GENERAL TERMS AND CONDITIONS OF PURCHASE
1. The Contract.
1.1 Offer and Acceptance. Each purchase order Sequoia Tool, Inc. (“Buyer”) issues (“Purchase Order”) is Buyer’s offer to purchase the products (“Products”) from the seller/supplier identified in such Purchase Order (“Seller”) . Any Purchase Order must be in writing and signed by Buyer and accepted by Seller as provided herein. Seller will be deemed to have accepted a Purchase Order as issued as of the earliest of (1) the commencement of any performance or work by Seller, including ordering or purchasing any materials, goods or supplies, commencing the performance of any services or commencing the production of any goods (including tooling) or samples, or (2) Seller acknowledging in writing its acceptance of the Purchase Order. Any acceptance of the Purchase Order is limited to acceptance of these General Terms and Conditions of Purchase (“Terms”) herein unless expressly stated otherwise in the Purchase Order. Upon acceptance, the Purchase Order together with these Terms and any other documents specifically incorporated in the Purchase Order or separately agreed to in writing, including specifications, drawings, performance requirements, requirements of Buyer’s customer, and/or quality requirements, to the extent approved by Buyer, will become a binding contract between Buyer and Seller. Releases (defined below) (collectively, the “Contract”). Specific terms and conditions on the Purchase Order and the other documents comprising the Contract will take priority over any inconsistent provision in these General Terms and Conditions. THESE TERMS MAY BE LOCATED AT www.sequoiatool.com (“Buyer’s Site”). Seller acknowledges receipt of the Terms and agrees that these Terms (unless otherwise directed by Buyer in writing) will include all amendments, changes and modifications thereto as may be subsequently posted on the Buyer’s Site and same are deemed incorporated herein and binding on Seller. Supplier agrees that the general terms of sale of the Supplier shall not apply to any Purchase Contract – not even in addition to these Terms, that any applicability of such general terms of sale is hereby expressly excluded.
1.2 Changes. Buyer may from time to time by notice to Seller make changes, within the scope of the Contract, to the drawings, specifications, materials, packaging, testing, quantity, place of performance, time or method of delivery or shipment, or similar requirements prescribed in the Contract. At Seller’s request with appropriate supporting documentation, an equitable adjustment to the Contract prices and times for performance as a result of Buyer’s changes shall be made. Contract changes must be in writing signed by Buyer’s authorized representative.
1.3 Other Changes. Additional modifications of the Contract other than those set forth above may be made by Buyer giving Seller written notice of such changes at least 30 days prior to the effective date of the changes. Such changes shall be deemed accepted by Seller and incorporated into the Contract unless Seller, within 15 days of the date of Buyer’s notice, delivers its written objections to any of the Changes to Buyer. If Seller so objects, Buyer may either terminate this Contract by written notice to Seller setting forth the effective termination date or may continue the Contract without the Changes so objected to. Except for the changes described above, neither party may make any changes to the Contract during its term without the written agreement of the other.
2. Products .
2.1 Quantity. Seller shall strictly comply with the dates, times, quantities and instructions contained in the Contract and in any written requests from Buyer or release of a specified amount of Products (“Releases”). If quantities or delivery schedules are not specified in the Contract, they will be as determined by Buyer and stated in Buyer’s Releases. Seller is obligated to supply to Buyer those requirements of Buyer as are specified in writing by Buyer in its Releases and agrees to continue to supply as set forth in Buyer’s Contract and Releases until the Contract is otherwise terminated by Buyer. Buyer may return over-shipments to Seller at Seller’s expense. If the Contract does not expressly state a specific amount, states zero, is indicated to be blanket or per release (or similar term), then Seller is required to purchase no less than one piece or unit of the Products, but no more than those quantities identified and authorized by Buyer for release under Buyer’s written Releases. Any estimate or forecast of volumes or term of the program under the Contract are estimates only, subject to modification from time to time, and are not binding upon Buyer. Seller assumes all risks regarding any changes thereto.
2.2 No Exclusive Obligation to Purchase. Unless otherwise specifically stated in the Contract, the Contract is not exclusive and Buyer may purchase similar products from third parties or produce same itself.
3.1 Packing and Shipment. Buyer may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Seller will pack and ship Products in accordance with Buyer’s instructions, including labeling and hazardous materials instructions. If Buyer has not provided packing or shipping instructions, Seller will pack and ship Products in accordance with sound commercial practices. If Seller is required to use Buyer’s returnable packaging, Seller will be responsible for cleaning and returning the returnable packaging. All deliveries must be made strictly in compliance with the Contract, Releases and Buyer’s delivery schedules as issued by Buyer from time to time. At such scheduled delivery date and time the Seller must deliver the goods, hand over any documents relating to them and transfer clear title and full possession of the goods in compliance with the Contract. The Seller warrants that the goods delivered are free from any right, lien or claim of a third party.
Buyer is not obligated to accept partial deliveries, unless otherwise agreed in writing.
3.2 Delivery Schedules and Terms. Seller will deliver Products in strict accordance with the Contract terms. If no other delivery terms are determined in the Contract, the Seller shall place the goods at Buyer’s disposal at the plant address stated in the Contract, FOB Buyer’s plant. If Products are not ready for delivery in time to meet Buyer’s delivery schedules, the party causing the delay will be responsible for additional costs of any resulting expedited or other special transportation. Buyer will also be responsible for additional costs of expedited or other special transportation that Buyer may require as a result of changes to its firm releases or delivery schedules or for other reasons not caused by Seller. Seller shall not ship any goods except as are expressly authorized to be shipped by the Contract or by Buyer’s written Releases. Buyer accepts no liability for goods which have been delivered in excess of Buyer’s written Releases.
Buyer, or its designated agent, may, upon reasonable advance notice to Seller, inspect production processes and Property and conduct testing at Seller’s premises for the sole purpose of verifying Seller’s performance under the Contract. Buyer is not required to inspect Products delivered and no inspection or failure to inspect will reduce or alter Seller’s obligations under the Contract to provide Conforming Goods. Inspection by or on behalf of Buyer shall not absolve Seller of the responsibility to provide Conforming Goods, nor shall it preclude subsequent rejection or claim by Buyer. Buyer and its direct and indirect customers, shall also be entitled to, but shall in no manner be deemed to be required to, make inspections, tests and other investigations at Seller’s premises, either itself or through a third party and Seller shall permit such access, including access to any assistance, tools and/or equipment reasonably necessary to inspect such goods and confirm any processes in manufacturing such goods as may be requested by Buyer.
Unless otherwise stated in the Contract, the Contract price includes all applicable federal, state, provincial, local and foreign taxes other than sales, value added, or similar turnover taxes or charges. Seller will separately invoice Buyer for any sales, value added, or similar turnover taxes or charges that Seller is required by law to pay or collect from Buyer.
Seller will promptly submit correct and complete invoices or other agreed billing communications with details of goods itemized and appropriate supporting documentation and other information reasonably required by Buyer after delivery of Products and Buyer may withhold payment until a correct and complete invoice or other required information is received and verified. Payments for the goods will in no event be due before invoiced to Buyer and specified in accordance with the instructions of Buyer. Seller shall not invoice prior to delivery. Unless otherwise agreed in writing, payment of the price and any other sum due by Buyer to the Seller shall be on open account and time of payment shall as stated in the Purchase Order. Buyer will pay Seller in the currency specified in the Contract, provided that, if not specified, then payable in US funds. Buyer may setoff or deduct from sums owed to Seller under the Contract any amounts owed by Seller to Buyer.
7. Product Warranties.
7.1 Seller’s Warranties. Warranty period shall be expressly called out in the Contract between Buyer and Seller.
During the warranty period, Seller warrants to Buyer, its successors and assigns, direct and indirect customers:
The Products and their design will be (i) in conformance with all specifications, drawings, accepted samples, performance requirements, requirements of Buyer and Buyer’s customer, and quality requirements (collectively “Specifications”) incorporated in the Contract; (ii) will be new, merchantable, of good material and workmanship; (iii) will be free from defect in material, design and/or workmanship; (iv) shall be fit for the particular purpose intended by Buyer and/or its direct and/or indirect customers. Seller also warrants to Buyer that it will transfer to Buyer ownership and good title to Products delivered provided, free of all liens, encumbrances, and rights of third parties. Products that meet all of the above are “Conforming Products.” Products that do not completely meet the above are “Non-Conforming Products.”
7.2 Non-Conforming Products. Upon any breach of the above warranties or delivery of any Non-Conforming Products, except as otherwise specifically provided in the Contract and in addition to the Sections entitled “Recall” and “Remedies,” Buyer shall, immediately upon its demand, have the following remedies: (1) Buyer may reject the non-conforming Products, (2) Seller, at Seller’s expense (including applicable shipping costs), shall repair or replace the Non-Conforming Products, (3) Seller shall implement at its expense containment, inspection, sorting, and other quality assurance procedures if Buyer reasonably determines (through statistical sampling or other quality assessments) that a substantial quantity of incoming Products are Non-Conforming Products, (4) if requested by Buyer, Seller shall pay to Buyer or Buyer’s designee: (i) the costs of repair, modification, cover or replacement of Non-Conforming Products, (ii) all loss, damage, costs and expenses of Buyer and Buyer’s direct and indirect customers, arising therefrom, (iii) all incidental, strict and consequential damages, arising therefrom or relating thereto, including, without limitation, all shutdown costs, cost of inspection, freight or return freight costs, (iv) all liabilities, damages, charges, costs and expenses that Buyer is required to pay or perform to or on behalf of any direct or indirect customer of Buyer, and (v) all charges to and costs and liabilities of Buyer or its direct or indirect customers for any warranty or agreement Buyer has issued or due to service, retrofit or product recall campaigns for which it is bound or has reasonably resolved to guarantee the safety of its commercial products or as Buyer may deem prudent to limit damage to its reputation in the market. Buyer may resolve any alleged warranty claim, correct allegedly defective goods at the Seller’s expense and/or replace such goods at Seller’s cost, all without Seller’s approval.
7.3 Recalls. This Section applies to any voluntary or government-mandated offer by Buyer or its direct or indirect customer to vehicle purchasers to remedy an alleged defect that affects safety or to address an alleged failure to comply with an applicable safety standard or guideline (a “Recall”). Except as otherwise stated in the Contract, Seller will be liable for costs and damages resulting from a Recall if the Recall results in whole or in part from a failure of the Product to conform to and comply with the warranties herein or any term of the Contract. If Seller is liable for a Recall, the extent of Seller’s liability may be negotiated on a case-by-case basis based on (1) a good faith allocation of responsibility for the Recall, (2) the reasonableness of the costs and damages incurred, and (3) other relevant factors, provided Buyer does not waive its other rights of recovery hereunder.
8. Product Liability.
8.1 Indemnification. Seller will indemnify and defend Buyer against third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by the Product, any defective design, manufacture, material or workmanship or arising out of any breach of any term or warranty herein, delivery of Non-Conforming Products, or its negligent acts or omissions in its performance under the Contract.
8.2 Procedure. The parties will cooperate with each other to determine the root cause of a defect in or failure of the Products (and related systems and components).
9. Compliance with Laws.
Seller will comply with applicable laws, rules and regulations of the country where the Products are manufactured. Seller will provide Buyer with material safety data sheets regarding the Products and, upon Buyer’s request, will provide Buyer with other information reasonably required in order to comply with applicable laws.
10. Intellectual Property Rights.
10.1 Buyer’s Intellectual Property. Buyer does not transfer to Seller any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right (“Intellectual Property Right”) of Buyer in information, documents, or property that Buyer makes available to Seller under the Contract, other than the right to use Buyer’s Intellectual Property Rights to produce for and supply Products to Buyer. It is agreed that all Specifications belong to Buyer.
10.2 Seller’s Intellectual Property. Except as stated in this Section, Seller does not transfer to Buyer any Intellectual Property Right of Seller related to the Products or incorporated in Buyer’s Property, other than the right to use, manufacture, reproduce, sell to others, service, market or incorporate Products purchased from Seller into Buyer’s products or services (or have others do any of the foregoing). Seller grants Buyer, its customers, successors and assigns, a worldwide, paid-up, unlimited, non-exclusive, royalty free, irrevocable right and license, including the right to sublicense to others, to use all Intellectual Property including, without limitation, all patented, copyrighted or otherwise protected or proprietary data or property, including trade secrets, of Seller which relates to the Products or the Contract or is conceived, used, developed, generated or delivered in the performance of the Contract, to replace, cover, build, rebuild, service, use, relocate, manufacture and to repair and have repaired, to reconstruct and have reconstructed, to make and have made, sell, offer for sale, reproduce, distribute, market, sell to others, and to have others perform any of the foregoing for its direct or indirect benefit (with a right of assignment for such purposes).
Seller hereby agrees to sell, assign and transfer, and does sell, assign and transfer to Buyer the entire right, title and interest in and to all intellectual property or other developments and improvements that may result in the course of the performance of the Contract (hereafter IP), including all patents, continuations, continuations-in-part, divisions, re-examinations, reissues, whether pursued in the United States or abroad; the same to be freely held and enjoyed by Buyer for its own use and behoof, and for its legal representatives and assigns, to the full end of the term for which said IP is granted, as fully and entirely as the same would have been held by Seller had this assignment and transfer not been made. The rights hereunder shall survive any termination of the Contract.
10.3 Infringement. Seller guarantees and warrants to Buyer, which guaranty is accepted, that the manufacture, design, sale or use of the Products or performance of the Contract does not infringe on any rights third parties may have or are in force under any local, national, supranational or international law or regulation in the area of Intellectual Property, which the term “Intellectual Property” shall include, without limitation, all information protected by any such law or regulation and all copyrights, patents, trade secrets, trademarks, technical information, designs, know-how, design rights and patent rights and any other proprietary information or rights. Seller expressly waives any claim that any such information arose out of compliance with Buyer’s specifications.
Seller will indemnify and defend Buyer and its customers against claims, liabilities, losses, damages, costs, and expenses, including reasonable legal fees, arising out of the actual or alleged infringement by the Products of a third-party Intellectual Property right. If a claim under this Section results, or is likely to result, in an injunction or other order that would prevent Seller from supplying or Buyer from using Products for their intended purpose, Seller will, upon the demand and election of Buyer, at its Seller’s sole expense (i) secure a license of the Intellectual Property Right that permits Seller to continue supplying the Products to Buyer, or (ii) modify the Products so that they become non-infringing, so long as the modification does not materially alter the operation or performance of the Products, or (iii) replace the Products with non-infringing but practically equivalent Products.
11.1 Buyer’s Property. Buyer Property is defined as: All tools and materials (including jigs, fixtures, forms, gauges, inspection equipment, templates, drawings, specifications, models, moulds, films, stamps, other audio, video and information media, software and databases), together with all accessories and replacements, which are, directly or indirectly: (i) manufactured by Buyer for the production or quality control of goods or pursuant to the Contract; (ii) provided to or by Buyer; (iii) paid for in part or in whole by Buyer; (iv) in any other way financed or reimbursed by Buyer, in whole or in part; or (v) to be so manufactured, paid, financed or reimbursed by Buyer. All Buyer Property is the sole property of Buyer or Buyer’s customer, as the case may be, and is freely at the disposal of Buyer and shall be held by Seller as a bailment from Buyer (with Seller as the bailee thereof) and will be conspicuously marked or tagged by the Seller “Property of Buyer” or property of Buyer’s customer as specified by Buyer if the tooling is owned by Buyer’s customer. Buyer Property shall be kept separate and used exclusively for production in accordance with accepted Contracts for Buyer upon Buyer’s request and shall not be used for any other party other than Buyer. The Seller shall treat such tools and materials properly as a good and responsible keeper and store them in such a way that they may be easily identified. The Seller shall conclude and maintain sufficient insurance cover against loss and damage by fire etc. and theft. Buyer shall at all times be entitled to inspect these tools and materials on the Sellers premises or retrieve them or take them back free of charge. As a precaution, in the event there is a dispute in the ownership of the Buyer Property, Buyer, in the alternative, is granted a security interest in the, and the express authority to file a financing statement evidencing such alternative rights. Seller shall, at its own cost (i) bear all risk of loss and damage to all Buyer Property; (ii) safeguard, store and maintain the Buyer Property in first class condition; (iii) replace worn Buyer Property to the extent necessary to produce acceptable parts, in Buyer’s sole judgment; (iv) indemnify Buyer against all claims from any toolmaker or Seller relating to the Buyer Property; and (v) maintain and provide Buyer with proof of insurance on the Buyer Property and any replacements or modifications thereof in an amount equal to its replacement cost, with Buyer or its designee as additional insured and the sole loss payee. Buyer Property must not be improved, repaired, altered or scrapped, shall not be commingled with Seller’s or anyone else’s property and shall not be removed from Seller’s physical possession without Buyer’s prior written approval. Buyer shall have the right to enter Seller’s property at all reasonable times to inspect and audit Buyer Property and all records regarding them. All replacements of, modifications or attachments to, Buyer Property shall belong to Buyer. All Buyer Property shall be deemed personalty and shall be kept free and clear of all claims, liens, mechanics liens or any other rights or interests of Seller or any third party. Immediately upon completion of the Contract, or upon any 24 hours written notice by Buyer, Seller shall properly pack, mark and ready any Buyer Property for shipment and, at Buyer’s option, deliver it to any location requested by Buyer FOB Buyer’s plant. In no event shall Seller’s obligation to return Buyer Property to Buyer or as directed by Buyer be subject to any set off or counterclaim whatsoever. Buyer is granted the option to take possession of and free and clear title to any property of Seller (that is not Buyer Property) used for the special production of the goods upon payment to Seller of the net book value thereof, less amounts Buyer has paid therefor or has been allocated to the value thereof, directly or indirectly. Buyer has the absolute right to audit all orders and invoices related to Buyer’s Property including all of Seller’s books and records and Seller expressly grants Buyer access thereto for such purposes.
11.2 Seller’s Property. Seller will own all Property that is not Buyer’s Property (“Seller’s Property”). Seller will at its expense furnish, maintain in good condition, and replace when necessary Seller’s Property needed to perform the Contract. While a Contract for Products remains in effect, Buyer may purchase Seller’s Property in the manner provided above.
12. Term and Termination.
12.1 Generally. Each Contract will remain in effect for the term specified in the Contract (or until terminated if no term is specified) unless earlier terminated (1) by either party by reasonable (but not less than 60 days) notice to the other party, or (2) pursuant to Section 13 or 14. Upon termination of a Contract, Seller will assist Buyer in locating an alternative source for the Products and in moving production to the alternate source selected by Buyer.
13. Termination at Option of Buyer.
The Contract may be terminated by Buyer, at its option in whole or in part, for any or no reason, at any time or from time to time upon 30 days written notice of termination to Seller.
13.1 Termination. Under termination by Buyer under this Section, Seller shall immediately stop all work under the Contract or portion of the Contract terminated and shall stop incurring costs and shall cause its suppliers to stop all such work and to stop incurring costs. To the extent of the terminated portion of the Contract and subject to any setoff rights of Buyer, Buyer shall pay to Seller the following amounts without duplication: (1) The applicable price stated in the Contract for the applicable goods which have been completed and accepted by Buyer and not previously paid for, but only to the extent there is an outstanding Contract and Release for such goods and such goods do not exceed amounts scheduled and authorized in writing under delivery Releases under the Contract to be delivered as of the date of termination, (2) The actual costs (exclusive of profit) incurred by Seller for work-in-process which cannot reasonably be used by Seller in producing supplies for itself or for its other customers (but only to the extent the amount of work-in-process is reasonable, in Buyer’s judgment in light of outstanding Contracts, written Releases, Buyer’s delivery schedules, and normal flow times, does not exceed amounts scheduled in writing to be delivered within ten days following termination (when added to finished goods in (1) above) and only if same is properly allocable under recognized commercial accounting practices to the terminated portion of the Contract), less the reasonable value thereof if actually used or sold by Seller, and (3) The reasonable costs incurred by Seller in protecting property in its possession in which Buyer has or may acquire an interest if Buyer has requested such protection in writing. The above payments shall not exceed the aggregate price specified in the applicable Contract for goods under express written delivery Release authorizations from Buyer outstanding at the date of termination, less: (1) Payments otherwise made or to be made; (2) The price of any Non-Conforming Products, damaged or destroyed Products or Products for which acceptance has been subsequently rejected or revoked; (3) The price of any Products goods otherwise not accepted by Buyer; and (4) The price of any goods that are readily marketable elsewhere.
13.2 Materials. Any materials which Seller has on hand as a result of any such termination, the costs of which are included in the settlement outlined above, shall be held by Seller subject to disposal instructions from Buyer.
13.3 Exclusive Remedy. Payment under this Section shall be Seller’s exclusive remedy and Buyer’s only liability in the event the Contract is terminated under this Section. Upon such payment to Seller, all right, title and interest in work-in-progress, goods and materials acquired by Seller for the performance of the Contract shall immediately pass to Buyer. Buyer will not be liable to Seller for any other costs, capital expenses, rental costs, soft costs, overhead, anticipated profits, damages, losses or any other amounts whatsoever upon termination other than as expressly set forth above.
13.4 Application. Buyer’s obligations under this Section shall not apply if the Contract is terminated by Buyer arising out of any breach or Default of Seller hereunder.
13.5 Notice of Claim. Seller’s claim for payment hereunder shall be submitted in detail and in writing to Buyer within 60 days of the effective date of termination and any suit to enforce payment must be commenced within 1 year of such termination. If not timely and properly submitted, Seller shall have waived and released its claim and same shall be null and void. Buyer shall have the right to audit any termination claim hereunder and shall have access to Seller’s books and records for such purpose.
13.6 Other Remedies. Any termination by Buyer, whether by default or otherwise, shall be without prejudice to any claims for damages or other rights of Buyer against Seller, whether in the Contract or otherwise, and Seller’s obligations hereunder shall survive any termination.
14.1 Events of Default. Seller will be in “Default” under the Contract if it (1) fails to perform any obligation under the Contract and, if the non-performance can be cured, fails to cure the non-performance within 10 business days after notice from the other party specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, (3) ceases to conduct its operations in the normal course of business, (4) sells or transfers or offers to sell or transfer a material portion of its assets or if a controlling interest in the Seller is sold or otherwise transferred or a change in control of Seller is otherwise effected, (5) becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement, (6) breaches any term or warranty or covenant of the Contract, or (7) fails to provide adequate assurance of performance under the Contract within three business days after written demand by the other party.
14.2 Remedies. Upon any breach or Default under the contract, Buyer shall have the following remedies, which are cumulative and are in addition to all other rights and remedies available elsewhere in the Contract, including all remedies for breach of warranty provided above, or otherwise in law or equity:
(a) To recover from Seller all losses and damages to Buyer, and/or its direct or indirect customers, arising out of such breach, including, without limitation, all strict, incidental and consequential damages, which shall include, without limitation, all excess scrap costs, personal injury claims, property damages, costs of recalls or other corrective actions, shutdown costs, cover and replacement costs, delay costs, repair costs, overtime expenses, premium freight and extra operational expenses, together with all costs and expenses and legal fees incurred in enforcing its rights.
(b) To recover actual out-of-pocket damages or costs directly caused by Seller’s Default.
(c) To terminate the Contract or any part thereof, by written notice to Seller. In the event of termination, Seller shall immediately stop all work under the Contract or portion of the Contract terminated, shall cause its suppliers/vendors to stop all such work and shall stop incurring costs. Buyer shall not be liable to Seller for any amount and Seller shall be liable to Buyer for any and all collection costs, attorney fees and expenses and all other damages, including incidental and consequential damages, arising out of the Seller’s breach or Buyer’s termination under this Section. In addition to all of Buyer’s other rights under the Contract or applicable law, Buyer may purchase or manufacture similar goods and Seller shall cover all costs thereof, including, without limitation, all costs of transitioning the work, obtaining approvals and all related expenses and damages and/or require Seller to transfer title and deliver to Buyer any and all goods produced or procured by Seller under any Contract, and Seller shall be liable to Buyer for any excess costs to Buyer. Any termination by Buyer, whether by default or otherwise, shall be without prejudice to any claims for damages or other rights of Buyer against Seller, whether in the Contract or otherwise, and Seller’s obligations hereunder shall survive any termination.
(d) If Seller does not release or deliver Buyer’s Property or other property of Buyer or its customers, Buyer may at Seller’s cost (1) obtain an immediate court order for possession, and (2) enter Seller’s premises, with or without legal process, and take immediate possession of Buyer’s Property and the other property. To the extent permitted by law, Seller waives any right to object to Buyer’s repossession of Buyer’s Property and the other property in a bankruptcy or other proceeding.
15. Confidential Information.
15.1 The term “Confidential Information” means all business or technical information, including without limitation, all oral or written information relating to the Products or information relating to a disclosing party’s customers, suppliers, vendors, business practices, products, designs, inventions, or research and development, proprietary information, trade secrets, and shall include without limitation, drawings, intellectual property, analyses, ideas, processes, methods, samples, trade secrets, improvements, reports and analysis, data, in whatever form or format. Notwithstanding anything in this Agreement to the contrary, the term Confidential Information shall not include any information that a party can establish by written documentation was (i) in the public domain at the time of disclosure or thereafter through no fault of the Receiving Party hereunder, (ii) independently developed by the Receiving Party without use of any such Confidential Information of a Disclosing Party, or (iii) obtained by Seller without restriction from disclosure from a third party.
Seller agrees to not use, except for the manufacture of Products by Seller of Products for sale to Buyer hereunder, or to disclose to any third party, any Confidential Information of Buyer. Seller acknowledges that it shall obtain no ownership right, license or title to any Confidential Information of Buyer. By disclosing Confidential Information to Seller, Buyer does not grant any express or implied right or license to or under any patent, patent application, copyrights, trademarks, trade secret information or other Confidential Information, and Buyer retains all rights therein and reserves, without prejudice, the ability to protect its rights. Seller shall not reverse engineer, de-compile, de-construct or disassemble any Confidential Information or other items consisting of or containing Confidential Information of Buyer and/or analyze or attempt to analyze the makeup, ingredients, combinations, composition, preparation processes or development thereof. Any invention or improvement based on the Confidential Information of Buyer shall be the sole property of Buyer. The provisions of this Section 15 shall survive any termination of this Agreement.
Buyer shall have the right to disclose Seller’s Proprietary Information to its customers and government agencies for the purposes of qualification and / or certification.
16. Assignment and Subcontracting.
Seller shall not assign or subcontract its duties or responsibilities under the Contract without the prior written consent of Buyer. If Buyer requires Seller to subcontract all or a portion of its duties or obligations under the Contract to a designated subcontractor, Seller shall comply with such request.
17. Excusable Non-Performance.
Buyer may delay delivery acceptance occasioned by causes beyond its control, including, but not limited to, industrial disputes, strikes, lockouts, riots, mobs, fires, floods, wars, embargo, or by reason of regulations, orders or omissions of any government agency. Should such delays extend beyond 6 months due to any of these circumstances, then Buyer may cancel the respective portion of any order for deliveries so delayed and unexecuted without incurring a liability towards Seller.
18. Labor Contracts.
Seller will notify Buyer of the contract expiration date at least six months before the expiration of a current labor contract that has not been extended or replaced. Buyer may thereafter direct Seller in writing to manufacture up to 30 days of additional inventory of Products, specifying the quantities of Products required and any packaging and storage requirements. Seller will use commercially reasonable efforts to comply with Buyer’s written directions prior to expiration of the current labor contract and until the current labor contract has been extended or a new contract completed.
Transferable credits or benefits associated with Products purchased, including trade credits, export credits, or rights to the refund of duties, taxes, or fees, belong to Buyer unless otherwise prohibited by applicable law. Seller will provide Buyer with all information and records relating to the Products necessary for Buyer to (1) receive these benefits, credits, and rights, (2) fulfill any customs obligations, origin marking or labeling requirements, and certification or local content reporting requirements, (3) claim preferential duty treatment under applicable trade preference regimes, and (4) participate in any duty deferral or free trade zone programs of the country of import. Seller will obtain all export licenses and authorizations and pay all export taxes, duties, and fees unless otherwise stated in the Contract, in which case Seller will provide all information and records necessary to enable Buyer to obtain those export licenses or authorizations.
Prior to commencing work on Buyer’s premises or utilizing Buyer’s property (including Buyer’s Property), Seller will maintain and upon request furnish to Buyer a certificate evidencing (1) general liability insurance with coverage limits reasonably acceptable to Buyer and naming Buyer as an additional insured, (2) all risk property perils insurance covering the full replacement value of Buyer’s Property while in Seller’s care, custody, or control and naming Buyer as loss payee, and (3) worker’s compensation insurance as required by applicable law.
21. Force Majeure
Buyer may delay delivery acceptance occasioned by causes beyond its control, including, but not limited to, industrial disputes, strikes, lockouts, riots, mobs, fires, floods, wars, embargo, or by reason of regulations, orders or omissions of any government agency. Should such delays extend beyond six months due to any of these circumstances, then Buyer may cancel the respective portion of any order for deliveries so delayed and unexecuted without incurring a liability towards supplier.
22.1 Advertising. During and after the term of the Contract, Seller will not advertise or otherwise disclose its relationship with Buyer or Buyer’s customers without Buyer’s prior written consent, except as may be required to perform the Contract or as required by law.
22.2 Audit Rights. Seller will maintain records as necessary to support amounts charged to Buyer under the Contract in accordance with Seller’s document retention policies. Buyer and its representatives may audit Seller’s records of transactions completed within 1 year prior to the audit date, to the extent needed to verify the quantities shipped and that the prices charged match the Contract prices. Any audit will be conducted at Buyer’s expense (but will be reimbursed by Seller if the audit uncovers material errors in the amounts charged), at reasonable times, and at Seller’s usual place of business.
22.3 Relationship of the Parties. Buyer and Seller are independent contractors, and nothing in the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
22.4 Waiver. The failure of either party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
22.5 Entire Agreement. The Contract constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Contract, including Buyer’s request for quotation and Seller’s quotation unless specifically incorporated in the Contract.
22.6 Severability. A finding that any provision of the Contract is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of the Contract or the validity or enforceability of that provision in any other jurisdiction.
22.7 Interpretation. When used in these General Terms and Conditions, “including” means including, without limitation, and terms defined in the singular include the plural and vice versa.
22.8 Notices. Any notice or other communication required or permitted in the Contract must be in writing and will become effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the date of actual receipt is not a business day.
22.9 Governing Law. Unless otherwise agreed in writing, the Contract will be governed by and interpreted according to the internal laws of Michigan. For all purposes hereunder, Seller hereby submits to personal jurisdiction in all courts located in the jurisdiction of the registered office of the Buyer entity issuing the Contract and waives all objections that such jurisdiction is inconvenient or any other objections. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Contract.
23 Purchase Information.
The Purchase Order or other documentation included in the Contract shall describe the product to be purchased and such other requirements and provisions that apply to such purchase and Seller shall comply with such requirements and provisions. Seller shall also comply with all of Buyer’s requirements and standards, from time to time imposed by Buyer, which may include, at Buyer’s option and without limitation the following:
Requirements for approval of products, procedures, processes and equipment.
Requirements for qualification of personnel.
Quality management system requirements.
The identification and revision status of specifications, drawings, process requirements, inspection/verification instructions and other relevant technical data.
Requirements for design, test, inspection, verification (including production process verification), use of statistical techniques for product acceptance and related instructions for acceptance by the organization and as applicable critical items including key characteristics.
Requirements for test specimens (e.g., production method, number, storage conditions) for design approval, inspection/verification, investigation or auditing.
Requirements for Seller to:
Notify Buyer immediately of Nonconforming Product.
Obtain Buyer’s approval for nonconforming product disposition.
Notify Buyer prior to changes in product and/or process, changes of suppliers, changes of manufacturing facility location and, where required by Buyer, obtain Buyer’s written approval and flow down to the supply chain the applicable requirements including customer requirements.
Requirements for Seller to comply with records retention requirements (see below) and right of access by the Buyer, Buyer’s direct and indirect customers and regulatory authorities to the applicable areas of all facilities, at any level of the supply chain involved in the Contract, and to all applicable records.
Sellers are expected to retain and maintain appropriate records of the activities listed above. The records must remain legible, readily identifiable and retrievable for a minimum of ten (10) years or by contract after product acceptance. In cases where the duration of retention is increased (e.g. at the request of Sequoia customer), specific instructions will be provided on the PO.
Seller must state any changes to their certifications and report it to Sequoia Tool.
Prevent the use of counterfeit parts (see 8.1.4 of the AS9100D / ISO 9001:2015 Standard) Ensure that persons / employees are aware of:
- Their contribution to product or service conformity
- Their contribution to product safety, and
- The importance of ethical behavior
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