2. SHIPPING AND BILLING: Seller agrees (a) to properly pack, mark and ship goods in accordance with the requirements of Buyer and involved carriers in a manner to secure lowest transportation cost; (b) to route shipments in accordance with instructions from Buyer; (c) to make no charge for handling, packaging, storage, or transportation of goods unless otherwise stated in this Order, (d) to provide packing slips with each shipment showing Buyer’s Order number, (e) to forward the original bill of lading or other shipping receipt for each shipment in accordance with Buyer’s instructions and carrier’s requirements; and (f) to otherwise conform to Buyer’s shipping policies. The marks on each package and identification of the goods on packing slips, bills of lading and invoices shall be sufficient to enable Buyer to easily identify the goods purchased. Seller further agrees (x) to promptly render, after delivery of goods or performance of services, correct and complete invoices to Buyer, and (y) to accept payment by check, or at Buyer’s discretion, other cash equivalent (including electronic transfer of funds). The payment date is set forth on the face of this Order, or if not stated, it shall be on the 30th day after Buyer’s receipt of a proper invoice (except as may otherwise be agreed upon by Buyer and Seller in connection with a program providing for electronic funds transfer). Time for payment shall not begin until correct and complete invoices are received. 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 Order.
3. DELIVERY SCHEDULES: Deliveries shall be made both in quantities and at times specified in Buyer’s schedules. Seller agrees to use its best efforts to meet Buyer’s delivery deadlines, if such deadlines are noted on the Order. Seller must notify Buyer in writing within two (2) business days of knowledge that Seller will more likely than not fail to meet Buyer’s stated delivery date. Buyer may reject and/or return, at Seller’s expense, any delivery of goods or part thereof received before or after the delivery date or in excess of the quantity specified in Buyer’s delivery schedules. For orders of goods 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.
4. 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 Order, including work with respect to such matters as inspection, delivery, packaging, 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 Order shall be made in accordance with Section 18.
5. NONCONFORMING GOODS: To the extent Buyer rejects goods as nonconforming, Seller will immediately replace quantities so rejected with conforming goods without a new order from Buyer. Nonconforming goods will be held by Buyer for disposition in accordance with Seller’s instructions at Seller’s risk. Seller’s failure to provide written instructions within ten (10) days, or such longer 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 thereof, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s responsibility for latent defects.
6. FORCE MAJEURE: Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, restrictions, prohibitions, priorities or allocations imposed by or actions taken by any governmental authority (whether valid or invalid), embargoes, fires, floods, windstorms, explosions, riots, natural disasters, wars, acts of terrorism, sabotage, inability to obtain power, material, 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 within ten (10) days. Buyer may immediately cancel any order without liability if any delay or failure described in this Section 6 shall continue for 30 days after notice thereof.
7. WARRANTY: Seller warrants that for a period of at least twelve (12) months from the date of shipment to Buyer, such goods purchased hereunder will be free from defects in material, design, workmanship and title, and will conform to specifications, drawings, samples or other descriptions furnished or specified by Buyer. If Buyer is required to repair Seller’s part or component during the warranty period, the warranty period on the repaired component shall be extended to twelve (12) months from the date of the repair. Seller will indemnify, defend, and hold Buyer harmless in respect of the cost corrective service actions that, in Buyer’s reasonable judgment, are required to rectify nonconformities in the goods that are the result of a breach of the foregoing warranty. If Buyer incorporates Seller’s goods into goods assembled for and/or distributed by Buyer to an end user, then the Warranty of this Section 7 shall be transferrable, at Buyer’s discretion, to such end user.
8. INSOLVENCY: Buyer may immediately cancel this Order without liability to Seller in the event of the happening of any of the following or any other comparable event: (a) insolvency of the 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, trustee, or custodian for Seller as defined under Title 11, U.S.C., as amended, or any successor statute; (e) execution of an assignment for the benefit of creditors by Seller; or (f) any similar state or federal proceeding, provided that such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event.
9. CANCELLATION: Buyer reserves the right to cancel all or any part of this Order, without liability to Buyer, if Seller (a) repudiates or breaches any of the terms of this Order, including Seller’s warranties; (b) fails to perform services or deliver goods as specified by Buyer; or (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 ten (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.
10. TERMINATION: In addition to any other rights of Buyer to cancel or terminate this Order, Buyer may at its option terminate all or any part of this Order, at any time and for any reason, by giving written notice to Seller. Upon such termination, Buyer shall pay to Seller, as Seller’s sole and exclusive remedy in respect of such termination, the following amounts without duplication (a) the order price for all goods or services which have been completed in accordance with this Order and not previously paid for; and (b) the actual direct costs (excluding overhead or other selling, general and administrative expense allocation) of work-in-process and raw materials incurred by Seller in furnishing the goods or services under this Order 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 Order; less, however, 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, work-in-process or raw materials fabricated or procured by Seller in amounts in excess of those authorized nor for any undelivered goods which are in Seller’s standard stock or which are readily Vendor Terms and Conditions marketable. Payments made under this Section 10 shall not exceed the aggregate price payable by Buyer for finished goods which would be produced by Seller under delivery or release schedules outstanding at the date of termination. Except as provided in this Section 10, 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, overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, termination or cancellation fees or general and administrative burden charges from termination of this Order. Within sixty (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. Notwithstanding anything in this Order to the contrary, Seller’s failure to submit a timely termination claim releases Buyer from any and all payment obligations with respect to goods not delivered and accepted by Buyer. Buyer, or its agents, shall have access to Seller’s premises, and the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller prior or subsequent to payment.
11. INTELLECTUAL PROPERTY; CONFIDENTIALITY: Seller shall: (a) defend, hold free and harmless and indemnify Buyer, its successors, officers, directors, agents, employees, and customers against all claims, demands, losses, suits, damages, liability and expenses (including reasonable attorney fees) arising out of any alleged or actual suit, claim, proceeding, or action for actual or alleged trade secret misappropriation, direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trade name, trademark, copyright, mask work right or other intellectual property rights arising from or relating to Seller’s actions and/or the goods delivered by Seller to Buyer; (b) to waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for patent, trade name, trademark, copyright or mask work right or other infringement claim; and (c) to grant to Buyer a worldwide, nonexclusive, royalty free, fully paid up, perpetual, irrevocable license (with the right to sublicense through multiple tiers) to repair and have repaired, to reconstruct and have reconstructed the goods ordered hereunder. Any patented or unpatented knowledge or information concerning either Buyer’s or Seller’s products, production or other methods, processes, scheduling, sources of supply, customers, marketing, or otherwise which that party may disclose to the other attendant or incident to this Order shall be deemed to have been disclosed as part of the consideration hereunder and shall not be given other use, shall be retained in confidence by the party to which disclosed, and, to the extent represented by or in samples, writings, drawings or other tangibles, shall be returned to the disclosing party simultaneously with termination under this Order or at any time upon demand. Seller will give Buyer specific written notice of any such confidential knowledge or information (and of any license or other agreement relating to the use or dissemination thereof) embodied in the goods governed by this Order prior to delivery thereof.
12. INDEMNIFICATION: Seller and its successors or assigns agree to indemnify, defend, and hold Buyer harmless from and against any liability, claims, demands or expenses (including reasonable attorney fees) for damages to the property of or injuries (including death) to Buyer, its officers, employees, or any other person including Buyer’s customers, arising from or in connection with any type of defect in, or negligent design of, Seller’s part or component, except for such liability, claim, or demand attributable to the negligence of Buyer.
13. REMEDIES: The rights and remedies reserved to Buyer in this Order shall be cumulative, and additional to all other or further remedies provided in law or equity.
14. SETOFF: In addition to any right of setoff provided by law, all amounts due Seller shall be considered net of any indebtedness of Seller to Buyer; and Buyer may deduct any amounts due or to become due from Seller to Buyer and its subsidiaries from any sums due or to become due from Buyer to Seller.
15. NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party of any provision of this Order 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 Order constitute a waiver of any succeeding breach of the same or any other provision.
16. NON-ASSIGNMENT: Seller may not assign or delegate its obligations under this Order without Buyer’s prior written consent. Any attempted action in violation of the foregoing shall be null, void, and without effect. Buyer may assign this Order and all rights hereunder without Seller’s consent.
17. RELATIONSHIP OF PARTIES: Seller and Buyer are independent contracting parties and nothing in this Order shall name 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.
18. GOVERNING LAW; ENTIRE AGREEMENT: This Order is to be construed according to the laws of the state of Michigan, without regard to its conflict of laws principles. All suits, claims, actions, or proceedings arising from or relating to this Order or the goods shall be subject to the exclusive jurisdiction of the state or federal courts in the Eastern District of Michigan. With respect to any action arising under or related to this Order or goods, the Buyer and Seller hereto each hereby: (i) agrees that it has sufficient contacts with Michigan to subject it to the personal jurisdiction of the state and federal courts in the Eastern District of Michigan; (ii) agrees that venue properly lies in the Eastern District of Michigan; and (iii) waives and agrees not to assert any claim that it is not subject personally to the jurisdiction of the above-named courts; that such action should be dismissed on grounds of lack of venue or forum non conveniens; that such action should be transferred to any court other than the above-named courts; or that such action should be stayed by reason of the pendency of some other proceeding in any court other than the above-named courts. This Order, together with the attachments, exhibits, or supplements, specifically referenced in this Order, constitutes the entire agreement between Seller and Buyer with respect to the matter contained herein and supersedes all prior oral or written representations and agreements. This Order may only be modified by a purchase and order amendment alteration issued in writing by Buyer and agreed to by Seller. This Order represents the entire agreement of the parties. All of the terms and conditions set forth on the face and reverse side hereof are an integral part of the Order, supersede any contrary provisions in Seller’s quotation form, proposal, or any pre-source agreement or checklist, and may not be varied or modified in any manner, except by a subsequent writing signed by an authorized representative of Buyer. In the event of a conflict between the terms on the face and the terms and conditions hereof, the terms on the face of this Order shall prevail. Seller’s written acceptance of this Purchase Order, shipment of the goods or any portion thereof, the commencement of any work, or the performance of any services or delivery of any goods hereunder shall constitute acceptance by Seller of all terms and conditions contained herein.
19. SEVERABILITY: If any term of this Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be automatically reformed or, if necessary, deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Order shall remain in full force and effect as written.
20. COUNTERPARTS: This Order may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, constitute a single document.