Decade Products cares about protecting the privacy of individuals who visit the Decade Products web site for information, products and services. This policy explains how we at Decade Products ensure the responsible use and protection of any personally identifiable information that we receive online.
When you visit the Site, we automatically collect certain information about your device, including information about your web browser, IP address, time zone, and some of the cookies that are installed on your device. Additionally, as you browse the Site, we collect information about the individual web pages or products that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. We refer to this automatically-collected information as “Device Information.”
We collect Device Information using the following technologies:
- “Cookies” are data files that are placed on your device or computer and often include an anonymous unique identifier. For more information about cookies, and how to disable cookies, visit http://www.allaboutcookies.org.
- “Log files” track actions occurring on the Site, and collect data including your IP address, browser type, Internet service provider, referring/exit pages, and date/time stamps.
- “Web beacons,” “tags,” and “pixels” are electronic files used to record information about how you browse the Site.
Additionally when you make a purchase or attempt to make a purchase through the Site, we collect certain information from you, including your name, billing address, shipping address, payment information (including credit card numbers), email address, and phone number. We refer to this information as “Order Information.”
We use the Order Information that we collect generally to fulfill any orders placed through the Site (including processing your payment information, arranging for shipping, and providing you with invoices and/or order confirmations). Additionally, we use this Order Information to:
Communicate with you;
Screen our orders for potential risk or fraud; and
When in line with the preferences you have shared with us, provide you with information or advertising relating to our products or services.
We use the Device Information that we collect to help us screen for potential risk and fraud (in particular, your IP address), and more generally to improve and optimize our Site (for example, by generating analytics about how our customers browse and interact with the Site, and to assess the success of our marketing and advertising campaigns).
As described above, we use your Personal Information to provide you with targeted advertisements or marketing communications we believe may be of interest to you.
For more information about how targeted advertising works, you can visit the Network Advertising Initiative’s (“NAI”) educational page at http://www.networkadvertising.org/understanding-online-advertising/how-does-it-work.
You can opt out of targeted advertising by:
GOOGLE - https://www.google.com/settings/ads/anonymous
Additionally, you can opt out of some of these services by visiting the Digital Advertising Alliance’s opt-out portal at: http://optout.aboutads.info/.
Please note that we do not alter our Site’s data collection and use practices when we see a Do Not Track signal from your browser.
If you are a European resident, you have the right to access personal information we hold about you and to ask that your personal information be corrected, updated, or deleted. If you would like to exercise this right, please contact us through the contact information below.
Additionally, if you are a European resident we note that we are processing your information in order to fulfill contracts we might have with you (for example if you make an order through the Site), or otherwise to pursue our legitimate business interests listed above. Additionally, please note that your information will be transferred outside of Europe, including to Canada and the United States.
When you place an order through the Site, we will maintain your Order Information for our records unless and until you ask us to delete this information.
We may use this site to post job openings. We encourage you to submit your resume via e-mail to be considered for potential employment opportunities. If you submit a resume to us, you will of course be disclosing personally identifiable information you have included in your resume. We may use and circulate this information internally as necessary to consider your application and to contact you regarding our employment process. We may also use this information from time to time to inform you of other employment opportunities that may be of interest to you. Please contact us as specified in the Contact Us section if you no longer wish to receive such information or be considered for employment opportunities.
Any personally identifiable information that Decade Products maintains is stored in password-protected, secure environments that can be accessed only by authorized personnel. Decade Products instructs all personnel who handle personally identifiable information to use appropriate privacy and security precautions when processing this information. Although we take reasonable steps to protect personally identifiable information you provide via this site from loss, misuse, or unauthorized alteration, no system is 100% secure or error-free. Therefore, we do not guarantee the security or accuracy of the information we collect via this site, and you acknowledge that you are assuming this risk in transmitting any information to us. Decade Products will share information with government agencies as required by federal law.
The text, images, graphics, sound files, animation files, video files and their arrangement on the Decade Products web site are all subject to copyright and other intellectual property protection. These objects may not be copied for commercial use or distribution, nor may these objects be modified or reposted to other sites. The Decade Products web site also contains images that are subject to the copyright rights of their providers.
Unless otherwise indicated, all marks displayed on the Decade Products web site are subject to the trademark rights of The Decade Products Family of Companies or its strategic partners, including corporate names, logos, brand names and brand logos.
It is important that The Decade Products Family of Companies and its strategic partners protect their intellectual property, including their patents, trademarks and copyrights, therefore no license to The Decade Products Family of Companies or its strategic partners intellectual property has been granted by this web site.
3710 Sysco Court SE
Grand Rapids, MI 49512 U.S.A.
616-975-4842 (Main Phone)
877-999-6229 (Toll-free in U.S)
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Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, the materials specified on the purchase order or in the Supply Agreement, at the prices specified on the purchase order or in the Supply Agreement, and on the other terms and conditions specified herein. Such prices shall constitute the full and complete prices for the materials, inclusive of all costs and expenses, including, without limitation, those related to freight, handling, shipping, packaging, storage, taxes and all other fees and charges related to the materials and the delivery of the materials to Buyer (all of which shall be the sole responsibility of Seller), and no additional charges of any type shall be added without Buyer's express written consent. Seller warrants that the prices for the materials are no less favorable than those currently extended to any other customer for the same or similar materials in similar or lesser quantities. Seller agrees to participate in and to provide materials in compliance with the requirements of any cost reduction program in which Buyer is obligated by its customer(s) to participate. Buyer shall also receive the full benefit of all discounts, premiums and other favorable terms of payment customarily offered by Seller to its customers. In the event Seller reduces its prices for the materials during the term of this purchase order, Seller agrees to reduce the prices to Buyer correspondingly. No price increases shall be effective unless agreed to in writing by Buyer. All discounts shall be based on the full amount of each invoice. In addition to any other remedies that may be available to Buyer at law or equity, Buyer shall be entitled to an appropriate reduction in any relevant price with respect to any shortages of materials ordered or any defective materials or materials that are rejected.
Payments shall be made by Buyer on a net 60 day basis or as specified on this purchase order, after the later to occur of: (i) Buyer's receipt of Seller's invoice; and (ii) delivery of the materials in question, in compliance with the terms of this purchase order, to Buyer F.O.B. at the Relevant Buyer Location. Each invoice shall specify the Purchase Order number.
Material ordered herein must be delivered at the time or times specified on the purchase order or in written releases issued by Buyer hereunder or in the Supply Agreement. All materials shall be shipped F.O.B. the Buyer's location specified on the purchase order or in the Supply Agreement or otherwise specified in writing by Buyer (the "Relevant Buyer Location"), and the risk of loss or damage in transit shall be upon the Seller. Buyer shall be responsible for all shipping costs. Buyer may specify the carrier or method of transportation at any Seller shall be excused for any failure to make, or delay in making, delivery as specified herein or in any release hereunder, if such failure or delay is caused by an accident, fire, flood, invasion, civil commotion, act of terrorism, act of God or government regulation or restriction (collectively, "Force Majeure Events"), so long as not caused by Seller's actions, omissions or negligence and so long as Seller notifies Buyer promptly (and in all cases within 48 hours) upon the occurrence of the Force Majeure Event; provided, however, that Seller shall not be excused by a failure or delay that is caused by any labor problems or strikes relating to the workforce of Seller or its suppliers or subcontractors or any commercial circumstances affecting pricing or availability of any goods, raw materials or other items, and the foregoing shall not constitute Force Majeure Events. During the period of any such delay or failure by Seller, Buyer at its option may (a) purchase materials from other sources and reduce its purchases from Seller by such quantities, without liability to Seller, or (b) have Seller provide materials from other sources in quantities and at times requested by Buyer and at the price set forth in this purchase order. Seller shall within 10 days of Buyer's request for adequate assurances provide Seller with assurances that the delay or failure shall not exceed 30 days. If the delay lasts more than 30 days or Seller does not provide adequate assurance that the delay or failure will cease within 30 days, Buyer may immediately cancel this purchase order without liability. Buyer shall also be excused for any failure or delay in performing under this purchase order or in accepting delivery, if such failure or delay is due to any Force Majeure Event.
Seller shall be excused for any failure to make, or delay in making, delivery as specified herein or in any release hereunder, if such failure or delay is caused by an accident, fire, flood, invasion, civil commotion, act of terrorism, act of God or government regulation or restriction (collectively, "Force Majeure Events"), so long as not caused by Seller's actions, omissions or negligence and so long as Seller notifies Buyer promptly (and in all cases within 48 hours) upon the occurrence of the Force Majeure Event; provided, however, that Seller shall not be excused by a failure or delay that is caused by any labor problems or strikes relating to the workforce of Seller or its suppliers or subcontractors or any commercial circumstances affecting pricing or availability of any goods, raw materials or other items, and the foregoing shall not constitute Force Majeure Events. During the period of any such delay or failure by Seller, Buyer at its option may (a) purchase materials from other sources and reduce its purchases from Seller by such quantities, without liability to Seller, or (b) have Seller provide materials from other sources in quantities and at times requested by Buyer and at the price set forth in this purchase order. Seller shall within 10 days of Buyer's request for adequate assurances provide Seller with assurances that the delay or failure shall not exceed 30 days. If the delay lasts more than 30 days or Seller does not provide adequate assurance that the delay or failure will cease within 30 days, Buyer may immediately cancel this purchase order without liability. Buyer shall also be excused for any failure or delay in performing under this purchase order or in accepting delivery, if such failure or delay is due to any Force Majeure Event.
All materials delivered hereunder by Seller must (a) strictly conform to the representations and warranties set forth herein or in the Supply Agreement or otherwise made by Seller and all relevant specifications, including, without limitation, any specifications set forth on the purchase order or in the Supply Agreement or attached hereto or thereto and any specifications previously agreed upon by the parties, and (b) strictly conform to all relevant drawings, designs, descriptions, specifications and samples. All materials delivered hereunder by Seller must provide certification and MSDS (as required or incorporated herein by reference) and/or samples required to be furnished by Seller under this purchase order. All materials will be subject to Buyer's inspection, and Buyer may at any time reject any material not conforming to the requirements of this purchase order, including, without limitation, the requirements of this Section 6 and the warranties contained elsewhere in this purchase order. This right to reject materials shall survive any prior inspection, acceptance, payment, testing and use. Buyer shall advise Seller of a rejection by either written notice or return of the rejected material, at Seller's risk and expense, within a reasonable time after such rejection. In the event of rejection by written notice, Buyer may thereafter either return the rejected material to Seller at Seller's risk and expense or hold the same for Seller at Seller's risk and expense. Buyer must be informed if there is an alternate product with less environmental impact that meets the current manufacturing specifications. Buyer shall also have the right (but not the obligation) at any time to inspect and/or test, with or without representatives of its customer(s), (a) any materials prior to shipment, and (b) Seller's premises, records, equipment, tooling, Special Tooling (as defined in Section 13 below), supplies and any other items pertinent to production and/or quality control of any materials to be delivered hereunder. Such inspections and testing may be conducted by Buyer or any third party selected by Buyer.
The quantity of material ordered or released hereunder must be strictly adhered to, and may not be exceeded or shorted. Buyer shall not be liable for and may reject and may either return to Seller or retain for Seller (in either case at Seller's risk and expense) any material delivered in excess of that so ordered or released.
alternate product with less environmental impact that meets the current manufacturing specifications.
All materials shall be properly packed, marked, loaded and shipped as required by this purchase order and by the transporting carrier and as otherwise directed by Buyer. All materials shall be packed by Seller in suitable containers for protection to permit safe transportation and handling. Unless otherwise provided, Seller shall bear all costs for cartage, boxing, pallets, packages or containers required in connection with this purchase order. Seller shall properly mark each box, package, or container with Buyer's purchase order number and Buyer's ID or inventory number. Where multiple packages comprise a single shipment, each package shall also be consecutively numbered. Packing slips (which shall accompany the materials), shipping documents and memos, ASN documents and bills of lading shall show the purchase order number, vendor, and item and reference numbers. Shipping documents shall be mailed on the shipment date and must include the ASN, SID, bill of lading or packing slip numbers relating to each shipment. Value of the materials shall not be declared on shipments F.O.B. point of origin. For each international shipment, Seller shall include a customs valuation invoice with a master packing slip and shall furnish all other required export/import documents. Export and trade credits shall belong to Buyer. Seller shall furnish (i) all documents required to obtain export credits and customs drawbacks; (ii) certificates of origin of the materials and goods supplied and the value added in each country; (iii) all NAFTA, AALA and other related documents; (iv) all required export/import licenses or authorizations; and (v) any other documents requested by Buyer or any of its customers. Seller warrants that the contents of such documents shall be true and accurate. Seller shall indemnify Buyer for any damages, including, without limitation, duties, interest and penalties, arising from a false or inaccurate statement.
Upon the occurrence of any one of the following events, Seller shall be deemed to be in default under this purchase order, and Buyer shall (without limitation to any other rights or remedies that may be available to Buyer at law or equity) have the unrestricted right, upon written notice, to terminate this purchase order and, upon the delivery or mailing of such notice to Seller, every obligation of Buyer hereunder shall immediately terminate: (i) Seller becoming insolvent; (ii) commencement of proceedings by, for or against Seller under any law relating to bankruptcy or the relief of debtors; the appointment of a receiver or trustee for Seller; or the execution by Seller of an assignment for the benefit of its creditors; (iii) determination by Buyer, in its sole judgment, that Seller's financial condition is such as to endanger its performance hereunder; (iv) the dissolution of Seller; the sale, transfer or disposition by Seller of all or substantially all of its assets (either in one transaction or through a series of transactions); or any merger, consolidation, reorganization, sale or other transfer of stock or other equity or other event that results in more than fifty percent (50%) of the equity ownership of Seller being owned by a person(s) who is not currently an equity owner of Seller; (v) Seller's failure to strictly comply with any of the provisions, terms, conditions or obligations of this purchase order (including, without limitation, its failure to make timely deliveries of material specified hereunder) or the Supply Agreement; (vi) any breach by Seller of any representations or warranties hereunder or in the Supply Agreement; (vii) Seller at any time ceasing in any way to be competitive with respect to cost, quality or delivery; or (viii) Seller's failure to comply with any other obligation owed by Seller to Buyer, including, without limitation, pursuant to other contracts between Buyer and Seller. If Buyer cancels this purchase order as hereinabove provided, Buyer shall not be liable to Seller for any amount, except for payments owed for conforming materials accepted by Buyer prior to termination, and (without limitation to any other rights that Buyer may have hereunder or at law or in equity) Seller shall compensate Buyer for all losses and damages (direct or indirect, including, without limitation, consequential and incidental damages and lost profits) sustained, and costs and expenses incurred, by Buyer by reason of such default and/or cancellation, including, without limitation, excess costs incurred by Buyer as a result of obtaining materials from another source.
Buyer may, at any time, for any reason or no reason, for its sole convenience and at its sole discretion, upon notice in writing, terminate this purchase order in whole or in part, even though Seller is not then in default. Such notice shall state the extent and effective date of termination and upon the mailing or delivery thereof to Seller, Seller will, (i) in accordance with the direction set forth in such notice, terminate work hereunder and under any orders and/or subcontracts outstanding hereunder, and place no further orders or subcontracts hereunder; (ii) take all steps necessary to protect materials and/or property in Seller's possession in which Buyer has or may acquire an interest; and (iii) take all reasonable steps to minimize any costs, expenses and damages resulting from the termination. Upon such termination, Buyer's obligations to Seller shall be limited to payment for (i) conforming materials completed prior to the date of termination, in accordance with the terms and requirements hereof, and not previously paid for; (ii) the actual costs incurred by Seller which are properly allocable under recognized commercial accounting practices to the terminated portion of this purchase order (but excluding any charge for interest or materials which may be diverted to other orders); provided, however, that the total payments which Buyer is obligated to make upon such a termination shall not exceed the purchase order price of the materials to which such termination applies. Buyer shall have no other obligations or liability of any kind to Seller as a result of such a termination. Termination by Buyer hereunder shall be without prejudice to any claims which Buyer may have against Seller. Within 30 days after receipt of a termination notice, Seller shall submit (in writing) its claim for amounts due to Seller. Buyer reserves the right to verify the claim by auditing all relevant records. Seller shall not be paid for any work performed after the date of termination, nor for any costs incurred by Seller's suppliers or subcontractors after such date. Seller shall transfer title and deliver to Buyer, if so requested by Buyer, all undelivered goods, work in process or raw materials paid for by Buyer as provided above. Seller may not terminate this purchase order.
In addition to Seller's customary warranties, any express warranties set forth elsewhere in this purchase order or in the Supply Agreement and any statutory warranties or any warranties implied by law, Seller warrants that (i) all material delivered hereunder shall strictly conform to (A) representations and warranties set forth herein or in the Supply Agreement or otherwise made by Seller, and (B) all relevant drawings, designs, descriptions, specifications and samples, including, without limitation, any drawings, designs, descriptions, specifications or samples set forth on the purchase order or in the Supply Agreement or attached hereto or thereto or delivered by Buyer to Seller, and (C) all requirements, specifications, and standards of Buyer's customers; (ii) all material delivered hereunder will be new and of the highest quality and free from defects (including, without limitation, defects in materials and workmanship, and design when design is Seller's responsibility); (iii) sale and use of materials delivered hereunder, either alone or in combination with other materials, will not infringe or contribute to the infringement of any patents, trademarks, copyrights or other intellectual property or proprietary right in the United States or any foreign country, and the sale and use thereof will not constitute unfair competition resulting from similarity of design, trademark or appearance; (iv) all materials delivered hereunder may be properly imported into the United States and any other country; (v) upon delivery, Buyer shall receive good title to all materials delivered hereunder, free and clear of any liens, claims and other encumbrances; (vi) all materials delivered hereunder shall be merchantable, safe and fit for Buyer's and its customer's intended purposes, which purposes Seller acknowledges are known to it, and shall comply with all requirements of Buyer's customers; (vii) all materials delivered hereunder shall be adequately contained, packaged, marked and labeled; (viii) all services performed by Seller hereunder shall be performed in a competent and workmanlike manner; and (ix) all materials delivered hereunder shall be manufactured in compliance with all applicable federal, state, local and foreign laws, rules, regulations, and all labeling, transporting, licensing, approval and certification requirements in the United States or any other country where the materials will be sold or used. These warranties shall indefinitely survive any inspection, testing, delivery, acceptance, use and payment and shall inure to the benefit of Buyer, its successors, assigns, customers and the users of Buyer's goods and services. These warranties may not be limited or disclaimed. If Buyer experiences any breaches of the foregoing warranties, Buyer shall have the right, in addition to exercising all other rights Buyer may have under any applicable law or at equity, and in addition to Buyer's rights to indemnification as provided elsewhere in this purchase order, to take the following actions, at Buyer's option: (i) retain the defective materials in whole or in part with an appropriate adjustment in the price for the materials; (ii) require Seller to promptly repair or replace the defective materials in whole or in part at Seller's sole expense, including all shipping, transportation and installation costs (which if requested by Buyer shall be completed promptly by Seller); (iii) correct, repair or replace the defective materials with similar materials and recover the total cost relating thereto from Seller, including the cost of product recalls; or (iv) reject the defective materials (and store or return the defective materials at Seller's risk and expense). Seller's warranties hereunder run to Buyer, its dealers, customers and users of the materials.
Seller agrees to defend every suit, claim or proceeding which may be brought against any Indemnified Party (as defined below) or any other person for any actual or alleged infringement of any patent, trademark, copyright or other intellectual property or proprietary right by reason of the sale or use of any material furnished hereunder, either alone or in combination with other materials, or any actual or alleged unfair competition resulting from similarity of design, trademark or appearance of any materials delivered hereunder, either alone or in combination with other materials, and to pay all expenses and fees of counsel which shall be incurred in connection with such defense, together with all costs, damages, losses and lost profits resulting therefrom. Buyer has the right to be represented by and actively participate through its own counsel in any such suit, proceeding or claim. Without limitation to the foregoing and independent of any insurance, Seller further agrees to indemnify and hold Buyer and its subsidiaries, affiliates, successors and customers and its and their officers, directors, employees, agents and other representatives ("Indemnified Parties") harmless against any and all liabilities, damages (including, without limitation, consequential and incidental damages and lost profits), loses, claims, liabilities, injuries (including, without limitation, any injury to any person (including, without limitation, death) or damage to property) actions, suits, costs and expenses (including, without limitation, attorneys' fees ) which are or may be incurred by any Indemnified Party by reason of or in connection with (a) any defect in materials and services (and/or design, if Seller's responsibility) delivered hereunder, or any failure of any materials to strictly comply with the requirements of this purchase order; (b) any breach or violation of any of the terms of this purchase order (including, without limitation, any breach of any of the representations, warranties, obligations or covenants of Seller contained herein) or the Supply Agreement; (c) any use or sale of any materials; or (d) any actions or omissions of Seller or its employees, subcontractors, agents or other representatives, including, without limitation, any negligence by Seller or its employees, subcontractors or other agents or representatives. This indemnification obligations set forth in this Section 12 shall be in addition to any warranty obligations of Seller.
"Special Tooling" shall mean all special tools, tooling, tooling aids, jigs, dies, special dies, molds, fixtures, drawings, designs, patterns and similar items acquired or utilized by Seller to produce any materials for Buyer. All Special Tooling and any other property that is paid for by Buyer or its customer and/or furnished to Seller by Buyer or its customer and/or made available to Seller by Buyer or its customer ("Buyer Provided Special Tooling") is and shall remain the property of Buyer or its customer. Buyer shall also have the right (at its option) to purchase at cost at any time all Special Tooling that does not qualify as Buyer Provided Special Tooling ("Other Special Tooling"), and upon Buyer electing or agreeing to purchase any Other Special Tooling, such Other Special Tooling shall become Buyer Provided Special Tooling. Buyer may condition its purchase of Other Special Tooling upon Buyer accepting, as conforming to requirements hereunder, the first run of parts made by the use thereof and until Seller has furnished to Buyer an itemized list of such Other Special Tooling and such records as may be necessary to enable Buyer to audit the cost thereof. Seller shall (i) be responsible for all losses or damages to Special Tooling while in its possession, and insure all Special Tooling against loss or destruction, in an amount equal to the full replacement cost thereof, at all times while in Seller's possession; (ii) mark and number all Special Tooling to correspond to the number of the part made by use thereof; (iii) keep all Special Tooling in good working order, and to the extent necessary repair and/or replace such Special Tooling; (iv) not modify any Special Tooling in any way without Buyer prior written consent; (v) use Special Tooling exclusively for the production of material for Buyer hereunder at no cost to Buyer; (vi) keep such Special Tooling free from security interests or other liens and encumbrances; (vii) cause all Buyer Provided Special Tooling to remain and be conspicuously identified as Buyer's property, and cause all Special Tooling to be segregated from the property of Seller and others; (viii) ensure that no Special Tooling is moved to a different location without Buyer's prior written consent; (ix) cause all Special Tooling to be subject to inspection and removal by Buyer at any time and for any reason whatsoever. Seller acknowledges that its failure to return the Special Tooling and parts to Buyer on demand shall cause Buyer to sustain irreparable harm warranting immediate and injunctive relief, and further agrees that in the event of such failure, Buyer's damages would be impossible to calculate and Seller shall pay as liquidated damages (and not as a penalty) to Buyer the amount of $50,000 per day plus all legal fees and costs associated with Buyer's enforcement of this section and recovery of tooling and parts. All taxes levied with respect to Special Tooling while in Seller's possession shall be borne by Seller. Upon completion, cancellation or termination of this purchase order, all Buyer Provided Special Tooling, together with operation sheets or process data necessary to show the use thereof, shall be held free of charge pending instructions from Buyer. In the event that Seller does not maintain and furnish Buyer with adequate records as hereinabove provided to enable Buyer to audit the cost of Other Special Tooling. Seller may purchase such Other Special Tooling for such amount as Buyer determines, in its sole judgment, to be reasonable. Seller shall bear the risk of loss of, and damage to, all Special Tooling, normal wear and tear excepted. Seller grants to Buyer a purchase money security interest in all Buyer Provided Special Tooling, any portion thereof, work in progress, raw materials, drawings and other items dedicated to constructing the Buyer Provided Special Tooling and agrees to perform any act and execute any document reasonably necessary to perfect the Buyer's security interest in the Buyer Provided Special Tooling. Buyer has the right at any time, with or without reason and without payment of any kind to retake possession of or require the return of any Buyer Provided Special Tooling, without the necessity of obtaining any court order. Upon Buyer's request, Seller will promptly deliver all Buyer Provided Special Tooling to Buyer F.O.B. the location specified by Buyer. To the maximum extent permitted by law, Seller waives any lien or other rights that Seller might otherwise have (including, without limitation, any statutory lien rights) with respect to any Special Tooling or any other property of Buyer. Seller acknowledges and agrees that (i) Buyer is not the manufacturer of the Special Tooling nor the manufacturer's agent nor a dealer therein; (ii) Buyer is bailing the Buyer Provided Special Tooling to Seller for Seller's benefit; and (iii) Seller has inspected the Special Tooling and is satisfied that the Special Tooling is suitable and fit for its purposes, and (iv) BUYER HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE SPECIAL TOOLING OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Buyer will not be liable to Seller for any loss, damage, injury or expense of any kind or nature caused, directly or indirectly, by the Special Tooling, including, without limitation, its use or maintenance, or its repair, service or adjustment, or by any interruption of service or for any loss of business whatsoever or howsoever caused, including, without limitation any anticipatory damages, loss of profits or any other indirect, special or consequential damages. Seller authorizes Buyer to file a UCC-1 financing statement or similar document with the appropriate filing authority to give notice of Buyer's ownership interest in the Buyer Provided Special Tooling.
Seller will, at Buyer's request (which may be made by notation on blueprints or written instructions) place on the material covered by this purchase order (or any portion thereof), at Seller's expense and in the manner and place specified by Buyer, such trademark and/or identifying mark as Buyer may specify. No trademark or other designation, other than that of Buyer, shall be placed on any material covered by this purchase order, either as an assembly or component part of any assembly, without Buyer's consent, and similar material shall not be sold or otherwise disposed of to anyone other than Buyer.
This purchase order is issued to Seller in reliance upon Seller's personal performance of the duties imposed and Seller agrees not to assign, subcontract or delegate this purchase order (or any portion hereof) without the consent in writing of Buyer (which may be withheld by Buyer in its sole discretion). Any consent by Buyer to a particular assignment, subcontracting relationship or delegation shall not constitute a consent by Buyer to subsequent assignments, subcontracting relationships or delegations, or a waiver of the general prohibition on subsequent assignments, subcontracting relationships or delegations.
Except as specifically provided otherwise in the Purchase Order, (a) neither Seller nor any of its employees, agents or subcontractors shall use any data, drawings, blueprints, designs, descriptions, specifications or samples, or any other documents, information, items or work product (collectively, "Work Product") furnished by Buyer or developed by either party in connection with the purchase order or the Supply Agreement, except in performing thereunder, and (b) any proprietary, intellectual property, technical or trade secret information disclosed by a party to the other under or in connection with the purchase order or the Supply Agreement, including, without limitation, patents, trademarks, copyrights, know-how and trade secrets, shall remain the exclusive property of the disclosing party, and (c) notwithstanding the foregoing, all Work Product, inventions (whether or not patentable), copyrights, know-how, data, information, intellectual property, proprietary rights and any other items (direct or indirectly), in whole or in part, resulting from, related to or otherwise made, originated, discovered, developed, reduced to practice or conceived by Seller or its affiliates or subcontractors in connection with performing under the purchase order or the Supply Agreement (collectively, "Developed IP") shall be deemed to be work made for hire and shall be the sole property of and owned by Buyer. To the extent that, by operation of law, Seller owns any intellectual property rights in the Developed IP, Seller hereby assigns to Buyer all rights, title and interest in such Developed IP. Seller shall promptly from time to time upon Buyer's request execute and deliver to Buyer any and all documents requested by Buyer conveying any such Developed IP to Buyer. Seller grants to Buyer an irrevocable, perpetual, royalty-free, fully paid-up, non-exclusive, worldwide license with the right to grant sublicenses to affiliates to use any technical information, know how, copyrights, patents and other intellectual property and proprietary rights owned or controlled by Seller or its affiliates to make, have made, use and sell any materials provided by Seller under the purchase order. Upon completion, cancellation or termination of the purchase order, Seller shall return to Buyer at Buyer's request all Work Product and Developed IP and all tangible representations thereof.
Seller shall in performing hereunder strictly comply with all applicable United States federal, state, and local laws, as well as foreign laws. Seller shall also strictly comply with all applicable rules, regulations (including all United States Food and Drug Administration rules and regulation), and all labeling, transporting, licensing, approval and certification requirements in the United States or any other country where the materials shall be sold or used. Without limitation to the foregoing, Seller hereby warrants and represents that it has complied and will continue to comply with all applicable laws, rules and regulations issued under the Toxic Substance Control Act, 15 USC §§ 2601 et seq., and to the extent that any of the materials delivered hereunder are to be used by Buyer or its customers in connection with manufacturing or assembly operations, including any activities incidental thereto, Seller certifies that the materials comply with all applicable rules, regulations and standards issued under the Occupational Safety & Health Act, 29 USC §§ 651 et seq. Prior to shipment, Seller will furnish all applicable Material Safety Data Sheets as well as information on the safe use and hazards associated with use of the materials. Invoices covering all material furnished hereunder must bear the following certification:
"We hereby certify that this material was produced in compliance with all applicable requirements of Chapter 8 of the Fair Labor Standards Act, as amended, including Sections 6, 7 and 12 thereof and the regulations and orders of the United States Department of Labor issued under Section 14 thereof."
Buyer shall have the right at any time to make any changes, additions or alterations in the items, quantities, destinations, specifications, drawings, designs or delivery schedules, or to direct temporary suspension of scheduled shipments, with respect to materials governed by this purchase order. The parties will undertake to negotiate an appropriate adjustment in price and terms where the Seller's direct costs are materially affected by such changes. Any request by Seller for such an adjustment in price or terms must be made within 30 days of any such change. All changes and adjustments, if any, must be in writing and signed by a duly authorized representative of Buyer.
Seller shall pay for any property sold hereunder by Buyer to Seller within 30 days after date of delivery to Seller. Title to all such property shall remain with Buyer until payment is made therefore. Seller shall use such property only in the production of material delivered by Seller to Buyer hereunder. Buyer may, at its option, repurchase, at the price charged to Seller (with a reduction for any damage to such property), any or all property furnished by Buyer which is not used by Seller in the performance of this purchase order. Buyer shall not be liable for any loss, damage or expense resulting directly or indirectly from any delay in delivery of such property or any defect therein. Buyer's liability is limited to replacement of defective property furnished by it upon return thereof within six (6) months from the date furnished. Any such property is furnished by Buyer to Seller without any representation or warranty of any kind, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
Any waiver of any breach or default hereof shall not constitute a waiver of any other or subsequent breach or default. Any provision of this purchase order prohibited by law will be ineffective only to the extent of such prohibition without invalidating the remaining provisions hereof. No amendment of this purchase order shall be binding upon Buyer unless in writing and signed by its duly authorized representative. If this purchase order is for materials or services for Government contracts, the provisions of the attached Government Contracts Supplement shall apply, and in case of conflict between such provisions and this purchase order, such provisions shall prevail. Except as expressly provided otherwise in this purchase order, this purchase order shall be for the benefit of Buyer and Seller only and not for the benefit of any other party. All notices and demands required or permitted by this purchase order shall be in writing and deemed properly made (a) upon personal delivery to the relevant party's last known address or such other relevant address as may be specified in writing by the relevant party; or (b) upon deposit with an nationally respected common overnight carrier, postage prepaid, addressed to the relevant party's last known address or such other relevant address as may be specified in writing by the relevant party. Proof of sending any notice, demand or payment shall be the responsibility of the sender. All provisions of this purchase order shall survive the termination of this purchase order, to the extent necessary to give effect to the intended purpose of such provisions. Without limitation to the foregoing, the following provisions of this purchase order shall survive a termination: Sections 9 through 13, 16, 19, 20, 25 through 28, 31, 32 and 33. To the extent the parties have executed a supply agreement related to materials to be delivered hereunder ("Supply Agreement"), the terms and conditions of the Supply Agreement shall be deemed to be incorporated into this purchase order and the Supply Agreement shall be deemed to be a part of this purchase order. In the event of a conflict between the terms of the Supply Agreement and the terms of this purchase order, the terms of the Supply Agreement shall control. The term "Seller" shall mean the party identified as the "seller" or the "Seller" on the purchase order or in the Supply Agreement, and if not so identified, it shall mean the party selling materials to Buyer hereunder. The term "Buyer" shall mean the party identified as the "buyer" or the "Buyer" on the purchase order or in the Supply Agreement.
Unless this purchase order is exempt, the provisions of Executive Order 11246 including nondiscrimination, equal opportunity and affirmative action requirements set forth in Section 202, are hereby incorporated by reference.
AFFIRMATIVE ACTION CLAUSES - The parties hereby incorporate the requirements of 41 C.F.R. §§60-1.4(a)(7), 29 C.F.R. Part 471, Appendix A to Subpart A, 41 C.F.R § 60-300.5(a)ii and 41 C.F.R § 60-741.5(a), if applicable. This contractor and subcontractor shall abide by the requirements of, 41 C.F.R § 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. This contractor and subcontractor shall abide by the requirements of, 41 C.F.R § 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Seller warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of Buyer, or to any other person, any gratuity with a view toward securing any business from Buyer or influencing such person with respect to the terms, conditions or performance of any contract/order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
Whenever Seller has knowledge of any actual or potential cause or event which delays or threatens to delay the timely performance of this purchase order, Seller shall immediately give Buyer written notice thereof, including all relevant information. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller will immediately notify Buyer and the government representative designated by Buyer of such dispute and furnish all relevant details. In addition Seller, at its expense, shall fabricate and locate at an independent warehouse that will not be affected by any labor disruption, a finished goods inventory of materials at the then-current design level, equal to 3 months of Buyer's requirements based on current shipment releases. If a strike or labor dispute ensues and 3 month inventory is not available to Seller, Buyer (in addition to all other available remedies under this purchase order and at law or equity) reserves the right to charge Seller the difference between the purchase order pricing and the replacement cost from an alternate source of supply. Seller will include a provision identical to the above in each subcontract hereunder and immediately upon receipt of any such notice, pass it on to the Buyer.
This purchase order shall be governed by, subject to, and construed in accordance with the laws of the State of Michigan, United States, and not by the law of any other state or by any other foreign or international law, convention or treaty, including the United Nation's Convention on Contracts for the International Sale of Goods, and regardless of any choice of law or conflict of law provision or rule of any other jurisdiction that would cause the application of the laws of any other jurisdiction. The rights of the Buyer herein are in addition to any other rights available to Buyer at law or equity. Buyer and Seller hereby consent to the exclusive jurisdiction of the Federal and state courts located in Kent County, Michigan, United States (and of the appropriate appellate courts therefrom) in any suit, action or proceeding arising out of, or relating to, this purchase order and any related agreements, or the breach, termination, invalidity or performance thereof. The parties specifically consent and submit to the jurisdiction and venue of such state or federal court, and waive any objections either may have based on improper venue or forum non conveniens to the conducting of any proceeding in any such court.
Press releases, exhibitions or advertising of any kind naming Buyer or regarding this purchase order may not be made unless Buyer furnishes advance permission in writing.
Seller hereby grants to Buyer, and to any subsidiary or affiliate of Buyer (the "Buyer Parties"), the right to charge or set off against any and all amounts which the Buyer Parties, or any of them, may now or hereafter owe to Seller or any subsidiary or affiliate thereof (the "Seller Parties"), any amounts now or hereafter owing by the Seller Parties, or any of them, to the Buyer Parties, or any of them, and any claims which Buyer Parties, or any of them, may have against Seller Parties, or any of them. The setoff rights granted herein: (i) shall be in addition to any other rights and remedies available to any of the Buyer Parties with respect to debt owed to any of the Buyer Parties from time to time by any of the Seller Parties; and (ii) may be exercised by the Buyer Parties at any time, or from time to time, without prior notice to the Seller or any of the Seller Parties.
Seller agrees not to disclose to third parties any information regarding Buyer or its business or its customers, including, without limitation, the existence and terms of this purchase order, any Work Product or Developed IP or any other confidential information of Buyer (collectively, "Confidential Information"), and Seller shall not use any such Confidential Information itself for any purpose other than performing under this purchase order, without Buyer's written prior approval.
Seller shall maintain insurance in amounts and with insurance companies acceptable to Buyer, naming Buyer as an additional insured, and covering general liability, public liability, product liability, product recall, completed operations, contractor's liability, automobile liability insurance, Worker's Compensation, and employer's liability insurance as will adequately protect Buyer against such damages, liabilities, claims, losses, cost and expenses (including attorney's fees). Seller agrees to submit certificates of insurance, evidencing its insurance coverage when requested by Buyer.
Buyer's rights and remedies under this purchase order shall be cumulative and in addition to any other rights or remedies provided by law or equity. Any attempt on the part of Seller or any other party to limit Buyer's remedies or the amount and types of damages it may seek shall be null and void. The failure of the Buyer to insist upon the performance of any term or condition of this purchase order, or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such term or condition or the exercise in the future of any such right.
In no event shall Buyer be liable to Seller for anticipated profits or for incidental or consequential damages. Buyer's liability for a claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order, or from any performance or breach, shall in no case exceed the price allocable to the materials, which directly gives rise to the claim.
Unless prohibited by law, the Seller shall pay all federal, state, local or foreign tax, transportation tax, or other tax, including but not limited to customs duties and tariffs, which is required by or imposed upon any materials ordered hereunder, or by reason of their sale or delivery. All order prices shall be deemed to have included all such taxes.
To the extent that this purchase order or any other order covers materials which are parts, components, items, tooling and/or services being supplied to or for the benefit of any customer of Buyer, Seller acknowledges and agrees that such materials must be in compliance with all of the applicable requirements, specifications, standards, pricing requirements (even if such pricing differs from the purchase order or order price), audit standards, and terms and conditions for such materials which are set forth in the customer's purchase documents. Seller shall provide service parts to Buyer and/or its customer(s) for any materials furnished under any purchase order based upon the customer's service requirements.
Buyer shall have the right to enter Seller's facility during normal business hours or, in the event of a Seller shutdown, at reasonable times, to inspect the facility, goods, materials and any property of Buyer covered by this purchase order and, without the necessity of a court order, may enter upon Seller's property and remove property belonging to Buyer or any customer of Buyer, including, without limitation, Buyer Provided Special Tooling and other goods, inventory or Seller's property that has been or is agreed to be sold to Buyer under this purchase order.
All sales by Decade Products, LLC. (the "Seller") shall be governed by the following terms and conditions of sale. Any agreement between Seller and the buyer identified on the face of the invoice ("Buyer") with respect to the sale of goods or other items described in this quote or drawing, or on the face of any related invoice (the "goods") shall consist only of the terms appearing herein or in any related invoice, and any attachments, exhibits and supplements (the "contract") together with any terms mutually agreed to in writing hereafter by Seller and Buyer. Buyer's issuance of a purchase order constitutes its acknowledgment that Seller's quote is the first document exchanged, containing the essential elements of, and therefore constitutes an offer. Seller objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in Buyer's purchase order or in any other communication from Buyer to Seller. The contract shall be for the benefit of Seller and Buyer and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by Seller, to the extent they differ from, modify, add to or detract from the contract, shall not be binding on Seller. There are no agreements, promises or understandings, either verbal or written that are not fully expressed herein. No statements, recommendations, or assistance by either party has been relied upon by either party or shall constitute a waiver by either party of the provisions hereof.
Seller will not have any obligation to make goods available to Buyer for part model year service parts. However, notwithstanding the foregoing, if Seller agrees to make such service parts available to Buyer, ,the parties will negotiate in good faith the price, quantity and delivery terms for service parts taking into account the availability and costs of necessary materials, supplies, labor and other costs for equipment, set up, packaging and similar factors.
Buyer hereby acknowledges and agrees that the prices set forth in this contract are contingent upon Buyer's agreement to purchase the total quantities set forth in the Buyer's request for quote/proposal. If Buyer fails to purchase at least 90% of the quantities of goods contained in its request for quote/proposal, Buyer agrees that the pricing on the goods delivered to Buyer shall be adjusted retroactively to reflect the impact of lower volume on material pricing, labor efficiencies and other cost and expenses of Seller. Buyer hereby agrees to pay Seller such additional sums within 30 days of the date of Seller's invoice for payment. Seller will not have any obligation to make goods available to Buyer for part model year service parts. However, it not withstanding the foregoing, Seller is obligated or agrees to make such service parts available to Buyer, the parties will negotiate in good faith the price, quantity and delivery terms for service parts taking into account the availability and costs of necessary materials, supplies, labor and other costs for equipment, set up, packaging and similar factors.
Sales, use, occupation, excise and other taxes upon the production, sale or use of the goods are not included in the price and such taxes or any costs in connection therewith, wherever levied and whether imposed before or after payment of invoice, shall be paid by Buyer.
Any and all actions concerning any dispute arising hereunder shall be filed and maintained only in the Circuit Court of Kent County, Michigan or the federal district court for the Western District of Michigan. The parties specifically consent and submit to the jurisdiction and venue of such state or federal court, and waive any objections either may have based on improper venue or forum non conveniens to the conducting of any proceeding in any such court. The terms and conditions of this contract shall be governed, construed, interpreted and enforced in accordance with the domestic laws of the State of Michigan, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. This contract shall not be subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods.
Any technical information disclosed by either Buyer or Seller to the other during the term of this contract is proprietary to each and may not be used by the other or disclosed by the other to any other entity without the written consent of the owner of the technical information. Any technical information owned or developed by Seller, including but not limited to, patents, trademarks, copyrights, know-how and proprietary information, and used for the supply of goods under this contract shall remain the sole and exclusive property of Seller. Except as authorized in writing by and on terms acceptable to Seller, Buyer shall have no right to disclose any technical information to any third party or to have any third party make any goods that use the technical information owned by Seller. Seller is and shall be the sole owner of any and all intellectual property, proprietary rights, work product and any other items (direct or indirectly), in whole or in part, resulting from, related to or otherwise made, originated, discovered, developed, reduced to practice or conceived by Seller or its affiliates or subcontractors in connection with performing under this contract.
ight to disclose any technical information to any third party or to have any third party make any goods that use the technical information owned by Seller. Seller is and shall be the sole owner of any and all intellectual property, proprietary rights, work product and any other items (direct or indirectly), in whole or in part, resulting from, related to or otherwise made, originated, discovered, developed, reduced to practice or conceived by Seller or its affiliates or subcontractors in connection with performing under this contract.
Neither this contract nor any related purchase order may be terminated, cancelled or modified (in whole or in part) except with Seller's written consent. In the event of any termination or cancellation of all or part of this contract or any purchase order by Buyer, Buyer agrees to pay Seller for all reasonable and allocable materials, material management, labor, overhead and general and administrative costs and expenses incurred as a result of any such termination or cancellation, plus a reasonable profit hereby stipulated to be 10% of such costs and expenses on the payment terms set forth above. By way of illustration and not limitation, Seller's costs incurred by reason of Buyer's termination or cancellation may include the storage costs for the items to be purchased, and costs associated with relocating the production to an alternate source, as well as the costs of unreimbursed and/or unamortized research and development costs, capital equipment, and other property and supplies of Seller needed to produce and which are unique to the goods. In the event of such termination or cancellation and upon receipt of payment as described above, all completed goods, assemblies in process, components and any tooling, and equipment owned by Buyer and furnished to Seller under this contract shall be returned to Buyer in accordance with instructions specified by Buyer. In the event of any termination or cancellation, inventory carrying charges will be assessed at a rate of 2% per month on the value of such inventory until the relevant inventory is disposed of and paid for by Buyer. In the event of any reschedule of delivery of goods by Buyer for a period of more than two weeks, inventory carrying charges will be assessed at a rate of 2% per month until such goods are shipped.
Changes in the work to be performed under the contract may be made only if Buyer submits written instructions for such changes and if Seller accepts those changes in writing. If any such approved changes in drawings, materials, quantities, dates of performance or design of the part, units, tools, or fixtures, in Seller's sole judgment, increase Seller's costs, Seller may condition approval of any such change on agreement by Buyer to a price increase to recoup such cost increase, plus reasonable return.
Buyer's tools, molds and dies ("tooling") in the possession of Seller are at the risk of Buyer, and Seller does not undertake to insure such property. Seller will be responsible for normal maintenance of all tooling necessary to produce the goods. Buyer, however, will be responsible for major repairs, rehabilitation and replacement of its tooling. Seller may dispose of any tooling at any time after one year after completion of the most recent production order requiring the use of such tooling, and Seller shall not be liable for the continued retention or availability of any such tooling after the expiration of such period. Notwithstanding any return of its tooling to Buyer, Buyer shall acquire no interest in any proprietary design and/or processing information evident in the tooling used by Seller to produce the goods for Buyer. Buyer's tooling which is used to produce the goods that are the subject of this contract shall not be removed from Seller's possession unless Seller fails to deliver parts complying with mutually agreed upon specifications and delivery schedules, and fails to make reasonable progress toward compliance after written notice from Buyer. In addition, Buyer grants Seller a security interest in all Buyer owned tooling held by Seller. Seller may retain possession of that tooling until all amounts owing to Seller by Buyer are paid.
Buyer shall indemnify Seller against, and hold Seller harmless from, any and all liabilities, losses, damages, claims, costs and expenses, including reasonable attorney's fees (collectively "liabilities"), arising out of, connected with, or resulting from the goods, including but not limited to, the design, manufacturing, selection, delivery, possession, use or operation of the goods. Seller's entire liability for goods is limited as set forth in paragraph 5 above. Buyer shall indemnify Seller against all liabilities involving alleged violation of patent rights relating to Buyer's specifications and/or the goods resulting from those specifications. Buyer shall bear the full burden for all liabilities in any such instance.
Seller warrants that for a period of 30 days from the date of delivery the goods will be free from defects of material and workmanship. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED. IN PARTICULAR, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING EXCLUSION, (i) IF THE GOODS ARE MADE ACCORDING TO BUYER'S SPECIFICATIONS, SELLER DOES NOT WARRANT ADEQUACY OF SUCH SPECIFICATIONS OR THAT THE GOODS WILL PERFORM IN ACCORDANCE WITH SUCH SPECIFICATIONS, (ii) IF ANY GOODS FURNISHED HEREUNDER ARE MADE BY ANY SUPPLIER OTHER THAN SELLER, SELLER DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO SUCH GOODS, (iii) SELLER DOES NOT WARRANT THAT THE GOODS ARE IN COMPLIANCE WITH LAWS OF ANY COUNTRY, AND (iv) IF THE GOODS ARE MODULES OR ASSEMBLIES, SELLER DOES NOT WARRANT DESIGN, DESIGN PERFORMANCE, DURABILITY OR SYSTEM INTEGRATION OF THE MODULES, ASSEMBLIES OR ANY COMPONENTS THEREOF. Seller's sole obligation under the foregoing warranties will be limited to either, at Seller's option, replacing or repairing defective goods or refunding the purchase price paid for such goods previously paid by Buyer, and Buyer's exclusiveremedyforbreachofanyofsuchwarrantieswillbeenforcementofsuchobligationofSeller. Thesewarrantieswillnotextendtogoods subjected to misuse, abuse, neglect, damage, accident or improper installation or maintenance or which have been altered or repaired by anyone other than Seller or its authorized representative. Seller shall not be liable on any claim for defective goods, which is not made within 30 days after such goods have been received by Buyer. In the event Buyer claims Seller has breached any of its obligations under the contract, whether of warranty or otherwise, Seller may request the return of the goods and tender to Buyer the purchase price previously paid by Buyer, and in such event, Seller shall have no further obligation under the contract except to refund such purchase price upon redelivery of the goods. No goods may be returned without Seller's written request. If Seller requests the return of the goods, the goods will be redelivered to Seller at Buyer's expense by lowest cost mode of transportation unless otherwise authorized in writing by Seller. Seller reserves the right to inspect any claimed defect, repair defective goods or install replacement parts, and perform any adjustment incident to satisfactory operation of the goods. In the event Buyer claims Seller has breached any of its obligations under the contract, whether of warranty or otherwise, and Seller has not delivered any goods to Buyer, Seller may tender to Buyer the purchase price previously paid by Buyer, and, in such event, Seller shall have no further obligation under the contract except to refund such purchase price previously paid by Buyer. The remedies contained in this paragraph shall constitute the sole recourse of Buyer against Seller for breach of any of Seller's obligations under the contract, whether of warranty or otherwise. In no event shall Seller be liable for incidental, consequential or special damages, including without limitation, lost revenues, profits or recall expenses, nor shall Seller's liability on any claim for damages arising out of or connected with the contract or the manufacture, sale, delivery or use of the goods exceed the purchase price of the goods previously paid under this particular contract by Buyer to Seller.
Buyer assumes all risk of loss of goods upon delivery by Seller to carrier. Seller agrees to package the goods, put them in the possession of a carrier, make appropriate arrangements for their transportation, and obtain and deliver documents necessary to enable Buyer to obtain possession of the goods. Seller shall not be obligated to obtain insurance or to prepay transportation costs. Buyer agrees to pay all loading, unloading and other charges incidental to transportation. Seller will attempt to follow Buyer's shipping instructions, but may make reasonable changes thereto. Whether or not Seller pays shipping charges, risk of loss shall pass to Buyer upon delivery of the goods to a carrier. Breach of this contract shall have no effect upon this provision controlling the risk of loss.
Delivery dates are not guaranteed but are estimated on the basis of immediate receipt by Seller of all information to be furnished by Buyer, and all shipments are subject to Seller's production schedule. Seller may ship overages or underages to the extent of 10% of quantity ordered. Seller shall not be responsible for claims for error in quantity, weight or number not made within 10 days after Buyer's receipt of goods. Seller will not be liable for any delay in performance of this contract or delivery of goods when the delay is caused directly or indirectly by fire, flood, accident, riot, acts of God, war, governmental interference, strikes or other labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, failure of tooling or the repair, maintenance or rehabilitation of the tooling, or any other cause or causes whatsoever beyond its control. In the event Seller is delayed in performance by Buyer or at Buyer's request, Buyer will be responsible for any resulting increase in cost, including handling and insurance charges and storage charges, and Seller may invoice goods ready for shipment with payment to be made in accordance with the payment schedule as if the goods had been shipped. In the event delay is caused by Buyer's failure to furnish information necessary for Seller's performance, Seller may extend the shipment date for a reasonable time in proportion to the period of Buyer's delay. Each installment of goods to be delivered pursuant to this contract is to be considered as a separate sale and Buyer shall be liable to pay the agreed price for each such installment without regard to any failure to deliver other installments, and Seller's breach or default in the delivery of any installment shall not give Buyer the right to refuse to receive any other installments.
Payments are due from Buyer on the 25th day of the month next following Buyer's receipt of Seller's invoice, unless otherwise provided in the contract. Payments shall be made to Seller at the address specified in the invoice, without any offset or deduction for any reason. Buyer waives all rights of offset and deduction. Pro rata payments shall become due, as shipments are made. If any shipment is delayed by Seller at the request of Buyer, payment shall become due based on the date when Seller is prepared to make shipment, and Seller may invoice based on such date. Prices are F.O.B. Seller's shipping point unless otherwise stated in the contract. Payment terms for tooling are one-third with order, one-third upon first article shipment, and one-third upon first article approval, unless otherwise required by Seller. When any payment is not paid on or before its due date, Buyer agrees to pay a late charge on the sum outstanding, from the due date for receipt of payment to the actual date of receipt of payment, at a rate of 1.5% per month on the unpaid balance. If a payment is not paid on or before its due date, Buyer agrees that Seller may also cease performance under any and all of Buyer's purchase orders whether or not related to the late payment. Whenever, in the judgment of Seller, the financial condition of the Buyer does not justify the continuation of production or shipment on the specified terms of payment, Seller may require full or partial payment in advance. Seller shall have a security interest in all tools, molds, and dies and other property of Buyer, which come into the possession of Seller, as security for all sums owing from Buyer to Seller from time to time.
Notwithstanding any contrary provision in Buyer's purchase order, no action by Seller such as delivery of goods, the rendering of services or the commencement of work on goods to be specially manufactured for Buyer, will be deemed an acceptance by Seller of any purchase order from Buyer with terms different or additional than those contained in this contract.
No right or interest in this contract shall be delegated or assigned by Buyer without the written permission of Seller. Any attempt at assignment or delegation shall be void unless made in conformity with this paragraph. Buyer warrants that it is purchasing for its own account and not as an agent.