AMERICAN SEATING COMPANY
TERMS AND CONDITIONS OF PURCHASE
1. INCORPORATION: These terms and conditions form a part of all purchase orders and releases issued by American Seating Company, as Purchaser, which specifically incorporate them by reference. Each such purchase order and release, including these terms and conditions and the form in which they are incorporated by reference, is referred to herein as an “Order.”
2. ACCEPTANCE: Seller should execute the Purchase Order form where indicated and return it to Purchaser as provided therein. Seller shall be bound by the Order upon such execution and delivery or when Seller otherwise indicates acceptance by delivery, performance, or otherwise. Acceptance of the Order is limited to the terms and conditions stated herein. Any additions, deletions or differences in the terms set forth in the Order are objected to and hereby rejected unless Purchaser agrees otherwise in writing in each instance.
3. PRICE: The prices stated on the face of the Order constitute the full purchase price to be paid for the goods and services purchased hereunder. Seller warrants that the price for the goods and services is no less favorable than those currently extended to any other customer for the same or similar goods in similar quantities. Seller warrants that the prices in the Order are complete, and no additional charges (including, without limitation, packaging and storage) shall be added without Purchaser’s express written consent.
4. DELIVERY: All goods must be shipped at the most advantageous rates unless otherwise authorized in writing by Purchaser. Any extra expense in effecting delivery of goods not so shipped will be charged to Seller.
Adequate scheduling of shipment shall be made by Purchaser to meet the delivery dates included within the Order. Shipment shall be strictly in accordance with Purchaser’s delivery schedule. If Seller believes it will not be able to meet Purchaser’s delivery schedule in any respect, it shall notify Purchaser within five (5) days of receipt of the Order. Time is of the essence in the performance of the Order.
Seller shall not make material commencements or production arrangements in advance of reasonable flowtime needed to meet Purchaser’s delivery schedule. No claims shall be allowed for such advance effort in case of change or termination. Purchaser reserves the right to return, at Seller’s expense, all goods received in advance of delivery schedules or to hold the goods and pay Seller’s invoices on normal maturity after the scheduled delivery date.
5. PACKING, MARKING AND SHIPPING: Seller shall label, pack, mark and ship all goods and supplies in accordance with the requirements of the Order and applicable law so as to be in compliance with transportation regulations and good commercial practice for protection and shipment, shall include customs valuation invoices and other export documents required by Purchaser and shall secure the most advantageous transportation service and rates consistent therewith. No separate or additional charge is payable by Purchaser for containers, crating, boxing, bundling, dunnage, drayage or storage unless specifically stated in the Order.
Duplicate itemized packing lists of contents must be placed in each package bearing Purchaser’s Order Number. No charge will be allowed by Purchaser for cartage or packing unless agreed upon beforehand in writing. All expenses incurred by Seller’s failure to furnish necessary shipping documents shall be charged to Seller.
6. INVOICING: Duplicate itemized invoices with packing lists attached, each bearing the Order Number (following Purchaser’s name), must be dated and mailed on the day of shipment. ALL APPLICABLE BILLS OF LADING OR EXPRESS RECEIPTS MUST BE ATTACHED TO EACH COPY OF YOUR INVOICE.
If invoices subject to cash discount are mailed after their dated date or after shipment, then the discount period will begin on the day those invoices are received by Purchaser’s purchasing department. Failure to apply Purchaser’s labels, and/or attach all applicable Bills of Lading or Express Receipts to your invoice will delay payment, and applicable discount periods will begin when the documents are received.
All invoices must bear the following certification in order to be passed for payment: “We hereby certify that these goods were produced in compliance with the Fair Labor Standards Act of 1938, as amended, and regulations and orders issued by the United States Department of Labor thereunder.”
7. INSPECTION AND TESTING: Purchaser shall have the right to expedite, inspect and test any of the goods or work covered by the Order prior to shipment. All goods and work are also subject to Purchaser’s inspection and approval on arrival. If rejected, they will be held for disposal at Seller’s risk, or returned to Seller at Seller’s expense. In addition to its other rights and remedies with regard to non-conforming goods and work, Purchaser may correct the non-conformance at Seller’s expense if Purchaser determines that Seller cannot reasonably cure the non-conformance. Such inspection, or the waiver thereof, or the payment for goods shall not relieve Seller from full responsibility for furnishing goods and work conforming to the requirements of the Order, nor prejudice any claim, right or privilege Purchaser may have because of defective or unsatisfactory goods or work. Seller shall be responsible for all costs of reasonable inspection incurred by Purchaser if defects are identified from such inspection.
8. WARRANTY; RECALLS: All goods furnished by Seller and any services or installation relating thereto pursuant to the Order are warranted (a) to be of the best quality of their respective kind, (b) to be free of defects in design, workmanship, or material, © to conform in all respects with the specifications and samples, if any, provided by Purchaser with respect thereto, (d) to conform in all respects with all applicable federal, state and local laws, orders and regulations, (e) not to infringe or encroach upon any contractual or proprietary rights of others, and (f) to be suitable for their intended purposes, when those purposes are or should be known to Seller. This warranty shall also inure to the benefit of Purchaser’s dealers, customers and users of the goods. This warranty shall continue for the longer of: (i) the duration of Purchaser’s warranty on the product in which the goods are incorporated, as determined from time to time by Purchaser, or (ii) two years from the date of acceptance of the covered goods by Purchaser.
Seller shall promptly correct defects in any goods or services not conforming to the foregoing warranty, or promptly replace such goods and services, in each case without expense to Purchaser. If Seller fails to do so, Purchaser may make such corrections or replace such goods and services and charge Seller for costs of material, labor, transportation and other costs incurred by Purchaser in doing so.
Seller shall be responsible for all damages, direct or indirect, incidental and consequential, associated with all recalls, repairs and replacements of the goods provided hereunder or products incorporating the goods, to the extent due to a breach of this warranty.
9. CHANGES: Purchaser may at any time make changes in shipping and packing instructions, quantities, drawings, designs, specifications, place of delivery and/or delivery schedules. If any such change causes an increase or decrease in the cost of, or the time required for, performance of the Order, and is not due to a default by Seller, then Seller shall be entitled to claim an equitable adjustment in the price or delivery schedule, or both. Any claim for adjustment under this Section shall be deemed waived unless asserted within ten (10) days from the date of receipt by Seller of the change order. Any claim by Seller for adjustment under this Section must be approved by Purchaser in writing before Seller proceeds with such change.
10. STOP WORK ORDER: Purchaser may at any time, by written notice to Seller, stop all or any part of the work called for by the Order, for its sole convenience. Upon receipt of such notice, Seller shall immediately stop all work on the affected part of the Order and cause all of its suppliers and subcontractors to cease work on the affected part of the Order. Purchaser may subsequently either cancel the stop work order resulting in an equitable adjustment in the delivery schedule and/or the price, or terminate the work. In the event a stop work order becomes permanent and is not for cause (as defined in Section 11 (Termination for Cause)), Purchaser shall pay to Seller all reasonable, documented costs of work in process and raw material incurred before the stop work order in filling the Order pursuant to its terms, but not in any event to exceed the proportionate purchase price of the goods or services involved. Seller shall transfer all such purchased work in process and raw material as provided in the Order. Purchaser shall have no obligation upon such termination to pay for goods, work in process or raw materials which are in Seller’s standard stock or inventory, or which exceed the quantities reasonably required to meet Purchaser’s scheduled demand at that time, or which are readily marketable. Purchaser shall not be liable for lost profits, overhead, development costs or any other direct or indirect cancellation charges.
11. TERMINATION FOR CAUSE: Purchaser may terminate all or any part of the Order for cause. The following constitute “cause” for purposes hereof: (a) late deliveries; (b) deliveries that are defective or that fail to conform to the Order; © other breaches by Seller of the terms and conditions of the Order; (d) failure upon request to provide Purchaser with reasonable assurances of future performance; (e) insolvency of Seller; or (f) if Seller is a party to a merger, consolidation, or other extraordinary transaction that, in Purchaser’s judgment, has or may have a material adverse affect on Purchaser or the Order. In the event of termination for cause, Purchaser shall not be liable to Seller for any amount, and Seller shall be liable to Purchaser for all damages, direct and indirect, consequential and incidental, sustained by reason of the cause that gave rise to the termination.
12. INTELLECTUAL PROPERTY: Except as otherwise provided in this Section, Seller agrees to indemnify and save harmless Purchaser, its officers, employees, agents, representatives or any of its customers buying or using the goods specified herein from any loss, damage or injury arising out of a claim or suit at law or equity for actual or alleged infringement of patents, copyrights, trademarks or other intellectual property, by reason of the buying, selling or using the goods supplied under the Order, and will assume the defense of any and all suits and will pay all costs and expenses incidental thereto.
13. CONFIDENTIAL INFORMATION: Seller agrees not to make any use of data, designs, drawings, specifications and other information furnished to it by Purchaser, except for the performance of the Order and Seller further agrees not to disclose such data, designs, drawings, specifications and other information to others, except for the performance of the Purchase Order and then only under similar restrictions against use and disclosure. Upon completion or termination of the Order, Seller shall return to Purchaser on demand, all such data, designs, drawings, specifications, and other information, including copies made by Seller.
14. RISK OF LOSS: Seller assumes the following risks: (a) all risks of loss or damage to all goods, work in process, materials and other things until the delivery thereof as herein provided; (b) all risks of loss or damage to third persons and their property until the delivery of all the goods as herein provided; © all risks of loss or damage to any property received by Seller from or held by Seller or its supplier for the account of Purchaser, until such property has been delivered to Purchaser or its customer as the case may be; and (d) all risks of loss or damage to any of the goods or part thereof rejected by Purchaser, from the time of shipment thereof to Seller until redelivery thereof to Purchaser.
15. TOOLING: Any patterns, drawings, designs, samples, dies, molds, jigs and fixtures furnished to Seller by Purchaser, and other property specifically paid for by Purchaser and/or furnished or made available to Seller by Purchaser (collectively, the “Tooling”), are property of Purchaser or its customers and subject to removal by Purchaser as provided herein, and shall be used only in filling Purchaser’s orders. Seller shall bear the risk of loss of, and damage to, the Tooling. Seller shall store all Tooling away from outside elements, and perform all maintenance and repair at Seller’s sole risk. Seller agrees to immediately return all Tooling to Purchaser or as Purchaser may direct, on Purchaser’s demand and acknowledges that it has no title in the Tooling and shall not encumber it in any manner whatsoever, and hereby waives any lien claims it may have in the Tooling. The Tooling shall be delivered to Purchaser promptly and in accordance with Purchaser’s instructions, free and clear of any liens and without payment of any amount by Purchaser. Seller acknowledges that its failure to return the Tooling to Purchaser on demand shall cause Purchaser to sustain irreparable harm warranting immediate and injunctive relief, and further agrees that in the event of such failure, Seller shall pay liquidated damages to Purchaser in the amount of $10,000 per day, per Tooling item, plus all legal fees and costs associated with Purchaser’s enforcement of this Section and recovery of the Tooling.
16. INSURANCE AND INDEMNIFICATION: Each party agrees to indemnify, hold harmless and defend the other, and its officers, agents and employees from and against any claim, liability or loss (including reasonable attorneys’ fees) arising solely and directly from the negligence of or failure to perform by the indemnifying party or its employees or agents. Seller shall carry comprehensive general liability insurance, including contractual and product liability coverage, with minimum limits acceptable to Purchaser. Seller shall, at the request of Purchaser, supply certificates evidencing such coverage for the duration of performance of the Order.
17. FORCE MAJUERE: This Agreement shall be temporarily suspended during any period(s) where either party is unable to carry out its obligations under this Agreement, despite best efforts, by reason of an act of God or the public enemy, fire, flood, extreme weather conditions, general labor strike, civil disturbance, extraordinary government interference, or government regulations not in force at the time of acceptance, and neither party shall have any liability to the other party for delay in performance or failure to perform while this Agreement is temporarily suspended. In the event force majuere affects Seller and continues for a period in excess of thirty (30) days, Purchaser may, at its option, use a replacement supplier and Seller shall reimburse Purchaser for the difference in price plus reasonable costs incurred by Seller. Nothing herein shall limit Purchaser’s right to terminate the Order in accordance with Section 10 (Stop Work Order), subject to its obligations to compensate Seller as provided therein. This Section shall not relieve Seller of its obligations where such force majuere events affect assignees, subcontractors or third party providers selected by Seller under Section 23 (Assignment and Subcontracting), unless Purchaser expressly directed the use of that particular assignee, subcontractor or third party provider.
18. LAWS AND REGULATIONS: Seller shall comply with all applicable federal, state, and local laws, statutes and ordinances including, but in no way limited to, rules, regulations and standards of the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970 and the Federal Contract Work Hours and Safety Standards Act.
Seller agrees in connection with performance of the Order, not to discriminate against any employee or applicant for employment because of race, sex, religion, color, age or national origin.
The Equal Employment Opportunity clause in Section 202, Paragraph 1 through 7 of Executive Order 11246, 38 U.S.C. § 2012 Vietnam Era Veteran’s Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, all as amended and revised relative to equal employment opportunity and the implementing rules and regulations of the Office of Federal Contracts Compliance Programs are incorporated herein by specific reference, as though fully set forth herein.
Seller also warrants that it will take effective steps to assure that any such products or services it may obtain from subcontractors shall also be produced or performed in accordance with the requirements of applicable laws, statutes and ordinances.
19. GOVERNMENT CONTRACTS: If the goods or services furnished hereunder are for the ultimate use of the United States Government or any branch, arm, agency or bureau thereof: (a) Purchaser shall have the right to cancel and terminate the Order upon the cancellation or termination of Purchaser’s contract with the Government or with the Government’s contractor or subcontractor; and (b) Purchaser’s Additional Terms and Conditions Rider for United States Government Contracts shall apply hereto and be a part hereof.
20. WORK ON PURCHASER’S PREMISES: In the event the Order provides for services to be provided on the premises of Purchaser, the provisions of Purchaser’s On-Site Work Rider will apply to and govern all aspects of the Order as if fully set forth at length herein. Copies of such rider and of Purchaser’s plant safety and health rules if not attached hereto are available upon request, from Purchaser’s Purchasing Department.
21. WAIVER: The failure of either party to insist on performance of any provision of the Order shall not be construed as a waiver of that provision in any later instances.
22. SPECIFICATIONS: All data, designs, drawings, samples, specifications and other information submitted to Seller, by Purchaser or its designee, with the Purchase Order or referred to by the Purchase Order are hereby incorporated herein and made a part of the Purchase Order.
23. ASSIGNMENT AND SUBCONTRACTING:
(a) Neither the Order nor any interest herein may be assigned, in whole or in part, by either party without the prior written consent of the other party or express language in the Order. Notwithstanding the foregoing, either party may assign the Order to any successor of such party by way of merger or consolidation or the acquisition of substantially all of the business and assets of the assigning party relating to the subject matter of the Order; provided that such successor shall expressly assume all of the obligations and liabilities of the assigning party under the Order and that the assigning party shall remain liable and responsible to the other party hereto for the performance and observance of all such obligations.
(b) Notwithstanding the foregoing, any amounts due to or become due hereunder may be assigned by Seller provided that Purchaser shall not be required to make payment except as provided herein.
© Seller may, upon prior written consent of Purchaser, use services of third parties to perform distinct services with respect to the goods covered by the Order, provided that (i) such third party must meet Purchaser’s standards of experience and qualification with respect to those services, and (ii) Seller shall remain fully responsible hereunder for such services notwithstanding Purchaser’s consent to the use of such third party services, including without limitation, Seller’s warranty obligations and its obligations for timely delivery of the goods and services covered by the Order. Failure to obtain Purchaser’s prior consent shall be deemed a default hereunder.
24. GOVERNING LAW; VENUE: The Purchase Order shall be governed, interpreted and construed by, and in accordance with, the laws of the State of Michigan without regard to the conflicts of laws provisions thereof, for domestic Sellers (the United National Convention on Contracts for the International Sale of Goods, 1980, as amended, shall apply for international Sellers). Any and all actions concerning any dispute arising hereunder shall be filed and maintained in the Circuit Court of Kent County, Michigan or the federal District Court for the Western District of Michigan. The parties specifically consent and submit to the jurisdiction and venue of such state or federal court, and irrevocably waive any objections either may have based on improper venue or forum non conveniens to the conducting of any proceeding in any such court.
25. PREVAILING LANGUAGE: The Purchase Order shall be governed, interpreted and construed in the English language, regardless of any translations that may be made into any other language.
26. PRIORITY: If any of the terms set forth herein conflicts with any terms set forth in the Purchaser’s order or release that incorporates these terms by reference, then the terms of such order or release shall control with respect to that Order.
27. INTEGRATION; AMENDMENT: Purchaser’s Order, including these terms and conditions, constitute the entire agreement of the parties with respect to the matters covered thereby, and supersede all prior oral and written agreements or understandings relating to the subject matter hereof, including Seller’s quotations, proposals, acknowledgments and other documents. No agreement or other understanding that purports to amend, add to, omit or waive terms and conditions from the Order shall be binding until made in writing and signed by Purchaser and Seller.