Delivery: (A) Time is of the essence in this Order. Seller will make deliveries in the quantities and at the times specified herein or in releases issued hereunder. If Seller’s deliveries fail to meet Buyer’s delivery schedule, Buyer, in addition to its other rights, (i) may direct expedited routing and charge Seller for any excess costs incurred as a result and (ii) may charge Seller for any costs incurred by Buyer and/or Buyer’s customers for production delays caused by Seller’s failure to meet such schedules. Such costs may include, without limitation, inbound and outbound premium freight, excess scrap and premium operational and overtime expenses. (B) Buyer will not be liable for Seller’s commitments or production arrangements in excess of the amount or in advance of the time required under Buyer’s delivery schedule. Where deliveries are specified to be in accordance with Buyer’s releases, Seller will neither produce any Goods, nor procure raw materials, nor ship any Goods, except to the extent authorized by Buyer’s written releases. Quantities noted as “planning” or with words of similar meaning are for Seller’s planning purposes only and do not constitute a commitment by Buyer to purchase such quantities. If Seller delivers Goods in advance of Buyer’s delivery schedule, Buyer may either (i) return such Goods at Seller’s expense for proper delivery; or (ii) withhold payment for such Goods until the scheduled delivery date and place such Goods in storage for Seller’s account until the scheduled delivery date. While the Goods are being returned in accordance with part (i) of the preceding sentence or being retained in accordance with part (ii) of such sentence, the Goods will be at Seller’s risk.
3. Quality: Seller will maintain an inspection and quality system acceptable to Buyer and in conformity with any drawings, specifications and data which are part of this Order and with any quality program of Buyer described in materials referenced on the face of this Order and incorporated herein by such reference. Seller will maintain adequate authenticated inspection and test reports, affidavits, and certifications relating to the work performed under this Order, retain such records for a period of ten (10) years after completion of this Order or as otherwise specified by Buyer, and make such records available to Buyer upon request. Seller acknowledges that Buyer may reduce its incoming inspection procedures in reliance upon Seller’s maintenance of a quality system as required hereunder.
4. Inspection and Acceptance of Goods: (A) Buyer may inspect all Goods ordered hereunder at all times and places, including during the period of manufacture. Such inspection may at Buyer’s option include confirmation of Seller’s compliance with required quality control procedures. Seller will permit Buyer and/or its designees access to Seller’s facilities at all reasonable times and will provide all tools, facilities and assistance reasonably necessary for such inspection and/or confirmation at no additional cost to Buyer. All Goods are subject to final inspection and acceptance anytime after delivery to Buyer. (B) Notwithstanding any acts of Buyer which may be deemed under applicable law to constitute acceptance of the Goods, payment for delivered Goods will not constitute acceptance thereof. Buyer may reject any Goods which do not meet the specifications set forth in this Order. Buyer may return any such Goods to Seller for reimbursement, credit, replacement or correction as Buyer may direct, or Buyer may correct and/or replace such Goods at Seller’s cost. Any Goods rejected by Buyer will be at Seller’s risk and expense and Seller will not thereafter tender such Goods for acceptance unless the former rejection or requirement of correction is disclosed. Seller will reimburse Buyer for any packaging, handling and transportation costs Buyer incurs with respect to rejected Goods. (C) Buyer may revoke its acceptance of Goods at any time, whether or not a substantial modification to the Goods has been made, if a defect in the Goods which could not have been discovered during Buyer’s normal inspection procedures or which is not normally discoverable until the Goods are used substantially impairs the value of the Goods to Buyer. (D) Neither Buyer’s exercise of nor its failure to exercise, any rights provided hereunder will relieve the Seller from responsibility for such Goods as are not in accordance with the order requirements or impose liability on Buyer therefor.
5. Product Warranties: (A) Seller warrants that the Goods (i) will be fit and sufficient for the purpose intended (if Seller knows or has reason to know the particular purpose for which Buyer intends to use the Goods); (ii) will be of merchantable quality and free from all defects, including defects in material and workmanship and, if not of Buyer’s detailed written design, defects in design; and (iii) will conform with all representations, descriptions, samples, drawings, plans, specifications, designs and other data supplied by Seller or listed on the front side of this Order. Seller further warrants that, with respect to the Goods, Buyer is and will at all times remain competitive in terms of price, quality, delivery, technology and service with Buyer entitled to the lowest price charged by Seller to the class of buyers of similar goods or services in comparable quantities and under comparable circumstances. The foregoing warranties are in addition to those available to Buyer by law. (B) All warranties hereunder will survive Buyer’s acceptance, use and/or payment and will run to Buyer and its customers. (C) Buyer’s review or approval of any samples, drawings, specifications or other data developed by Seller in connection with this Order will not limit Seller’s responsibility under the warranties contained herein or alter the cost, rate of output or delivery requirements of this Order. (D) Buyer’s specifications and requirements take precedence over industry standards. Seller will advise Buyer in writing if Buyer’s specifications or requirements are not as extensive as industry standards.
6. Product Indemnification: Seller will indemnify, defend and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers, and users of its products from and against any and all losses, expenses, damages, claims, suits and liabilities (including recall, repair and replacement expenses and other incidental and consequential damages; court costs and attorneys’ fees) arising as a result of actual or alleged breach of any warranties or other terms contained herein or arising under any strict tort or negligence claims premised on either an actual or alleged defect in or use of the Goods. At Buyer’s request, Seller will assume promptly full responsibility for the defense of any action described in this paragraph which may be brought or threatened by a third party against Seller and/or Buyer.
7. Infringement Indemnification: Seller will indemnify and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers and users of its products from and against any and all losses, expenses, damages, claims, suits and liabilities (including incidental and consequential damages, court costs and attorneys’ fees) arising as a result of any claim that the manufacture, use, sale or resale of any Goods infringes any patent, utility model, industrial design, copyright, or other intellectual property right in any country. Seller will, when requested by Buyer, defend any action or claim of such infringement at its own expense. Seller’s obligations under the preceding two sentences will apply even though Buyer furnishes all or any portion of the design of or specifies all or any portion of the processing for the Goods. If the sale and/or use of the Goods is enjoined or, in Buyer’s sole judgment, is likely to be enjoined, Seller will, at Buyer’s election and Seller’s sole expense, either procure for Buyer the right to continue using such Goods, or replace same with equivalent noninfringing goods, or modify such Goods so they become noninfringing, or remove same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto.
8. Changes: Buyer may at any time by a written order but without notice to sureties change drawings, designs, specifications, materials, packing, time and place of delivery or method of transportation. If any such change increases or decreases the cost or time required for Seller’s performance hereunder, an equitable adjustment will be made and this Order will be modified in writing accordingly. Any claim by Seller for any adjustment hereunder must be made within ten (10) working days of the date Seller is first notified of the change. If Seller’s claim includes any cost for property made obsolete as a result of the change, the claim must be supported releases (or other forms of authorization) provided by Buyer authorizing Seller to procure or manufacture the property, and Buyer may prescribe the manner in which such property will be disposed. Pending the resolution of any dispute regarding any such adjustment, Seller will diligently pursue the order as changed. No change to design, material, process, procedures or practice is to be made by Seller without written authorization by Buyer.
9. Force Majeure: If, due to forces beyond its control, Buyer determines to alter Buyer’s delivery schedule to delay delivery, the provisions of this paragraph (rather than the preceding paragraph) will control. Seller will hold any such delayed Goods at the direction of Buyer and will deliver them when the cause affecting the delay has been removed. Buyer will be responsible only for Seller’s direct additional costs (excluding interest on the purchase price) incurred in holding the Goods or delaying performance at Buyer’s request. Any delay or failure of either Buyer or Seller to perform its obligations hereunder shall be excused if, and to the extent that 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, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slow downs), inability to obtain power, material, labor, equipment or transportation, or court injunction or order. During the period of such delay or failure to perform by Seller, Seller shall provide Buyer with prompt written notice of such delay (including a description of the cause of the event or circumstance, an estimate of the duration of the delay and a statement regarding the remedial steps that are being undertaken to resume performance and Seller’s interim allocation plans, if any, for the supply of Goods during the delay). During such period, Buyer, at its option, may purchase goods from other sources and reduce its schedules to Seller by such quantities, without liability to Seller, or have Seller provide the goods from other sources in the quantities and at the delivery times requested by Buyer and at the price set forth in this Order. In addition, at least ten days prior to the expiration of any labor contract of Seller, Seller at its expense will establish at least a thirty (30) working day supply of Goods in a neutral warehouse at a location reasonably acceptable to Buyer. If requested by Buyer, Seller shall, within ten (10) days of the request, provide adequate assurances that any delay shall not exceed thirty (30) days. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurance that the delay will cease within thirty (30) days, Buyer may immediately cancel the Order without liability.
10. Termination for Convenience: Buyer may terminate this Order or any part of it for its convenience by written notice to Seller. Upon receipt of notice of termination, Seller will immediately stop all work hereunder and cause any of its suppliers or subcontractors to cease such work. Buyer will pay Seller for all goods which (i) are ready for shipment in accordance with this Order’s delivery schedule prior to Seller’s receipt of the termination notice, (ii) conform to all requirements of this Order, and (iii) are free and clear of all encumbrances. Notwithstanding the foregoing, in the event that this Order relates to Buyer’s purchase of equipment (as that term is defined under Article 9 of the Uniform Commercial Code), Buyer’s obligation to pay Seller will be limited to: (A) the lesser of: (i) Seller’s actual cost for direct labor and other expenses directly and reasonably incurred pursuant to this Order prior to receipt of notice of termination or (ii) the percentage of the original purchase price as the work done by Seller prior to receipt of notice of termination bears to the entire work covered by this Order; (B) less any previous payments. Except as provided in this Paragraph 10, 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 profits, 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 the termination of any Order for Buyer’s convenience. Buyer will not pay for any work done after Seller’s receipt of notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided.
11. Termination for Cause: Buyer may terminate this Order or any part hereof for cause in the event of a Default by Seller. “Default” means (i) Seller’s failure to comply with any of the terms and conditions of this Order; (ii) Seller’s failure to give Buyer, upon request, reasonable assurances of Seller’s future performance; (iii) insolvency, bankruptcy, liquidation or dissolution of Seller; or (iv) any other event which causes reasonable doubt as to Seller’s ability to render due performance hereunder. If, after termination for Default, it is determined that Seller was not in Default, the rights and obligations of the parties will be the same as if the termination was for Buyer’s convenience.
12. Default—Cancellation: In the event of Default, Buyer may, upon written notice to Seller but without further liability to Seller, (i) waive all or any part of the Default; (ii) agree in writing to any change in or modification of this Order as Buyer may in its judgment deem advisable; (iii) cancel this Order, or any other Order or agreement between Buyer and Seller, in whole or in part; (iv) purchase goods in substitution for those to be supplied by Seller hereunder and charge Seller for any excess cost resulting therefrom; and/or (v) exercise any other rights or remedies Buyer may have under applicable law. Seller’s liability for Default will include Buyer’s incidental and consequential damages. Seller will reimburse Buyer for attorneys’ and other professional fees and court costs incurred by Buyer in connection with any Default by Seller or any action by Buyer to enforce its rights under this Order.
13. Proprietary Information—Confidentiality—Advertising: (A) Seller will consider all information furnished by Buyer hereunder (including drawings, specifications, or other documents prepared by Seller for Buyer in connection with this Order) to be confidential and will not disclose any such information to any other person, or use such information itself for any purpose other than performing this Order, unless Seller obtains Buyer’s prior written permission. Seller will not advertise or publish the fact that Buyer has contracted to purchase Goods from Seller, or disclose any information relating to the Order without Buyer’s written permission. (B) Unless otherwise agreed in writing, no information disclosed in any manner or at any time by Seller to Buyer will be deemed secret or confidential, and Seller will have no rights against Buyer with respect thereto except such rights as may exist under patent laws.
14. License to Repair; Use of Copyrighted Materials: Seller hereby grants to Buyer a nonexclusive, royalty-free, irrevocable, worldwide license to repair, rebuild, reconstruct and relocate the Goods. Seller also grants to Buyer a nonexclusive, paid-up, irrevocable, worldwide license to use all copyrighted materials of Seller which are furnished to Buyer during the course of Seller’s performance hereunder and which relate to any Goods. Without limiting the generality of the foregoing, Buyer’s use of such copyrighted materials pursuant to such license may include reproduction, distribution to customers and others and public display.
15. Indemnity/Insurance: To the extent Seller’s agents, employees or subcontractors enter upon premises occupied by or under the control of Buyer or any of its customers or suppliers in the course of the performance of this Order, Seller will take reasonable steps to prevent any injury to persons or property arising out of acts or omissions of such agents, employees, or subcontractors. Except to the extent that any such injury or damage is due solely and directly to Buyer’s negligence, Seller will indemnify, defend and hold Buyer, its officers, employees and agents, harmless from and against any and all losses, expenses, damages, claims, suits, or any liability whatsoever (including incidental and consequential damages, court costs and attorneys’ fees) arising out of any act or omission of Seller, its agents, employees or subcontractors. Seller will maintain and require its subcontractors to maintain (i) public liability and property damage insurance, including contractual liability (both general and vehicle) in amounts sufficient to cover obligations set forth above, and (ii) workers’ compensation and employer’s liability insurance covering all employees engaged in the performance of this Order for claims arising under any applicable workers’ compensation, occupation disease or health and safety laws and/or regulations. Seller will furnish certificates evidencing such insurance which will expressly provide that no expiration, termination or modification will take place without thirty (30) days’ written notice to Buyer. Any property of Buyer used by Seller in the performance of this Order will be deemed to have been under the sole custody and control of Seller during the period of such use by Seller.
16. Buyer’s Property: (A) 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 Order, or for which Seller has been reimbursed by Buyer, or for which Buyer has agreed to reimburse Seller, will be and remain the property of Buyer and held by Seller on a bailment basis (“Buyer’s Property”) and will be marked or tagged by Seller as such. Buyer’s Property will include 3D models and other data used to produce Buyer’s Property. Seller will bear the risk of loss of and damage to Buyer’s Property. Buyer’s Property will not be used by Seller for any purpose other than the performance of this Order; will not be commingled with the property of Seller or with that of a third person; and will not be moved from Seller’s premises or altered without Buyer’s prior written consent. Seller will keep adequate records of Buyer’s Property, which records will be made available to Buyer upon request, and will store, protect, preserve, repair and maintain Buyer’s Property in accordance with sound industrial practice, all at Seller’s expense. Any Buyer’s Property repaired, rebuilt, modified or replaced by Seller will remain the property of Buyer, regardless of whether Buyer has reimbursed Seller for such repair, rebuild, modification or replacement. Buyer will have the right to enter Seller’s premises at reasonable times to inspect Buyer’s Property. To the extent 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. (B) If Buyer’s Property becomes lost or damaged while in Seller’s possession, Seller will indemnify Buyer or replace such property at Seller’s expense, in accordance with Buyer’s request. Upon the request of Buyer, Buyer’s Property will be immediately released to Buyer or delivered to Buyer by Seller either (1) 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 (2) to any location designated by Buyer, in which event Buyer will pay to Seller the reasonable costs of delivering such property to such location.. Seller’s obligations to release or deliver Buyer’s Property shall not be subject to any set off or counterclaim arising from this or any other transaction with Seller except that if Buyer agreed to amortize the purchase price of Buyer’s Property in a written amortization schedule, Buyer will pay the unamortized balance of such purchase price contemporaneously with the release or delivery of such item of Buyer’s Property. To the extent that Buyer’s Property is in the possession or control of a subcontractor or supplier to Seller, Seller will cause such party to release such property to Buyer in accordance with this paragraph.
17. Seller’s Property: (A) Unless otherwise specified in this Order, Seller, at its expense, will 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. Seller will insure Seller’s Property with full fire and extended coverage for its full replacement value. (B) Seller grants Buyer an irrevocable option to take possession of and title to any of Seller’s Property that is special for the production of the Goods upon Buyer’s payment to Seller of the net book value of such of Seller’s Property less any amounts that Buyer has previously paid to Seller for the cost of such items; provided, however, that this option will not apply to any item of Seller’s Property that is used to produce a substantial quantity of products for other customers of Seller.
18. Compliance with Laws: In the performance of this Order, Seller will fully comply with all applicable laws and will hold Buyer harmless from any liability resulting from Seller’s failure to so comply.
19. Taxes: Seller’s prices will be exclusive of any federal, state or local sales, use or excise taxes levied upon, or measured by, the sale, the sales price, or use of the Goods. Seller will list separately on its invoice any such tax lawfully applicable to the Goods and payable by Buyer with respect to which Buyer does not furnish to Seller lawful evidence of exemption.
20. Setoff: In addition to any right of setoff or recoupment provided by law, all amounts due to Seller shall be considered net of indebtedness or other obligations of Seller and its affiliates/ subsidiaries to Buyer and its affiliates/subsidiaries and Buyer shall have the right to set off against or to recoup from any amounts due to Seller and its affiliates/subsidiaries from Buyer and its affiliates/subsidiaries.
21. Payments: Buyer will pay the prices stipulated on this Order for Goods delivered and accepted, less deductions, if any, as herein provided, but only (i) upon submission by Seller of an invoice or (ii) pursuant to other mutually agreed-upon arrangements. The prices for Goods will not be subject to any variation without the prior written consent of Buyer. Unless otherwise specified, Buyer will pay for partial deliveries accepted by the Buyer.
22. Remedies: The rights and remedies provided Buyer herein will be cumulative and in addition to any other remedies provided by law or equity. Buyer’s waiver of a breach of any provision hereof will not constitute a waiver of any other breach. Seller acknowledges that the goods and services provided under each Order are provided in the automotive industry supply chain, that changes in such supply chain take an extraordinary time to implement and that under an set of circumstances and whether or not Seller is a sole supplier to Buyer, when Seller is entitled to terminate or make changes to an Order, Buyer is entitled to not less than nine months advance notice thereof.
23. Severability: Any provision of this Order which is finally determined to be unlawful will be deemed severed from this Order and every other lawful provision of this Order will remain in full force and effect.
24. Assignments and Subcontracting: No part of this Order may be assigned or subcontracted without the prior written approval of Buyer. If Seller is authorized to use subcontractors, Seller will obtain from each such subcontractor rights and obligations no less favorable to Buyer than the provisions of this Order.
25. Equal Opportunity; Government Contracts: (A) The Equal Employment Opportunity Clause in Section 202-Executive Order No. 11246, as amended relative to Equal Employment Opportunity, and the implementing rules and regulations of the Office of Federal Contract Compliance are incorporated herein by specific reference. The Veterans job listing provisions of Title 41 Part 50, of the Code of Federal Regulations are also hereby incorporated herein by specific reference. The Affirmative Action Clause and implementing regulations set forth in 41 CFR Part 60-741: Affirmative Action for Handicapped Workers, and 41 CFR Part 60-250: Affirmative Action for Veterans, are also hereby incorporated herein by specific reference. (B) If the face of this Order specifies that it is issued under a government contract, the terms and conditions on form GC-1 shall govern this Order and incorporated herein by reference and each reference to Buyer shall be deemed to include a reference to the United States Government.
26. Fair Labor Standards: Seller warrants that the Goods will be made in compliance with the Fair Labor Standards Act of 1938, as amended.
27. Service and Replacement Parts: Seller will sell Buyer Goods necessary for Buyer to fulfill its current model service and replacement parts requirements at the prices set forth in this Order. 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 part requirements. Unless otherwise agreed to by Buyer, the prices during the first three years of this period will be the OE prices in effect at the conclusion of the current model purchases. For the remainder of the period, the prices will be the OE prices in effect at the conclusion of current model purchases plus agreed adjustments to compensate for reduced volumes. As used in this paragraph, the term “OE prices” means the prices of Goods that are used in products that are shipped directly or indirectly to a vehicle assembly plant to support vehicle production.
28. Governing Law: This Order will be governed by the laws of the state shown in Buyer’s address on the face of this Order, and the Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby stipulate irrevocably that they hereby submit to the personal jurisdiction of the courts of the above-referenced state and for purposes hereby waive all challenges to the personal jurisdiction of such courts.