Purchase Order Terms and Conditions | DMWH

PURCHASE ORDER TERMS AND CONDITIONS

Applicability. This purchase order is an offer by DMW&H (“Buyer”) for the purchase of the goods or services (the “Work”) specified on the face of this purchase order from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, collectively the “Purchase Order”). This Purchase Order, together with any documents incorporated herein by reference, constitutes the sole and entire integrated agreement between Buyer and Seller, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Purchase Order is expressly limited and is expressly made conditional upon Seller’s acceptance of the Terms of this Purchase Order and Buyer’s notification of objection and rejection to any different or additional terms is hereby given to Seller. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller, including but not limited to a proposal, invoice, acknowledgment, release, submittal or shop drawing. If this Purchase Order has been issued by Buyer in response to an offer, the terms of which are additional to or different from any of the provisions hereof, then the issuance of this Purchase Order by Buyer is subject to the express condition that Seller assent that this Purchase Order constitutes the entire agreement between Buyer and Seller. To the extent the Seller’s quote or proposal is referenced, only the technical specifications shall apply and shall not affect, alter or amend the Terms. Any other agreements, amendments and/or deviations shall only be binding upon Buyer if (and only to the extent) Buyer has specifically accepted them in writing by authorized representative. These Terms apply to any repaired or replacement goods provided by Seller hereunder. The project drawings, specifications and other documents forming the contract under which Buyer is obligated to perform work on the project (“Buyer’s Contract”) is incorporated in, and made a part of, the Purchase Order, and all Work by Seller under the Purchase Order shall comply with all applicable requirements of such documents and the Buyer’s Contract.
Acceptance. Seller’s written acceptance or commencement of performance of this Purchase Order shall constitute acceptance. If Seller does not accept this Purchase Order in writing within five (5) days of Seller’s receipt of this Purchase Order, this Purchase Order will be deemed accepted by Seller. Buyer may withdraw this Purchase Order any time before acceptance. The Seller’s commencement of performance of the Purchase Order is deemed as acceptance of the Purchase Order. Seller’s commencement of performance constitutes Seller’s conclusive acceptance of these Term.
Delivery Date. Seller shall deliver the goods in the ordered quantities or perform the services, each on the date(s) specified in this Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the goods or services is of the essence. If Seller fails to deliver the goods or perform the services in full on the Delivery Date, Buyer may terminate this Purchase Order immediately by written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the goods or perform the services on the Delivery Date. Alternatively, if Seller fails to meet the Delivery Date, Buyer, without limiting its other rights or remedies, may direct expedited routing; any excess costs incurred thereby shall be debited to Seller’s account. Buyer may return any goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such goods on the Delivery Date. A failure or delay in delivery of any installment or the entire Purchase Order which is non-conforming as to quantity, or in any other respect, will substantially impair the value of and constitute a breach of the entire respective Purchase Order, and in addition to any other rights and remedies allowed at law or in equity, Buyer shall have the right to claim liquidated damages in amount of 1% per week delay not exceeding 10% of the respective Purchase Order value (unless otherwise identified in the Purchase Order), and, cancel and reject the entire Purchase Order or any portion thereof. The parties acknowledge and agree that it would be extremely difficult to determine precisely the amount of actual damages that would be suffered by Buyer due to the failure of Seller to meet the scheduled delivery dates. The liquidated damages set forth herein are a fair and reasonable determinations of the amount of actual damages that would be suffered by Buyer in the event of Seller’s failure to meet the delivery schedule, and that these liquidated damages do not constitute a penalty. Seller hereby expressly waives any defense or right to contest the validity of these liquidated damages on the grounds that they are void as penalties or are not reasonably related to actual damages. Additional rights and claims shall remain unaffected – even after Buyer may have accepted the delivery or Work.
Delivery Location. All goods shall be delivered to the address specified in this Purchase Order (the “Delivery Location”) or as otherwise instructed by Buyer.
Shipping. Delivery shall be as stated on the face of the Purchase Order, but if not so stated, then delivery of goods shall be DDP Delivery Location (Incoterms 2020). Each dispatch has to be indicated to Buyer at least a week prior to delivery. Delivery notes and shipping documents shall mention all data necessary for the identification of the Work, including Buyer’s Purchase Order number, identification references and project numbers. The Seller shall comply with Buyer’s forwarding instructions. Partial deliveries are permitted when expressly approved by Buyer in advance. Seller shall give written notice of shipment to Buyer when the goods are delivered to a commercial carrier. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the goods to Buyer promptly after Seller delivers the goods to the transportation carrier. The Purchase Order number and PO number must appear on all shipping documents, shipping labels, air waybill/bill of lading, invoices, correspondence, and any other documents pertaining to this Purchase Order. Quantity of goods delivered shall not exceed 10% over or under the quantity ordered by Buyer unless otherwise noted on the face of the Purchase Order.
Title /Risk of Loss. Title passes to Buyer upon delivery of the goods to the Delivery Location. Seller bears all risk of loss or damage to the goods until conforming Deliveries are duly accepted by Buyer.
Packaging. Goods must be packed for shipment according to Buyer’s instructions or, if none, in a manner sufficient to ensure that the goods are delivered in undamaged condition. Goods also must be packaged in a way to move package from all four sides. Goods shall be marked and labeled with a minimum of PO number and part number, and in compliance with all applicable laws, standards, and regulations. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of packaging material shall be at Seller’s expense. Unless agreed otherwise in the respective Purchase Order, Seller shall arrange and pay for boxing, packing, crating insurance and freight, and shall retain all risk of loss or damage until conforming Deliveries are duly accepted by Buyer. In case packaging with returnable containers has been expressly agreed upon, they must be returned to Buyer at Seller’s cost and risk. Services must be rendered at the place indicated by Buyer free of additional charges unless explicitly agreed otherwise. US law and DMW&H require that all foreign goods be marked with their country of origin “in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit.” Goods imported into the US must be marked unless they are physically incapable of being marked or would be damaged by marking.
Amendment. No change to this Purchase Order is binding upon Buyer unless it is in writing, specifically states that it amends this Purchase Order and is signed by a Buyer authorized representative.
Nonconforming Goods and Quality Assurance. The Seller has sole responsibility to carry out all required quality controls and shall provide Buyer with the quality certificates. Records of all inspection and quality assurance work by Seller shall be kept complete and available to Buyer during the performance of this Purchase Order and for such longer period as may be specified elsewhere in this Purchase Order. Representatives of Buyer shall be entitled to enter the plant of Seller at reasonable times for the purpose of reviewing Seller’s processes, controls, and records. Seller shall provide reasonable assistance to Buyer’s representatives during inspection at no cost to Buyer. Buyer shall be under no duty to inspect the Work before utilizing or re-sale or re-shipment to Buyer’s customers, and altering, utilizing, repacking or reshipment, or otherwise dealing with the Work, shall not be considered an acceptance of the Work so as to bar Buyer’s right to reject same for non-conformity whatsoever. Inspection and Acceptance of any Work by Buyer shall not be deemed to alter or affect the obligations of Seller or the rights of Buyer and its customers under any warranties herein or as may be provided by law. Buyer’s failure to inspect any of the Work shall neither relieve Seller from responsibility for such Products as are not in accordance with the requirements of this Purchase Order nor impose liability on Buyer therefor. Buyer may inspect all or a sample of the goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the goods if it determines they are nonconforming or defective. If Buyer rejects any portion of the goods, Buyer may, upon written notice to Seller: (a) rescind this Purchase Order in its entirety; (b) accept the goods at a reasonably reduced price; or (c) reject the goods and require replacement thereof. If Buyer requires replacement of the goods, Seller shall, at its expense, promptly replace the nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective goods and delivery of replacement goods. If Seller fails to timely deliver replacement goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Purchase Order for default. Any inspection or other action by Buyer hereunder will not reduce or otherwise affect Seller’s obligations under this Purchase Order. Buyer may conduct further inspections after Seller has carried out its remedial actions. If the Seller identifies nonconforming goods prior to or following shipment to Buyer, Seller shall notify Buyer immediately. Buyer will evaluate the nonconformance and determine appropriate disposition.
Over Shipment. In the event of an over shipment, Seller has sole responsibility for shipping charges to return the excess material and shall be responsible for all packaging and handling charges incurred by Buyer to prepare shipment. In the event that the Seller wants to abandon the material at the Buyer’s site, the Seller will incur all charges associated with disposal of material. If the material is hazardous, the Buyer has the right to refuse the material be disposed of at Buyer’s site and the Seller shall be responsible for all cost associated with the removal or disposal.
Price. The price of the goods or services is the price stated in this Purchase Order. If no price is included in this Purchase Order, the price shall be the price set out in Seller’s published price list in force as of the date of this Purchase Order. Unless otherwise specified in this Purchase Order, the price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all value- added taxes, sales, use or excise taxes. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without Buyer’s prior written consent. The agreed prices include the supply of all required technical documents for engineering, installation, operation, maintenance etc. as well as the surface and corrosion treatment in accordance with the intended purpose or use; and all labor (including overtime and premium charges), supervision, management, power, permits (unless otherwise agreed), licenses (unless otherwise agreed), machinery, insurance, engineering, testing, materials, supplies, tools, equipment and all other items and services necessary or desirable to perform the Work. Payment for Seller’s quotations, plans, elaborations, models, special tools, software, patterns and/or tests will only be made when expressly agreed upon.
Most Favored Customer. Seller warrants that the price for the goods or services is the lowest price charged by Seller to any of its customers for similar volumes of similar goods or services. If Seller charges any other customer a lower price, Seller must apply that price to all goods or services under this Purchase Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Purchase Order for default.
Payment Terms. Seller shall issue an invoice to Buyer on or after the delivery and only in accordance with these Terms. Except as otherwise set forth on the face of the Purchase Order, Buyer shall pay all properly invoiced amounts due to Seller NET 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder will be in US dollars and made by company check or as may otherwise be agreed between Buyer and Seller. In the event of a payment dispute, Buyer shall deliver a written notice to Seller reasonably describing each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Purchase Order notwithstanding any such dispute. Payment shall not be due and owing until the last shipment of Work under the respective Purchase Order is received by Buyer unless otherwise agreed by the parties. Partial or final payments shall in no case be interpreted as acceptance of the Work. The Seller may only assign its claims against Buyer with Buyer’s prior written consent. In the event of any dispute or claim under this Purchase Order or the Work, Seller shall continue to diligently perform the Work as directed by Buyer without interruption, deficiency or delay. The Buyer may only set-off its own claims against sums due to Seller where such claims are undisputed and have been acknowledged by Seller or upheld by a court of law. Invoices shall be sent in one original and clearly mention all relevant data necessary for identification i.e., inter alia order number, identification references and project numbers. Seller shall provide lien waivers with every invoice as required by the Buyer. Seller agrees to list separately all sales and/or excise taxes applicable to the respective Purchase Order, and agrees that if said sales and/or excise taxes are not disclosed prior to the effectiveness of the respective Purchase Order, that the amount thereof will be considered as included in the total price shown on the respective Purchase Order.
Changes by Buyer. Buyer may, at any time, by a written directive or order of (the “Change Order”), make changes within the general scope of this Purchase Order, in any one or more of the following, but not limited to: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place or timing of delivery; (d) materials, methods or manner of production; or (e) quantity. If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule or both, and this Purchase Order shall be modified accordingly. Any claim by Seller for adjustment hereunder must be asserted within 20 days from Seller’s receipt of the change notice, but such period may be extended upon Buyer’s written approval. However, nothing in this clause will excuse Seller from proceeding with this Purchase Order as changed or modified.
Changes by Seller. Seller shall notify buyer 365 days in advance of obsolescence or discontinuation of any materials, processes or products. Changes by Seller to the goods, manufacturing processes, location of manufacturing facility, sub-suppliers and raw materials or construction thereof, will not be made without prior written approval from

Buyer.

Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
Warranties. Seller warrants to Buyer that all goods or services will conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer and will be merchantable; new, free from any defects in workmanship, material, quality, quantity, and design; fit for their intended purpose and operate as intended; merchantable; and free and clear of all liens, security interests or other encumbrances. Goods and services provided hereunder will not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the goods or services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity and shall survive acceptance of and payment for the goods ordered or services provided hereunder. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the goods or services with the foregoing warranties. If Buyer gives Seller notice of noncompliance, Seller shall, at its own expense, promptly replace or repair the defective or nonconforming goods or services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods or services to Seller and the delivery of repaired or replacement goods or services to Buyer.
Termination for Default. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Purchase Order with immediate effect upon written notice to Seller, either before or after the acceptance of the goods or services, if Seller has not performed or complied with any of these Terms, in whole or in part, if Seller fails to make progress so as to endanger performance of the Purchase Order as reasonably determined by Buyer, or if Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Buyer terminates this Purchase Order pursuant hereto, Seller’s sole and exclusive remedy is payment for the goods or services received and accepted by Buyer prior to termination.
Termination for Convenience. Buyer may at any time (notwithstanding the existence of any of the causes or events specified in Section 17 or any other condition of default) to cancel in whole or in part, the undelivered portion of the goods or services by written notice to Seller, who shall immediately upon receipt of such notice discontinue all work in respect to the cancelled portion of this Purchase Order except as may be necessary to preserve and protect the work and materials then in process. Seller shall use its best efforts to cancel and terminate all then existing orders placed by Seller which are chargeable to the cancelled portion of this Purchase Order. In the event of such termination and if Seller is not in default hereunder, Buyer shall pay Seller, in addition to the price for all conforming goods and services previously delivered to and accepted by Buyer in accordance with the terms of this Purchase Order and not previously paid for, all reasonable direct costs necessarily incurred by Seller in connection with the cancelled portion of this Purchase Order, which payment(s) shall be in full settlement of all claims by Seller arising out of such cancellation, provided that Seller delivers to Buyer all goods, services and raw materials paid for by Buyer.
Indemnity. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent company and their subsidiaries, affiliates, successors or assigns and their respective directors, officers and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any rights hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the goods purchased or services received from Seller or Seller’s negligence, willful misconduct or breach of these Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent. Limitation of Liability – Notwithstanding any provision to the contrary in documents issued by Seller including, but not limited to, Seller’s proposal or order acknowledgement purporting to do so, any and all limitations on Seller’s liability for costs, losses, damages, claims or expenses incurred by Buyer resulting from or arising in connection with the performance or non-performance of this Agreement by Seller (the “Claims”) are specifically rejected. Seller agrees to indemnify and hold Buyer harmless from and against all Claims to the fullest extent permitted by applicable law.
Intellectual Property Indemnity. Seller shall, at its expense, defend, indemnify and hold harmless Indemnitees against any and all Losses arising out of or in connection with any claim that such Indemnitee’s use or possession of the goods or receipt of the services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Indemnitee’s prior written consent.
Waiver of Consequential Damages by Seller. Seller shall waive all claims against Buyer for consequential, special, exemplary, incidental or indirect damages arising from or out of the Purchase Order, including but not limited to, damages for loss of business, loss of financing related to the project, loss of profits not related to this project, loss of bonding capacity, loss of reputation, insolvency or other similar damages (whether such damages are characterized as direct or indirect), including a breach of contract or warranty, tort (including negligence, strict liability or otherwise). The provisions of this article shall also apply to and survive termination of this Purchase Order.
Insurance. Seller shall maintain Commercial General Liability insurance, including public, product, premises and completed operations, contractual and vendors liability, with limits of not less than $2,000,000 per occurrence and in the aggregate. Such insurance must: (a) be maintained with an insurance carrier reasonably acceptable to Buyer; (b) be written in a form reasonably acceptable to Buyer; (c) be primary and noncontributory with respect to any insurance carried by or on behalf of Buyer, (d) contain a waiver of subrogation in favor of Buyer; and (e) include Buyer as an additional insured. On Buyer’s request, Seller shall provide Buyer with certificates of insurance evidencing the coverage required hereunder. Seller must notify Buyer at least 30 days in advance of any material change, cancellation or nonrenewal of any such policy, except that ten days’ notice is required in the event of cancellation for non-payment of premium.
Subcontractors. If Seller uses subcontractors for any part of the manufacture or installation of the goods or performance of the services hereunder, Seller shall be responsible and liable for all acts or omissions of its subcontractors. Seller must obtain prior written authorization from Buyer to use subcontractors for any activity relating to the goods or services provided hereunder occurring on Buyer’s premises or job site. These Terms shall be applicable to all subcontractors and Seller is responsible for enforcement. Seller will maintain a contractor management program to ensure that subcontractors comply with the safety requirements of these Terms and the Purchase Order. The Seller is responsible to flow down to its sub-suppliers all applicable Buyer requirements, including regulatory requirements where required.
Health and Safety. Seller shall, comply with all laws, ordinances, rules, regulations, codes and requirements relating to employment standards, occupational health and safety, hazardous materials regulations, and protection of the public as well as all of Buyer’s health and safety and security programs at Buyer’s site. Seller shall be solely responsible for the safety of its employees, subcontractors, and equipment at Buyer’s site. a. To carry workmen’s compensation and employer’s liability insurance as required by applicable laws and regulations covering Seller’s’ agent and employees on Buyer’s premises or job site in connection with the sale, installation or delivery of the goods covered by this Purchase Order.
To carry Professional Liability Insurance if applicable to the Work.
To carry such other insurance as may be customary given the nature of the Work or as otherwise reasonably requested by Buyer or its customers.
Compliance with Laws. Seller warrants that it is in compliance with and shall comply with all applicable laws, regulations and ordinances, including but not limited to, all laws prohibiting engagement in corrupt practices, such as the U.S. Foreign Corrupt Practice Act. Seller has, and shall maintain in effect, all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Purchase Order.
Export Control. Seller shall comply with all export control and sanctions laws, regulations, and orders applicable at the time of export, re-export, transfer, disclosure or provision of goods, software, technology or services including, without limitation, the (i) Export Administration Regulations (EAR); (ii) International Traffic in Arms Regulations (ITAR); (iii) Foreign Assets Control Regulations and associated Executive Orders; and (iv) laws and regulations of other countries (collectively, “Export Control Laws”). Unless this Order is for goods to be supplied on a “build to print” basis by Seller, Seller shall provide Buyer with (i) the applicable Harmonized Tariff Schedule Number, software, technology or services that are controlled by the ITAR, or (b) the Export Control Classification Number (ECCN) of such goods, software or technology that are controlled by the EAR and (iii) any analogous classification under any other applicable law. Seller shall not export, re-export, transfer, disclose or otherwise provide Buyer’s technical data controlled by Export Control Laws (“Technical Data”) to any foreign persons or foreign commercial entities without Buyer’s advance, written authorization. Any subcontracts between foreign persons in the approved country for manufacture of goods or provision of services shall contain all the limitations of this Section. Upon Buyer’s request, Seller shall demonstrate to Buyer’s reasonable satisfaction Seller’s subcontractors’ compliance with this Section and all Export Control Laws. Upon completion of its performance under this Purchase Order, Seller and its subcontractors shall destroy or return to Buyer all Technical Data.
Code of Business Conduct and Ethics. The Seller commits itself to respect the principles of the United Nations Global Compact, further information about the UN Global Compact under www.unglobalcompact.org. These Terms and Conditions and all individual Purchase Orders will be subject to, governed by and construed in accordance with the laws of the State in which Buyer’s main office is located, Michigan, without giving effect to its conflict of law rules. Should any terms or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of the agreement evidenced hereby will not be affected thereby. The rights and obligations of the parties shall not be governed by the U.N. Convention on Contracts for the international sale of goods and Seller and Buyer hereby disclaim the same.
Government Contracts. If this Purchase Order is issued under any U.S. Government agency contract or subcontract thereunder, then Seller shall comply with all of the applicable provisions of Title 48 of the Code of Federal Regulations (“CFR”) relating to procurement by U.S. Governmental agencies, as the same may be amended, superseded or modified. Seller is charged with knowing and complying with any and all such provisions incorporated herein.
Conflict Minerals. Buyer is committed to sourcing minerals from non-conflict-affected and non-high-risk areas in accordance with Buyer’s corporate policies, legal obligations and existing international standards, and Seller agrees to provide Buyer with supply chain data as and when Buyer reasonably requests to enable Buyer and its customers to fulfill their legal obligations under the Dodd- Frank Wall Street Reform and Consumer Protection Act. Specifically, on an on-going basis, Buyer will request data from Seller concerning the so-called “conflict minerals” used in Seller’s products, the origin of such minerals in Seller’s supply chains, and whether trade in these minerals may support conflict in the Democratic Republic of the Congo (DRC) and its adjoining countries. Buyer expects Seller to pass these data requests up Seller’s supply chain in order to determine the source of such minerals. Buyer may be required, and may require Seller, to perform due diligence on the chain of custody of conflict minerals in the supply chain. In addition, Seller may be required to make certifications to Buyer with respect to the use of conflict minerals. Buyer will evaluate and may terminate the ongoing business relationship with Seller if Seller’s supply chain is determined to include the purchase of minerals that support conflict in this region, or if Seller fails to timely provide relevant data or certifications upon Buyer’s requests.
No Waiver. No waiver by any party of any of the provisions of this Purchase Order will be effective unless in writing and signed by the party so waiving. Except as otherwise set forth in this Purchase Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Purchase Order will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. In addition to all other rights, Buyer shall have the right to recover for any non-conformity in any installment or the entire order, the loss of profit caused by such non-conformity, or at Buyer’s option, a refund of the full purchase price. In the event of Seller’s breach, Seller shall be responsible for any and all damages incurred by Buyer, including, but not limited to, incidental and consequential damages.
Confidential Information. All confidential or proprietary information of Buyer, including, but not limited to, specifications, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Purchase Order is confidential, solely for the use of performing this Purchase Order and may not be disclosed or copied unless Buyer agrees in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. The Seller also acknowledges that all drawings, blueprints, descriptions, specifications, other papers, and models and representations made available to the Seller by Buyer or prepared by or for the Seller in connection with a Purchase Order are the property of Buyer and will be returned to Buyer upon request. Seller agrees that it will not directly or indirectly copy, permit to be copied, make available or divulge any of Buyer’s inventions, designs, confidential information or know-how, and that it will not use any part thereof, or the drawings, specifications, models and representations referred to above except for this Purchase Order. Accordingly, Seller shall not manufacture for or sell to anyone other than Buyer any components, parts or other items involving Buyer’s designs or inventions, confidential information or know-how. All engineering drawings, designs, simulations, inventions, or other materials developed as part of or related to the Work by Seller is considered Work Product and shall be delivered to Buyer. Work Product is “work made for hire” and Buyer shall own all right, title and interest in and to the Work Product, including all copyrights and intellectual property rights therein. In the event any Work Product or any part thereof is deemed not to be “work made for hire” Seller hereby assigns all rights, title and interest to the Work Product without further consideration. Seller shall assist Buyer in perfecting its intellectual property rights in the Work Product. Work Product shall not include any previously patented or copyrighted intellectual property of Seller or a third party. Seller hereby grants to Buyer, its affiliates and third-party contractors a nonexclusive, royalty-free, worldwide, perpetual license to such Seller or third party intellectual property in connection with the Work. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party who was not under any obligation of confidentiality.
Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Purchase Order to the extent such delay or failure is caused by an event or circumstance that is beyond that party’s reasonable control, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemics, pandemics, quarantines, Public Health Events of International Concern (PHEIC), war, invasion, hostilities, terrorist acts, riots, strikes, embargoes or industrial disturbances. Seller’s economic hardship, labor difficulties or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to immediately notify Buyer in writing of any actual or potential Force Majeure Event, end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Purchase Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Purchase Order for a continuous period of more than ten business days, Buyer may terminate this Purchase Order immediately by written notice.
Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Purchase Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under this Purchase Order without Seller’s prior written consent.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Purchase Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Purchase Order.
No Third-Party Beneficiaries. This Purchase Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Purchase Order shall be governed by and construed in accordance with the laws of the State of Michigan without giving effect to any choice or conflict of law rule that would cause the application of the laws of any other jurisdiction. The United Nations Convention on the International Sale of Goods shall not apply to any matter arising out of or relating to this Purchase Order.
Dispute Resolution. The parties agree that the following methods shall be the followed for resolving any controversy or claim covered arising from this Contract, including but not limited to performance and payment. Mediation. Buyer and Seller shall first try to resolve any controversy or claim through mediation. Mediation is a process for resolving disputes in which a neutral third person, trained in mediation techniques, helps the disputing parties discuss and negotiate a mutually acceptable settlement. The mediator may suggest ways of resolving the dispute but may not impose a settlement on the parties. The mediator shall be selected by mutual agreement of the parties. If Buyer and Seller cannot agree on a mediator, each party will select a mediator to pick a third person who shall be the mediator. Buyer and Seller shall share equally the costs of any additional time. Mediation shall be completed within ninety (90) days after a party serves upon the other a demand for mediation. In the event of an impasse, Buyer and Seller shall proceed to arbitration as follows: Any controversy or claim not successfully mediated shall be finally determined by arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules and the following provisions shall apply:
The number of arbitrators shall be one (1).
The arbitration shall be conducted in the state and county where Buyer’s main office is located, currently Oakland, Michigan.
No depositions shall be taken.
The arbitrator shall issue a written award and opinion with findings of fact and conclusions of law.
The arbitrator may include in the award payment to either party of its reasonable attorneys’ fees and other expenses incurred in connection with the arbitration. Any award rendered by the arbitrator shall be final and binding on the parties and may be entered in any court having jurisdiction over the parties. None of the parties to this Contract shall commence any action or proceeding in any court with respect to any such controversy or claim, except
To enforce this Article,
To obtain provisional judicial assistance in aid of arbitration under this Article,
To enforce or vacate an arbitral award rendered in accordance with this Article, or
For Interim Judicial Relief, as below. Any legal suit, action or proceeding arising out of or relating to this Purchase Order shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Interim Judicial Relief. Either party may at any time, without inconsistency with this Contract, seek from a court any interim or provisional relief, such as an injunction or trust that may be necessary to protect the rights or property of that party.
Cumulative Remedies. The rights and remedies under this Purchase Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified mail (return receipt requested, postage prepaid). Except as otherwise provided in this Purchase Order, a Notice is effective only upon receipt of the receiving party and if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Purchase Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Purchase Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of this Purchase Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Purchase Order including, but not limited to, the following provisions: Set-off, Warranties, Indemnification, Intellectual Property, Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.
Miscellaneous. Unless Buyer agreed specifically otherwise in writing, no information supplied by Buyer as to tenders or orders shall be used for marketing purposes and/ or published by or on behalf of Seller. All information and/or drawings, patterns etc. provided to the Seller may only be used by Seller for the purpose of Buyer’s enquiry or order. They must not be made available to third parties and have to be returned to Buyer completely upon Buyer’s request. No modification, rescission or waiver of any of the Terms of the respective Purchase Order shall be effective unless in writing and signed by an authorized agent of Buyer. No waiver of any breach of any terms or conditions of the respective Purchase Order shall be construed as a waiver of any subsequent breach of that term or condition or other terms or conditions of the same or different nature. The Terms, other than those which specifically relate to a particular Purchase Order, shall apply to all future purchases by Buyer from Seller, unless otherwise provided in writing, signed by Buyer, or in a form submitted by Buyer to the Seller. If the Seller’s scope of supply comprises parts, especially programs, which are subject of a patent, copyright or the like, the Seller grants Buyer and Buyer’s final customer a non-exclusive right of use without additional charge. If one or more provisions of these Terms shall be or become invalid or Illegal, then such provision shall continue in effect only to the extent that it remains valid. The validity, legality, and enforceability of the remaining conditions shall not in any manner be affected or impaired.