Suppliers

Purchase Order Terms & Conditions 

1. Acceptance – Acceptance is limited to the express terms  contained herein (reference herein to “Purchase Order” shall be  a reference to all such terms). Any additional or different terms  proposed by Seller to vary in any degree to any of the terms in  this Purchase Order are hereby objected to and rejected. The  terms of the Purchase Order shall describe the quantity, price,  or delivery schedule of the labor, supervision, administration,  and other services (the “Services”) or material, equipment,  apparatus, products, supplies, goods and documentation (the  “Material”) to be provided by Seller (collectively, the Material  and Services shall hereinafter be referred to as the “Work”). If  Seller has made a prior offer, Buyer’s acceptance of Sellers  offer is expressly conditioned on Seller’s assent to all of the  terms contained in the Purchase Order. Seller’s  commencement of performance of the Work shall be deemed  an effective mode of acceptance of Buyer’s offer or  counteroffer, as the case may be, and the terms and conditions  contained in this Purchase Order. Time is of the essence under  this Purchase Order. 
2. Prices – In consideration for the performance of the Work,  Buyer shall pay to the Seller the prices set forth in this Purchase  Order, and this Purchase Order shall not be invoiced at higher  prices than shown herein. 
3. Delivery –Delivery of Material shall be “DAP Buyer’s delivery  dock, with freight paid by Seller; unless otherwise specified in  the Purchase Order. Buyer may expedite deliveries. Seller  shall notify Buyer promptly of any conditions affecting the date  the Material is to be received at the “ship to” address specified  in the Purchase Order (the “Delivery Date”). This notice shall  be required for conditions affecting both late and early delivery.  Buyer may, at its sole option, accept or return deliveries, which  vary from the specified Delivery Date or quantities except for  authorized partial shipments. 
4. Packaging– Material shall be packaged and shipped in  accordance with good shipping practices. In all cases Material  shipped shall be adequately protected to prevent damage in  transit. Seller shall comply with and be responsible for following:  Buyers shipping and packaging instructions in accordance with  ANSI N-45.2.2 Level B, C, or D. All items or their containers  shall be piece marked with material code or description and  Purchase Order number. Items disassembled for shipment  shall be match marked. Unpainted surfaces and openings shall  be protected from impact and weather damage. All shipments  shall be made in a closed truck or flatbed truck. Material  shipped on a flatbed truck shall be tarped. 
5. Title and Risk of Loss– (a) Material. The risk of loss or damage  to the Material shall pass from Seller to Buyer at shipment  destination as determined by the shipping terms set forth in the  Purchase Order. Title shall be free and clear of any and all  liens and encumbrances. If Material is received at its  destination in a damaged condition and a claim for such  damage was attributable to Seller, Seller shall repair or replace  such damaged Material at no cost to Buyer. In any event,  Seller shall assist Buyer without charge in establishing carrier  liability for Material damaged by supplying evidence that the  Material was properly manufactured, packaged, and secured to  withstand normal transportation conditions. 
   (b) Services. Risk of loss or damage to the Services of any  property of Buyer in the custody of Seller shall remain with  Seller until Buyer issues final payment in accordance with the Purchase Order. If any loss or damage to the Services occurs  prior to the date Buyer issues final payment, Seller shall, at its  sole expense, promptly repair or re-perform the portion of the  Services affected.  
6. Invoices and Payment– Except as otherwise provided in the  Purchase Order, invoices shall be paid within (30) thirty days  after acceptance of the Work or receipt of the invoice and  documentation, whichever is later. For any portion of the Work  that does not conform to the requirements of the Purchase  Order, a corresponding portion of the price may be withheld  until such nonconformance is corrected. Payment shall not  forfeit Buyer’s right to inspect and accept the Work and its  documentation, nor shall the withholding of any payment, or  prorated portion thereof, preclude Buyer from pursuing any  other rights or remedies it may have under the Purchase Order,  in law, or in equity. All invoices shall include Buyers Purchase  Order number. Invoices shall separately identify sales/use  taxes where applicable, and any authorized prepaid freight  charges for parcel post, UPS, or other courier, of any shipments  designated “DAP point of shipment, freight allowed”. All freight  charges shall be supported by a copy of the original freight bill.  Buyer may decline to pay an invoice, in whole or in part, due to  the extent Buyer decides it is necessary to protect it from loss  due to : (i) breach by Seller of any of its obligations under this  Purchase Order, (ii) third-party claims or reasonable evidence  of probable filing of such claims; (iii) damage to Buyer or  another Seller where such damage arises out of the actual or  alleged willful misconduct or negligent acts or omissions of  Seller, any subcontractor or their agents, employees or any  other person for whom, directly or indirectly, any one of them  may be liable; (iv) reasonable evidence that the Work will not be  completed within the time requirements specified in the  Purchase Order; (v) unsubstantiated or unsupported amounts  invoiced by the seller; or, (vi) Seller’s failure to properly pay  Subcontractors. In the event that Buyer so requests, final  waivers of lien by all subcontractors and material suppliers and  affidavits that all bills for material and labor have been paid by  Seller and each subcontractor shall be furnished with Seller’s  final invoice with respect to the Work. Acceptance by Seller of  final payment under this Purchase Order shall constitute a  waiver of all claims against Buyer under this Purchase Order.  Buyer may set off against any amount payable under this  Purchase Order any and all present and future indebtedness of  Seller to Buyer under any other Purchase Order. 
7. Warranties– (a) Material. Seller warrants that the Material  furnished to Buyer hereunder (i) will be of new manufacture and  will be free from defects in design, workmanship, and materials.  (ii) will be suitable for its intended purpose as specified in this  Purchase Order or as otherwise known by Seller, (iii) will be fit  for the particular purpose intended therefore to the extent such  purpose is set forth in the Purchase Order or Seller otherwise has reason to know of such purpose., (iv) will be in compliance,  and will have been manufactured and sold in accordance, with  all applicable laws, and (v) will have been fully tested to meet  the requirements of this Purchase Order. Seller further warrants that the Material will comply with (1) the specifications provided  to Seller, and (2) all performance requirements, tolerances and  representations provided to Seller. Seller agrees that it will  obtain and assign or otherwise provide to Buyer the benefits of  any warranties provided by manufacturers or suppliers of material or equipment incorporated into the Material, and will  perform its responsibilities so that such warrants remain in full  force and effect. 
   (b) Services. Seller warrants that qualified personnel shall  perform all Services in a competent manner in conformance with the warranties herein, and that the Services will comply  with the specification contained in the Purchase Order. Seller  further warrants that the Services will be properly performed in  accordance with the applicable industry standards and practices then prevailing at the time of this Purchase Order, or, if higher at the time such services are performed. 
8. Remedies– For a period of one year after acceptance of the  Work by Buyer, or such other period stated in the Purchase  Order, Seller shall correct or replace any nonconforming Work,  at Seller’s expense, promptly after notification by Buyer. The  decision whether to correct or replace shall be made with the  concurrence of Buyer and the correction of replacement shall  be scheduled consistent with Buyer’s requirements. All costs  and expenses associated with access to, correction, or  replacement of Work shall be paid by Seller, and Buyer may  charge Seller all expenses of unpacking, examining, repacking,  and reshipping of any rejected material. All warranties for any  corrected or replaced Work shall be extended to one year from  the date of Buyer’s acceptance of the corrected or replaced  Work. Inspection, testing, acceptance, payment, or use of any  Work shall not affect the warranties and obligation of Seller  hereunder and such warranties and obligation shall survive any  such inspection, testing, acceptance, payment, or use. In the  event of Seller’s failure or refusal to correct or replace the Work,  in accordance with the terms hereof, Buyer, after notice to  Seller, may correct any deficiencies in, or replace, the Work at  Seller’s expense. Each of Buyer’s rights and remedies under  this Purchase Order shall be cumulative and additional to any  other or further rights or remedies provided in law or equity  under the Uniform Commercial Code or otherwise.  
9. Inspection and Testing. Buyer may at all reasonable times  inspect and test the Work. Buyer may reject any part of the  Work found to be defective or nonconforming, regardless of the  state of its completion or the time of place of discovery of such  errors, and regardless of whether Buyer’s inspector has  previously accepted it without objection through oversight or  otherwise. Any rejected Material may be returned at Seller’s  sole expense. 
10. Changes in the Purchase Order. Buyer shall have the right at  any time to make changes in the Purchase Order, including, but  not limited to, changes in drawings, designs, specifications,  materials, packaging, time and place of delivery, and method of  transportation by issuance of a Change Order or other writing.  If any such changes cause an increase or decrease in the cost,  of the time required for the performance, an equitable  adjustment shall be made and this Purchase Order shall be  modified in writing accordingly. Any such equitable adjustment  requested by Seller shall be asserted in writing to Buyer within  fifteen days after Seller’s receipt of notification of such charge. 
11. Subcontracting. Seller may not, without prior written consent of  Buyer, subcontract any of its obligations under this Purchase  Order. In the event that Buyer consents to the subcontracting  of any portion of the Work, (i) such consent shall not relieve Seller of its obligations under this Purchase Order with respect  to such Work, and (ii) Seller agrees to bring the provision of this  Purchase Order to the attention of and to bind every  subcontractor (regardless of tier) to whom it subcontracts any of  the Work by the provisions of this Purchase Order as far as  applicable to that portion of Work to be performed by the  subcontractor. 
12. Indemnification. (a) Sellers Indemnification. TO THE FULLEST  EXTENT PERMITTED BY LAW, SELLER AGREES TO  INDEMNIFY, HOLD HARMLESS, AND UPON REQUEST  DEFEND BUYER, ITS OFFICERS, DIRECTORS,  EMPLOYEES, AGENTS, REPRESENTATIVES, SUBSIDARIES, SUCCESSORS, AND ASSIGNEES, FROM  ANY CLAIM LIABILITY, DAMAGE, EXPENSE SUIT, OR  DEMAND (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS)  FOR ANY LOSSES, DAMAGES, INJURIES, OR DEATH TO  ANY PERSONS INCLUDING SELLER’S EMPLOYEES OR  ANY OF SELLER’S SUPPLIER’S AND SUBCONTRACTORS  EMPLOYEES, OR FOR DAMAGE OR LOSS TO ANY  PROPERTY, ARISING OUT OF OR IN ANY MANNER  RELATED TO, BASED UPON, OR IN CONNECTION WITH  ANY OPERATIONS, PERFORMANCE, BREACH, COURSE  OR SCOPE OF WORK, ACT, OMISSION, CONTRACTOR’S  WILLFUL MISCONDUCT OR PRESENCE UPON, USE OR  OTHER ENCOUNTERING OF ANY PROPERTY, FACILITIES,  PERSONNEL, VEHICLES, MATERIAL, OR OPERATION OF  BUYER OR OTHERS BY OR INVOLVING SELLER OR ANY  OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES,  FACILITIES, VEHICLES, MATERIALS, OR ANY OF SELLER’S  SUPPLIERS AND SUBCONTRACTORS, REGARDLESS OF  WHETHER THE SELLER IS A PARTY TO ANY LAWSUIT,  EVEN IF THE CLAIM ARISES TO THE NEGLEGENCE,  FAULT, OR OTHER LIABILITY OF BUYER OR ANY PARTY  TO BE INDEMNIFIED, EXCEPT FOR THE SOLE NEGLEGENCE OF BUYER. 
    (b) Limitations of Liability. To the extent any state or other  applicable law may prohibit any application of all or part of this  indemnity obligation, it is the intent of the parties that this clause  is severable, and that the clause be construed to impost the indemnity obligation in all circumstances, applications, and  situations to the fullest extent permitted by law. 
    (c) Survivability. The provisions of this Section shall survive  termination of the Purchase Order. 
13. Termination and Suspension. (a) Termination With Cause. If  the (i) Work is not performed in the time specified, or (ii) Seller breaches any other provision of this Purchase Order and the  breach is not cured within 10 days of receipt by Seller of notice  of such breach, or (iii) Seller is a debtor in bankruptcy or  generally not paying its debts as such debts become due, then  Seller shall be in default hereunder and Buyer may elect to  terminate this Purchase Order, or to continue this Purchase  Order subject to receiving adequate assurances of performance  from Seller. In the event of termination, Buyer shall not be  required to make any payment to Seller with respect to Work  that has not been performed as of the date of termination.
    (b) Termination or Suspension Without Cause. Buyer may at  any time, on written notice to Seller, extend, suspend, or delay Seller’s performance or terminate this Purchase Order, in whole  or in part, by Buyers convenience. If Buyer terminates Seller’s  performance hereunder, Seller shall immediately stop all Work  under this Purchase Order and immediately cause its suppliers  and sub-contractors to cease such Work, unless Seller is  directed otherwise in the notice of termination. 
    (c) Suspension for Force Majeure. Buyer may at any time  notice to Seller extend, suspend, or delay Seller’s performance  hereunder if Buyer determines that the project of which the  Work is a part or Buyers intended use of that project, facility or Work is likely to be delayed, changed, of stopped due to cause  beyond the reasonable control of Buyer. 
    (d) Termination Charges. (1) If Buyer terminates the Purchase  Order in accordance with subsection (a) of this Section, Seller  shall not be entitled to receive any further payments under the Purchase Order until all Work contemplated by the Purchase  Order has been fully performed. Buyer shall have the right to  complete the Work by means other than the use of Seller, and  in doing so Buyer shall have the right to exercise its sole  discretion as to the manner, method, and reasonableness of the  costs of completing the Work. Seller shall bear any extra  expenses incurred by Buyer in completing the Work, including  all increased costs. After all Work contemplated by the  Purchase Order has been completed, Buyer shall calculate the  total expense for the completed Work. If the total expenses are  less than unpaid balance due Seller, the excess shall paid by  Buyer to Seller. If the total expenses exceed the unpaid  balance, Seller shall be liable to Buyer and shall pay the  difference to Buyer on demand; and (2) if Buyer terminates this  Purchase Order in accordance with subsection (b) of this  Section, Buyer shall make payment to Seller for all reasonable  and unavoidable disbursements and expenses which Seller has  incurred or become obligated for prior to the date of notice of  termination, less the reasonable resale value of material which  has been obtained or ordered that was intended to become an  integral part of the Purchase Order, plus a reasonable sum as  profit in the same percentage as the Work completed prior to  termination bears to the Work. In no event, shall the aggregate  termination charges exceed the price of the Work hereunder.  Seller agrees to take reasonable steps to minimize termination  charges. 
    (e) Resumption of Work. If Buyer extends, delays, or suspends  Seller’s performance under subsections (b) or (c) of this  Section, Seller shall thereafter resume its performance as soon  as is practical when directed to do so by Buyer. Any completion  dates identified in the Purchase Order which are affected by an  extension, delay, or suspension of Buyer, together with any  payment schedules in this Purchase Order, shall be extended  for a period not to exceed the time lost by reason of the  extension, suspension, or delay. 
    (f) No Overhead Costs or Profits. Whether Buyer terminates  Seller with or without cause or suspends Seller’s Work under  this Purchase Order, in no event, shall Buyer be responsible for  overhead costs associated with Work not performed by Seller,  or any profits Seller would have earned if it had completed the  work, or for any special, consequential, incidental, or indirect  damages. 
14. Limitation of Liability. IN NO EVENT, WHETHER BASED ON  CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING  NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL  BUYER BE LIABLE TO SELLER FOR SPECIAL, INDIRECT,  INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES  WHATSOEVER INCLUDING WITHOUT LIMITATION, LOST  OF PROFITS OR REVENUE, OR COST OF CAPITAL. 
15. Patents and Infringements. Seller shall pay all royalties and  license fees which may be payable on account of performance  or use of any of the Work. If any action or proceeding brought  against Buyer is based on a claim of infringement of a  proprietary of intellectual right or interest arising out of Seller’s  performance of the Work and, if Buyer promptly notifies Seller in  writing of any such action or proceeding, Seller shall at its own  expense, do the following to assure continuation or use of the Work. (1) defend such action or proceeding and pay all damages, costs, losses, claims, awards, settlements, attorney’s fees and expense of any of them, arising out of such action or  proceeding; (2) procure for Buyer the right to continue to use  any part of the Work affected by such action of proceeding, or replace or modify, with Buyer’s approval, any Work determined  to be infringing such that the infringement is removed; and (3) if  in any such action or proceeding a temporary restraining order  or preliminary injunction be granted, then Seller shall, by  gaining satisfactory bond, or otherwise, endeavor to secure the  suspension of such restraining order or preliminary injunction  against Buyer’s use of the Work. Buyer at its expense may be  represented by and actively participate through its own counsel  in any such suits and proceedings if Buyer so desires. The  preceding paragraph shall not apply to any Work , or any part  thereof, manufactured to Buyers detailed design. As to such  Work or part, the Seller assumes no liability whatsoever for  infringement.  
16. Non-Waiver. The failure of Buyer to insist upon strict  performance by Seller or Buyer’s failure to delay in exercising  any rights or remedies provided in this Purchase Order or by  law shall not be deemed or construed as a waiver of any claims.  No waiver by Buyer of a breach of any provision of this  Purchase Order shall be construed as a waiver of any breach or  of that provision. No payment, or certificate, final or otherwise,  nor the approval of any design, shall be construed as (i) an  acceptance of defective work, (ii) relieving Seller of its  obligations to make good any defects or consequences for  which Seller may be responsible, or (iii) a waiver of any  obligations of Seller under this Purchase Order. 
17. Documentation and Proprietary Information. Seller shall  provide Buyer with all reasonable information and documentation which is requested by Buyer in connection with  the Work. Buyer shall not be prohibited from disclosure or use  of proprietary or confidential information or documents  necessary for Buyer to secure or maintain in effect any license  or permit, perform maintenance on the Work, or otherwise to  obtain the full benefits of the Work. If Buyer transmits any  information to Seller which Buyer considers proprietary, Buyer  may so designate such information. Seller shall use that  information and any other information that Seller knows or has  reason to know is proprietary or confidential to Buyer,  exclusively in connection with the Work to be performed  hereunder and shall not publish or otherwise disclose it to any  third party. 
18. Assignment. Seller shall not assign its interest in the Purchase  Order, or delegate any obligation under the Purchase Order,  without the prior written consent of Buyer. An “assignment”  shall include any transfer of a majority interest in Seller by  merger or otherwise. Any attempted assignment or delegation  by the Seller shall be wholly void and totally ineffective for all  purposes. The Purchase Order shall not be deemed an asset of the Seller. Buyer, without limitation, reserves the right to  assign the Purchase Order, or any interest, to a third party to be  selected by Buyer. 
19. Choice of Law; Interpretation; Severability. This Purchase  Order shall be construed and interpreted, without giving effect  to principals of conflict of law, in accordance with the laws of the  State of Michigan. The provisions of this Purchase Order shall  be interpreted where possible in a manner to sustain their  legality and enforceability. The unenforceability of any provision  of the Purchase Order in a specific situation shall not affect the  enforceability of that provision in another situation or the  remaining provisions of this Purchase Order. 
20. Dispute Resolution. The parties shall attempt in good faith to  resolve all disputes promptly by negotiation as follows: Any party may give the other party written notice of any dispute not  resolved in the normal course of business. Both parties shall  meet at a mutually acceptable time and place within 10 days  after delivery of such notice, and thereafter as often as the  reasonably deem necessary, to exchange relevant information  and to attempt to resolve the dispute. If the matter has not  been resolved within 30 days from the referral of the dispute  either party may initiate mediation as provided hereinafter. If a  negotiator intends to be accompanied at a meeting by an  attorney, the other negotiator shall be given at least three  working days’ notice of such intention and may be accompanied  by an attorney. All negotiation pursuant to this Section is  confidential and shall be treated as compromise and settlement  negotiations for purposes of the Federal Rules of Evidence and  state the rules of evidence. 
    Such dispute be submitted to mediation with the American  Arbitration Association (“AAA”) in accordance with the  Commercial Mediation Rules 
    The award of the arbitrator shall be specifically enforceable in a  court of competent jurisdiction. 
    Continued Prosecution of the Work. In any case of dispute,  including, but not limited to, any dispute which is or may be the  subject of mediation or arbitration, Seller shall continue to  prosecute the Work and maintain its progress pending final  determination of the dispute, and Buyer shall continue to make  payments to Seller for those portions of the work completed that  are not the subject to the dispute. 
21. Nondiscrimination and Affirmative Action. Seller shall, unless  exempt, comply with the federal regulations pertaining to  nondiscrimination and affirmative action (generally part 60-1 of  Title 41 of the Code of Federal Regulations), including, but not  limited to the following, all of which are incorporated herein by  reference. (1) Affirmative Action Compliance Program (41 CFR  60-1.40); (2) Affirmative-Action – Disabled Veterans and  Veterans of the Vietnam Era (41 CFR 60-250.4); (3) Affirmative  Action – Handicapped Workers (41 CFR 60-741.4); (4) Equal  Opportunity (41 CFR 60-1.4) and Clause in Section 202 of  Executive Order 11246; (5) Employer Information Report SF 100, annual filing (41 CFR 60-1.7); (6) Fair Labor Standards Act  of 1938, as amended; (7) Prohibition of Segregated Facilities  (10 CFR 60-1.8); and, (8) Small Business Concerns, Small  Disadvantaged Business Concerns, Women Owned Business  Concerns (48 CFR Chapter 1, Subpart 19.7), and Section 402  of the Veterans Readjustment Act of 1974 and Section 503 of  the Rehabilitation Act of 1973. The Seller shall also comply,  unless exempt, with any applicable state laws pertaining to  nondiscrimination and affirmative action.  
22. Independent Contractor Status. Seller agrees that all Work  shall be performed as an independent contractor and that the  persons performing such Work shall not be considered  Employees of the Buyer. 
23. Notices. Any notice pertaining to the Work performed or a  Purchase Order shall be in writing and sent via facsimile  transmittal, E-Mail, registered or certified mail (postage paid), or  by commercial overnight courier, to Buyers representative or  Seller’s representative as appropriate, at their respective  addresses appearing in the Purchase Order. Notices shall be  effective only when received. 
24. Late Delivery Back charge. Time is of the essence. In the  event, and for reasons directly attributable to the Seller and not  excused for the Buyer, the Seller fails to ship Work or Materials  in accordance with the schedule set forth in the Purchase  Order, the Seller may be assessed a late delivery charge in the  amount of 1% per day to be applied to the value of goods or  services that are delayed. In no event shall the late charge  exceed 5% of the total Purchase Order value. 
25. Foreign Corrupt Practices Act – Seller represents that it is  familiar with the Foreign Corrupt Practices Act (the “FCPA”) and  its purposes; and that, in particular, it is familiar with the  prohibition against paying or giving of anything of value, either  directly or indirectly, by an American company to an official of a  foreign government for the purpose of influencing an act or  decision in his official capacity, or inducing him to use his  influence with that government, to assist a company in obtaining  or retaining business for or with, or directing business to, any  Person. Buyer may terminate this Agreement for default at any  time, without any liability or obligation, if it believes, in good  faith, that Seller has violated this Act. 
26. Conflict Minerals Disclosure Rules. By delivering the parts,  products, materials or services pursuant to this Purchase Order,  Seller hereby warrants and represents that it has conducted a  due diligence review of its supply chain and determined that no  such parts, products, materials or services contain any conflict  minerals from the Democratic Republic of Congo or its adjoining  countries, or that any such conflict minerals present were  derived from scrap or recycled sources. For purposes of this  representation, the term “Conflict Minerals” includes Columbite Tantalite (Coltan), Cassiterite, Gold, Wolframite, and derivatives  of the foregoing, limited to Tantalum, Tin and Tungsten.  Further, the countries adjoining the Democratic Republic of  Congo included Angola, Burundi, Central African Republic, the  Republic of Congo, Rwanda, South Sudan, Tanzania, Uganda  and Zambia. Moving forward, it is our policy that we will not  accept any materials containing Conflict Minerals unless the  Seller can certify to us that the Conflict Minerals in question did  not originate in the DRC or adjoining countries. Further, we will  not accept shipments from Sellers that fail to return completed  Conflict Minerals Vendor Questionnaires. 
27. Complete Agreement. This sets forth the entire understanding  between the Seller and Buyer, and supersedes any and all prior  agreements, arrangements, or understandings, relating to the  subject matter hereof. 

Form 202 Rev 4 Dated 07/15/19