General Terms and Conditions for Supplier
- Acceptance:
Seller has read and understands this contract and agrees
that Seller’s written acceptance or commencement of any
work or services under this contract shall constitute
Seller’s acceptance of these terms and conditions only.
- Shipping and Billing:
Seller agrees: (a) to properly pack, mark and ship goods
in accordance with the requirements of Buyer, the
involved carriers, and, if applicable, the country of
destination; (b) to route shipments in accordance with
Buyer’s instructions; (c) to make no charge for
handling, packaging, storage or transportation of goods,
unless otherwise stated as an item on this contract; (d)
to provide with each shipment packing slips with Buyer’s
contract and/or release number and date of shipment
marked thereon; (e) to properly mark each package with a
label/tag according to Buyer’s instructions; (f) to
promptly forward the original bill of lading or other
shipping receipt for each shipment in accordance with
Buyer’s instructions. Seller will include on bills of
lading or other shipping receipts correct classification
identification of the goods shipped in accordance with
Buyer’s instructions and the carrier’s requirements. The
marks on each package and identification of the goods on
packing slips, bills of lading and invoices (when
required) shall be sufficient to enable Buyer to easily
identify the goods purchased. Buyer may withhold payment
pending receipt of evidence, in such form and detail as
Buyer may direct, of the absence of any liens,
encumbrances and claims on the goods or services under
this contract.
- Delivery Schedules:
Time is of the essence, and deliveries shall be made
both in quantities and at times specified in Buyer’s
schedules. Buyer shall not be required to make payment
for goods delivered to Buyer that are in excess of
quantities specified in Buyer’s delivery schedules.
Buyer may change the rate of scheduled shipments or
direct temporary suspension of scheduled shipments,
neither of which shall entitle Seller to a modification
of the price for goods or services covered by this
contract. Where quantities and/or delivery schedules are
not specified, Seller shall deliver goods in such
quantities and times as Buyer may direct in subsequent
releases.
- Premium Shipments:
If Seller’s acts or omissions result in Seller’s failure
to meet Buyer’s delivery requirements and Buyer requires
a more expeditious method of transportation for the
goods than the transportation method originally
specified by Buyer, Seller shall ship the goods as
expeditiously as possible at Seller’s sole expense.
- Changes:
Buyer reserves the right at any time to direct changes,
or cause Seller to make changes, to drawings and
specifications of the goods or to otherwise change the
scope of the work covered by this contract including
work with respect to such matters as inspection, testing
or quality control, and Seller agrees to promptly make
such changes. Any difference in price or time for
performance resulting from such changes shall be
equitably adjusted by Buyer after receipt of
documentation in such form and detail as Buyer may
direct. Any changes to this contract shall be made in
accordance with Paragraph 31. Any such change that
results in a price increase will not take effect for six
months from date of written notice and acceptance by
Buyer.
- Supplier Quality and Development;
Inspection:
Seller agrees to participate in Buyer’s supplier quality
and development program(s) and to comply with all
quality requirements and procedures specified by Buyer,
as revised from time to time, including those applicable
to Seller as set forth in Quality System Requirements
QS-9000. In addition, Buyer shall have the right to
enter Seller’s facility at reasonable times to inspect
the facility, goods, materials and any property of Buyer
covered by this contract. Buyer’s inspection of the
goods, 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.
- Nonconforming Goods:
Seller acknowledges that Buyer will not perform incoming
inspections of the goods, and waives any rights to
require Buyer to conduct such inspections. To the extent
Buyer rejects goods as nonconforming, the quantities
under this contract will automatically be reduced unless
Buyer otherwise notifies Seller. Seller will not replace
quantities so reduced without a new contract or schedule
from Buyer. Nonconforming goods will be held by Buyer in
accordance with Seller’s instructions at Seller’s risk.
Seller’s failure to provide written instructions within
10 days, or such shorter period as may be commercially
reasonable under the circumstances, after notice of
nonconformity shall entitle Buyer, at Buyer’s option, to
charge Seller for storage and handling or to dispose of
the goods without liability to Seller. Payment for
nonconforming goods shall not constitute an acceptance
of them, limit or impair Buyer’s right to assert any
legal or equitable remedy, or relieve Seller’s
responsibility for latent defects.
- Force Majeure:
Any delay or failure of either party to perform its
obligations shall be excused if Seller is unable to
produce, sell or deliver, or Buyer is unable to accept
delivery, buy or use, the goods or services covered by
this contract, as the result of an event or occurrence
beyond the reasonable control of the party and without
its fault or negligence, including, but not limited to,
acts of God, actions by any governmental authority
(whether valid or invalid), fires, floods, windstorms,
explosions, riots, natural disasters, wars, sabotage,
labor problems (including lockouts, strikes and
slowdowns), inability to obtain power, material, labor
equipment or transportation, or court injunction or
order; provided that written notice of such delay
(including the anticipated duration of the delay) shall
be given by the affected party to the other party as
soon as possible after the event or occurrence (but in
no event more than 10 days thereafter). During the
period of such delay or failure to perform by Seller,
Buyer, at its option, may purchase goods and services
from other sources and reduce its schedules to Seller by
such quantities, without liability to Seller, or have
Seller provide the goods and services from other sources
in quantities and at times requested by Buyer, and at
the price set forth in this contract. In addition,
Seller at its expense shall take such actions as are
necessary to ensure the supply of goods and services to
Buyer for a period of at least 30 days during any
anticipated labor disruption or resulting from the
expiration of Seller’s labor contract(s). If requested
by Buyer, Seller shall, within 10 days, provide adequate
assurances that the delay shall not exceed 30 days. If
the delay lasts more than 30 days or Seller does not
provide adequate assurance that the delay will cease
within 30 days, Buyer may immediately terminate this
contract without liability.
- Warranty:
Seller warrants/guarantees that the goods covered by
this contract will conform to the specifications,
drawings, samples, or descriptions furnished to or by
Buyer, and will be merchantable, of good material and
workmanship and free from defect. In addition, Seller
acknowledges that Seller knows of Buyer’s intended use
and warrants/guarantees that all goods covered by this
contract that have been selected, designed, manufactured
or assembled by Seller based upon Buyer’s stated use
will be fit and sufficient for the particular purposes
intended by Buyer. The warranty period shall be that
provided by applicable law, except that if Buyer offers
a longer warranty to its customers for goods installed
on vehicles, such longer period shall apply.
- Ingredients Disclosure; Special
Warnings and Instructions:
If requested by Buyer, Seller shall promptly furnish to
Buyer in such form and detail as Buyer may direct: (a) a
list of all ingredients in the goods; (b) the amount of
all ingredients; and (c) information concerning any
changes in or additions to such ingredients. Prior to
and with the shipment of the goods, Seller agrees to
furnish to Buyer sufficient warning and notice in
writing (including appropriate labels on the goods,
containers and packing) of any hazardous material that
is an ingredient or a part of any of the goods, together
with such special handling instructions as may be
necessary to advise carriers, Buyer, and their
respective employees of how to exercise that measure of
care and precaution that will best prevent bodily injury
or property damage in the handling, transportation,
processing, use or disposal of the goods, containers and
packing shipped to Buyer.
- Insolvency:
Buyer may immediately terminate this contract without
liability to Seller in any of the following or any other
comparable events: (a) insolvency of Seller; (b) filing
of a voluntary petition in bankruptcy by Seller; (c)
filing of any involuntary petition in bankruptcy against
Seller; (d) appointment of a receiver or trustee for
Seller; or (e) execution of an assignment for the
benefit of creditors by Seller, provided that such
petition, appointment or assignment is not vacated or
nullified within 15 days of such event. Seller shall
reimburse Buyer for all costs incurred by Buyer in
connection with any of the foregoing, including, but not
limited to, all attorney’s or other professional fees.
- Termination For Breach Or
Nonperformance; Sale of Assets Or Change In Control::
Buyer reserves the right to terminate all or any part of
this contract, without liability to Seller, if Seller:
(a) repudiates or breaches any of the terms of this
contract, including Seller’s warranties; (b) fails to
perform services or deliver goods as specified by Buyer;
(c) fails to make progress so as to endanger timely and
proper completion of services or delivery of goods; and
does not correct such failure or breach within 10 days
(or such shorter period of time if commercially
reasonable under the circumstances) after receipt of
written notice from Buyer specifying such failure or
breach. In addition, Buyer may terminate this contract
upon giving at least 60 days notice to Seller, without
liability to Seller, if Seller (i) sells, or offers to
sell, a material portion of its assets, or (ii) sells or
exchanges, or offers to sell or exchange, or causes to
be sold or exchanged, a sufficient amount of its stock
that effects a change in the control of Seller.
- Termination For Convenience:
In addition to any other rights of Buyer to terminate
this contract, Buyer may, at its option, immediately
terminate all or any part of this contract, at any time
and for any reason, by giving written notice to Seller.
Upon such termination, Buyer shall pay to Seller the
following amounts without duplication: (a) the contract
price for all goods or services that have been completed
in accordance with this contract and not previously paid
for; and (b) the actual costs of work-in-process and raw
materials incurred by Seller in furnishing the goods or
services under this contract to the extent such costs
are reasonable in amount and are properly allocable or
apportionable under generally accepted accounting
principles to the terminated portion of this contract;
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 material.
Buyer will make no payments for finished goods,
services, work-in-process or raw materials fabricated or
procured by Seller in amounts in excess of those
authorized in delivery releases nor for any undelivered
goods that are in Seller’s standard stock or that are
readily marketable. Payments made under this Paragraph
shall not exceed the aggregate price payable by Buyer
for finished goods or services that would be produced or
performed by Seller under delivery or release schedules
outstanding at the date of termination. Except as
provided in this Paragraph, Buyer shall not be liable
for and shall not be required to make payments to
Seller, directly or on account of claims by Seller’s
subcontractors, for loss of anticipated profit,
unabsorbed overhead, interest on claims, product
development and engineering costs, facilities and
equipment rearrangement costs or rental, unamortized
depreciation costs, or general and administrative burden
charges from termination of this contract. Within 60
days from the effective date of termination, Seller
shall submit a comprehensive termination claim to Buyer,
with sufficient supporting data to permit Buyer’s audit,
and shall thereafter promptly furnish such supplemental
and supporting information as Buyer shall request. Buyer
or its 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.
- Intellectual Property:
Seller agrees: (a) to defend, hold harmless and
indemnify Buyer, its successors and customers against
any claims of infringement (including patent, trademark,
copyright, industrial design right, or other proprietary
right, or misuse or misappropriation of trade secret)
and resulting damages and expenses (including attorney’s
and other professional fees) arising in any way in
relation to the goods or services contracted, including
such claims where Seller has provided only part of the
goods or services; Seller expressly waives any claim
against Buyer that such infringement arose out of
compliance with Buyer’s specification; (b) that Buyer or
Buyer’s subcontractor has the right to repair,
reconstruct, or rebuild the specific goods delivered
under this contract without payment of any royalty to
Seller; (c) that parts manufactured based on Buyer’s
drawings and/or specifications may not be used for its
own use or sold to third parties without Buyer’s express
written authorization; and (d) to the extent that this
contract is issued for the creation of copyrightable
works, the works shall be considered "works made for
hire;" to the extent that the works do not qualify as
"works made for hire," Seller hereby assigns to Buyer
all right, title and interest in all copyrights and
moral rights therein.
- Technical Information Disclosed To
Buyer:
Seller agrees not to assert any claim (other than a
claim for patent infringement) with respect to any
technical information that Seller shall have disclosed
or may hereafter disclose to Buyer in connection with
the goods or services covered by this contract.
- Indemnification:
If Seller performs any work on Buyer’s premises or
utilizes the property of Buyer, whether on or off
Buyer’s premises, Seller shall indemnify and hold Buyer
harmless from and against any liability, claims, demands
or expenses (including attorney’s and other professional
fees) for damages to the property of or injuries
(including death) to Buyer, its employees or any other
person arising from or in connection with Seller’s
performance of work or use of Buyer’s property, except
for such liability, claim, or demand arising out of the
sole negligence of Buyer.
- Seller's Property:
Unless otherwise agreed to by Buyer, Seller, at its
expense, shall furnish, keep in good condition, and
replace when necessary all machinery, equipment, tools,
jigs, dies, gauges, fixtures, molds, patterns and other
items ("Seller’s Property") necessary for the production
of the goods. The cost of changes to Seller’s Property
necessary to make design and specification changes
authorized by Buyer shall be paid for by Buyer. Seller
shall insure Seller’s Property with full fire and
extended coverage insurance for its replacement value.
Seller grants Buyer an irrevocable option to take
possession of and title to Seller’s Property that is
special for the production of the goods upon payment to
Seller of its net book value less any amounts that Buyer
has previously paid to Seller for the cost of such
items; provided, however, that this option shall not
apply if Seller’s Property is used to produce goods that
are the standard stock of Seller or if a substantial
quantity of like goods are being sold by Seller to
others.
- Buyer's Property:
All supplies, materials, tools, jigs, dies, gauges,
fixtures, molds, patterns, equipment and other items
furnished by Buyer, either directly or indirectly, to
Seller to perform this contract, or for which Seller has
been reimbursed by Buyer, shall be and remain the
property of Buyer and held by Seller on a bailment basis
("Buyer’s Property"). Seller shall bear the risk of loss
of and damage to Buyer’s Property. Buyer’s Property
shall at all times be properly housed and maintained by
Seller, at its expense, shall not be used by Seller for
any purpose other than the performance of this contract;
shall be deemed to be personalty; shall be conspicuously
marked by Seller as the property of Buyer; shall not be
commingled with the property of Seller or with that of a
third person; and shall not be moved from Seller’s
premises without Buyer’s prior written approval. Buyer
shall have the right to enter Seller’s premises at all
reasonable times to inspect such property and Seller’s
records with respect thereto. Upon the request of Buyer,
Buyer’s Property shall be immediately released to Buyer
or delivered to Buyer by Seller, either (i) F.O.B.
transport equipment at Seller’s plant, properly packed
and marked in accordance with the requirements of the
carrier selected by Buyer to transport such property, or
(ii) to any location designated by Buyer, in which event
Buyer shall pay to Seller the reasonable costs of
delivering such property to such location. When
permitted by law, Seller waives any lien or other rights
that Seller might otherwise have on any of Buyer’s
Property for work performed on such property or
otherwise.
- Service and Replacement Parts:
Seller will sell to Buyer goods necessary for it to
fulfill its current model service and replacement parts
requirements at the price(s) set forth in this contract.
If the goods are systems or modules, Seller will sell
the components or parts that comprise the system or
module at price(s) that shall not, in the aggregate,
exceed the price of the system or module less assembly
costs. During the 15 year period after Buyer completes
current model purchases, Seller will sell goods to Buyer
to fulfill Buyer’s past model service and replacement
parts requirements. Unless otherwise agreed to by Buyer,
the price(s) during the first 3 years of this period
shall be those in effect at the conclusion of current
model purchases. For the remainder of this period, the
price(s) for goods shall be as agreed to by the parties.
When requested by Buyer, Seller shall make service
literature and other materials available at no
additional charge to support Buyer’s service part sales
activities.
- Remedies:
The rights and remedies reserved to Buyer in this
contract shall be cumulative with, and additional to,
all other or further remedies provided in law or equity.
Without limiting the foregoing, should any goods fail to
conform to the warranties set forth in Paragraph 9,
Buyer shall notify Seller and Seller shall, if requested
by Buyer, reimburse Buyer for any incidental and
consequential damages caused by such nonconforming
goods, including, but not limited to, costs, expenses
and losses incurred by Buyer (a) in inspecting, sorting,
repairing or replacing such nonconforming goods; (b)
resulting from production interruptions, (c) conducting
recall campaigns or other corrective service actions,
and (d) claims for personal injury (including death) or
property damage caused by such nonconforming goods. If
requested by Buyer, Seller will enter into a separate
agreement for the administration or processing of
warranty chargebacks for nonconforming goods.
- Customs; Export Controls:
Credits or benefits resulting or arising from this
contract, including trade credits, export credits or the
refund of duties, taxes or fees, shall belong to Buyer.
Seller shall provide all information necessary
(including written documentation and electronic
transaction records) to permit Buyer to receive such
benefits or credits, as well as to fulfill its customs
related obligations, origin marking or labeling
requirements and local content origin requirements, if
any. Export licenses or authorizations necessary for the
export of the goods shall be the responsibility of
Seller unless otherwise indicated in this contract, in
which event Seller shall provide such information as may
be necessary to enable Buyer to obtain such licenses or
authorization(s). Seller shall undertake such
arrangements as necessary for the goods to be covered by
any duty deferral or free trade zone program(s) of the
country of import.
- Setoff/Recoupment:
In addition to any right of setoff or recoupment
provided by law, all amounts due to Seller shall be
considered net of indebtedness of Seller and its
affiliates/subsidiaries to Buyer and its
affiliates/subsidiaries; and Buyer shall have the right
to setoff against or to recoup from any amounts due to
Seller and its affiliates/subsidiaries from Buyer and
its affiliates/subsidiaries.
- No Advertising:
Seller shall not, without first obtaining the written
consent of Buyer, in any manner advertise or publish the
fact that Seller has contracted to furnish Buyer the
goods or services covered by this contract, or use any
trademarks or trade names of Buyer in Seller’s
advertising or promotional materials.
- Compliance with Laws; Forced Labor:
Seller, and any goods or services supplied by Seller,
shall comply with all applicable laws, rules,
regulations, orders, conventions, ordinances or
standards of the country(ies) of destination or that
relate to the manufacture, labeling, transportation,
importation, exportation, licensing, approval or
certification of the goods or services, including, but
not limited to, those relating to environmental matters,
wages, hours and conditions of employment, subcontractor
selection, discrimination, occupational health/safety
and motor vehicle safety. Seller further represents that
neither it nor any of its subcontractors will utilize
slave, prisoner or any other form of forced or
involuntary labor in the supply of goods or provision of
services under this contract. At Buyer’s request, Seller
shall certify in writing its compliance with the
foregoing. Seller shall indemnify and hold Buyer
harmless from and against any liability claims, demands
or expenses (including attorney’s or other professional
fees) arising from or relating to Seller’s
noncompliance.
- No Implied Waiver:
The failure of either party at any time to require
performance by the other party of any provision of this
contract shall in no way affect the right to require
such performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision of
this contract constitute a waiver of any succeeding
breach of the same or any other provision.
- Non-Assignment:
Unless otherwise specifically prohibited by applicable
law, Seller may not assign or delegate its rights or
obligations under this contract without Buyer’s prior
written consent.
- Non-Circumvention:
Seller agrees that, during the period of this agreement
and for a period of three (3) years thereafter, no
attempt will be made by Seller to directly or indirectly
sell products provided to Buyer to Buyer's competitors
or otherwise circumvent buyer's established customer
relationships and supply arrangements.
- Relationship Of Parties:
Seller and Buyer are independent contracting parties and
nothing in this contract shall make either party the
agent or legal representative of the other for any
purpose whatsoever, nor does it grant either party any
authority to assume or to create any obligation on
behalf of or in the name of the other.
- Governing Law; Jurisdiction:
This contract is to be construed according to the laws
of the State of Michigan from which this contract is
issued as shown by the address of Buyer, excluding the
provisions of the United Nations Convention on Contracts
for the International Sale of Goods and any conflict of
law provisions that would require application of another
choice of law. Any action or proceedings by Buyer
against Seller may be brought by Buyer in any court(s)
having jurisdiction over Seller or, at Buyer’s option,
in the court(s) having jurisdiction over Buyer’s
location, in which event Seller consents to jurisdiction
and service of process in accordance with applicable
procedures. Any actions or proceedings by Seller against
Buyer may be brought by Seller only in the court(s)
having jurisdiction over the location of Buyer from
which this contract is issued.
- Severability:
If any term(s) of this contract is invalid or
unenforceable under any statute, regulation, ordinance,
executive order or other rule of law, such term(s) shall
be deemed reformed or deleted, as the case may be, but
only to the extent necessary to comply with such
statute, regulation, ordinance, order or rule, and the
remaining provisions of this contract shall remain in
full force and effect.
- Entire Agreement:
This contract, together with the attachments, exhibits,
supplements or other terms of Buyer specifically
referenced in this contract, constitutes the entire
agreement between Seller and Buyer with respect to the
matters contained in this contract and supersedes all
prior oral or written representations and agreements.
This contract may only be modified by a contract
amendment issued by Buyer. Notwithstanding, if Buyer and
Seller have mutually signed and entered into a long term
agreement, then the terms of that long term agreement
will continue in force and any terms herein will be
disregarded; however if the terms of that long term
agreement are mute on a specific issue, these terms and
conditions would apply to that issue.
|
|
