Metasystem PURCHASING GENERAL TERMS AND CONDITIONS (GTC)
1. Effectiveness; Entire Agreement; Applicability
1.1. As used herein, “Contract” means all applicable terms and conditions (including these General Terms and Conditions, the Purchase Contract, the Purchase Order etc.) applicable to the supply of the goods and services ( the Goods ) purchased by Buyer to Seller.
1.2. The Contract constitutes the entire agreement between Seller and Buyer with respect to the matters contained in the Contract and supersedes all prior or contemporaneous oral or written agreements, representations and/or communications. The Contract may be modified by any written agreement between the Parties.
1.3. The Contract will be accepted by Seller and become effective immediately upon the first to occur of: (a) the date on which Seller provides written acceptance to Buyer (whether by electronic means or otherwise), or (b) Seller’s commencement of any work under the Contract.
1.4. Seller’s acceptance is expressly limited to these General Terms and Conditions. Any purported acceptance of any Purchase Order on terms and conditions which attempt to modify, supersede, supplement or otherwise alter these General Terms and Conditions will not be binding upon Buyer.
2. Price, Transactional Tax.
Prices charged for Goods will be stated in the Contract are not subject to increase for any reason including, but not limited to, increases in raw material or component costs, labor costs, or overhead costs, unless as stated in the Contract. Prices may be subject to mandatory decreases if so provided in the Contract.
Seller is solely responsible for any and all transport and unloading charges and costs, customs charges and costs, taxes, tariffs, duties, insurance charges and costs, and any fiscal contribution related to the Goods, unless otherwise expressly stated in the Contract.
Seller represents and warrants that the price charged to Buyer for the Goods is at least as low as the price charged by Seller to other buyers under conditions similar to those specified in the Contract and that all prices comply with all applicable governmental laws and regulations in effect at the time of quotation, sale and delivery. Seller will ensure that the prices charged to Buyer for the Goods remains competitive with the price for similar goods available to Buyer from other sellers.
Seller will participate in Buyer’s cost savings and productivity programs and initiatives and will implement Seller’s own cost savings and productivity programs and initiatives to reduce Seller’s prices.
Unless otherwise provided in the Contract, the prices set forth in the Contract will be exclusive of all transactional taxes, including any sales, use, excise, services, value added tax, goods and services tax, or similar tax, and these taxes should be separately identified by Seller in both Seller’s quote and in the Contract even if the tax rate is zero. Buyer will not be responsible for any transactional taxes charged by the Seller that are not identified in this manner. Seller shall separately state all charges for transactional taxes on its invoices (or other such documents). Additionally, Seller shall provide Buyer with invoices in line with the applicable tax laws in its country to enable the Buyer to reclaim the transactional taxes and Seller will provide such documentation no later than when the payment to which the invoice relates is due from Buyer. Seller will be responsible for remitting the transactional tax to the applicable taxing authority except for those states or jurisdictions where Buyer has provided Seller with an appropriate exemption certificate. Seller will use reasonable efforts to apply for such exemptions where applicable. Seller will not charge Buyer for any transactional taxes charged by a subcontracting supplier if such tax is recoverable by Seller, or if not recoverable, it would have been, had the transaction been structured through other entities (either the Seller's or the Buyer's affiliated companies). If transactional taxes are not recoverable by Seller, Seller agrees to provide detailed billing, customs or other documents as requested, which set out the transactional taxes paid or payable to any of the Buyer's subcontracting supplier or to a taxing authority.
3. Delivery.
Deliveries will be made in quantities and at the times specified on the Purchase Order or on Delivery Orders. Time and quantity of delivery are of the essence of each Purchase Order and Delivery Orders. Seller will adhere to shipping directions specified on the Purchase Order or Delivery Orders.
In case the Seller will not be able to confirm the Requested Delivery Date as requested by the Buyer in the Purchase or Delivery Order, Seller will promptly, within max 5 days, inform the Buyer in writing, using the Supply Chain Communication Tools as defined in section 10.) and in case of Force Majeure as defined in section 24, otherwise the Order Delivery date will be deemed confirmed as requested.
Buyer may change the rate of scheduled shipments, the quantity of shipments or direct temporary suspension of scheduled shipments. Where quantities and/or delivery schedules are not specified, Seller will deliver goods in such quantities and times as Buyer may direct in subsequent Purchase Orders and/or Delivery Orders.
Except as otherwise specified by Buyer in the applicable Purchase Agreement or Purchase Order or Delivery Orders, delivery of the Goods shall be made on DDP terms (INCOTERMS 2010) in Buyer’s warehouse,
Seller will be fully responsible for all transport and unloading costs, customs charges, duties and related costs and expenses, insurance costs and all risks of loss, until the time of Buyer’s final receipt of the Goods according to these General Terms and Conditions.
Buyer will not be required to make payment for Goods delivered to Buyer that are in excess of quantities and delivery schedules specified in Buyer’s Delivery Orders or in a Purchase Order.
4. Transfer of Title, Risk of Loss.
Notwithstanding any agreement concerning payment of freight expenses, delivery will not have occurred and the risk of loss will not have shifted to Buyer until the Goods have been received at the specified delivery location and have been accepted by Buyer at that location.
Risk of loss for Goods shall pass to Buyer at the time and point of proper delivery and Delivery Orders of the Goods to Buyer at the specified delivery location in accordance with the shipment terms and Seller shall arrange for domestic transportation, insurance and delivery to the designated port, site or location as may be specified in the applicable Contract or in accordance with the General Terms and Conditions.
Title to the goods will transfer to Buyer free and clear of any liens, claims, encumbrances, interests or other rights at the moment the risk of loss transfers from Seller to Buyer with respect to such goods
5. Invoices.
If Buyer requests an invoice from Seller or if the Contract requires Seller to invoice Buyer for the goods or services covered by the Contract, promptly after each shipment of goods or performance of services, Seller will issue a single invoice for such shipment or agreed performance milestone to Buyer at the address specified in the Contract.
Each invoice must comply with applicable law, if any, and include the following information regarding the corresponding shipment of goods or performance of services: (a) amount due (in the currency specified in the Contract); (b) location of delivery or performance; (c) shipment or delivery information; (d) Contract number; (e) if applicable, purchase order number; (f) if applicable, the intra-EU VAT number; and (g) for goods, Buyer’s part number, Seller’s part number (if different), net weight of the goods. number of cartons or containers, Seller’s name, and bill of lading number.
All invoices and/or advance shipping notices for Goods shipped pursuant to each Purchase Order or Delivery Order must include all information appearing in the Order which is necessary for identification and control of the Goods including, but not limited to, information required by any applicable taxing authority or under any applicable tax law or regulation, and any applicable import declaration number, and/or other required information.
Seller will provide all invoices and/or advance shipping notices for Goods shipped pursuant to each Purchase Order or Delivery Order to Buyer at the invoicing address identified in the Purchase Order.
No invoice may reference any term separate from or different than these General Terms and Conditions or the terms in the Purchase Order. Buyer reserves the right to return all invoices or related documents submitted incorrectly. Any payment by Buyer of a nonconforming invoice is not an acceptance of any non-conforming element or terms on such invoice.
Buyer may reject any invoice that is inaccurate or does not conform to these requirements, and Seller will promptly reissue any such rejected invoice. Buyer’s failure to reject an invoice does not constitute Buyer’s acceptance of the invoice or the goods or services to which such invoice pertains.
6. Payment Terms.
Buyer will pay for the goods or services provided by Seller in accordance with the payment terms and in the currency specified elsewhere in the Contract. If a payment date falls on a non-business day, payment will be made on the following business day Payments may be made electronically (including, without limitation, by bank transfer or recorded bill of exchange, where applicable).
No payment will be due from or made by Buyer prior to Buyer’s receipt of (i) the Goods corresponding to such payment and (ii) Seller’s invoice in accordance with Section 5.
Where Buyer has reasonable grounds to believe goods provided by Seller under the Contract may be subject to any liens, claims or encumbrances, Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, that such goods are free of any liens, claims and encumbrances.
Any amount paid by Buyer for Goods will not be deemed to be a waiver of any breach of the Purchase Order by Seller or any amount otherwise due to Buyer. Any waiver by Buyer of any breach by Seller on one occasion will not preclude Buyer from seeking any recovery from Seller, nor will it preclude Buyer from terminating the Contract for, or constitute a waiver of, any other breach at another time.
7. Identification of Goods.
All Goods supplied pursuant to each Contract that are construed as a completed part will permanently bear information such as Buyer’s part number and name or code name, lot number, Seller’s name or code name, and/or date of manufacture by Seller in a manner directed by Buyer.
8. Packaging and Shipping.
Seller will comply, in all respects, with Buyer’s shipping and packaging requirements as amended or updated from time to time and as incorporated in the Contract by reference. Unless otherwise provided in the Contract, any charges or costs relating to handling, packaging, storage or transportation of goods are borne by Seller and have been included in the piece price of the goods as set forth herein. Further, Seller will
9. Customs Requirements and Export Controls.
Seller will promptly furnish to Buyer all documents required for customs drawback purposes, properly completed in accordance with all applicable laws and regulations. Seller will also, at Seller’s sole expense, provide all information (including written documentation and electronic transaction records) relating to the Goods which is necessary for Buyer to fulfill any customs-related or other governmental agency-related obligations, origin marking and labeling requirements, and certification and local content reporting requirements, to enable Buyer to claim preferential duty treatment at the time of entry for Goods eligible under trade preference regimes, and to make all arrangements necessary for the Goods to be covered by any applicable duty deferral or free trade zone program(s) of the country of import.
Export licenses or authorizations necessary for the export of Goods will be the responsibility of Seller unless otherwise expressly stated in the Contract, in which case Seller will, at Seller’s expense, provide all information and documentation necessary or desirable to enable Buyer to obtain necessary or appropriate licenses or authorizations. Credits or benefits resulting or arising from any Purchase Order including trade credits, export credits, customs drawbacks, and the refund of duties, taxes or fees, will belong to Buyer. Seller will indemnify and hold Buyer and Buyer’s customers and their respective successors, assigns, representatives, employees and agents harmless from and against any costs, expenses or liabilities arising from Seller’s provision of incorrect information or non- compliance with customs regulations.
10. Supply Chain communication Tools. Electronic Data Interchange
Seller will comply, in all respects, with Buyer’s delivery and logistics requirements, as amended or updated from time to time and as incorporated in the Contract by reference.
With respect to all supply chain communications relating to the Contract, including, without limitation: receiving Buyer’s production schedules, sending advance shipment notices to Buyer, Purchase order confirmation and other communications, Seller will electronically communicate with Buyer utilizing the tools made available by the Buyer, as defined within the document named “Supply Chain Communication Tools” issued by the Buyer .
11. Quality.
Seller will meet all quality requirements of Buyer including also all quality requirements of Buyer’s customer(s) notified by the Buyer. Seller will assure that all Goods conform to all specifications, standards, drawings, samples and descriptions including, without limitation, as to quality, performance, fit, form, function and appearance under the Contract. Seller is responsible for the quality, performance, fit, form, function and appearance of all Goods and components and sub-components provided by any sub-tier and subcontractor manufacturers and suppliers used by Seller. Seller will, at its expense, furnish, keep in good condition, and replace when necessary all Tooling, machinery and equipment and other items necessary for the production of the Goods.
Seller will promote continuous improvement in the quality of the goods and Seller's manufacturing and logistics processes.
12. Nonconforming Goods.
Buyer will not perform incoming inspections of the goods and Seller waives any requirement that Buyer conduct such inspections.
Buyer, at its option, may reject and return, at Seller’s risk and expense, Goods received pursuant to any Purchase Order that fail to conform to the requirements of the Contract even if the nonconformity does not become apparent to Buyer until the manufacturing, processing or assembly stage or later. To the extent Buyer rejects Goods as nonconforming, the quantities under the Purchase Order will not be reduced by the quantity of nonconforming Goods unless Buyer so notifies Seller in writing. Seller will replace nonconforming Goods with conforming Goods, unless otherwise notified in writing by Buyer, including without limitation by way of a termination notice from Buyer under Section 28 below. Seller will reimburse Buyer for (i) any amounts paid by Buyer on account of the purchase price of any rejected nonconforming Goods, and (ii) any costs incurred by Buyer in connection with the nonconforming Goods including, but not limited to, inspection, sorting, testing, evaluations, storage and rework. Payment by Buyer for nonconforming Goods will not constitute an acceptance, limit or impair Buyer’s right to seek any legal or equitable remedy, or relieve Seller’s responsibility for latent defects.
Any goods (a) determined to be nonconforming by Seller (or its suppliers); (b) rejected by Buyer as nonconforming; or (c) that become obsolete or surplus, will be rendered unusable prior to salvage or disposal by Seller (or its suppliers). Seller will ensure that nonconforming, rejected, obsolete or surplus goods are not sold as service or replacement parts to third parties. Seller will institute appropriate controls with its suppliers to ensure compliance with this Section.
13. Changes.
13.1 Changes for Goods purchased under Buyer Specification.
By written notice to Seller, Buyer may, from time to time, direct changes, or direct Seller to make changes, to drawings and specifications of the goods or to otherwise change the scope of the work covered by the Contract, including, without limitation, work with respect to such matters as inspection, testing or quality control.
Price and/or timing for delivery of Goods resulting from changes pursuant to this Section will be equitably adjusted by Buyer following Buyer’s receipt from Seller of sufficient documentation regarding Seller’s costs and/or production timing resulting from such changes.
Notwithstanding any such discussions, Seller will promptly implement such changes as directed by Buyer without delay.
Any change (i) in subcontractors of Seller or suppliers of Seller, or (ii) in the processes or procedures used by Seller in its production of Goods, or (iii) the fit, form, function or appearance of Goods, must be approved by Buyer in advance and in writing. If Seller purchases materials, parts or components used in Seller’s production of Goods from any suppliers or subcontractors, any change (i) in the processes or procedures used by Seller’s suppliers or subcontractors in the production of such materials, parts or components, or (ii) the fit, form, function or appearance of such materials, parts or components, must be approved by Buyer in advance and in writing. Any requests for such changes by Seller or Seller’s suppliers or subcontractors may be approved or denied by Buyer in its sole discretion.
Seller will not relocate the production, manufacture or assembly of the goods from the facilities approved by Buyer, or change the location from which the goods are shipped, without first following Buyer's relocation requirements and obtaining Buyer's advanced written consent.
Seller may, from time to time, propose changes to drawings and specifications of the goods or to the scope of the work covered by the Contract. If Buyer agrees, in its discretion, to implement such changes, the agreement between the parties with respect to such changes will be made in accordance with Section 1 (Effectiveness; Entire Agreement; Applicability.
13.2 Changes for Goods purchased under Seller Specification (i.e. catalog parts).
Seller have to promptly inform Buyer of changes in its manufacturing location and/or process and /or subcontractor and any other change that may impact the appearance , form and fit of the standard product purchased by the Buyer issuing a Part Change Notification (PCN) communication , via email / electronic exchange , to notify the Buyer about the planned change.
Buyer will have the right to buy the necessary volume of Goods, to be manufactured before the change will take effect; for Goods under Jedec specification, the Seller will adhere to the relevant and applicable Jedec norm.
14. Bailed Property.
All supplies, materials, machinery, equipment, blueprints, designs, specifications, drawings, photographic negatives and positives, artwork, copy layout, electronic data, consigned material for production or repair and other items furnished by Buyer (or Buyer’s customers), either directly or indirectly, to Seller or to any sub-supplier of Seller in connection with or related to the Contract, or for which Seller has been at least partially reimbursed by Buyer (collectively, “Bailed Property”) will be and remain the property of Buyer (or Buyer’s customers, as applicable) and be held by Seller on a bailment at-will basis unless otherwise specified in the Contract.
15. Rights of Entry, Reclamation and Inspection.
Seller grants Buyer access to Seller’s premises and books and records solely for the purpose of auditing Seller’s compliance with the terms of the Contract.
If requested by Buyer, within 10 working days from the Buyer’s notice the Seller will permit Buyer and/or its designees to: (i) examine all pertinent documents, data and other information relating to the Goods, Tooling, Seller’s obligations under the Contract, any payment made to Seller, any claim made by Seller and any quotes, invoices or similar materials from Seller’s own suppliers or subcontractors; (ii) view any facility or process relating to the Goods or the Purchase Order, including those relating to production quality; and (iii) audit any facility or process to determine compliance with the requirements of the Contract.
Seller will cooperate with Buyer so as to facilitate Buyer’s audit, including, without limitation, by segregating and promptly producing such records as Buyer may reasonably request, and otherwise making records and other materials accessible to Buyer. Seller will preserve all records pertinent to the Contract, and Seller’s performance under the Contract, for a period of not less than one year after Buyer’s final payment to Seller under the Contract. Any such audit or inspection conducted by Buyer or its representatives will not constitute acceptance of any goods (whether in progress or finished), relieve Seller of any liability under the Contract or prejudice any rights or remedies available to Buyer.
If requested by Buyer, Seller will provide to Buyer its most current income statements, balance sheets, cash flow statements and supporting data and schedules.
16. Work Performed on Buyer’s Premises
If Seller or its subcontractors perform any work on Buyer’s premises or utilizes the property of Buyer, whether on or off Buyer’s premises, Seller will indemnify and hold Buyer harmless from and against any liability, claims, demands or expenses (including, without limitation, legal and other professional fees) for damages to the property of or injuries, including death, to Buyer or Seller, Buyer’s or Seller’s employees, subcontractors or any other person arising from or in connection with Seller’s performance of work or use of Buyer’s property, except for such liability, claim or demand arising out of the sole negligence of Buyer.
17. Seller’s Assurance of Performance
In the event that Buyer has reasonable grounds for insecurity with respect to Seller’s continued performance under the Contract, Buyer may, in writing, demand adequate assurance of such performance from Seller. After receipt of such demand, Seller’s failure, within a reasonable period of time under the circumstances (not to exceed 20 days), to provide assurances adequate under the circumstances will be deemed a breach of the Contract by Seller
18. Compliance with Laws.
Seller, and any goods or services supplied by Seller, will comply with all applicable laws, rules, regulations, orders, conventions, ordinances or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods or services, including, without limitation, those relating to environmental matters, the handling and transportation of dangerous goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety.
In case compliance with law have to be certified by a third party o statutory authority (homologation process), the Seller will perform all the required processes to achieve the homologation of the Goods at its own responsibility and at its own expense.
Seller further represents that neither it nor any of its subcontractors, vendors, agents or other associated third parties will utilize (i) utilize forced or involuntary labor, regardless of its form ii) child except as part of a government approved job training, apprenticeship or similar program, iii) or engage in abusive employment or corrupt business practices, in the supply of goods or provision of services under the Contract.
Seller agrees to comply with all applicable anti-corruption laws, including, without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, and that neither it nor any of its subcontractors, vendors, agents or other associated third parties will engage in any form of commercial bribery, nor directly or indirectly provide or offer to provide, anything of value to or for the benefit of, any official or employee of a governmental authority or of any government-owned, government-controlled or government-affiliated entity to obtain or retain any contract, business opportunity or other business benefit, or to influence any act or decision of that person in his/her official capacity or to encourage unlawful conduct.
At Buyer’s request, Seller will certify in writing its compliance with the foregoing. Seller will indemnify and hold Buyer harmless from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to Seller’s noncompliance.
19. Intellectual Property.
Intellectual Property Rights. The term “Intellectual Property Rights” means inventions, patents (including utility patents and design patents), trade secrets, trademarks, service marks, trade dress, industrial designs, mask works, copyrights, know-how, software, data base rights and other proprietary rights.
The term “Background Intellectual Property Rights” means the Intellectual Property Rights of either Buyer or Seller existing prior to an applicable Contract or Purchase Order, as well as any improvements thereto, excluding the Foreground Intellectual Property Rights.
In case any of the Seller Background Intellectual Property have to be incorporated in to the Goods, the Seller will grant a free of charge license to use such IP when used by Buyer in connection with the Goods.
The term “Foreground Intellectual Property Rights” means any and all Intellectual Property Rights developed for incorporation into the Goods that are either developed by Buyer alone, by Buyer and Seller jointly, or by Seller alone as requested by Buyer in connection with a Contract or Purchase Order. Foreground Intellectual Property Rights do not include any Background Intellectual Property Rights.
The Seller will grant a free of charge license to use the Foreground Intellectual Property when used by Buyer in connection with the Goods; the Seller may use Foreground Intellectual Property for any other purposes, unless otherwise agreed in the Contract.
19.1 Intellectual Property Indemnification.
Seller will investigate, defend, hold harmless and indemnify Buyer, its successors, its affiliates (collectively “Buyer Group”) and its dealers and customers against any actual or alleged claims of infringement or other assertions of proprietary rights violations (including patent, trademark, copyright, industrial design right, or other proprietary right, misuse, or misappropriation of trade secret) and resulting damages and expenses (including attorney’s and other professional fees) arising in any way in relation to the goods or services contracted, including such claims where Seller has provided only part of the goods or services (collectively “IP claims”). Seller expressly waives any claim against Buyer Group that any such IP Claims arose out of compliance with Buyer Group’s or its dealers’ or customers’ specification or direction.
20. Technical Information
Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical or other information that Seller has disclosed or may hereafter disclose to Buyer or its affiliates in connection with the Contract or the goods or services contracted. Any technical or other information provided by Seller to Buyer or its affiliates will not be subject to confidentiality or nondisclosure obligations unless the parties have entered into a separate written confidentiality and nondisclosure agreement signed by their respective authorized representatives prior to the effective date of the Contract.
21. Warranty.
Seller warrants and guarantees that the goods covered by the Contract:
In addition, Seller acknowledges that Seller knows of Buyer’s intended use of the goods covered by the Contract and warrants and guarantees that such goods have been selected, designed, manufactured or assembled by Seller based upon Buyer's stated use and will be fit and sufficient for the particular purposes intended by Buyer .
Seller warrants that Seller will convey good title to the Goods to Buyer, free and clear of all liens, claims, interests and other encumbrances.
Unless otherwise set forth in the Contract, the duration of the warranty provided by Seller to Buyer for the goods will begin on the date of receipt of the goods by Buyer and end on the later of
Notwithstanding any expiration of a warranty period set forth in this Section 21, Seller will nonetheless be liable for costs and damages associated with any Remedial Action to the extent that such Remedial Action is based upon a reasonable determination that the Goods fail to conform to the warranties set forth in the Contract. Where applicable, Seller will pay all reasonable expenses associated with determining whether a Remedial Action is necessary, including but not limited to any consequential damages suffered by Buyer or its customers.
All warranties are intended to provide Buyer with protection from any and all warranty claims brought against Buyer by its customer. This includes, but is not limited to, meeting any customer-required warranties relating to the Goods or products into which the Goods are incorporated. All such customer- required warranties are incorporated by reference.
The warranties provided for in this Section 9 are in addition to all other warranties, express, implied or statutory, and will survive Buyer’s inspection, test, delivery, acceptance, use and payment of and for the Goods, and inure to the benefit of Buyer, its successors and assigns, and Buyer’s customers and the users of Buyer’s or its customers’ products. The warranties provided for in this Section 9 may not be limited or disclaimed by Seller. Buyer’s approval of Seller’s designs, materials, processes, drawings, specifications or the like will not be construed to relieve Seller of any warranties, nor will a waiver by Buyer of any required specification as to any particular Goods constitute a waiver of any such requirements for the remaining Goods to be delivered unless so stated by Buyer in writing. Seller will immediately notify Buyer in writing if Seller learns of any facts, circumstances or conditions, the existence of which causes or threatens to cause imminent breach of any warranties or interruption in Seller’s production of Goods.
To mitigate its damages, Buyer may defend any claim that any Goods supplied by Seller are defective, in breach of warranty, or otherwise do not meet applicable legal or contractual requirements because such customer may attempt to hold Buyer responsible for problems caused in whole or in part by Seller. Such defense is in the interest of both Seller and Buyer. Seller waives the right to argue that the fact that Buyer took any such position in any way limits Buyer’s right to assert a claim against Seller by Buyer for breach of warranty, contribution, indemnification or other claim that may arise from or be related to the subject matter of any of the foregoing.
22. Force Majeure.
Any delay or failure of either party to perform its obligations under the Contract will be excused to the extent that Seller is unable to produce, sell or deliver, or Buyer is unable to accept delivery, buy or use, the goods or services covered by the Contract, directly as the result of an event or occurrence beyond the reasonable control of such party, without such party’s fault or negligence (a “force majeure event”), including, if applicable, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars and sabotage; provided that written notice of such force majeure event (including the anticipated duration of the delay) must be given by the affected party to the other party as soon as possible (but in no event more than 10 days after the force majeure event occurs).
During any force majeure event affecting Seller’s performance, Buyer may, at its option, (a) purchase the Goods from other sources and reduce its Releases to Seller by such quantities without liability of Buyer to Seller, and require Seller to reimburse Buyer for any additional costs to Buyer of obtaining the substitute Goods compared to the prices set forth in the Purchase Order; (b) require Seller to deliver to Buyer, at Buyer’s expense, all finished Goods, work in process and/or parts and materials produced or acquired for work under the Purchase Order; or (c) require Seller to provide Goods from other sources in quantities and at a time .
Seller’s financial inability to perform, changes in cost or availability of materials, components or services based on market conditions, and/or supplier actions or contract disputes will not excuse performance by Seller under theories of force majeure, commercial impracticability or otherwise, and Seller expressly assumes these risks.
Seller will use all diligent efforts to ensure that the effects of any force majeure event are minimized and, as promptly as possible, resume full performance under the Contract. If requested by Buyer in writing, Seller will, within 5 days after Buyer’s request, provide adequate assurances that the delay in Seller’s performance resulting from such event will not exceed 30 days. If the delay lasts more than 30 days or Seller does not provide such adequate assurances, Buyer may immediately terminate the Contract without liability to Seller.
23. Remedies; Indemnity.
The rights and remedies reserved to Buyer in the Contract are cumulative with, and additional to, all other rights and remedies of Buyer under applicable law or in equity. Without limiting the foregoing, in the event that any goods fail to conform to the warranties set forth in the Contract or the product specifications incorporated by reference in the Contract, or if Seller otherwise breaches any of its obligations under the Contract, Buyer will be entitled to recover from Seller any and all damages, including, without limitation, any direct, indirect, incidental and consequential damages and all legal and other professional fees and costs incurred by Buyer as a result of such breach or failure, including, without limitation, costs, expenses and losses incurred by Buyer (a) in inspecting, sorting, testing, repairing or replacing nonconforming goods or nonconforming deliveries; (b) resulting from production interruptions; (c) in conducting recall campaigns or other corrective service actions; or (d) resulting from personal injury, including death, or property damage. If requested by Buyer, Seller will enter into a separate agreement for the administration and processing of warranty chargebacks for nonconforming goods.
Seller will indemnify, defend and hold harmless Buyer Group against any liability, claim, demand and expense (including, without limitation, legal and other professional fees) arising from or relating to any failure of Seller to fully perform any of its obligations under the Contract.
24. Specific Performance
Seller acknowledges and agrees that money damages will not be a sufficient remedy for any actual or threatened breach of the Contract by Seller and that, in addition to all other rights and remedies that Buyer may have, Buyer will be entitled to specific performance and temporary, preliminary and permanent injunctive relief in connection with any action to enforce the Contract, without any requirement of a bond or other security to be provided by Buyer.
25. Indemnification.
A Seller covenants and agrees to indemnify and hold harmless Buyer and its respective directors, officers, employees and agents from any claims, liabilities, damages (including actual, special, consequential, punitive and exemplary damages), costs and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) incurred in connection with any claims (including lawsuits, administrative claims, regulatory actions and other proceedings to recover for personal injury or death, property damage or economic losses of any kind) that are related in any way to or arise in any way from the Goods, Seller’s representations, Seller’s performance of or failure to perform obligations under any Purchase Order, including claims based on Seller’s breach or alleged breach of warranty (whether or not the Goods have been incorporated into Buyer’s products and/or resold by Buyer) and claims for any violation of any applicable law, ordinance or regulation or government authorization or order. Seller’s indemnification obligations will apply even if Buyer furnishes all or a portion of the design and specifies all or a portion of the processing used by Seller.
If Seller performs any work on Buyer’s premises or utilizes the property of Buyer, whether on or off Buyer’s premises, Seller will indemnify and hold harmless Buyer, its affiliates and subsidiaries, and their respective directors, officers, employees and agents from and against any liabilities, claims, demands or expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) for damages to the property of Buyer or injuries (including death) to its employees or any other person arising from or in connection with Seller’s performance of work or use of Buyer’s property except to the extent any such liability, claim or demand arises solely from the gross negligence of Buyer.
Buyer will notify Seller after Buyer becomes aware of the basis for a claim against Seller under this Section 10. Seller will immediately begin to work cooperatively with Buyer to determine the root cause of a defect in or failure of the Goods (and related systems and components).
26. Financial and Operational Condition of Seller.
Seller represents and warrants to Buyer as of the date of the Contract and then restate in writing at the end of any subsequent quarter , that it is not insolvent and is paying all debts as they become due; that it is in compliance with all loan covenants and other obligations; that all financial information provided by Seller to Buyer concerning Seller is true and accurate; that such financial information fairly represents Seller’s financial condition; and that all financial statements of Seller have been prepared in accordance with generally accepted accounting principles, uniformly and consistently applied.
27. Seller’s Insolvency.
Buyer may immediately terminate each Contract without any liability of Buyer to Seller upon the occurrence of any of the following or any other similar or comparable event:
Seller will inform Buyer immediately should any of these events occur or Seller becomes aware of events or circumstances likely to give rise to any such events. Seller will reimburse Buyer for all costs and expenses incurred by Buyer in connection with any of these events (regardless of whether Buyer exercises its termination rights with respect thereto, including, without limitation, all legal or other professional fees).
28. Termination.
28.1 Termination for Cause
Buyer may terminate all or any part of the Contract, without liability to Seller, if Seller
28.2. Termination For Convenience
In addition to any other rights of Buyer to terminate the Contract, Buyer may, at its option, terminate all or any part of the Contract before the expiration date set forth in the Contract, at any time and for any reason, by giving written notice to Seller.
In the event Buyer exercises its right to terminate for convenience under this Section, Buyer will pay to Seller only the following amounts, without duplication:
28.3 Consequences of Termination.
Upon receipt of notice of termination pursuant to these 31.1 and 31.2, Seller, unless otherwise directed in writing by Buyer, will:
28.4 Termination for Seller.
Because Buyer’s commitments to its customers are made in reliance on Seller’s commitments under each Contract, Seller has no right to terminate for convenience any Contract or Purchase Order or Delivery Order.
Seller may terminate only for cause, providing there is a material not remediable breach by the Buyers and respecting the specific condition agreed in the applicable Purchase Agreement.
29. Limitation of Damages.
In no event will Buyer be liable to Seller or Seller’s subcontractors for anticipated profits or for special, incidental or consequential damages.
30. Assignment.
Seller may not assign or delegate any of its duties or obligations under the Contract without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion. Any sale, assignment or other transfer of stock, securities, or other interests of Seller that would result in a change in control of Seller will be deemed to be a purported assignment of the Contract, with respect to which Buyer reserves the right to withhold its consent.
Buyer may assign the Contract and/or any of its rights and interests in the Contract , without Seller’s consent, to any person or entity whomsoever or whatsoever including, without limitation, any of Buyer’s affiliates (including, without limitation, any parent, subsidiary or division), or to any purchaser of or successor to all or any portion of Buyer’s business or assets.
31. Insurance.
Seller will obtain and maintain, at its sole expense, insurance coverage customary in the automotive supply industry and as otherwise required by law or as reasonably requested by Buyer in such amounts as set forth elsewhere in the Contract .
This includes, without limitation, providing full fire and extended coverage insurance for the replacement value of (i) all of Seller’s Owned Tools and (ii) any Bailed Property, both for their full replacement value.
All such insurance coverage will name Buyer as loss payee and additional insured.
Upon request, Seller will furnish to Buyer certificates of insurance setting forth the amount of coverage, policy number and date(s) of expiration for insurance maintained by Seller and such certificates must provide that Buyer will receive not less than thirty (30) days prior written notification from the insurer of any termination or reduction in the amount or scope of coverage.
Seller’s furnishings of certificates of insurance or purchase of insurance will not release Seller of any of its obligations or liabilities under any Contract.
If Seller fails to maintain any insurance under any Purchase Order, Buyer will have the right to procure such insurance and Seller will reimburse Buyer on demand, for all actual costs and expenses of procuring such insurance.
32. Setoff and Contractual Recoupment.
In addition to any right of setoff or recoupment provided by law, all amounts due to Seller will be considered net of indebtedness of Seller and its affiliates/subsidiaries to Buyer and its affiliates/subsidiaries; and Buyer will have the right to set off against or to recoup from any amounts due to Seller and its affiliates/subsidiaries from Buyer and its affiliates/subsidiaries, including, without limitation, for damages resulting from breaches by Seller of its obligations under this or any other Contract.
If an obligation of any member of the Buyer Buyer Seller Group is disputed, contingent or unliquidated, payment by any member of the Buyer and its affiliates/subsidiaries of all or any portion of the amount due may be deferred until such dispute contingency is resolved or the obligation is liquidated. Without limiting the generality of the foregoing and by way of example only, in the event of a bankruptcy of Seller, if all of the Purchase Orders between Buyer and Seller have not been assumed, then Buyer may withhold payment to Seller for Goods previously delivered (via an administrative hold or otherwise) until the risk of potential rejection and other damages is eliminated.
33. Advertising.
Seller will not, without first obtaining the written consent of Buyer, in any manner (a) advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services covered by the Contract; (b) use Buyer’s trademarks, trade names or confidential information in Seller’s advertising or promotional materials; or (c) use Buyer’s trademarks, trade names or confidential information in any form of electronic communication such as web sites (internal or external), blogs or other types of postings.
34. Confidentiality.
Seller will (i) keep all Buyer’s information confidential and disclose it only to its employees who need to know such information in order for Seller to supply Goods, Tooling, and equipment to Buyer under the Contract and (ii) use Buyer’s information solely for the purpose of supplying Goods to Buyer and (iii) will not provide such information to any third party (including, without limitation, Seller’s subcontractors) without Buyer’s advance written consent.
“Buyer’s information” means all information provided to Seller by Buyer or its representatives or subcontractors in connection with the business, programs, and Goods data, formulas, compositions, designs, sketches, photographs, samples, prototypes, test vehicles, manufacturing, packaging or shipping methods and processes and computer software and programs (including object code and source code). Buyer’s information also includes any materials or information that contains, or is based on any Buyer’s information, whether prepared by Buyer, Seller or any other person.
35. Claims from Seller.
Any legal action by Seller against Buyer arising under or relating to the Contract must be commenced within one (1) year after the breach or other event giving rise to such claim.
36. Severability.
If any term of the Contract is invalid or unenforceable under statute, regulation, ordinance, order or other rule of law applicable, such term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such applicable statute, regulation, ordinance, order or rule, and the remaining provisions of the Contract will remain in full force and effect.
37. Notices.
All notices, claims and other communications to Buyer required or permitted under the Contract will be made in writing and will be effective only upon receipt by Buyer. Seller’s failure to provide any notice, claim or other communication to Buyer in the manner and within the time periods specified in the Contract will constitute a waiver by Seller of any and all rights and remedies that otherwise would have been available to Seller upon making such notice, claim or other communication.
38. No Waiver
The failure of either party at any time to require performance by the other party of any provision of the Contract will in no way affect the right to require such performance at any time thereafter, nor will the waiver of either party of a breach of any provision of the Contract constitute a waiver of any succeeding breach of the same or any other provision.
39. Relationship of Parties.
Seller and Buyer are independent contracting parties and nothing in the Contract will make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
40. Governing Law; Jurisdiction; Venue.
The Contract and any claims relating to the goods or services provided under the Contract will be governed by the laws of the country of Buyer’s location as shown by the address of Buyer as set forth in this Contract (“Buyer’s Location”), excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), as amended, and any conflict of law provisions that would require application of another choice of law.
Any action or proceedings by Buyer against Seller may be brought by Buyer in any court(s) having jurisdiction over Seller or, at Buyer’s option, in the court(s) having jurisdiction over Buyer’s Location, in which event Seller consents to such jurisdiction and service of process in accordance with applicable procedures. Any actions or proceedings by Seller against Buyer may be brought by Seller only in the court(s) having jurisdiction over Buyer’s Location
41. Continuing Obligations.
These Terms and Conditions will survive expiration, non-renewal or termination of the purchasing relationship between Buyer and Seller.
42. Language.
These Terms and Conditions are written in the English.
