permit after approval of samples by Buyer, if such samples are requested by Buyer. Releases will be made according to reasonable release schedules issued by Buyer. Buyer must issue release schedules with sufficient lead time. Buyer agrees that Seller may rely on, and Buyer will be bound by, all of Buyer’s releases and release schedules, whether or not they are labeled as forecasts or contain any other limiting terms. If Buyer has provided estimated requirements for the Goods or if the Quotation states an estimated volume of the Goods, Buyer’s releases will not fall below more than 10% of such estimates, except as permitted in an Authorized Writing issued by Seller. If Buyer’s releases exceed a 10% deviation, Seller may either (i) ship the amount originally estimated by Buyer or (ii) charge a modified price for the Goods.
C. If Buyer changes any release date or amount, interrupts delivery, or refuses to accept delivery, Buyer is responsible for all Seller’s costs and expenses relating thereto.
D. Unless otherwise agreed to in a new Quotation or an Authorized Writing, any future order, future release, or re-orders for the Goods after the first shipment is governed by the Quotation and these Terms and Conditions of Sale, however, Seller is not obligated to supply any future orders, future releases, or re-orders unless Seller agrees in an Authorized Writing.
6. Warranty and Return Policy.
Seller warrants that it will provide Goods with commercial finish and limits in accordance with blueprints or specifications referenced on the face of the Quotation or as otherwise approved by Buyer and accepted by Seller in an Authorized Writing. In the event the Goods do not meet this requirement, Seller will, at its sole option, replace such Goods or offer a full refund of the selling price for the Goods. Such repairs or replacement will be made at no charge to the Buyer for parts or labor, provided that Buyer will be responsible for the transportation costs.
Seller is not obligated to meet any standard, blueprint, or specification except as agreed by Seller in an Authorized Writing. Buyer is fully responsible for design approval and must pay for any Goods that meet the blueprints or specifications.
7. Changes.
If Buyer makes any changes to the drawings, blueprints or specifications, Buyer agrees to pay all costs and expenses relating to the changes, including all Seller’s costs and expenses, including labor, overtime, extra material costs, obsolescence costs, administrative expenses, and overhead charges. No proposed changes in design, delivery, specifications, or other items are binding on Seller unless submitted to Seller in writing and approved by Seller in an Authorized Writing.
8. Termination.
A. Buyer may only terminate this agreement if Seller fails or refuses to deliver conforming Goods in accordance with Seller’s obligations under these Terms and Conditions of Sale, and Seller fails to cure such default within 30 days after receipt by Seller of written notice of the default. Buyer’s remedies for any default or breach by Seller are limited to money damages as set forth in Section 9.
B. Seller may terminate this agreement if Buyer defaults under any of its obligations set forth in a Quotation or these Terms and Conditions of Sale.
C. Any termination will not extinguish any obligations owed by Buyer to Seller under the Quotation for Goods already delivered or for Goods produced under a release issued by Buyer but not yet delivered. Upon termination, Buyer agrees to accept all such Goods and to pay, on delivery, the full price as set forth in the Quotation. Buyer further agrees to pay Seller’s cost for all work in process and raw materials relating to Seller’s performance under the Quotation. Buyer’s obligations to indemnify and hold Seller harmless survive any termination of the Quotation.
9. Damages and Remedies for Default or Breach
In no event will Seller be liable for lost profits or any indirect, special, incidental, or consequential damages resulting from any breach or default under a Quotation or these Terms and Conditions of Sale. Seller’s liability to Buyer for breach or default relating to any particular release is limited to the selling price of the Goods set forth in the release. Buyer waives any additional damages or remedies, including any right to injunctive relief.
10. Force Majeure.
In the event of fire, floods, accidents, government acts, war, acts of terrorism, riots, strikes and other labor disputes, delays of carriers, die or machine breakdown, any interruption caused by an act or failure to act by Buyer, or any other extraordinary event beyond Seller’s reasonable control which prevents the manufacture, transportation, delivery, or acceptance of the Goods, Seller may, without any liability or penalty, delay delivery by written notice effective when transmitted to Buyer, until such event and consequences of such event of force majeure shall have terminated, or until Seller is reasonably able to perform despite the event of force majeure. Notwithstanding the foregoing, in the event that any such force majeure causes Seller to fail to deliver or otherwise perform under a Quotation for a period of 30 days, Buyer may temporarily employ an alternative source for the Goods to be provided hereunder, all without liability or obligation to Seller, until Seller provides notice that it is able to perform under the terms of the Quotation.
11. Confidentiality and Intellectual Property.
A. Notwithstanding any separate confidentiality and non-disclosure agreements, Buyer agrees to safeguard, preserve and maintain the confidential nature of all know-how, trade secrets and other confidential information disclosed to it by Seller. Buyer agrees to treat all information received by it from Seller as confidential unless the information is or becomes public knowledge without the fault of Buyer or Seller expressly states in an Authorized Writing that the information is not confidential. Buyer will not disclose or otherwise make available to third parties any Seller data, drawings, models, patterns, samples, data, and similar items without an Authorized Writing issued by Seller. Buyer may disclose confidential information pursuant to the order of a court of competent jurisdiction provided Buyer first gives notice to Seller of the request or subpoena for the confidential information and Seller has a reasonable opportunity to challenge or limit the disclosure under applicable rules of civil procedure or court rules. Buyer agrees to include these confidentiality obligations to Seller in any and all contracts with Buyer’s customers. The terms of this provision will survive the expiration or termination of a Quotation.
B. If the design or production of the Goods uses any patent, proprietary information, trade secrets, or know-how developed or owned by Seller, or licensed to Seller (collectively, “Seller IP”), Buyer agrees to not use Seller IP for any purpose other than those specifically agreed to by Seller in an Authorized Writing. Seller does not grant Buyer any rights in Seller IP for any other purpose, and in no circumstances may Buyer transfer any rights in Seller IP to any other person, successor, or assignee without Seller’s consent through an Authorized Writing. Buyer agrees to take all necessary action to ensure that no other person uses Seller IP or claims an interest in Seller IP. Buyer also agrees not to, nor allow others to, (i) alter, modify, translate, or adapt the Seller IP or create any derivative works based thereon; (ii) decompile, reverse engineer, disassemble the Seller IP or otherwise attempt to learn the source code, structure or algorithms underlying any of the Seller IP; (iii) copy any Seller IP; (iv) assign, sublicense or otherwise transfer the Seller IP in whole or in part; (v) use the Seller IP except as expressly permitted in this these Terms and Conditions of Sale; (vi) disclose the Seller IP to any third party; (vii) rent, lease, lend, provide commercial hosting services or otherwise make the Seller IP available for value or (viii) knowingly take any action that would cause any Seller IP or its licensors and/or suppliers products to be placed in the public domain. If any other person is found to be using or claiming an interest in Seller IP as a result of Buyer’s actions or inactions relating to design or production of the Goods, Buyer agrees to, at Seller’s option, (i) prosecute claims against the user of Seller IP on behalf of Seller through counsel approved by Seller, (ii) reimburse Seller on a monthly basis for all Seller’s costs in prosecuting the claims and protecting Seller IP, or (iii) reimburse Seller for either, at Seller’s option, (a) the fair market value of the Seller IP, or (b) all losses and damages, including both lost profits and the costs and expenses incurred in developing the Seller IP.
C. Buyer represents and warrants that any design or other information provided by Buyer does not violate any patent, copyright or other intellectual property rights. Buyer agrees to indemnify and hold Seller harmless for any claims relating to intellectual property rights to the extent they are related to intellectual property provided by Buyer.
12. No Waiver.
The rights and remedies set forth in a Quotation and these Terms and Conditions of Sale are in addition to any other rights and remedies provided in law or equity. The failure by Seller to exercise any rights or remedies under a Quotation or these Terms and Conditions of Sale is not a waiver of any other rights or remedies.
13. Choice of Law and Jurisdiction.
Each Quotation and these Terms and Conditions of Sale will be governed by the laws of the State of Michigan without regard to any otherwise applicable conflict of laws provisions. The United Nations Convention on the International Sale of Goods is expressly excluded. Buyer and Seller agree that any and all disputes between them will be resolved by, and they each consent to, the exclusive jurisdiction and venue of the Isabella County, Michigan Circuit Court and the United States District Court for the Eastern District of Michigan, including for lawsuits seeking monetary relief or equitable relief. Buyer specifically waives any and all objections to venue in such courts.
14. Conflicts.
If any of these Terms and Conditions of Sale conflict with any term on the face of a Quotation, the term on the face of the Quotation controls. If any of these Terms and Conditions of Sale or a term on the face of a Quotation conflict with an Authorized Writing signed after issuance of a Quotation, the Authorized Writing controls. If any of these Terms and Conditions or a term on the face of a Quotation conflict with an Authorized Writing signed before issuance of a Quotation, the Quotation and these Terms and Conditions control unless the Authorized Writing clearly and expressly shows that Seller intended that the conflicting provision in the Authorized Writing would control.
Standard Terms and Conditions of Purchase
Highland Plastics, Inc. values its suppliers and recognizes their importance to Highland’s business. As a result, Highland believes it is in all parties’ interests to clearly state the terms of any agreements between Highland and its suppliers. Those terms are described below.
1. Acceptance, Entire Agreement, and Modification:
A. Each purchase order or purchase order revision (“Order”) issued by Highland Plastics, Inc. (“Buyer”) is an offer to the seller identified on the Order (the “Seller”) for the purchase of goods and/or services (collectively, “Goods”) and includes and is governed by these standard purchase order terms and conditions of purchase (“Purchase Order Terms and Conditions”). All goods and products (tangible and intangible) and services to be provided under this Order are included in the term of “Goods.” The Order does not constitute an acceptance of any offer or proposal made by Seller. Any offer or proposal made by Seller is specifically rejected.
B. Acceptance of this Order shall be strictly limited to the terms of the Order and these Purchase Order Terms and Conditions. Seller accepts the Order, including these Purchase Order Terms and Conditions, by (i) accepting the Order in writing, (ii) commencing any work or performance under the Order, or (iii) any other conduct that recognizes the existence of a contract with respect to the subject matter of the Order. Buyer rejects any additional or inconsistent terms and conditions offered by Seller at any time and irrespective of Buyer’s acceptance of or payment for Seller’s Goods or services.
C. This Order, together with these Purchase Order Terms and Conditions, and any attachments, exhibits, specifications and supplements specifically referred to in this Order, are intended by the parties as a complete and exclusive statement of the terms of their agreement. It supersedes all prior agreements, written or oral. No course of prior dealings between the parties and no usage of the trade may be used by Seller to supplement or explain any term used in the Order. Any terms or conditions included on any quotation, invoice, acknowledgement or otherwise are expressly not incorporated into the Order and will have no force or effect whatsoever.
D. Any modification of these Purchase Order Terms and Conditions must be expressly stated in the Order or in a writing signed by an authorized officer of Buyer expressly referring to the Order and evincing an intent to modify the terms of the Order. No oral modification or modification by email correspondence will be binding on Buyer.
2. Prices, Taxes:
A. Prices and payment terms are set forth on the Order.
B. Seller warrants that the prices in the Order are fixed and complete, and no additional charges of any type shall be added without Buyer’s express written consent, including but not limited to, material surcharges, shipping, packaging, labeling, custom duties, federal, state and local taxes, storage, handling, insurance, boxing and crating. By accepting the Order, Seller accepts the risk of any increase in costs and any other eventuality that may result in a loss to Seller. Seller may not under any circumstances increase the Order price or refuse to perform or deliver based on increased costs, loss of anticipated profits, inaccurate or erroneous data used in Seller’s quotations, unrealized assumptions, unforeseen circumstances, regulations, industry changes, or any other reason except as expressly set forth in the Order, these Purchase Order Terms and Conditions, or Buyer’s express written authorization.
3. Buyer’s Property:
A. 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 all other items furnished by Buyer or its customers to Seller for use in Seller’s performance of the Order, including use in the manufacture of the Goods, or for which Buyer or its customers have reimbursed Seller or have agreed to reimburse Seller (“Buyer’s Property”), shall at all times be and remain the property of Buyer or its customers. Seller shall bear the risk of loss of and damage to Buyer’s Property. Seller will: (i) properly house and maintain the Buyer’s Property on Seller’s premises; (ii) not use the Buyer’s Property for any purpose other than for performance under the Order; (iii) prominently mark the Buyer’s Property as property of Buyer; (iv) refrain from commingling the Buyer’s Property with the property of Seller or with that of a third party; (v) adequately insure the Buyer’s Property against loss or damage, including but not limited to maintaining full fire and extended coverage insurance for replacement value and naming Buyer as the loss payee and an additional insured; (vi) ensure that the Buyer’s Property does not become subject to any liens or other claims; and (vii) not move the Buyer’s Property to another location whether owned by Seller or a third party, without the prior written consent of Buyer. Buyer will have the right to enter Seller’s premises at reasonable times to inspect the Buyer’s Property and Seller’s records pertaining thereto.
B. Seller expressly waives and releases, and agrees not to file or otherwise assert, prosecute or suffer to permit any statutory, equitable or other liens, including but not limited to any molder liens, moldbuilder liens, special tool liens, artisan’s liens, warehouseman’s liens, and the like that Seller has or might have on or in connection with the Buyer’s Property. Seller specifically waives any and all liens for work performed, including but not limited to, designing, manufacturing, improving, maintaining, servicing, using, assembling, fabricating or developing the Buyer’s Property and Goods, and for amounts owed or that may become owing by Buyer. 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 actual attorneys’ fees, costs of litigation, settlement costs, and all other costs and expenses that are in any way related to releasing, terminating or otherwise removing any lien placed on the Buyer’s Property.
C. Seller is a bailee at will with respect to Buyer’s Property, and Buyer has an absolute right to take possession of Buyer’s Property at any time. Upon written request, Seller shall immediately deliver the Buyer’s Property at Buyer’s option F.O.B. Seller’s facility (Ex Works Loaded), according to Incoterms 2000 if applicable, and properly packed and marked in accordance with the requirements of the carrier and Buyer. Seller will cooperate with Buyer’s removal of the Buyer’s Property from Seller’s premises, and shall remain responsible for any damage to Buyer’s Property until Buyer takes possession or accepts delivery.
D. Unless otherwise agreed to in writing by Buyer, Seller at its own expense shall maintain, repair and refurbish Buyer’s property in first class condition including repair necessitated by wear and tear and other usage by Seller. All replacement parts, additions, improvements, accessories, secondary equipment, and materials for Buyer’s Property shall become Buyer’s Property upon their incorporation into or attachment to Buyer’s Property.
E. Buyer has not made and does not make any representations, guarantees, or warranties of any Buyer’s Property or any designs, drawings, data, supplies or material furnished by it. Buyer expressly disclaims any warranty or representation whatsoever either express or implied, as to the fitness, condition, merchantability, design or operation of Buyer’s Property or its fitness for any particular purpose. Seller assumes sole responsibility for inspecting, testing and approving all Buyer’s Property, and for verifying function, accuracy, precision, availability and suitability of Buyer’s Property and other materials supplied by Buyer prior to any use by Seller.
F. Buyer will not be liable for and Seller shall assume all risk of death or injury to persons or damage to property arising from use of, maintenance, repair, assembly, disassembly, testing, shipping or storage of the Buyer’s Property or other materials supplied by Buyer. 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 actual attorneys’ fees, costs of litigation, settlement costs, and all other costs and expenses relating to Seller’s use of, maintenance, repair, assembly, disassembly, testing, shipping or storage of Buyer’s Property. Seller agrees that it will comply with obligations in these Purchase Order Terms and Conditions to release Buyer’s Property notwithstanding any offsetting claim that it may have against Buyer.
4. Drawings and Data
All drawings, data, designs, engineering instructions, models, specifications or other technical information, written, oral or otherwise, supplied by or on behalf of Buyer specifically in connection with performance of this Order and all information obtained therefrom or as a result thereof shall be and remain the property of Buyer. Unless otherwise specified by Buyer, all such information is confidential and Seller agrees to protect the confidentiality of the information as set forth in these Purchase Order Terms and Conditions.
5. Changes:
During performance of this Order, Seller may not make any changes in the design of Goods to be furnished by Seller under this Order, terminate or modify this Order or any Release (as defined in paragraph 7, below) issued under it or obtain an adjustment in price for any reason without advance request to and written approval by Buyer. Buyer may, at any time, amend this Order or otherwise make changes to this Order, including but not limited to changes in any one or more of the following: (i) drawings, designs or specifications for the Goods, (ii) method of shipment or packing; (iii) place or time of inspection, delivery, or acceptance; and (iv) the amount of any Buyer furnished property. Buyer’s changes are effective only if made in writing and signed by an authorized representative of Buyer. Any changes are strictly limited to the changes expressly set forth in writing by Buyer. Seller may provide Buyer with written notice of a request for an adjustment of the price, extension Seller’s time for performance, or reimbursement of costs resulting from the changes within ten (10) days after Buyer’s notice to Seller of the changes. Seller shall provide Buyer with such additional information including invoices and agreements as Buyer may reasonably request in order to permit Buyer to evaluate Seller’s request. After auditing Seller’s request, Buyer may, in its sole discretion, make an equitable adjustment in price (up or down), extend Seller’s time for performance, or agree to reimburse Seller for costs. Seller may request reimbursement only for proveable actual costs incurred by Seller as a direct result of the changes. In no event will Seller be entitled to any adjustment or reimbursement for overhead costs, financing expenses, lost business, or any non-direct cost or expense. Where the cost of property rendered obsolete or excess as a result of the changes is included in the Seller’s request for reimbursement, Seller’s request may include no more than four (4) weeks of raw materials and one (1) week of work in process or finished Goods, and, if the request is granted, Buyer will have the right (but not the obligation) to take title thereto and prescribe the manner of disposition thereof. Nothing in this paragraph excuses Seller from timely performance of all its obligations under this Order as changed.
6. Stop Work Orders:
Buyer may at any time, by a written notice to Seller, stop all or part of the work under this Order until further written notice from the Buyer at any time during the work stoppage. Buyer may, with respect to all or any part of the work covered by the Stop Work Order, either cancel the Stop Work Order or terminate this Order in accordance with the termination provisions of these Purchase Order Terms and Conditions. If a Stop Work Order has a material effect on cost or delivery, Seller may submit to Buyer a claim for equitable adjustment, and Buyer, after reviewing Seller’s claim, may make an equitable adjustment in the price or the delivery schedule or both in Buyer’s sole discretion. It shall be the responsibility of the Seller to submit a written claim for equitable adjustment to Buyer in writing within twenty (20) days after the Stop Work Order. The claim may include only proveable actual costs incurred by Seller as a direct result of the Stop Work Order.
7. Deliveries and Shipments:
A. Seller shall make deliveries under this Order in accordance with Buyer’s releases. “Release” means any written or electronic notification to Seller, including any notice under any electronic information system authorizing, directing or requiring Seller to ship Goods under this Order. Time is of the essence, and Seller’s obligations relating to time for production and/or delivery of the Goods are integral parts of and conditions of this Order. Seller shall not procure, fabricate, assemble or ship any Goods except to the extent authorized by Buyer in written Releases. Unless otherwise specified on the face of this Order, no variation on the quantity of any Goods is authorized and Buyer may reject a delivery that varies in the quantity authorized for shipment. Goods shipped in advance of Buyer’s delivery schedule may be returned at Seller’s expense.
B. If delivery of the Goods is likely to be delayed, Seller shall notify Buyer in advance immediately after the event that may cause a delay or as soon as Seller has knowledge of a possible delay, whichever is earlier. Notice is a separate obligation of Seller and does not release Seller from its liabilities for all costs, losses and consequential damages resulting from incomplete or delayed delivery, and is without prejudice to Buyer’s other available rights and remedies under these Purchase Order Terms and Conditions and at law and equity.
C. Seller acknowledges and agrees that money damages would not be a sufficient remedy for any actual, anticipatory or threatened breach of this Order by Seller with respect to its delivery of Goods to Buyer and that, in addition to all other rights and remedies which Buyer may have at law, equity or under these Purchase Order Terms and Conditions, Buyer is entitled to specific performance and temporary, preliminary and permanent injunctive or other equitable relief as a remedy for any breach by Seller, without proof of actual damages and without bond or other security being required.
D. In the event that any delivery is late, Seller must ship at its expense all late shipments by express or other priority methods of delivery as may be specified by Buyer. Seller is responsible for costs and damages incurred by Buyer, directly or indirectly, including, but not limited to, production line shutdowns of the Buyer or Buyer’s customers as a result of or caused by actual or threatened late delivery and all costs and expenses to expedite delivery and mitigate damages due to actual or threatened late delivery.
8. Quantity/Duration:
A. Unless otherwise stated in the Order, and subject to these Purchase Order Terms and Conditions, Seller agrees to sell and Buyer agrees to buy Buyer’s stated requirements for the Goods in quantities as specified by Buyer in Releases it issues to Seller. Buyer is required to purchase no less than one piece or unit of each of the Goods and no more than those quantities identified in firm Releases transmitted by Buyer to Seller; for services, Buyer is required to purchase such services only to the extent expressly stated in a firm Release issued by Buyer. Unless the Order specifically provides that Seller shall produce one hundred percent (100%) of Buyer’s requirements for the Goods, Buyer shall have the right to obtain a portion of the Goods from another party. Notwithstanding any other agreement between Buyer and Seller, Buyer is not required to purchase Goods from Seller if Seller is in default of this Order and these Purchase Order Terms and Conditions. Continued purchasing by Buyer after a default by Seller is not a waiver or election of remedies, and will be without prejudice to all Buyer’s rights and remedies.
B. From time to time and in connection with quotations, requisitions and Orders, Buyer may provide Seller with estimates, forecasts or projections of its future volume or quantity requirements for the Goods and/or the term of a program (“Projections”). Projections, unlike a Release for a firm quantity, are not binding on Buyer. Seller acknowledges that Projections, like any other forward looking projections, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time, and may or may not be accurate at the time they were made or later. Buyer makes no representation, warranty, guarantee or commitment of any kind or nature, express or implied, regarding any Projections or other estimate, forecast or projection provided to Seller, including as to its accuracy or completeness. Seller accepts that Projections may not be accurate and that actual volume or duration could be less than or greater than the projections. Seller acknowledges that this risk, and possible reward, is an aspect of the manufacturing industry.
9. Customs and Origin:
For customs purposes, Seller will prepare and expedite any and all required forms and submit them to Buyer within fourteen (14) days of Seller’s receipt of the forms. Seller shall attach to the shipping documents a commercial invoice in duplicate. Should additional documents be required in order to provide proof of the intended use of the Goods delivered or for any other customs purposes, Seller must timely procure all the required documents for Buyer and make them available to Buyer at Seller’s cost. Seller is bound by and warrants the accuracy of all invoices, documents, and information furnished to Buyer by Seller or its agent for export, entry, or other purposes.
10. Inspection, Risk of Loss, Acceptance or Rejection, and Quality Control:
A. Title to and risk of loss or damage to the Goods passes from Seller to Buyer at the time of delivery of the Goods to Buyer at Buyer’s designated location.
B. Buyer reserves the right to inspect the Goods. Buyer may reject any Goods that are defective, damaged, non-conforming, or in breach of Seller’s warranties at any time. Payment to Seller shall not be construed as acceptance by Buyer or agreement by Buyer that the Goods conform to these Purchase Order Terms and Conditions. Any inspection or testing by Buyer does not limit the continuing validity and enforceability of any of Seller’s warranties or relieve Seller of its obligations under these Terms and Conditions. Buyer may revoke acceptance if Buyer subsequently determines that the Goods are non-conforming or Buyer accepted the Goods with the expectation that any non-conformity would be cured, and Seller fails to timely cure. In the event of Buyer’s rejection of any Goods or revocation of acceptance, for whatever reason, risk of loss or damage will be treated as never having passed to Buyer and has having rested at all times with Seller. Defective or nonconforming Goods may be returned to Seller for full credit and at Seller’s risk and expense, including transportation charges both ways.
C. At reasonable times during the period of Seller’s performance under this Order, including the period of manufacture, Buyer and its customers may inspect and/or test the Goods at the plants where Seller’s work is being performed or where the Goods are being produced, manufactured designed, and/or stored, including the facilities of the Seller’s suppliers, and Seller will provide, without additional charge, reasonable facilities and assistance for safe and convenient inspection and testing. Any inspection does not obviate any warranty or constitute acceptance of the Goods or otherwise relieve Seller of its obligations under these Purchase Order Terms and Conditions.
D. Seller will provide and maintain quality control and inspection systems acceptable to Buyer.
11. Notice of Labor Disputes:
Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Order, Seller will immediately give written notice to Buyer, including all relevant information with respect to the delay or potential delay. Seller further agrees to notify Buyer in writing at least sixty (60) days prior to the expiration of any collective bargaining agreement to which Seller or any of Seller’s suppliers are party.
12. Warranties:
A. Seller warrants and represents that all Goods and services furnished hereunder are and will be (a) in strict compliance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer; (b) merchantable, of good material and workmanship, and free from all defects including but not limited to design, workmanship and materials; (c) selected, designed, manufactured, assembled and installed (as applicable) by Seller based on Buyer’s intended use, and fit and sufficient for the use and purpose intended by Buyer; (d) in strict compliance, as of the date of delivery, with then all applicable industry standards, quality control and inspection standards, and all statutes, rules and regulations, of any kind or nature, including those promulgated by any government or governmental agency in the United States and in countries in which Buyer has informed Seller the Goods furnished hereunder and/or the Goods into which such Goods are to be incorporated are likely to be used; (e) free from all liens and encumbrances; and (f) free from all patent, trademark, copyright, trade secret or other intellectual property right infringement or claims.
B. Approval by Buyer of Seller’s design, drawings, specifications, samples, etc. does not waive or limit any warranty. Seller shall reimburse Buyer for all costs (including labor charges, cost of replacement parts, dealer handling charges and any other expenses) incurred by Buyer as a result of Seller’s breach of any warranty. There are no exclusions, limitations, or disclaimers of warranties other than those that may be expressly recited in these Purchase Order Terms and Conditions. Notice of breach of warranty will be sufficient if given by Buyer within one hundred eighty (180) days after discovery by Buyer. Notice may be given orally or in writing.
C. As to each of the Goods, each of Seller’s warranties in the Order and these Purchase Order Terms and Conditions begins on the date of delivery to Buyer and continues until the last to occur of the following: (a) the expiration of all warranties made by Buyer to its customer(s) concerning Buyer’s product incorporating the Goods, (b) the expiration of the longest time period which Buyer’s customer may be required, by contract or law, to repair or replace the Goods or Buyer’s product incorporating the Goods if the Goods are defective or nonconforming to any warranties, or (c) five years after delivery.
13. Defective or Nonconforming Goods/Breach of Warranty, Remedies:
A. In the event of Seller’s delivery of defective or nonconforming Goods or Seller’s breach of any warranty or other breach of Seller’s obligations under this Order and these Purchase Order Terms and Conditions (a “Breach”), Buyer may exercise one or more of the following remedies:
(a) Buyer may recover from Seller any costs of removing the Goods from property, equipment, or products in which the Goods have been incorporated and any additional costs of reinstallation, reinspection and retesting;
(b) Buyer may return the Goods at Seller’s risk and expense (or otherwise dispose of the Goods at Seller’s expense as mutually agreed between Buyer and Seller) and
(i) recover from Seller the price paid for the Goods;
(ii) purchase or manufacture or have manufactured similar or the same Goods and recover from Seller all costs and expenses, including any costs and expenses incurred in expediting the manufacture and delivery of the replacement Goods, and all launch and start-up costs, if applicable; or
(iii) require Seller, at Seller’s expense, to promptly replace or correct the Goods and pending redelivery to pay to Buyer any amount theretofore paid for such Goods;
(c) accept or retain the Goods and equitably reduce their price based on (i) the loss in value resulting from the Breach and (ii) all costs and expenses, including legal fees, incurred or likely to be incurred by Buyer as a result of the Breach.
B. In addition to Buyer’s remedies set forth above, Seller is liable to Buyer for injunctive relief, lost profits, and all special, incidental, and consequential damages resulting in any way from a Breach by Seller, whether the losses or damages are caused directly or indirectly by Seller’s Breach. Exercise by Buyer of any or all of its rights under these Purchase Order Terms and Conditions is not an election of remedies. All remedies are cumulative of all rights of Buyer under this Order, these Purchase Order Terms and Conditions, and any other agreement with Seller, and Buyer’s rights at law and equity.
14. Termination:
A. Termination for Convenience:
1. In addition to any other rights of Buyer to cancel or terminate this Order or any Releases issued under this Order, Buyer may at its option immediately terminate all or any part of this Order or any Releases issued under this Order for Buyer’s convenience, at any time and for any or no reason by giving written notice to Seller. Upon receipt of a notice of termination, Seller, unless otherwise directed by Buyer, is required to: (a) terminate promptly all work under this Order; (b) transfer title and deliver to Buyer the finished work, the work-in-progress and the parts and materials which Seller procured or acquired in accordance with this Order and issued Releases; (c) settle claims by subcontractors, if any, only for actual costs that are rendered unrecoverable by the termination; and (d) take actions reasonably necessary to protect property in Seller’s possession in which the Buyer has an interest. If Buyer provides a notice of termination with a prospective termination date, Seller must continue producing and delivering Goods under Buyer’s Releases until the termination date, and must cease all purchases, production, and other work under this Order except as necessary to meet Releases through the effective date of termination.
2. Upon termination for convenience and subject to paragraph 15, Buyer is obligated to pay to Seller only the following amounts without duplication: (a) the Order price for all conforming Goods which have been completed in accordance with Buyer’s Releases and meet all specifications and warranties stated in this Order and these Purchase Order Terms and Conditions; (b) Seller’s reasonable actual costs of the work-in-progress, parts, and material furnished to Buyer in accordance with the provisions of this subparagraph; (c) Seller’s reasonable actual costs of settling with its subcontractors provided that (i) Seller obtains Buyer’s prior approval of the settlement amount and (ii) Seller’s obligations to its subcontractors for termination is limited to the same extent as Buyer’s obligations to Seller; (d) Seller’s reasonable actual costs for protecting property in its possession in which Buyer has an interest. Notwithstanding the foregoing or any transfer to Buyer, Buyer shall not be liable to pay for more than four (4) weeks of raw materials inventory and no more than one (1) week of works-in-process and finished Goods. Buyer shall not be liable to pay for work in process or raw materials fabricated or processed by Seller in amounts in excess of those authorized in delivery Releases, for any undelivered Goods which are Seller’s standard stock or which are readily marketable, or for any finished Goods which are not promptly delivered to Buyer after request by Buyer. Except as provided in this paragraph, Buyer will not be liable for and will not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, financing costs, product development and engineering costs, facilities and equipment, rearrangement cost or rental, unamortized depreciation costs, or general and administrative burden charges arising from termination of this Order.
3. To make a claim under this subparagraph, Seller must submit a comprehensive termination claim to Buyer with sufficient supporting data to permit Buyer’s audit within twenty-one (21) days from the effective date of termination, and must thereafter promptly furnish all supplemental and supporting information that Buyer requests. Buyer or its agent shall have the right to audit and examine all books, records, facilities, work material, inventories, and other materials and information relating to any termination claim by Seller. Payment under this subparagraph shall constitute the only liability of Buyer if this Order is terminated by Buyer for its convenience. Failure by Seller to timely submit a termination claim under this subparagraph constitutes an irrevocable waiver and release by Seller of any and all costs, expenses, claims, damages, charges, and losses incurred by Seller under and relating to this Order. In no event will Buyer be liable in any amount greater than the price stated in Buyer’s issued and unfilled Releases as of the effective date of the termination.
B. Termination for Default: Buyer reserves the right to terminate this Order in whole or in part for default if: (i) Seller fails to perform in accordance with any of the requirements of this Order to make progress so as to endanger performance under this Order; (ii) Seller breaches or defaults under any other agreement between Buyer and Seller; (iii) Seller breaches any warranty to Buyer under this Order or any other agreement, and, if Seller has a right to cure, Seller fails to promptly cure on demand; or (iv) Seller becomes insolvent or suspends its operations or if any petition is filed or proceeding commenced by or against Seller under any State or Federal law related to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors. Any termination for default will be with no liability whatsoever by Buyer to Seller except for completed Goods delivered and accepted by Buyer, payment for which may be setoff by Buyer against any damages claimed by Buyer against Seller. Buyer may require Seller to transfer title and deliver to Buyer any and all Goods and other property produced or procured by Seller for performance under this Order and Seller will be credited with the reasonable value of the Goods or property, not to exceed Seller’s actual cost. Seller will be liable for damages caused by or resulting from its default including but not limited to excess of cost of procurement. Buyer will retain, in addition, all other rights arising from Seller’s default provided under these Purchase Order Terms and Conditions and at law and equity. If, after a default termination, it is determined that Seller was not in default, the termination shall be considered to have been made for convenience pursuant to the preceding subparagraph 14.A.
C. Because Buyer’s commitments to its Customers are made in reliance on Seller’s commitments under this and each Order, Seller has no right to terminate this Order. By accepting this Order, Seller accepts all risks of performance. Seller acknowledges that any attempt by Seller to terminate or repudiate this Order would cause irreparable harm to Buyer and agrees that Buyer is entitled to specific performance of Seller’s obligations under this Order without placing a bond or offering any proof of damages or harm.
D. Termination of this Order or any Release does not affect Seller’s warranties and obligations under this Agreement as to Goods previously delivered and obligations not dependent upon the delivery of Goods.
E. Notwithstanding anything to the contrary, Buyer’s obligation to Seller upon termination of this Order will not exceed the obligation Buyer would have had to Seller under issued Releases in the absence of termination of this Order.
15. Limitation of Seller’s Remedies and Damages:
A. In no event shall Buyer be liable to Seller for anticipated profits or for special, incidental or consequential damages. This limitation of liability provision applies notwithstanding the type of this Order. Buyer’s liability for termination is limited to claims made under paragraph 14, above. Any other claim of any kind or any loss or damage arising out of or in connection with or resulting from each Order, the Goods or any other agreement between Buyer and Seller is strictly limited to the Reasonable Obsolescence, if any, created by the event giving rise to the claim. Buyer and Seller agree that “Reasonable Obsolescence” means the following amounts without duplication: (i) the Order price for all finished and completed conforming non-defective Goods that are authorized under outstanding firm Releases which have not been previously paid for; and (ii) Seller’s reasonable actual cost of the usable and merchantable work in process and raw materials/components transferred to Buyer in accordance with the termination and that are covered by outstanding firm Releases from Buyer. Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for any other alleged losses or costs, whether denominated as loss of anticipated profit, recoupment of investment, unabsorbed overhead, interest on claims, financing costs, damages, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, general and administrative burden charges resulting from termination of this Order, or otherwise.
B. Seller’s obligations under this Order are independent of Buyer’s obligations. Seller’s sole remedy for any breach or default by Buyer is the commencement of an action against Buyer for damages limited as set forth above and in paragraph 14. Except as specifically permitted under these Purchase Order Terms and Conditions or in writing by Buyer, Seller may not under any circumstances stop work or suspend performance under this Order, cancel or terminate this Order, delay shipments, or take any other action that could interfere with production of product by Buyer or the operation of any of Buyer’s facilities.
16. Force Majeure:
In the event of fire, accidents, government acts, war, acts of terrorism, riots, or any other extraordinary event beyond either party’s reasonable control which prevent manufacture, transportation, delivery, acceptance or Buyer’s prompt utilization of the Goods covered by this Order, the affected party may, without any liability or penalty, delay delivery, manufacture, transportation, acceptance or utilization by written notice effective when received by the other party, until such event and consequences of such event of force majeure shall have terminated or have been reduced to an extent that performance under this Order is possible, or until the affected party is able to perform despite the event of force majeure. The notice of an event of force majeure must contain the reason for any delay which the notifying party considers to be an event under the provisions of this paragraph. An event of force majeure does not include events within the total or partial control of the party giving notice including, but not limited to, poor business judgment or estimates, material cost increases, currency fluctuations, labor shortages, Seller’s financial condition, insolvency, or lack of access to capital, or unanticipated engineering or technical difficulties. Furthermore, Seller specifically agrees that labor disputes, labor disruptions, and strikes at its facility or by its workforce at its facility do not constitute a force majeure. Notwithstanding the foregoing, in the event that any such force majeure shall cause Seller to fail to deliver or otherwise perform under this Order for a period of thirty (30) days, Buyer may terminate the Order immediately and find an alternative source for the Goods to be provided hereunder, all without liability or obligation to Seller. Nothing in this paragraph limits Buyer’s right to terminate for convenience at any time.
17. Patent, Trademark, Copyright, and Intellectual Property, Indemnification:
A. Seller grants to Buyer a worldwide, nonexclusive, royalty-fee, irrevocable, and fully assignable license to use, repair and have repaired, and to reconstruct and have reconstructed the Goods ordered hereunder. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights, patents, trade secrets, industrial design rights, drawings, data, designs, engineering instructions, models, specifications or other technical information, written, oral or otherwise, in the Goods and any related products and information prepared for Buyer in connection with this Order. Seller agrees to ensure that all subcontractors to Seller have contracts with Seller in writing consistent with the terms of this paragraph.
B. Seller further agrees to defend, hold harmless and indemnify Buyer, its successors, assigns, employees and agents, against all claims, demands, losses, suits, damages, liability and expenses (including actual attorneys’ fees) arising from any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright, industrial design right, or any other intellectual property right by reason of (i) breach by Seller of this paragraph or (ii) for actual or alleged misuse or misappropriation of a trade secret or intellectual property right resulting directly or indirectly from Seller’s actions. Seller further agrees to waive any claim against Buyer, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for patent, trademark, copyright or industrial design right infringement or the like. Upon becoming aware of any claim, demand, suit, or action, Buyer will notify Seller and Seller, at Buyer’s option and at Seller’s expense, will undertake defense of the claim, demand, suit or action through counsel approved by Buyer, provided that Seller must first obtain authorization from Buyer before any settlement is made of the claim, demand, suit or action. In the alternative, Buyer may elect to undertake the defense of the claim, demand, suit or action, to the extent it is asserted against Buyer, and Seller agrees to reimburse Buyer on a monthly basis for all expenses, actual attorney fees, and other costs incurred by Buyer.
18. Indemnification and Insurance:
A. In addition to all indemnification obligations in the Order, these Purchase Order Terms and Conditions and any other agreement between Buyer and Seller, Seller agrees to indemnify and hold harmless Buyer, its employees, agents, customers, and invitees from and against all liability, demands, claims, losses, costs, damage and expenses including actual attorney fees (collectively, “Claims”) by reason of or on account of property damages, personal injury, death or any other Claims arising out of, as result of, or in connection with the performance of this Order and/or the Goods, including Claims which are occasioned by any defect in product and/or breach of this Order, and Claims caused, directly or indirectly by any acts of Seller, its employees, agents, and invitees. Seller waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Seller’s indemnity. Upon becoming aware of a Claim, Buyer will notify Seller and Seller, at Buyer’s option, and at Seller’s expense, will undertake defense of the Claim through counsel approved by Buyer. Seller shall first obtain written authorization from Buyer before settlement is made of the Claim unless the terms of the settlement could not, under any circumstances, materially adversely affect Buyer, including any terms that admit the existence of a defect in Goods or a failure of Buyer to fully and faithfully perform its obligations. In the alternative, Buyer may elect to undertake defense of the Claim, to the extent it is asserted against Buyer, and Seller agrees to reimburse Buyer on a monthly basis for all expenses, actual attorney fees, and other costs incurred by Buyer.
B. Seller agrees to procure and maintain, at its sole expense, insurance with reputable insurance companies sufficient to cover Seller’s liabilities under this Order, including all contingent liabilities to Buyer and third parties. Buyer is entitled to require certain specific insurance coverage, including products liability, employer’s liability, workman’s compensation, general liability, public liability, property damage liability, completed operations liability, recall liability, business interruption and contractual liability, in the amounts and on terms acceptable and approved by Buyer. Seller agrees to procure all required insurance with Buyer as a named loss payee and additional insured. Seller must provide to Buyer proof of such insurance upon Buyer’s request. Such policies shall provide cancellation only upon written notice to Buyer. Failure by Buyer to request proof of insurance from Seller does not constitute a waiver of the requirements in this paragraph.
19. Compliance with Laws:
A. Seller agrees to comply with all applicable federal, state and local laws, executive orders, rules, and regulations during the performance of this Order.
20. Assignment, Subcontracting:
Seller may not assign or subcontract this Order or any work to performed under this Order without advance written authorization by Buyer. Any attempted assignment of this Order or the work to be performed, in whole or in part, or of any other interest hereunder without Buyer’s written consent, except an assignment confined solely to monies due or to become due hereunder, is void and of no effect.
21. Confidentiality:
Notwithstanding any separate confidentiality and non-disclosure agreements, Seller agrees to safeguard, preserve and maintain the confidential nature of all know-how, trade secrets and other confidential information disclosed to it by Buyer. Seller agrees to treat all information received by it from Buyer or Buyer’s customers as confidential unless the information is or becomes public knowledge without the fault of Seller or Buyer expressly states in writing that the information is not confidential. Seller will not disclose or otherwise make available to third parties any drawings, models, patterns, samples and similar objects without the prior written consent of Buyer. Notwithstanding the foregoing, Seller may disclose confidential information pursuant to the order of a court of competent jurisdiction provided Seller must first give notice to Buyer of the request or subpoena for the confidential information and Buyer must have a reasonable opportunity to challenge or limit the disclosure under applicable rules of Civil Procedure or Court Rules. Seller agrees to include these confidentiality obligations to Buyer in any and all contracts with subcontractors. The terms of this provision will survive the expiration or termination of this Order.
22. No Waiver:
The rights and remedies of Buyer set forth in this Order and these Purchase Order Terms and Conditions are in addition to any other rights and remedies provided in law or equity. The failure by Buyer to exercise any rights or remedies under this Order is not a waiver of any other rights or remedies. Any delay by Buyer in exercising any rights or remedies is not a waiver or release of those rights or remedies, and will not prejudice Buyer’s exercise of its rights and remedies at any time. No course of dealing between Seller and Buyer modifies or waives any rights or remedies. The exercise of any right or remedy by Buyer is not an election of remedies.
23. Choice of Law and Jurisdiction:
The construction, interpretation and performance of this Order and these Purchase Order Terms and Conditions, and all transactions under or related to this Order are governed by the law of the State of Michigan, without regard to principles of conflicts of law. The United Nations Convention on the International Sale of Goods is expressly excluded. Any legal action by Seller against Buyer involving this Order shall be initiated and prosecuted in Isabella County, Michigan or the United States District Court for the Eastern District of Michigan. Any legal action by Buyer under or related to this Order may be initiated and prosecuted, at Buyer’s option, either in Isabella County, Michigan or in any court having personal jurisdiction over Seller or any other defendant. Seller specifically waives any and all objections to venue in any court having jurisdiction over Isabella County, Michigan, and agrees that a judgment or award against it resulting from any lawsuit or proceedings will be conclusive and binding upon it and may be enforced in any other domestic or foreign jurisdiction.
24. Severability:
These Purchase Order Terms and Conditions are severable and if any term, condition or portion of any term or condition is stricken or declared illegal, invalid or unenforceable for any reason whatsoever, the legality, validity, or enforceability of the remaining Purchase Order Terms and Conditions will be not be affected thereby.
25. Relationship of Parties:
Seller and Buyer are independent contracting parties and nothing in this Order makes either party the agent, joint venture or legal representative of the other for any purpose whatsoever, or grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. There are no third party beneficiaries to this Order.
26. Electronic Communications and Electronic Signatures:
Seller shall comply with any method of electronic communication specified by Buyer, including requirements for electronic funds transfer, purchase order transmission, production Releases, electronic signature, and communication.