E-Z-GO Purchase Order Terms and Conditions

E-Z-GO Purchase Order Terms and Conditions
Purchase Order Terms and Conditions
E-Z-GO DIVISION OF TEXTRON INC.
These purchase order terms and conditions (“Terms and Conditions”) are hereby incorporated by reference
into and made a part of each purchase order issued to Seller, or otherwise provided to Seller by the E-Z-GO
Division of Textron Inc. (the “Buyer”).
1. ACCEPTANCE. Each Buyer purchase order (“Order”) shall be deemed accepted by Seller by shipment of
Goods (the term “Goods” throughout these Terms and Conditions includes without limitation, raw materials, parts,
components, intermediate assemblies, vehicles and end products), performance of services, commencement of work
on Goods, written acknowledgement, or any other conduct of Seller which recognizes the existence of a contract
pertaining to the subject matter hereof. NO PURPORTED ACCEPTANCE OF ANY ORDER ON TERMS AND
CONDITIONS WHICH MODIFY, SUPERSEDE, OR OTHERWISE ALTER THE TERMS AND CONDITIONS
HEREOF SHALL BE BINDING UPON BUYER AND SHALL BE DEEMED REJECTED UNLESS THEY ARE
ACCEPTED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF BUYER, NOTWITHSTANDING BUYER’S
ACCEPTANCE OR PAYMENT FOR ANY SHIPMENT OF GOODS OR SIMILAR ACTS OF BUYER. Unless
otherwise stated in such Order, each Order is Buyer's offer to Seller and does not constitute an acceptance by Buyer
of any offer or quotation by Seller. Any reference herein to any such offer or quotation by Seller is solely for the
purpose of incorporating the description and specifications of the subject matter thereof into the Order and then only
to the extent that such description and specifications do not conflict with the description and specifications contained
in such Order.
2. DELIVERY: Delivery must be in strict compliance with the schedule contained in each Order and shall be made
by Seller at such times and places and of such items and quantities as may be specified by Buyer. Time is of the
essence for each Order. Shipments of Goods in excess or in advance of Buyer's requirements contained in each
Order are at Seller's risk. Buyer reserves the right to return to Seller, at Seller's expense, all Goods received more
than two (2) calendar days ahead of the required delivery date. Buyer reserves the right, without loss of any rights or
privileges under any Order, including, without limitation, the right to benefit from any cash discounts, to pay invoices
covering items shipped in advance of the schedule on the normal maturity after the date specified for delivery. If
Seller fails to meet its scheduled delivery dates and Buyer elects to call for expedited shipments, Seller will pay the
difference between the method of shipping specified and the actual expedited rate incurred. Seller shall be
responsible for any additional charges resulting from any deviation from Buyer's routing instructions. Buyer’s
Transportation Routing Instructions are located at “http:\\routingguides.textron.com”. Should Buyer accept Goods
which are not delivered on or before the required delivery date, which option Buyer reserves, then Seller shall be
liable for all additional costs incurred by Buyer because of such delay(s), including, but not limited to,
telecommunication costs, additional or premium transportation charges, special handling expenses, and costs to
Buyer to store the materials, in addition to other remedies available by law to Buyer. All shipments originating within
the U.S. shall be delivered FCA Buyer’s dock (Freight Collect) (Incoterms 2010). All shipments originating outside
the U.S. shall be delivered DAP (Freight Collect) (Incoterms 2010). Title and risk of loss shall remain with the Seller
until Goods are delivered to the Incoterm delivery point. Notwithstanding such delivery terms, Seller shall bear the
entire risk of loss or damage to Goods purchased hereunder from the time that Buyer gives notice of rejection of such
Goods pursuant to the inspection provisions of the applicable Order. If Seller encounters or anticipates difficulty in
meeting the delivery schedule, Seller shall immediately notify Buyer in writing, giving pertinent details; provided
however, that the receipt of such information shall be for information purposes only and shall not constitute a waiver
by Buyer of any delivery schedule or date, or of any rights or remedies provided by law or in the applicable Order. If
Seller fails to make delivery promptly and regularly, as required by the Order, Buyer may, in addition to other
remedies available at law, terminate such Order in accordance with paragraph 13(A) of these Terms and Conditions.
Nothing contained in this paragraph shall prevent termination by Buyer under the provisions of paragraph 13(A) of
these Terms and Conditions.
3. SHIPPING INSTRUCTIONS: Seller agrees to prepare and properly pack, box or crate Goods for shipment so as
to prevent damage in transit, to comply with Buyer's shipping instructions and/or routings, and to describe the Goods
on the bill of lading in conformity with appropriate freight classifications. In addition, Seller shall specify on each bill of
lading, Buyer’s part numbers and the quantity of each item shipped. Any additional charges resulting from failure to
comply with this provision, including incidental and consequential damages, shall be charged to Seller. Each
container must be marked to enable identification of contents and quantities without opening. Packing lists and
certifications, when applicable, must accompany each shipment. The location of the packing list must be clearly
marked on the container. When multiple containers are used, the packing list will show the items in each container.
Multiple containers will be numbered consecutively, for example, 1 of 4, 2 of 4, etc. Buyer's purchase order number
and plant location must appear on all invoices, packing sheets, delivery tickets, shipping orders and bills of lading. If
Revised: 6-2011
Buyer requires or requests Seller to apply Buyer-specified, computer-scannable bar codes on the packing sheets
and/or Goods containers, then Seller agrees to do so, free of charge.
4. INVOICING AND PAYMENT: Individual invoices showing purchase order number and purchase order item
number (and/or any other information required by Buyer) must be issued by Seller for each shipment made pursuant
to each Order. One (1) copy of each invoice shall be mailed within three (3) days after the Incoterm delivery date.
Invoice date shall not precede the Incoterm delivery date. Rejections, delays in delivery or delivery in advance of
required delivery date, and/or invoices and/or shipping documentation, errors and/or omissions will be considered just
cause for withholding payment without loss of cash discount privilege(s). Unless otherwise specified, the price set
forth in each Order shall include all charges for Seller's packing and crating, and for insurance in transit. Buyer shall
have no obligation to pay any invoices received by Buyer more than six (6) months after Seller is required to submit
such invoices.
5. PAYMENT TERMS: Payment terms shall be 2% 10, net sixty (60) days for U.S. product Sellers and net average
one hundred twenty (120) days for non-U.S. product Sellers. Any discount terms must be agreed to, in writing, by
both parties. Product tooling terms are paid in three equal increments: the first payment upon issuance of the
purchase order, the second payment upon completion of the first product produced from the tooling and the final
payment upon PPAP approval. Capital payment terms will be paid ninety (90) days after commissioning.
6. INSPECTION: Seller agrees to inspect and test all Goods and monitor all services furnished in performance of
each Order to insure compliance with the specifications and other requirements of each Order. Seller will provide any
Certificates of Compliance and/or Certificates of Conformance as required by Buyer at Seller’s expense. Seller
agrees to permit inspection, monitoring and testing by Buyer of all Goods and services furnished in performance of
each Order during manufacture or production, where practical, while being performed and at all other times and
places. All Goods shall be received subject to Buyer's inspection, acceptance or rejection. Inspection or testing of, or
payment for, any Goods or services shall not constitute acceptance of them. Acceptance by Buyer does not relieve
Seller of liability for defects or any failure to conform to Buyer specifications. Buyer shall have the right to reject any
Goods and refuse any services found not to be in compliance with the specifications or other requirements of the
Order. The obligations of this paragraph shall survive the cancellation, termination, expiration or completion of each
Order.
7.
WARRANTY:
(A) Seller expressly warrants that all Goods and services furnished hereunder do not infringe on any patent,
copyright or other intellectual property right of any third party and Seller will convey clear title to Goods to
Buyer, free of any liens or encumbrances. Goods furnished shall strictly conform to all specifications,
drawings, samples, or other descriptions furnished, specified or adopted by Buyer and to all other
requirements of the Order. Goods will be merchantable, of good material and workmanship and free from
defect in design, material and workmanship. In addition, Seller acknowledges that Seller knows of Buyer’s
intended use and warrants/guarantees that all Goods covered by any Order 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 four (4) years from the date of
delivery, except that if Buyer offers a longer warranty to its customers, such longer period shall apply. Such
warranties, together with Seller's service warranties and guarantees, if any, shall survive inspection, test,
acceptance of, and payment for the Goods or services and shall run to Buyer, its successors, assigns,
customers at any tier, and all end users.
(B) Buyer may, at its option: (i) return defective or non-conforming Goods for credit or refund (without Seller
having any right to furnish conforming Goods), (ii) require prompt replacement or correction of the defective
or nonconforming Goods, or (iii) have the defective item corrected or replaced at Seller's expense and
deduct the cost thereof from any monies due Seller. In each instance, Seller’s warranty coverage shall
include, without limitation, all component replacement costs of parts; all costs of transportation, including all
freight charges, both from and to the Buyer or ultimate end user, including air priority, if requested by the
Buyer; and all costs of labor, such as, for example, reasonable removal and reinstallation costs, as well as a
time allowance for troubleshooting. Reimbursement for any and all labor costs shall be at Buyer’s current
posted shop rate. Such Goods will be held for Seller's instructions and at its risk, or at Buyer's option, will be
returned at Seller's risk. The return to Seller of any defective or nonconforming Goods and delivery to Buyer
of any corrected or replaced Goods shall be at Seller's expense. Buyer's packing sheet, which accompanies
Goods returned, will indicate whether Goods are to be corrected, replaced or credited to Buyer. No Goods
thus returned will be replaced or corrected by Seller without Buyer's written instructions. Goods which have
been rejected or required to be corrected shall not thereafter be tendered for acceptance unless the former
rejection or correction requirement is disclosed in writing.
Revised: 6-2011
(C) Any services that do not conform to the requirements of an Order shall, at the option of Buyer be: (i)
replaced forthwith with substitute services which do conform or (ii) terminated. If necessary, Buyer may
replace such services from a provider other than Seller and Seller shall pay or credit to Buyer on demand all
amounts paid by or charged to Buyer for such nonconforming services, all Buyer costs of such replacement
services and all costs and expenses suffered or incurred by Buyer on account of Seller’s failure to provide
services conforming to the requirements of the Order.
(D) In addition to any other remedies available to Buyer for breach of this warranty and notwithstanding any other
provision of any Order to the contrary, Buyer shall have the right, but not the obligation, and is hereby granted a
non-exclusive, royalty-free license, to make or have made by a third party service provider such modifications to
any computer programs provided by Seller hereunder as may be necessary to rectify any failure of such
programs to comply with this warranty. The remedies provided in this paragraph are in addition to all other
remedies provided to Buyer by law and herein, including Termination under paragraph 12. The obligations of
this paragraph shall survive the cancellation, termination, expiration, or completion of each Order.
8.
CHANGES: Buyer shall have the right at any time to make changes in one or more of the following: (A) the
method of shipment or packing, (B) place or time of delivery or performance; and (C) the quantities covered by
any Order. Notices of changes hereunder shall be delivered to Seller in writing and Seller shall be bound by
such changes upon receipt of such writing. Seller understands and agrees that it shall not be entitled to any
financial adjustment as a result of Buyer's changes in the time of delivery or performance. Seller shall not make
changes in the specifications, physical compositions of or processes used to manufacture Goods (including
destroying or moving tooling or equipment from one location to another) without Buyer’s prior written consent.
9.
INTELLECTUAL PROPERTY:
(A) Seller agrees that it will, at its own expense, including payment of costs and attorneys’ fees and
disbursements, defend any claims, charges or lawsuits instituted by any party against Buyer or its customers
arising out of, in connection with or related to alleged misuse, misappropriation or infringement of any
patent, trademark, copyright or other intellectual property right relating to Goods or services furnished to
Buyer in the performance of each Order, or relating to, resulting from or arising out of the receipt of such
services or use of such Goods in combination with other goods as recommended or approved by Seller.
Seller further agrees to indemnify and hold harmless Buyer and its affiliates and all persons claiming under
Buyer in respect of any claims, demands, liabilities, losses, judgments, awards, fines, settlements, court
costs, attorney fees, and expenses incurred by reason of such claims, charges or lawsuits. Seller shall notify
Buyer in writing of each such notice or claim of which Seller has knowledge. Seller shall, at its own
expense, either procure for Buyer the right to continue using the applicable article, apparatus, material, part,
device, process or method or, if the performance thereof will not be adversely affected, replace same with a
non-infringing substitute or modify it so it becomes non-infringing, or remove it and refund the purchase
price, and transportation and installation costs thereof.
(B) With respect to ownership of intellectual property conceived hereunder:
(i)
Seller agrees to, and hereby does, assign, transfer, and convey to Buyer all of Seller’s right, title
and interest in and to any intellectual property conceived, developed, or acquired by Seller in
performing work under each Order.
(ii)
Seller agrees to disclose promptly to Buyer any invention, patent application, or patent covering an
invention to which Buyer is entitled to an assignment under any Order and to perform any act,
including without limitation, executing and delivering upon request any document that Buyer may
deem desirable to enjoy the full benefit of the intellectual property.
(iii)
Seller grants to Buyer, its present and future subsidiaries and controlled companies (“Affiliated
Companies”), a non-exclusive, world-wide, paid-up, irrevocable, and perpetual license under any
intellectual property right that is now owned or controlled by Seller, to practice in connection with
Buyer’s and its Affiliated Companies’ business, the products, processes, and technology within the
scope of each Order, including, without limitation to: (a) make, have made, use, offer to sell, sell,
and import any process, machine, manufacture, composition of matter, or any improvement
thereof; and (b) reproduce, distribute only in connection with Buyer’s and its Affiliated Companies’
products, display publicly, perform publicly, and make derivative works based upon, any
copyrighted work.
The obligations of this paragraph shall survive the cancellation, termination, expiration, or completion of each Order.
10. NOTICE OF DELAYS: Whenever Seller has knowledge that any actual or potential occurrence is delaying or
threatens to delay the timely performance of any Order, Seller shall immediately give notice thereof to Buyer,
Revised: 6-2011
including all relevant information with respect thereto. Delivery delays caused by such occurrence shall be governed
by paragraph 2 of these Terms and Conditions (and paragraph 12, Force Majeure, if and to the extent applicable).
11. COMPLIANCE WITH LAWS: Seller agrees to comply with all applicable local, state, federal and non-U.S. laws,
orders, directives and regulations at any time in effect, including, but not limited to, all applicable import and export
compliance laws and regulations, and those found in 41 CFR Chapter 60 requiring equal opportunity, affirmative
action and non-discrimination in employment without regard to race, color, religion, sex, national origin, presence of a
disability or status as a special disabled veteran, recently separated veteran, other protected veteran, Armed Forces
Service Medal veteran or Vietnam era veteran, which are specifically incorporated herein by reference. Seller
represents, warrants and certifies that no Goods shall be manufactured or services performed through the use of
child, indentured, forced or prison labor. If Seller fails to comply with the provisions of this paragraph, Buyer may, by
written notice to Seller, terminate any Order upon a default of the provisions of this paragraph in accordance with
paragraph 13(A) of these Terms and Conditions in addition to any other rights or remedies provided by law.
12. FORCE MAJEURE:
(A) Seller shall not be liable for any excess costs if the failure to perform any Order arises out of causes beyond
the reasonable control and without any fault or negligence of Seller. Such causes may include, but are not
limited to, acts of God, or of the public enemy, acts of the government in either its sovereign or contractual
capacity, fires, flood, terrorism, epidemics, quarantine restrictions, freight embargoes, and unusually severe
weather, but in every case the failure to perform must be beyond the control and without the fault or
negligence of Seller (each a “Force Majeure Event”). Force Majeure Events shall not include any strikes,
labor actions or lockouts of Seller’s employees or the employees of Seller’s vendors or subcontractors.
Seller shall notify Buyer in writing within two (2) calendar days of any and all events of Force Majeure.
(B) If a Force Majeure Event continues for longer than five (5) calendar days, then Buyer, at its sole option, may
terminate any Order affected thereby in whole or in part without any obligation or liability except that Buyer is
still responsible for payment for Goods or services which have been delivered to and accepted by Buyer
prior to Force Majeure notice receipt.
(C) Any Order may be cancelled by Buyer without liability at any time prior to delivery or performance if its
business is interrupted for reasons beyond Buyer’s reasonable control. Buyer shall give prompt notice of
such cancellation to Seller.
13.
TERMINATION AND SETTLEMENT:
(A) Termination for Default:
(i)
Buyer may, by written notice of default to Seller, immediately terminate the whole or any part of any
Order itself if Seller fails to make delivery of the Goods or to perform the services required by any
Order within the time specified or any written extension thereof. If Seller fails to satisfy any of the
other requirements of any Order, or so fails to make progress as to endanger performance of an
Order in accordance with its terms and conditions, and does not cure such failure within a period of
ten (10) calendar days (or such longer period as Buyer may authorize in writing) after receipt of
notice from Buyer specifying such failure, then Buyer may terminate the whole or any part of such
Order.
(ii)
In the event Buyer terminates an Order in whole or in part as provided in subparagraph (i) above,
Buyer shall have no further obligation to Seller under the terminated portion of an Order and Buyer
may procure, upon such terms and in such manner as Buyer may deem appropriate, Goods or
services similar to those so terminated, and Seller shall be liable to Buyer for any excess costs.
(B) Termination for Insolvency: Buyer may immediately terminate any Order without liability to Seller in any of
the following or any other comparable events: (i) insolvency of Seller, (ii) filing of a voluntary petition in
bankruptcy by Seller, (iii) filing of any involuntary petition in bankruptcy against Seller, (iv) appointment of a
receiver or trustee for Seller or (v) execution of an assignment for the benefit of creditors by Seller, provided
that such petition, appointment or assignments is not vacated or nullified within fifteen (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.
(C) Termination for Convenience: Buyer may at any time by written notice terminate all or any part of any Order
for Buyer's convenience, in which event Seller agrees to stop work immediately as to the terminated portion
and to notify subcontractor(s) (if any) to stop work, and protect and preserve all property in its possession in
which Buyer has an interest. If any Order is terminated, in whole or in part, for Buyer's convenience, Seller
shall be paid an amount, to be mutually agreed upon, which shall be adequate to cover the reasonable cost
of Seller's actual performance of work under such Order to the effective date of termination. Buyer shall
Revised: 6-2011
have no obligation to make any of the aforementioned payments to Seller, either for completed items or in
connection with terminated work-in-process, unless Seller shall establish to Buyer's satisfaction that such
completed items, or the work-in-process, including materials, are unusable in connection with Seller's other
business. In no event shall the termination charges and all previous payments made under any Order
exceed the total price shown in such Order.
(D) If an Order is terminated as provided in paragraphs 13 (A)-(C), Buyer, in addition to any other rights provided
in the Order, may require Seller to transfer title and deliver to Buyer, in the manner and to the extent directed
by Buyer, the following: (i) any completed Goods; and (ii) such partially completed Goods and materials,
parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called
“manufacturing materials”) as Seller has specifically produced or specifically acquired for the performance of
such part of such Order as has been terminated. Seller shall also, upon direction of Buyer, protect and
preserve all property in the possession of Seller in which Buyer has an interest. Payment for completed
Goods delivered to and accepted by Buyer shall be at the price specified in the Order. Payment for
manufacturing materials delivered to and accepted by Buyer and for the protection and preservation of
property shall be in an amount agreed upon by Buyer and Seller; failure to agree to such amount shall be a
dispute within the meaning of paragraph 21 hereof. Buyer may withhold from amounts otherwise due Seller
for such completed Goods or manufacturing materials such sum as Buyer determines to be necessary to
protect Buyer against loss because of outstanding liens or claims of former lien holders.
(E) The rights and remedies of Buyer provided in this paragraph 13 shall not be exclusive and are in addition to
any other rights and remedies provided by law or under such Order. Any termination of an Order under this
paragraph 13 shall not relieve Seller of any obligations and liabilities which may have arisen under any of
the terms and conditions of such Order prior to such termination, including, but not limited to, patent
infringement, latent defects, and warranty obligations.
14. PRICES: No delivery may be invoiced at a higher price than what is provided for in the Order. If no lower price is
shown on the invoice, the price provided for in the Order shall be the price payable by Buyer. Prices are exclusive of
applicable sales taxes (including V.A.T. and comparable taxes, if applicable) and applicable import and export
customs duties. No charge will be allowed for packing, crating, drayage, or storage. Seller warrants that prices
charged for the Goods are not higher than those charged to any other customer, including the government, for Goods
of like grade and quality in similar quantities.
15. INDEMNITY: Notwithstanding anything contained in Seller’s warranty to the contrary, Seller and Buyer expressly
agree that Seller is responsible for and agrees to indemnify Buyer and its affiliates and their respective employees,
officers, directors, attorneys, insurers and representatives for any and all damages, losses, expenses, attorneys’ fees,
court costs, etc., that result from incidents, accidents, injuries or deaths to any persons or damage and/or losses to
property, that arise out of or result from any Order, or the Goods or services purchased by Buyer from Seller or their
existence, presence or use, or services rendered by Seller to Buyer and from the presence of any of Seller’s
personnel or agents on any premises of Buyer (or with respect to which Buyer has liability). This paragraph 15 shall
survive the cancellation, termination, expiration, or completion of any Order.
16. GRATUITIES, POLICIES AND PROCEDURES:
(A) If it is found that gratuities (in the form of entertainment, gifts or otherwise) are offered by Seller, or any
agent or representative of Seller, to any employee or representative of Buyer with a view toward securing
favorable treatment with respect to the awarding or performing of any Order, Buyer may, by written notice to
Seller, terminate any or all Orders as upon a default in accordance with such Order in addition to any other
rights or remedies provided by law.
(B) Seller, its employees, representatives, and agents shall comply with all of Buyer's rules, regulations, policies
and procedures while on Buyer's premises or in the company of any of Buyer's employees. If Seller, its
employees, representatives, or agents violate Buyer's rules, regulations, policies, or procedures, Buyer may,
by written notice to Seller, terminate any Order as upon a default in accordance with such Order in addition
to any other rights or remedies provided by law.
17. APPLICABLE LAW: Buyer and Seller expressly agree to exclude from applicability to any Order the United
Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto. Each Order
shall be deemed to be a contract entered into in, and exclusively governed by and construed in accordance with, the
substantive laws of the state of Georgia, and without regard to its conflict of laws rules. Buyer and Seller each submit
in any dispute or lawsuit related to or arising out of any Order or the Goods or services provided under any Order to
the sole and exclusive jurisdiction and venue of either the: (A) Georgia State Superior Court for the County of
Richmond or (B) United States District Court for the Southern District of Georgia, Augusta Division. Any provision in
any Order or in any attachments hereto and incorporated herein which is prohibited by the laws of any state shall, as
to such state, be ineffective to the extent only of such prohibition, but without invalidating any of the remaining
provisions hereof.
Revised: 6-2011
18. AMENDMENT BY LAW: Each Order shall be deemed to contain all provisions required to be included by any
applicable local, state federal or foreign laws, orders, regulations or directives heretofore or hereafter promulgated
without the subsequent amendment of such Order specifically incorporating such provisions.
19. CUSTOMER DUTIES, OFFSETS AND EXPORT CONTROLS: Credits or benefits resulting or arising from any
Order, 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 to Buyer shall be the responsibility of Seller unless otherwise indicated in any Order, 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.
20. ASSIGNMENTS: Seller shall not assign or delegate its obligations or performance of any Order without the prior
written consent of Buyer. Proceeds due or to become due under any Order may be assigned by Seller only with the
written consent of Buyer and then provided that payment to an assignee of any claim related to any Order shall be
subject to all applicable defenses, reductions and setoffs. Buyer may assign its rights hereunder to any legal entity
controlled by or under common control with Buyer and to any successor to all or substantially all of the business of
Buyer.
21. DISPUTES: Buyer and Seller shall strive to settle amicably and in good faith any dispute arising in connection
with this Order. If representatives of Buyer and Seller are unable to resolve a dispute within thirty (30) days, Buyer or
Seller may resort to such legal proceedings as may be available to such party, subject to paragraph 17 above.
Pending resolution of any dispute hereunder, Seller shall proceed diligently with the performance of all Orders,
including the delivery of Goods, in accordance with Buyer’s direction.
22. ENVIRONMENTAL, HEALTH AND SAFETY REQUIREMENTS: Seller will take appropriate actions to provide a
safe and healthy workplace and to protect local environmental quality at and near all facilities and operations where it
will conduct activities to supply Goods or services under any Order. For Goods sold or otherwise transferred to Buyer
under any Order containing hazardous materials, Seller shall provide all information that a U.S. manufacturer or
importer must provide to comply with the Hazard Communication Standard codified at 29 CFR 1910.1200, including
complete Material Safety Data Sheets (OSHA Form 20) and appropriate labeling, whether or not the standard applies
to the activities of Seller. Failure to comply with the provisions of this paragraph will nullify any and all of Buyer’s
obligations to Seller.
23. INSURANCE: Seller shall maintain insurance coverage with carriers acceptable to Buyer and in the amounts set
forth in any special terms notified to Seller. Seller shall furnish to Buyer either a certificate showing compliance with
these insurance requirements or certified copies of all insurance policies within ten (10) days of Buyer’s written
request. The certificate will provide that Buyer will receive thirty (30) days prior written notice from the insurer of any
termination or reduction in the amount or scope of coverage. Seller’s furnishing of certificates of insurance or
purchase of insurance shall not release Seller from any of its obligations or liabilities under any Order.
24. 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 used in 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.
25. 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 any Order, or for which Seller has
been reimbursed by Buyer, shall be and remain the property of Buyer and are 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 any Order, 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 Buyer’s 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: (A)
F.O.B. carrier at Seller’s plant, properly packed and marked in accordance with the requirements of the carrier
selected by Buyer to transport such property or (B) to any location designated by Buyer, in which event Buyer shall
Revised: 6-2011
pay to Seller the reasonable costs of delivering such property to such location. To the extent permitted by law, Seller
waives any lien or other rights that Seller might otherwise have with respect to any of Buyer’s Property for work
performed on such property or otherwise.
26. BUYER’S RIGHT TO ENTER PREMISES: Seller shall permit and obtain from its sub-sellers the right for Buyer
or its agents to enter Seller's and sub-sellers’ premises at reasonable times to determine Seller's adherence to the
terms and conditions of any Order. This provision shall include the right to inspect and test all Goods, tooling, and
workmanship. However, Buyer’s failure to test or inspect will neither relieve Seller of any liability for defects, nor
create any liability on the part of Buyer for failure to inspect.
27. CONFIDENTIAL AND PROPRIETARY INFORMATION:
(A) No knowledge or information disclosed to Buyer by Seller which in any way relates to the Goods or services
covered by any Order, shall, unless otherwise specifically agreed in writing by Buyer, be deemed to be
confidential or proprietary information, and Buyer shall acquire all such knowledge and information free from
any restrictions (other than a claim for patent infringement), as part of the consideration for the Order.
(B) All technical and other information obtained or learned by Seller as a result of this buyer/supplier relationship
and all technical and other information furnished by Buyer or jointly developed by Buyer and Seller shall
remain Buyer's property and, unless otherwise consented to in a writing signed by Buyer's representative,
shall be used only for performance of the work under the Order and shall not be divulged to third parties.
Buyer's consent will not be unreasonably withheld.
28. FOREIGN PURCHASES:
(A) Unless specifically provided otherwise in an applicable Order, Seller shall be the Importer of Record.
(B) If Buyer is the Importer of Record, Seller warrants that all sales made hereunder are or will be made at not
less than fair value under the United States Anti-Dumping Law (19 U.S.C. Sec.160, et. seq.).
(C) If Seller is the Importer of Record, Seller agrees that Buyer will not be a party to the importation of such
Goods, that the transaction(s) represented by the Order will be consummated subsequent to importation,
and that Seller will neither cause nor permit Buyer's name to be shown as "importer of record" on any
customs declaration. Upon request and where applicable, Seller will provide Buyer with U.S. Customs and
Border Protection Form 7552 entitled "Certificate for Purposes of Drawback" properly executed and will
further provide all commercial invoices in proper form to allow for entry and possible drawback. Seller will
not disclose any information regarding Buyer or the Goods contrary to applicable laws and regulations of the
U.S.
29. PRODUCT RECALL: If any Goods are determined by Seller, Buyer or any governmental agency or court to
contain a defect or a quality or performance deficiency, or not be in compliance with any standard or requirement so
as to make it advisable that such Goods be reworked or recalled, Seller or Buyer will promptly communicate relevant
facts to each other and shall undertake corrective action, provided that Buyer shall cooperate with and assist Seller in
any necessary filings and corrective action, and provided further that nothing contained in this paragraph shall
preclude Buyer from taking such action as may be required of it under any such law or regulation. Where applicable,
Seller shall pay all reasonable expenses associated with determining whether a recall or rework is necessary. Seller
shall perform all necessary repairs or modifications at its sole expense, except to the extent Seller and Buyer agree to
the performance of such repairs by Buyer upon mutually acceptable terms. The parties recognize that it is possible
that other Seller-manufactured goods might contain the same defect or noncompliance condition as Goods
manufactured for Buyer. Buyer and Seller agree that any recall involving Goods for Buyer shall be treated separately
and distinctly from similar recalls of other goods of Seller; provided that such separate and distinct treatment is lawful
and Seller shall in no event fail to provide at least the same protection to Buyer on such Goods as Seller provides to
its other customers in connection with such similar recalls. Each party shall consult the other before making any
statements to the public or a governmental agency relating to potential safety hazards affecting Goods, except where
such consultation would prevent timely notification required by law.
30. REPLACEMENT PARTS: Seller shall provide replacement parts to Buyer and its affiliates for a period of seven
(7) years after cessation of original production, or any period required by Buyer’s customers, whichever is longer.
Seller shall continue to supply such parts after such ten-year period if Buyer or its affiliates order at least one hundred
(100) parts per year. Nonproduction or obsolete parts shall be offered to Buyer or its affiliates for a lifetime buy at
then-current production prices before Seller shall be allowed to discontinue. All other nonproduction parts shall be
offered at production prices for two (2) years after obsolescence. Thereafter, prices shall be negotiated based on
Seller’s actual cost of production plus any special packaging. Seller shall notify Buyer or its affiliates and receive
written approval before scrapping any tooling used to make replacement parts for Buyer.
Revised: 6-2011
31. SET-OFF: Buyer shall have the right at all times to set off any amounts owing from Seller to Buyer, or any of
Buyer’s affiliates, against any amount payable at any time by Buyer.
32. TRADEMARKS: The names and trademarks of each party and its affiliates shall remain the sole and exclusive
property of that party or its affiliates and shall not be used by the other party for any purpose whatsoever unless
expressly authorized by the owning party.
33. TESTING: Testing of any kind of Goods by Buyer, whether for performance or reliability, shall not negate,
diminish or relieve Seller’s obligation or responsibility under any warranty (express or implied), indemnification, hold
harmless or other similar term or provision existing at law, under any Order or these Terms and Conditions.
34. QUALITY ASSURANCE: If Seller supplies Goods under ISO9000, QS9000, AS9000, VDA 6.1 or any other
quality assurance system specified by Buyer or its customers, Seller shall comply with such quality system standard
for such Goods covered by this Order. Seller agrees to permit Buyer or its customers to review Seller’s procedures,
practices, processes and related documents to determine such acceptability. This requirement is in addition to any
special quality assurance provisions, which may be incorporated elsewhere in any applicable Order. Records of all
inspection work by Seller shall be kept complete and available to Buyer or its customers during the performance of
any applicable Order and for such longer period and in such manner as may be specified by Buyer.
35. MATERIAL MANUFACTURED BY BUYER: Seller shall buy Goods and obtain services from Buyer or its affiliates
to the extent compatible with Seller’s needs.
36. INCORPORATED DOCUMENTS: All documents attached to an Order are incorporated therein by reference and
made a part of the Order as if fully set forth herein.
37. ORDER OF PRECEDENCE: In the event of any inconsistency among provisions contained in any Order and
any documents incorporated by reference herein, the inconsistency shall be resolved by giving precedence in the
following order: (A) separate, written contract; (B) an applicable pricing agreement; (C) the Order; (D) these Terms
and Conditions; (E) drawings; (F) specifications; and (G) any other documents incorporated by reference.
Revised: 6-2011
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