Mensch Manufacturing, L.L.C.: Standard Terms of Purchase
1. Agreement. These terms and conditions of purchase ("Terms") are the only terms that govern the purchase of the goods ("Goods") and services ("Services") by Mensch Manufacturing, L.L.C. ("Buyer"), from the seller named in Buyer’s purchase order that incorporates these Terms by reference (“Seller”). Regardless of anything to the contrary in these Terms, if a written contract signed by Buyer and Seller is in existence covering the sale of the Goods and Services covered by these Terms, then the terms and conditions of that written contract shall prevail to the extent those terms and conditions are inconsistent with these Terms. The purchase order that incorporates these Terms by reference (“Purchase Order”) and these Terms (collectively, the “Agreement”) comprise the entire agreement between Buyer and Seller, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both oral and written. The Purchase Order constitutes an offer by Buyer and may be revoked or changed by Buyer at any time before acceptance by Seller. BUYER OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS BY SELLER IN ACKNOWLEDGING OR ACCEPTING BUYER’S PURCHASE ORDER, and neither acceptance of delivery of all or part of the Goods or Services ordered, nor payment therefore, shall constitute acceptance by Buyer of any different or additional terms and conditions that may be contained in Seller’s acknowledgment, acceptance, confirmation, invoice, or other writing, regardless of whether Seller’s acceptance of Buyer’s Purchase Order is conditioned upon Buyer’s assent to Seller’s standard terms and conditions of sale. These Terms prevail over any of Seller’s standard terms and conditions of sale regardless whether or when Seller has submitted Seller’s sales confirmation or those terms of sale to Buyer. If Buyer’s Purchase Order is made in response to a written proposal or other form of offer from Seller, and if Seller’s proposal or other form of offer contains terms and conditions additional to or different from those contained in these Terms, BUYER’S ACCEPTANCE OF SELLER’S PROPOSAL OR OFFER IS EXPRESSLY CONDITIONED UPON SELLER’S AGREEMENT TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN BUYER’S PURCHASE ORDER. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Seller’s signing of Buyer’s Purchase Order and returning the Purchase Order to Buyer, other written indication of acceptance, commencement by Seller of any work or the performance by Seller of any Services purchased under this Agreement, or the shipment of the Goods shall constitute acceptance by Seller of Buyer’s Purchase Order and these Terms.
2. Blanket Order. If Buyer’s Purchase Order states that the Purchase Order is a blanket purchase order or blanket purchasing agreement, then, except to the extent otherwise expressly stated in the Purchase Order, (a) Seller is obligated to deliver to or perform for Buyer all Goods or Services ordered or released by Buyer during the period, or in accordance with the delivery or performance schedule specified in the Purchase Order, (b) Buyer is not obligated to order, release, or buy from Supplier any particular quantity or volume of Goods or Services, and (c) Buyer may purchase any or all of the Goods or Services from others.
3. Delivery Date for Goods. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by Buyer and Seller (“Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within thirty (30) days of Seller’s receipt of the Purchase Order. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered before the Delivery Date at Seller’s expense and Seller shall redeliver those Goods on the Delivery Date.
4. Delivery Point for Goods. Seller shall deliver all Goods to the address specified in the Purchase Order (“Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. If the Delivery Point is not specified in the Purchase Order, then the Delivery Point shall be Buyer’s facility at 2333 South M-37 Highway, Hastings, Michigan 49058 United States of America. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if Seller requires Buyer to return any packaging material. Any return of packaging material shall be made at Seller’s risk of loss and expense.
5. Schedule for Services. Seller shall provide the Services to Buyer as described and in accordance with the schedule set forth in the Purchase Order and in accordance with the terms and conditions set forth in these Terms.
6. Time of the Essence. Seller acknowledges that time is of the essence with respect to Seller’s obligations under this Agreement and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
7. Quantity. If Seller delivers more than 100% or less than 50% of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any rejected Goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price (defined below) for the Goods shall be adjusted on a pro-rata basis.
8. Shipping Terms. Delivery shall be made DDP Delivery Point (Incoterms 2010®) unless specifically specified otherwise in the Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Purchase Order.
9. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
10. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at Buyer’s sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if Buyer determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at Seller’s expense, within thirty (30) days replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace the defective Goods with goods from a third party and charge Seller the cost of the replacement goods and terminate this Agreement for cause pursuant to the termination provisions of this Agreement. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out Seller’s remedial actions.
11. Price. The price of the Goods and Services is the price stated in the Purchase Order (“Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order, subject to any discounts or pricing rules previously mutually agreed upon by Buyer and Seller or used in prior orders by Buyer and Seller for similar Goods. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs, or otherwise, without the prior written consent of Buyer.
12. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer’s receipt of the applicable invoice, except for any amounts disputed by Buyer in good faith. All payments under this Agreement must be in U.S. dollars and made by check. Without prejudice to any other right or remedy that Buyer may have, Buyer reserves the right to set off at any time any amount owing to Buyer by Seller against any amount payable by Buyer to Seller. If there is a payment dispute, Buyer shall deliver a written statement to Seller no later than five (5) days before the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. Buyer and Seller shall seek to resolve all payment disputes expeditiously and in good faith. Seller shall continue performing Seller’s obligations under this Agreement notwithstanding any payment dispute.
13. Representations and Warranties About Seller. Seller represents and warrants to Buyer that (a) Seller is duly organized and validly existing under the laws of Seller’s state of organization, (b) this Agreement is the valid and binding obligation of Seller, enforceable against Seller in accordance with the terms of this Agreement, (c) Seller is solvent, and (d) neither the signing nor the performance of this Agreement will conflict with or result in the breach of any other agreement or obligation by which Seller is bound. Seller shall provide, at Seller’s expense, all labor, materials, equipment, transportation, facilities, and other items necessary to provide the Goods and perform the Services.
14. Seller’s Obligations Regarding Services. Seller shall: (a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access to systems and data, building security procedures, including the restriction of access by Buyer to certain areas of Buyer’s premises or systems for security reasons, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in the form as Buyer shall approve. During the term of this Agreement and for a period of five (5) years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of any relevant records and interview Seller’s personnel in connection with the provision of the Services; (d) obtain Buyer’s written consent, which shall not be unreasonably withheld or delayed, before entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer (each approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of Seller’s obligations under the Agreement, and Seller shall remain fully responsible for the performance of each Permitted Subcontractor and the Permitted Subcontractor’s employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier; (e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer; (f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services; (g) ensure that all of Seller’s equipment used in the provision of the Services is in good working order and suitable for the purposes for which the equipment is used, and conforms to all relevant legal standards and standards specified by the Buyer; and (h) keep and maintain any of Buyer’s equipment in Seller’s possession in good working order and shall not dispose of or use Buyer’s equipment other than in accordance with Buyer’s written instructions or authorization.
15. Change Orders for Services. Buyer may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller shall, within two (2) days of receipt of a Change Order, submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts the cost proposal, Seller shall proceed with the changed Services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in Seller’s compensation or the performance deadlines under this Agreement.
16. Warranties. (a) Seller warrants to Buyer and Buyer’s applicable customer that, for a period of thirty-six (36) months from the date the Goods are placed in service by Buyer’s applicable customer (including Goods used as parts or components of products sold by Buyer to Buyer’s applicable customer), all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer; (iii) be fit for purpose intended by Buyer and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties of Seller survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer; (b) Seller warrants to Buyer that Seller shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet Seller’s obligations under this Agreement; and (c) the warranties of Seller set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. The warranties set forth in this Section shall be expanded or modified to satisfy the terms and conditions of Buyer’s applicable customer if the customer’s terms and conditions apply to Buyer and the Goods and require more favorable warranties than the warranties set forth in this Section (by way of example, if the applicable customer’s terms and conditions require an extended warranty, then the warranty above shall continue through the extended warranty period). Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at Seller’s own cost and expense, within thirty (30) days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.
17. General Indemnity. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, managers, members, owners, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller, or arising out of or occurring in connection with Seller’s negligence, willful misconduct, or breach of these Terms. Seller shall not enter into any settlement with a third party without Buyer’s prior written consent.
18. Intellectual Property Indemnity. Seller shall, at Seller’s expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Seller enter into any settlement with a third party without Buyer’s or Indemnitee’s prior written consent.
19. Limitation of Liability. Nothing in this Agreement shall exclude or limit (a) Seller’s liability under this Agreement or (b) Seller’s liability for fraud, personal injury, or death caused by Seller’s negligence or willful misconduct.
20. Insurance. During the term of this Agreement and for a period of thirty-six (36) months thereafter, Seller shall, at Seller’s own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 (U.S. Dollars) for each occurrence and $3,000,000 (U.S. Dollars) in the annual aggregate with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with thirty (30) days’ advance written notice if there will be a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require Seller’s insurer to waive all rights of subrogation against Seller’s insurers and Seller.
21. Government Contracts. If the Goods or Services covered by Buyer’s Purchase Order are to be used by Buyer in connection with a contract with the United States or other government, then all terms and conditions required by the government contract or by applicable law or regulation with respect to the order (“Government Terms”) are incorporated in this Agreement by this reference. If any provision of Buyer’s Purchase Order or these Terms is inconsistent with any Government Term, then the Government Term will control.
22. Compliance with Law. Seller shall, and shall cause the Goods and Services to, comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that Seller needs to carry out Seller’s obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.
23. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy, or commences or has commenced against Seller proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer before the termination.
24. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver of that right, remedy, power, or privilege. No single or partial exercise of any right, remedy, power, or privilege under this Agreement precludes any other or further exercise of that right, remedy, power, or privilege or the exercise of any other right, remedy, power, or privilege.
25. Confidential Information. All non-public, confidential, or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
26. Force Majeure. Neither Buyer nor Seller shall be liable to the other for any delay or failure in performing that party’s obligations under this Agreement to the extent that the delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without that party’s fault or negligence, and that by its nature could not have been foreseen by that party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of Seller’s performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out Seller’s obligations under this Agreement for a continuous period of more than thirty (30) days, Buyer may terminate this Agreement immediately by giving written notice to Seller.
27. Assignment. Seller shall not assign, transfer, delegate, or subcontract any of Seller’s rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of Seller’s obligations under this Agreement. Buyer may at any time assign or transfer any or all of Buyer’s rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.
28. Relationship of the Parties. The relationship between Buyer and Seller is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Buyer and Seller, and neither Buyer nor Seller shall have authority to contract for or bind the other party in any manner whatsoever.
29. No Third-Party Beneficiaries. This Agreement is for the sole benefit of Buyer and Seller and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
30. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice 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 those of the State of Michigan. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
31. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the City of Hastings and County of Barry, and each party irrevocably submits to the exclusive jurisdiction of those courts in any such suit, action, or proceeding.
32. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to any other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), electronic mail, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
33. Severability. If any term or provision of this Agreement is invalid, illegal. or unenforceable in any jurisdiction, the invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable that term or provision in any other jurisdiction.
34. Survival. Provisions of these Terms that by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
35. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that the writing amends these Terms and is signed by an authorized representative of each party.