Purchasing Terms & Conditions
A. Each purchase order, together with these Terms and Conditions, any releases, and any documents specifically referenced herein (collectively, “Purchase Order”), is an offer by Ultra Manufacturing/Mitchell Plastics or its applicable affiliate or subsidiary (“Purchaser”) to the party to whom such Purchase Order is addressed and such party’s applicable affiliates and subsidiaries (“Seller”) to purchase the goods and/or services (collectively, “Supplies”) described therein, and it shall be the complete and exclusive statement of such offer and agreement. A Purchase Order does not constitute an acceptance by Purchaser of any offer or proposal by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise. In the event that any Seller quotation or proposal is held to be an offer, that offer is expressly rejected and is replaced in its entirety by the offer made up of the Purchase Order.
B. A contract is formed on the date that Seller accepts the offer of Purchaser. Each Purchase Order shall be deemed accepted upon the terms and conditions of such Purchase Order by Seller by shipment of goods, performance of services, commencement of work on goods, written acknowledgement, or any other conduct of Seller that recognizes the existence of a contract pertaining to the subject matter hereof. Additionally, each Purchase Order shall be deemed accepted five business days after Purchaser delivers the Purchase Order to Seller, if Seller fails to object to the Purchase Order. Acceptance is expressly limited to these Terms and Conditions and such terms and conditions as are otherwise expressly referenced on the face of the Purchase Order. In the event of a conflict between the Purchase Order and any prior or contemporaneous agreement or document exchanged between Purchaser and Seller, the Purchase Order governs.
2. ENTIRE AGREEMENT
A. The Purchase Order, together with these Terms and Conditions and the attachments, manuals, guidelines, requirements, specifications, exhibits and supplements specifically referenced therein, constitutes the entire agreement between Seller and Purchaser with respect to the matters contained in the Purchase Order and supersedes all prior oral or written representations or agreements.
B. All supplier manuals, guidelines, procedures and requirements that are provided by Ultra Manufacturing/Mitchell Plastics to Seller or otherwise available on the Ultra Manufacturing/Mitchell Plastics International web site at https://www. mitchellplastics.com (together, the “Supplier Manuals”), as amended from time to time, are incorporated by reference. In the event of a conflict between any Supplier Manuals and these Terms and Conditions, these Terms and Conditions shall govern. Purchaser may modify the Supplier Manuals or add additional Supplier Manuals by posting notice of such modified or new Supplier Manuals through links provided on the Purchaser’s web site at https://www.mitchellplastics.c... at least ten (10) days prior to any modified or new Supplier Manuals becoming effective. Seller periodically shall review the Ultra Manufacturing/Mitchell Plastics web site and the Supplier Manuals. Seller’s continued performance under the Purchase Order without providing written notice to Purchaser detailing Seller’s objection to any modified or new Supplier Manual prior to the effective date of such modified or new Supplier Manual will constitute Seller’s acceptance of such modified or new Supplier Manual.
C. Purchaser may modify the Terms and Conditions from time to time by posting notice of such modified Terms and Conditions through links provided on the Ultra Manufacturing/Mitchell Plastics web site at https://www. mitchellplastics.com at least ten (10) days prior to the modified Terms and Conditions becoming effective. Seller periodically shall review the Ultra Manufacturing/Mitchell Plastics web site and the Terms and Conditions. Seller’s continued performance under the Purchase Order without providing written notice to Purchaser detailing Seller’s objection to any modified Terms and Conditions prior to the effective date of such modified Terms and Conditions will constitute Seller’s acceptance of such modified Terms and Conditions.
3. QUANTITY AND DURATION
A. The quantity applicable to each Purchase Order, and the duration applicable to each Purchase Order, may specified on the face of the Purchase Order. Unless the Purchase Order specifically provides that Seller shall produce one hundred percent (100%) of Purchaser’s requirements for the Supplies, Purchaser shall have the right to obtain a portion of such Supplies from another third party source or from Purchaser’s internal sources. Seller further acknowledges and agrees that Seller is obligated to provide Supplies to Purchaser in the quantity specified in any release issued by Purchaser (“Release”). A Release will specify a firm quantity of Supplies and/or a firm quantity of raw materials/components that Purchaser will be responsible for in the event of termination. Releases may include Projections (defined below), but Releases are only binding upon Purchaser for, and Purchaser will have no obligation or liability beyond, the firm quantity specified in the Release. Seller acknowledges and agrees to accept the risk associated with the lead times of the various components if they are beyond the firm Release quantities provided by Purchaser. Unless stated otherwise on the face of the Purchase Order, the duration of each Purchase Order shall be the life of the program(s) into which the Supplies ultimately are incorporated, including any extensions or renewals thereof, plus applicable service and replacement parts requirements.
4. VOLUME AND DURATION PROJECTIONS
From time to time and in connection with quotations, requisitions, and Purchase Orders, Purchaser may provide Seller with estimates, forecasts or projections of its future volume or quantity requirements for the Supplies and/or the term of a program (“Projections”). Projections, unlike a Release for a firm quantity, are not binding on Purchaser. They also are not a commitment to a requirements contract. Seller acknowledges that Projections, like any other forward-looking estimates, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time, and may or may not be accurate at the time they were made or at any later time. Purchaser makes no representation, warranty, guaranty or commitment of any kind or nature, express or implied, regarding any Projections or other estimate, forecast or projection provided to Seller, including as to its accuracy or completeness. Seller accepts that Projections may not be accurate and that actual volume or duration could be less than or greater than the Projections. Seller expressly accepts this risk and possible reward.
A. “Warranty Period” shall mean, for each of the Supplies provided, the time period beginning on the day of first use of the Supplies by Purchaser or acceptance by Purchaser, and continuing until the later of: (i) 36 months; (ii) the period provided under applicable law; or (iii) if the Supplies are utilized for new vehicles, the same period as the new vehicle warranty period offered to retail purchasers in the country in which the vehicle incorporating the Supplies is sold. Seller may contact Purchaser’s representative for information regarding those countries in which vehicles incorporating the Supplies will be sold.
B. In the event that Purchaser or its customer voluntarily or pursuant to a government mandate, makes an offer to owners of vehicles (or other finished products) on which the Supplies, or any parts, components or systems incorporating the Supplies, are installed to provide remedial action to address a defect or condition that relates to motor vehicle safety or reliability or the failure of the vehicle to comply with any applicable law, safety standard or guideline, whether in connection with a recall campaign or other customer satisfaction or corrective service action (a “Remedial Action”), the Warranty Period shall continue for such time period as may be dictated by Purchaser’s customer or the federal, state, local or foreign government where the Supplies are used or provided and Seller shall fully comply with the requirements of this Purchase Order.
C. Notwithstanding the expiration of the Warranty Period, Seller shall nonetheless be liable for costs and damages associated with any Remedial Action to the extent that such Remedial Action is based upon a reasonable determination that the Supplies fail to conform to the warranties set forth in the Purchase Order or is caused by Seller’s Supplies.
D. In addition to Seller’s customer warranties, any express warranties set forth in this Purchase Order, any statutory warranties or any warranties implied by law, Seller expressly warrants that all of the Supplies provided under this Purchase Order and all other Purchase Orders: (i) do not, and are not claimed to, violate any patent, trademark or copyright, or violate any import law; (ii) shall strictly conform with all specifications, drawings, statements on containers or labels, descriptions and samples furnished to or by Purchaser, and all industry standards, laws and regulations in force in countries where such Supplies or vehicles equipped with such Supplies are to be sold; (iii) shall be free from defects in design, material and workmanship and shall be new and of the highest quality; (iv) shall be free and clear of all liens, claims or other encumbrances, and that Seller is conveying good title to Purchaser; (v) shall be merchantable, of good material and workmanship, free from defects, and safe, fit and sufficient for the particular purposes intended by Purchaser, which purposes Seller acknowledges are known to it; (vi) shall be adequately contained, packaged, marked and labeled; (vii) in the case of services, all services performed on behalf of Purchaser shall be performed in a competent, workmanlike manner; and (viii) the Supplies shall be manufactured in accordance with all applicable federal, state, and local laws, regulations, industry standards or other standards, labeling, transporting, licensing approval or certification requirements in the United States or any other country where the Supplies will be sold or used.
E. All warranties shall survive inspection, test, delivery, acceptance, use and payment by Purchaser and shall inure to the benefit of Purchaser, its successors, assigns, customers, and the users of Purchaser’s goods and services. These warranties may not be limited or disclaimed.
F. Seller waives any claim against Purchaser and its customers, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller or Purchaser for breach of warranty infringement of any patent, trademark, copyright or other proprietary right, including claims arising out of compliance with specifications furnished by Purchaser.
G. If Purchaser experiences any breaches of a warranty, Purchaser shall have the right, in addition to exercising all other rights Purchaser may have under the Uniform Commercial Code and any other applicable statutes or law, to take the following actions, at Purchaser’s option: (i) retain the defective Supplies in whole or in part with an appropriate adjustment in the price for the goods; (ii) require Seller to repair or replace the defective Supplies in whole or in part at Seller’s sole expense, including all shipping, transportation, and installation costs; (iii) correct or replace the defective Supplies with similar items and recover the total cost relating thereto from Seller, including the cost of product recalls; or (iv) reject the defective Supplies.
A. Seller agrees to participate in Purchaser’s quality and development program(s) and to comply with all quality requirements and procedures specified by Purchaser, as revised from time to time. Based on Purchaser’s assessment of responsibility, Seller may be held responsible for any and all costs associated with quality issue investigation, containment and Remedial Actions on account of Supplies provided by Seller to Purchaser (including third party activities identified and initiated by Purchaser). Seller is obligated to provide all reasonable support requested by Purchaser to address immediately and correct concerns regarding the quality of Supplies provided. Seller shall provide additional resources, as necessary and as identified by Purchaser, to support product development, process development, validation, production launch, or any issue that may jeopardize the success of the manufacture or assembly of any Supplies or of the program.
B. Seller warrants that its overall equipment (shared and specific) and plant capacity are adequate to meet Purchaser’s needs. Ongoing capacity analysis must account for at least: scrap variation, downtime, maintenance, and other customer requirements. Each production process must successfully complete a run-at-rate. The run-at-rate must demonstrate that Seller’s production process can produce in less than 24 hours at least one day’s quantity of acceptable quality Supplies to satisfy Seller’s Capacity Planning Volume (“CPV”). Purchaser is not obligated to pay Seller any incremental costs as long as the Release quantities do not exceed Seller’s CPV. The requirement for capacity and the CPV is not a volume, program or other commitment by Purchaser.
C. Seller is responsible for all sub-tier providers of goods or services. Seller must maintain adequate development, validation, launch, and ongoing supervision to assure all Supplies provided to Purchaser conform to all specifications, standards, drawings, samples and descriptions, including, without limitation, as to quality, performance, fit, form, function and appearance, under the Purchase Order.
A. Deliveries shall be made both in quantities and at times specified on the Purchase Order or on Releases furnished by Purchaser. Time and quantity of delivery are of the essence. Seller shall adhere to shipping directions specified on the Purchase Order or Releases. Purchaser shall not be required to make payment for Supplies delivered to Purchaser that are in excess of firm quantities and delivery schedules specified in Releases. Purchaser may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Seller to a modification of the price of Supplies covered by any Purchase Order. With each delivery, Seller shall be deemed to have made the representations, warranties and covenants with respect to its financial and operating condition provided herein.
B. Premium shipping expenses and/or other related expenses necessary to meet delivery schedules set forth in Releases shall be Seller’s sole responsibility, unless the delay or expense was solely the result of Purchaser’s negligence and Seller provides Purchaser with notice of any claim against Purchaser within ten (10) days after the occurrence of the alleged negligent action of Purchaser giving rise to such claim.
C. Notwithstanding any agreement concerning payment of freight expenses, except where shipment is by Purchaser’s vehicle, delivery shall not have occurred and the risk of loss shall not have shifted to Purchaser until the Supplies have been delivered to Purchaser’s facility and have been accepted at that facility.
8. CUSTOMER SUPPORT
As all elements of the automotive tiered-supply network must work together to ensure that Purchaser’s customer’s terms, conditions and requirements are met, it is the intent of both Seller and Purchaser that the applicable terms, conditions and requirements of Purchaser’s customer shall flow through Purchaser to Seller to the extent that they do not conflict with the terms of the Purchase Order. To the extent that Seller does not meet the applicable terms, conditions or requirements of Purchaser’s customer or to the extent that the terms of Purchaser’s customer conflict with the terms of the Purchase Order, Seller agrees, notwithstanding any such conflict, to indemnify and hold harmless Purchaser from any and all claims and demands from Purchaser’s customer relating to any actual or alleged problem or issue with the Supplies sold by Seller under any Purchase Order or the manner in which Seller has supplied such Supplies under the Purchase Order.
9. CUSTOMER REQUIREMENTS; SERVICE PARTS
For 15 years after termination of the current model production of the vehicle involved, Seller shall sell to Purchaser quantities of Supplies sufficient to fulfill 100% of Purchaser’s and its customer’s service and replacement parts requirements for past model years at the prices then specified in the last Purchase Order for current model production .plus any actual net cost differential for required unique packaging, shipping and handling.
A. Prices charged for Supplies listed on the Purchase Order are not subject to increase, including specifically, but without limitation, any increase based upon changes in currency fluctuations, raw material, taxes, tariffs or duties, transportation costs, component pricing, labor or overhead, unless specifically agreed to by Purchaser on the face of a Purchase Order amendment or in a Signed Writing.
B. Seller represents that the price charged to Purchaser for Supplies is at least as low as the price charged by Seller to purchasers of a class similar to Purchaser under conditions similar to those specified in the Purchase Order and that all prices comply with all applicable governmental laws and regulations in effect at the time of quotation, sale and delivery. Seller agrees that any price reduction implemented by Seller for any Supplies or related charges will apply to all shipments of such Supplies under the Purchase Order or any Purchase Order amendment from and after Seller’s implementation of the price reduction. If Seller offers a lower price for the same or similar goods or services to any other customer during the term of a Purchase Order, then to the extent permitted by law, Seller will immediately offer Purchaser the same price for the Supplies on the same terms and conditions as was offered to the other customer.
C. Seller shall ensure that the price charged to Purchaser for Supplies remains competitive with the price for similar goods or services available to Purchaser from other sellers.
D. Seller agrees to participate in Purchaser’s cost savings and productivity programs and initiatives and to implement Seller’s own cost savings and productivity programs and initiatives to reduce Seller’s costs.
Unless prohibited by law, the Seller shall pay all federal, state or local tax, transportation tax, or other tax, including but not limited to customs duties and tariffs, which is required to be imposed upon the Supplies ordered, or by reason of their sale or delivery. All Purchase Order prices shall be deemed to have included all such taxes.
12. PAYMENT TERMS
A. Payment terms will be set forth on the Purchase Order or in Purchaser’s payables system.
B. In no event will a Seller who is a directed supplier have a right to receive payment from Purchaser until Purchaser is fully paid by Purchaser’s customer for the related Supplies or, as applicable, the goods into which such Supplies are incorporated.
13. SETOFF AND RECOUPMENT
A. In addition to any right of setoff or recoupment allowed by law, all amounts due Seller, or any of its subsidiaries or affiliates shall be considered net of indebtedness or obligations of Seller, or any of its subsidiaries or affiliates to Purchaser or any of its subsidiaries or affiliates, and Purchaser may setoff against or recoup from any amounts due or to become due from Seller, or any of its subsidiaries or affiliates to Purchaser or any of its subsidiaries or affiliates however and whenever arising, including but not limited to the Purchaser’s attorneys’ fees and costs of enforcement. In the event that Purchaser or any of its subsidiaries or affiliates reasonably feels at risk, Purchaser may withhold and recoup a corresponding amount due Seller or any of its subsidiaries or affiliates to protect against such risk.
B. An “affiliate” of a party means any other company that controls, is controlled by, or is under common control with such party. For purposes of this definition, the term “control” means the ownership, directly or indirectly, of twenty percent (20%) or more of the capital or equity of a company or the ability, by voting securities, contract or otherwise, to elect a majority of the board of directors or other governing body of such company.
C. If an obligation of Seller or any of its subsidiaries or affiliates to Purchaser or any of its subsidiaries or affiliates is disputed, contingent or unliquidated, Purchaser or any of its subsidiaries or affiliates may defer payment of all or any portion of the amount due until such obligation is resolved. Without limiting the generality of the foregoing and by way of example only, in the event of a bankruptcy of Seller, if all of the Purchase Orders between Purchaser and Seller have not been assumed, then Purchaser may defer payment to Seller, via an administrative hold or otherwise, for Supplies against potential rejection and other damages.
D. In the event of a “Seller Insolvency” (as defined in the Seller Insolvency Paragraph below), Purchaser also may setoff, recoup, and/or withhold from amounts due Seller or any of its subsidiaries or affiliates any amounts that Seller is obligated to indemnify Purchaser pursuant to this Purchase Order, regardless of whether such amounts become due before or after the filing of a petition for bankruptcy protection by Seller.
All invoices must reference the Purchase Order number, Purchase Order amendment or Release number, Purchaser’s part number, Seller’s part number where applicable, quantity of pieces in shipment, number of cartons or containers, Seller’s name and number, and bill of lading number, before any payment will be made for Supplies by Purchaser. In addition, no invoice may reference any term separate from or different than these Terms and Conditions or the terms that appear on the face of the Purchase Order. Purchaser reserves the right to return all invoices or related documents submitted incorrectly. Payment terms will commence upon the receipt and input of a correct invoice into Purchaser’s invoicing system. Any payment by Purchaser of a nonconforming invoice is not an acceptance of any non-conforming elements or terms on such invoice.
Packing slips (which shall accompany the Supplies), shipping documents, bills of lading, and other related documentation shall be mailed and/or sent electronically on the shipment date, and must show the Purchase Order number, vendor, and item and reference numbers. Value of the Supplies shall not be declared on shipments F.O.B. point of origin. For each international shipment, Seller shall include a customs valuation invoice (using the value set forth in the Purchase Order), with a master packing slip and shall furnish all other required export/import documents. Export and trade credits shall belong to Purchaser. Seller shall furnish: (i) all documents required to obtain export credits and customs drawbacks; (ii) certificates of origin of the materials and Supplies provided and the value added in each country; (iii) all trade related documents; (iv) all required export licenses or authorizations; and (v) any other documents requested by Purchaser or any of its customers. Seller warrants that the contents of such documents shall be true and accurate. Seller shall indemnify Purchaser for any damages, including but not limited to duties, interest and penalties, arising from a false or inaccurate statement.
The Supplies provided by Seller shall be properly packed, marked, loaded and shipped as required by this Purchase Order and by the transporting carrier. Unless Purchaser instructs otherwise, the Supplies shall be shipped in a manner that permits the lowest transportation rates to apply and adequately protects the quality of the Supplies. Seller shall reimburse Purchaser for all expenses, including damage to the Supplies, incurred due to improper packing, marking, or loading. The risk of loss or damage in transit shall be upon Seller, except where shipment is by Purchaser’s vehicle, in which case the risk of loss or damage shall pass to Purchaser upon completion of loading. Shipments in excess of those set forth in this Purchase Order, Release, or authorized by Purchaser may be returned to Seller at Seller’s expense, and Purchaser may debit Seller for the cost of such returns. Purchaser may change shipping schedules or direct temporary suspension of such scheduled shipments. Upon submission of proper invoices, Purchaser shall process such invoices for payment. All cash discounts shall be computed from the date of receipt by Purchaser of a final invoice or receipt of the Supplies, whichever occurs later. Cash discounts shall be based on the full amount of the invoice, less freight charges and taxes if itemized separately on the invoice.
17. TECHNOLOGY AND LICENSES
A. All Supplies, including, but not limited to, any idea, invention, concept, design, prototype, product configuration, process, technique, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, or the like that are created in the course of performing any Purchase Order and any associated intellectual property rights therein are the sole and exclusive property of Purchaser. Seller agrees that all works of authorship created by Seller in connection with each Purchase Order are “works made for hire” on behalf of Purchaser as that term is used in connection with the U.S. Copyright Act. The term “intellectual property” as used herein means all patents, patent applications, patentable subject matter, copyrights, copyrightable subject matter, work of authorship, derivative works, trademark, trade name, trade dress, trade secrets, know-how, and any other subject matter, material, or information that is considered by Purchaser to be proprietary or confidential and/or that otherwise qualifies for protection under any law providing or creating intellectual property rights, including the Uniform Trade Secrets Act.
B. Seller hereby assigns to Purchaser ownership of all right, title, and interest in the Supplies and any associated intellectual property, and further agrees to cooperate with Purchaser and to assist in the preparation and execution of all documents relating to any effort by or on behalf of Purchaser to apply for, obtain, maintain, transfer, or enforce any intellectual property right related to the Supplies at the request and expense of Purchaser.
C. Seller expressly warrants that the Supplies shall not incorporate any intellectual property (including copyright, patent, trade secret, mask work, or trademark rights) of any third party, and further agrees that Seller shall not disclose to Purchaser any confidential information, including any trade secrets, of any third party.
D. Seller grants to Purchaser an irrevocable, non-exclusive, royalty-free, worldwide license with the right to grant sublicenses to affiliates to use any technical information, know how, copyrights, and patents, or other intellectual property owned or controlled by Seller or its affiliates to make, have made, use, sell, and import any Supplies provided by Seller under a Purchase Order. Such license shall be effective from the first delivery under a Purchase Order.
E. Seller expressly warrants that all Supplies will not and do not infringe any patent, trademark, copyright or other intellectual property of any third party. Seller: (i) agrees to defend, hold harmless and indemnify Purchaser and its customers against all claims, demands, losses, suits, damages, liability and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright or other proprietary right by reason of the manufacture, use or sale of the Supplies, including infringement arising out of compliance with specifications furnished by Purchaser or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions; and (ii) waives any claim against Purchaser and its customers, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller or Purchaser for infringement of any patent, trademark, copyright or other proprietary right, including claims arising out of compliance with specifications furnished by Purchaser.
F. Seller shall ensure that any subcontractors to Seller have contracts with Seller in writing consistent with the terms of this paragraph to ensure that the protections required by Purchaser from Seller are also received from subcontractors for the benefit of Purchaser and Seller.
A. Seller acknowledges and agrees that it will be obligated to maintain the secrecy and confidentiality of all information disclosed by Purchaser to Seller during the course of work under any Purchase Order, including all “Purchaser Data” (as defined in the Data Security Paragraph below) (“Confidential Information”), including, but not limited to, any information regarding Purchaser or its business or its customers, the existence and terms of any Request for Quotation or Purchase Order, and any drawings, specifications, or other documents prepared by either party in connection with any Request for Quotation or Purchase Order. Seller agrees that it will not disclose Confidential Information to or use Confidential Information with or for the benefit of itself or any third party without prior written authorization from Purchaser. Seller also agrees to adopt measures to protect the secrecy and confidentiality of Confidential Information that are reasonable under the circumstances.
B. All information provided by Seller to Purchaser in connection with each Purchase Order shall be disclosed on a non-confidential basis, and Purchaser shall have no duty to maintain the secrecy or confidentiality of such information.
C. At the request of Purchaser, Seller will return to Purchaser all materials (in any form) that include, incorporate, or otherwise contain Confidential Information of Purchaser.
A. Purchaser reserves the right at any time to direct changes, or cause Seller to make changes, to the Supplies under any Purchase Order including, but not limited to, changes in the design (including drawings and specifications), processing, methods of packaging and shipping and the date or place of delivery of the Supplies covered by the Purchase Order or to otherwise change the scope of the work covered by the Purchase Order including work with respect to such matters as inspection, testing or quality control, and Seller agrees to promptly make such changes. Any such changes shall be deemed not to affect the time for performance or cost under the Purchase Order unless (i) Seller provides Purchaser with written notice of a claim for adjustment to time for performance or cost within ten (10) days after Purchaser’s notice to Seller of the change and (ii) after auditing such claim, Purchaser determines that an adjustment (up or down) is appropriate. Any such claim by Seller for adjustment to time for performance or cost under a Purchase Order must be solely and directly the result of the change directed by Purchaser and any notice of such claim shall be effective only if accompanied by all relevant information sufficient for Purchaser to verify such claim. In addition, Purchaser shall have the right to audit all relevant records, facilities, work or materials of Seller to verify any claim Seller shall consider and advise Purchaser of the impact of a design change on the system in which the Supplies covered by the Purchase Order are used. Nothing in this paragraph shall excuse Seller from performing under the Purchase Order as changed pending resolution of any claim by Seller for adjustment to time or cost.
B. Without the prior approval of Purchaser on the face of a Purchase Order amendment or in a Signed Writing, Seller shall not make any changes to any Purchase Order or the Supplies covered by the Purchase Order, including, without limitation, changing (i) any third party supplier to Seller of services, raw materials or goods used by Seller in connection with its performance under the Purchase Order, (ii) the facility from which Seller or such supplier operates, (iii) the price of any of the Supplies covered by the Purchase Order, (iv) the nature, type or quality of any services, raw materials or goods used by Seller or its suppliers in connection with the Purchase Order; (v) the fit, form, function, appearance, performance of any Supplies covered by the Purchase Order; or (vi) the production method, or any process or software used in the production or provision of any Supplies under the Purchase Order. Any changes by Seller to any Purchase Order or the Supplies covered by the Purchase Order without the prior approval by Purchaser on the face of a Purchase Order amendment or in a Signed Writing shall constitute a breach of the Purchase Order.
20. PROPERTY OF PURCHASER
A. The right, title and interest in and to all supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, designs, drawings, specifications, spare parts, trial parts, ancillary products, items owned by Purchaser and other items furnished by Purchaser or its customers to Seller for use in manufacturing Supplies, or for which Seller is reimbursed by Purchaser or its customers (“Purchaser’s Property”), shall be and remain the property of Purchaser and/or its customers. Seller shall bear the risk of loss of and damage to such Purchaser’s Property. Seller will: (i) properly house and maintain the Purchaser’s Property on Seller’s premises; (ii) not use the Purchaser’s Property for any purpose other than for performance under the Purchase Order; (iii) prominently mark the Purchaser’s Property as property of Purchaser; (iv) refrain from commingling the Purchaser’s Property with the property of Seller or with that of a third party; (v) adequately insure the Purchaser’s Property against loss or damage, including but not limited to maintaining full fire and extended coverage insurance for replacement value and naming Purchaser as an additional insured; (vi) take reasonable steps to ensure that the Purchaser’s Property does not become subject to any liens or other claims; and (vii) not move the Purchaser’s Property to another location whether owned by Seller or a third party, without the prior written consent of Purchaser. Purchaser will have the right to enter Seller’s premises at reasonable times to inspect the Purchaser’s Property and Seller’s records pertaining thereto. Seller expressly waives and releases, and agrees not to file or otherwise assert or prosecute or suffer to permit any statutory, equitable or other liens, including but not limited to equitable or other liens, including but not limited to any molder liens, tool liens, builder liens and the like, that Seller has or might have on or in connection with the Purchaser’s Property for all work, including but not limited to, designing, manufacturing, improving, maintaining, servicing, using, assembling, fabricating or developing the Purchaser’s Property.
B. Seller hereby agrees to indemnify, defend and hold harmless Purchaser from and against any loss, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings, including without limitation all attorney’s fees and all other cost of litigation that are in any way related to releasing, terminating or otherwise removing all such liens placed on the Purchaser’s Property. Seller will assign to Purchaser any claims Seller has against third parties with respect to Purchaser’s Property.
C. Upon written request, Seller, at its expense, shall immediately deliver the Purchaser’s Property to Purchaser. Seller will cooperate with Purchaser’s removal of the Purchaser’s Property from Seller’s premises, regardless of any actual or potential claims between Seller and Purchaser, financial or otherwise. Seller agrees that it will comply with obligations hereunder to release Purchaser’s Property not withstanding any offsetting claim that it may have against Purchaser.
D. Unless otherwise agreed to in writing by Purchaser, Seller at its own expense shall keep the Purchaser’s Property in good condition and repair, including repair necessitated by wear and tear and other usage by Seller. In the event that it becomes necessary, as determined by either Purchaser or Seller, to replace the Purchaser’s Property due to normal use by the Seller, or otherwise, said replacement of Purchaser’s Property shall be at the sole expense of the Seller and said replacement Purchaser’s Property shall remain the property of the Purchaser. Purchaser does not guarantee the accuracy of any Purchaser’s Property or the availability or suitability of any supplies or material furnished by it. Seller assumes sole responsibility for inspecting, testing and approving all Purchaser’s Property or other materials supplied by Purchaser prior to any use by Seller.
21. COMPLIANCE WITH LAWS
A. Seller shall comply with all applicable laws, rules, regulations, orders, conventions, or standards enacted by the United States of America, and any other applicable jurisdiction, that regulate the manufacture, labeling, transportation, licensing, approval or certification of Supplies, including but not limited to, those relating to environmental matters, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety, and each Purchase Order shall be deemed to incorporate by reference all the clauses required by the provisions of said laws, Purchase Orders, rules, regulations and ordinances.
B. Seller shall indemnify and hold Purchaser harmless from and against any liability claims, demands or expenses (including, without limitation, attorneys' or other professional fees) arising out of or in connection with Seller's non-compliance with the provisions of this Paragraph.
Seller, at its own expense, shall procure and maintain for the duration of this Purchase Order, property and casualty insurance coverages and liability limits, which at the time are usual and customarily obtained in connection with Seller’s products or services, but in no event less than any minimum requirements set by the Purchaser. Any lapse in coverage or failure to secure any required insurance coverage shall be a breach of this Agreement. Subcontractors engaged by Seller shall be subject to all insurance obligations required of the Seller. It shall be Seller’s responsibility to ensure that each subcontractor is compliant with Purchaser’s minimum insurance requirements. Purchaser, in its sole discretion, may require additional insurance coverages. Seller shall name Purchaser as an additional insured. Seller agrees to submit certificates of insurance, evidencing its insurance coverage when requested by Purchaser.
A. Seller shall indemnify and hold harmless Purchaser and its affiliated companies, their directors, officers, employees, invitees, agents and customers (“Indemnitees”) from and against all liability, demands, claims, losses, costs, actions, judgments, fines, penalties, damages and expenses, including reasonable attorney’s fees (collectively, “Liabilities”) incurred by Indemnitees by reason of or on account of any breach of this Purchase Order, warranty claims, product recall claims, product liability claims, injuries to persons, including death, or damage to property caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of Seller, its employees, agents, or invitees; provided, however, that Seller’s obligation to indemnify Indemnitees shall not apply to any Liabilities solely arising from Purchaser’s negligence. Seller waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Seller’s indemnity. This indemnification obligation shall be in addition to Seller’s warranty obligations.
B. Within a reasonable time of becoming aware of any actual or potential Liabilities, Purchaser shall notify Seller. Seller, at Purchaser’s option and at Seller’s expense, will undertake defense of such actual or potential Liabilities through counsel approved by Purchaser. Provided, however, that Seller shall first obtain authorization from Purchaser before settlement is made of the actual or potential Liabilities if the terms of such settlement could materially adversely affect Purchaser, including any terms which admits the existence of a defect in Supplies or a failure of Purchaser to fully and faithfully perform its obligations. In the alternative, Purchaser may elect to undertake defense of such Liabilities to the extent it is asserted against Purchaser, and Seller shall reimburse Purchaser on a monthly basis for all expenses, attorney fees, and other costs incurred by Purchaser.
24. SELLER FINANCIAL AND OPERATIONAL CONDITION
A. Seller represents and warrants to Purchaser as of the date of each Purchase Order (which representations and warranties shall be deemed repeated as of the date of Seller’s acceptance of each Release under the Purchase Order and at the time of each delivery under the Purchase Order) that: (i) it is not insolvent and is paying all debts as they become due; (ii) it is in compliance with all loan covenants and other obligations; (iii) all financial information provided by Seller to Purchaser concerning Seller is true and accurate; (iv) such financial information fairly represents Seller’s financial condition; and (v) all financial statements of Seller have been prepared in accordance with generally accepted accounting principles, uniformly and consistently applied. Seller agrees to provide prompt written notice to Purchaser of any impending or threatened insolvency of the Seller.
B. Seller shall permit Purchaser and its representatives to review Seller’s books and records concerning compliance with each Purchase Order and Seller’s overall financial condition and agrees to provide Purchaser with full and complete access to all such books and records for such purpose upon Purchaser’s request. Seller agrees that, if Seller experiences any delivery or operational problems, Purchaser may, but is not required to, designate a representative to be present in Seller’s applicable facility to observe Seller’s operations. Seller agrees that, if Purchaser provides to Seller any accommodations (financial or other, including providing designated representatives as set forth above) that are necessary for Seller to fulfill its obligations under any Purchase Order, Seller shall reimburse Purchaser for all costs, including attorneys’ and other professionals’ fees, incurred by Purchaser in connection with such accommodation and shall grant a right of access to Purchaser to use Seller’s premises, machinery, equipment and other property necessary for the production of Supplies covered by such Purchase Order (and a lien to secure the access right) under an access and security agreement.
25. SELLER INSOLVENCY
Purchaser may immediately terminate each Purchase Order without any liability of Purchaser to Seller upon the occurrence of any of the following or any other similar or comparable event (each, a “Seller Insolvency”): (i) insolvency of Seller; (ii) Seller’s inability to promptly provide Purchaser with adequate and reasonable assurance of Seller’s financial capability to perform timely any of Seller’s obligations under any Purchase Order; (iii) filing of a voluntary petition in bankruptcy by Seller; (iv) filing of an involuntary petition in bankruptcy against Seller; (v) appointment of a receiver or trustee for Seller; or (vi) execution of an assignment for the benefit of creditors of Seller. Seller shall reimburse Purchaser for all costs incurred by Purchaser in connection with a Seller Insolvency, including but not limited to, all attorneys’ fees and other professional fees.
26. RIGHTS OF ENTRY, RECLAMATION, AND INSPECTION
Purchaser 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, Supplies, materials and any property of Purchaser covered by each Purchase Order and, without the necessity of a court Order, may enter upon Seller’s premises and remove property belonging to Purchaser or any customer of Purchaser, including, without limitation, Purchaser’s Property and other goods, inventory or Seller’s Property that has been or is agreed to be sold to Purchaser under the Purchase Order. Purchaser’s inspection of the Supplies, whether during manufacture, prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work in process or finished Supplies.
27. AUDIT RIGHTS
Purchaser and its customers shall have the right at any reasonable time to examine all relevant documents, records, materials, equipment, tooling and Supplies in the possession or under the control of Seller relating to any of Seller’s obligations under this Purchase Order or any other Purchase Order or Release. Seller agrees to reasonably cooperate in any such audit request by the Purchaser.
28. TERMINATION FOR DEFAULT
Purchaser reserves the right to terminate immediately all or any part of each Purchase Order, without any liability of Purchaser to Seller, in the event of any default by Seller. The following are causes, among others, allowing Purchaser to terminate the Purchase Order: (i) if Seller repudiates, breaches or threatens to breach any of the terms of the Purchase Order including, without limitation, Seller’s warranties; (ii) if Seller fails to perform or deliver Supplies as specified by Purchaser; (iii) if Seller fails to provide Purchaser with adequate and reasonable assurance of Seller’s ability to perform timely any of Seller’s obligations under any Purchase Order, including, without limitation, delivery of Supplies; (iv) if Purchaser terminates for breach any other Purchase Order issued by Purchaser to Seller in accordance with the terms of such Purchase Order (whether or not such other Purchase Order is related to the Purchase Order); or (v) if Seller fails to remain competitive with respect to price, quality, delivery, technology, payment terms, or customer support. In the event of a termination for default, Purchaser shall be entitled to recover from Seller, among other things, all costs incurred by Purchaser in purchasing substitute Supplies from an alternative supplier. Additionally, in the event that an act of termination by Purchaser is determined to be improper for any reason, the damages available to Seller shall be limited to the damages that Seller would have been entitled to receive if Purchaser had terminated for convenience pursuant to Paragraph 30.
29. TERMINATION FOR CHANGE OF CONTROL
In addition to its other remedies, Purchaser may, at its option, terminate this Purchase Order without any liability to Seller, except as specified in Paragraph 31, for a change of control of Seller. A change of control of Seller includes: (a) the sale, lease or exchange of a substantial portion of Seller’s assets used for the production of Supplies, or the entrance into an agreement by Seller regarding the same; (b) the sale or exchange of more than 20% of Seller’s stock or other ownership interest (or of such other amount as would result in a change of control of Seller), or the entrance into an agreement regarding the same; (c) the execution of a voting or other agreement providing a person or entity with control of Seller or control of more than 20% of Seller’s stock or other ownership interest (or of such other amount as would result in a change of control of Seller). Seller shall notify Purchaser promptly in writing in the event of the earlier of (i) the entrance into an agreement, or (ii) the occurrence of an event, described above in this paragraph. In the event of a termination pursuant to this paragraph, Purchaser shall give Seller written notice of the termination at least thirty (30) days prior to the effective termination date.
30. TERMINATION FOR CONVENIENCE
In addition to any other right of Purchaser to terminate each Purchase Order, Purchaser may, at its option, immediately terminate all or any part of the Purchase Order at any time and for any reason by giving written notice to Seller.
31. TERMINATION CLAIMS
A. Upon receipt of notice of termination pursuant to Paragraphs 28, 29, Seller, unless otherwise directed in writing by Purchaser, shall: (i) terminate immediately all work under the Purchase Order; (ii) at Purchaser’s option, transfer title and deliver to Purchaser the usable and merchantable finished Supplies, work in process, and raw materials/components that Seller produced or acquired pursuant to the Purchase Order and which Seller cannot use in producing Supplies for itself or for others; (iii) at Purchaser’s option, transfer title and deliver to Purchaser the usable and merchantable work in process and raw materials/components that Seller acquired pursuant to resale programs offered by Purchaser or Purchaser’s customers; (iv) settle all claims by subcontractors approved by Purchaser on the face of a Purchase Order or Purchase Order amendment or in a Signed Writing, if any, for reasonable actual costs that are rendered unrecoverable by such termination; (v) take actions reasonably necessary to protect property in Seller’s possession in which Purchaser has an interest; and (vi) upon Purchaser’s request, cooperate with Purchaser in effecting the resourcing of the Supplies covered by the Purchase Order to an alternative supplier designated by Purchaser.
B. Upon termination of any Purchase Order by Purchaser under Paragraphs or30, Purchaser shall pay to Seller the following amounts without duplication: (i) the Purchase Order price for all finished and completed Supplies that conform to the requirements of the Purchase Order and not previously paid for; (ii) Seller’s reasonable actual cost of the usable and merchantable work in process and raw materials/components transferred to Purchaser in accordance with subsection A hereof; and (iii) Seller’s reasonable actual cost of settling claims for the obligations Seller would have had to the subcontractors approved by Purchaser on the face of a Purchase Order or Purchase Order amendment or in a Signed Writing in the absence of termination; and (iv) Seller’s reasonable costs incurred to protect property in Seller’s possession in which Purchaser has an interest.
C. Upon termination pursuant to Paragraph 28, Seller shall not be entitled to any further payments by Purchaser.
D. Except as specifically set forth in this Paragraph 31, Purchaser shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for any other alleged losses or costs, whether denominated as loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, ancillary exit charges (including, but not limited to, costs of riggers, warehousing, premium manufacturing costs, loading of trucks or other standard business procedures related to transitioning production to an alternative supplier), or general and administrative burden charges resulting from termination of the Purchase Order or otherwise. Notwithstanding anything to the contrary, Purchaser’s obligation to Seller upon termination shall not exceed the obligation Purchaser would have had to Seller in the absence of termination.
E. Within thirty (30) days after the effective date of termination under Paragraphs 29 or 30, Seller shall furnish to Purchaser its termination claim, together with all supporting data which shall consist exclusively of the items of Purchaser’s obligation to Seller that are listed in the Purchase Order. Purchaser may audit Seller’s records before or after payment to verify amounts requested in Seller’s termination claim.
32. TRANSITION OF SUPPLY
Upon the expiration or earlier termination of any Purchase Order for whatever reason, Seller agrees to take all actions necessary in order to ensure that there is no interruption in the supply of Supplies to Purchaser. Among other things, Seller agrees to take such actions as may be reasonably required by Purchaser to accomplish the transition from Seller to an alternative seller, including without limitation the following:
A. Seller shall provide all notices necessary or desirable for Purchaser to resource the Purchase Order to an alternative seller.
B. Seller shall provide a sufficient bank of Supplies to ensure that the transition to any alternative seller chosen by Purchaser will proceed smoothly, as reasonably determined by the Purchaser. At the Purchaser’s request, the Seller shall assure proper storage for the bank of Supplies, and deliver Supplies per standard Releases from the Purchaser.
C. Seller shall provide to Purchaser all tooling and any other property furnished by or belonging to Purchaser or any of Purchaser’s customers in as good a condition as when received by Seller, reasonable wear and tear excepted. Purchaser and the alternative seller reserve the right to access and actively participate during the disconnect or disassemble process for the Purchaser’s Property.
D. Seller shall, at Purchaser’s option: (i) assign to Purchaser any or all supply contracts or purchase orders for raw material or components relating to the Purchase Order; (ii) sell to Purchaser, at Seller’s cost any or all perishable tooling and Supplies inventory relating to the Purchase Order; and/or (iii) sell to Purchaser any of Seller’s Property relating to the Purchase Order, at a price equal to the unamortized portion of the cost of such items less any amounts Purchaser previously has paid to Seller for the cost of such items. Seller shall provide documentation supporting the original cost of any unamortized items.
E. Seller shall cooperate with Purchaser and perform a reasonable and timely tooling and property exit process.
F. The term “alternative seller” expressly includes, but is not limited to, a Purchaser-owned facility.
33. NO TERMINATION RIGHT BY SELLER
Because Purchaser’s commitments to its customers are made in reliance on Seller’s commitments under each Purchase Order, Seller has no right to terminate any Purchase Order.
34. FORCE MAJEURE
A. Any delay or failure of either party to perform its obligations shall be excused if it is caused by an extraordinary and unforeseeable event beyond the control of the nonperforming party and without the nonperforming party's fault or negligence, such as acts of God, fires, floods, windstorms, natural disasters, wars and sabotage. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within two (2) days of the event. During the period of any delay or failure to perform by Seller, Purchaser, at its option, may purchase Supplies from other sources and reduce its schedules to Seller by such quantities, without liability to Purchaser, or cause Seller to provide the Supplies from other sources in quantities and at times requested by Purchaser and at the price set forth in the Purchase Order. If requested by Purchaser, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Purchaser deems appropriate. If the delay lasts more than the time period specified by Purchaser, or Seller does not provide adequate assurance that the delay will cease within such time period, Purchaser may, among its other remedies, immediately cancel this Purchase Order and all outstanding Releases issued pursuant thereto, without liability. Additionally, Seller shall reimburse Purchaser for any increase in price or costs of any nature that Purchaser incurs or is required to pay to, or in connection with, a substitute supplier in order to obtain the Supplies and to meet production requirements.
B. Notwithstanding the above, Seller acknowledges and agrees that the following will not excuse performance by Seller under theories of force majeure, commercial impracticability or otherwise and Seller expressly assumes these risks: (i) change in cost or availability of materials, components, or services, whether due to market conditions, contract disputes, tariffs or duties, government orders or other causes; (ii) labor including disputes, freight or transportation issues; (iii) failure of Seller’s systems or operations that result in any defect or failure in performance; or (iv) any other aspect of, or impact on, performance by Seller or its subcontractors.
35. REMEDIES FOR BREACH BY SELLER
A. The rights and remedies reserved to Purchaser in each Purchase Order shall be cumulative with, and additional to, all other or further remedies provided in law or equity. Without limiting the generality of the foregoing, should any Supplies fail to conform to the warranties set forth herein, Purchaser shall reimburse Purchaser for any special, incidental and consequential damages caused by nonconforming Supplies, including, but not limited to, costs, expenses and losses incurred by Purchaser: (i) in inspecting, sorting, testing, repairing or replacing such nonconforming Supplies; (ii) resulting from production interruptions; (iii) in conducting Remedial Actions; and (iv) in connection with claims for personal injury (including death) or property damage caused by such nonconforming Supplies.
B. Seller acknowledges and agrees that money damages would not be a sufficient remedy for any actual, anticipatory or threatened breach of any Purchase Order by Seller with respect to its delivery of Supplies to Purchaser and that, in addition to all other rights and remedies which Purchaser may have, Purchaser shall be entitled to specific performance and temporary, preliminary and permanent injunctive or other equitable relief as a remedy for any such breach, without proof of actual damages and without bond or other security being required.
C. Seller also acknowledges and agrees that shutting down a customer’s plant creates issues for which money damages are not a sufficient remedy. While the cost of a plant shutdown may easily generate substantial costs, the damages to Purchaser’s relationship with Purchaser’s customer through potential loss of business, and other damages which are equally difficult to calculate, are far worse.
D. Notwithstanding anything to the contrary contained in any Purchase Order, Purchaser does not release any claim against Seller that is based in whole or in part on any fraud or duress in connection with the Purchase Order or any breach or anticipatory breach of the Purchase Order or any other Purchase Order between Purchaser and Seller (even if that Purchase Order relates to other products).
36. NO WAIVER
A waiver by Purchaser of any right or remedy shall not affect any rights or remedies subsequently arising under the same or similar clauses. The failure of the Purchaser 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.
37. RELATIONSHIP OF PARTIES
Seller and Purchaser are independent contracting parties and nothing in this Purchase Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other party.
This Purchase Order is issued to the Seller in reliance upon Seller’s personal performance of the duties imposed. Seller agrees not to, in whole or in part, assign this Purchase Order or delegate the performance of its duties without the written consent of Purchaser. Any such assignment or delegation without the previous written consent of Purchaser, at the option of Purchaser, shall effect a cancellation of this Purchase Order. Any consent by Purchaser to an assignment shall not be deemed to waive Purchaser’s right to recoupment from Seller and/or its assigns for any claim arising out of this Purchase Order. Assignment shall not relieve Seller from its obligations of confidentiality under these Terms and Conditions. Purchaser shall have the right to assign any benefit or obligation under this Purchase Order to any third party upon notice to Seller.
39. LIMITATIONS ON PURCHASER’S LIABILITY
In no event shall Purchaser be liable to Seller for anticipated profits or for special, incidental or consequential damages. Without limiting the foregoing, the parties further agree that:
A. With respect to a claim arising out of or in connection with the termination of this agreement or any Purchase Order, Seller’s damages, if any, shall be limited to the damages set forth in the Termination Claims paragraph of these Terms and Conditions;
B. With respect to all other claims, Seller’s damages shall be limited to the lesser of: (i) the value of products purchased by Purchaser from Seller in the three (3) months immediately preceding the alleged breach; or (ii) $50,000; and
C. Seller agrees that, in addition to any other restrictions under law, any action by Seller against Purchaser must be commenced within one year after the breach or other event giving rise to Seller’s claim occurs, regardless of Seller’s lack of knowledge of the breach or other event giving rise to such claim.
To the extent that this is a Purchase Order which includes services or consulting services, Seller hereby assigns to Purchaser all rights, title and interest in and to any and all ideas, inventions, improvements, materials, copyrightable material, drawings, documents or the like, conceived or made by Seller as a result of or relating to work done or services performed for Purchaser pursuant to this Purchase Order. Such assignment includes all proprietary rights appurtenant thereto, and Seller will execute any documents necessary to confirm such assignment.
If any term(s) of the Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Purchase Order shall remain in full force and effect.
All notices, claims and other communications to Purchaser required or permitted under the Purchase Order shall be made in writing and sent by a nationally recognized overnight delivery service or by certified or registered mail, return receipt requested and proper postage prepaid to the specific buyer identified on the Purchase Order. Seller’s failure to provide any notice, claim or other communication to Purchaser in the manner and within the time periods specified in the Purchase Order shall constitute a waiver by Seller of any and all rights and remedies that otherwise would have been available to Seller upon making such notice, claim or other communication.
43. ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURES
Seller shall comply with any method of electronic communication specified by Purchaser, including requirements for electronic funds transfer, Purchase Order transmission, production Releases, electronic signature, and communication.
44. DATA SECURITY
For purposes of this Section, “Purchaser Data” means all data, content, material, confidential information and other information provided by Purchaser to Seller or otherwise transmitted to Seller for use in connection with this Purchase Order. Seller will maintain and enforce information and data privacy and security procedures with respect to its access, use and storage of all Purchaser Data that: (a) are at least equal to industry standards taking into consideration the sensitivity of the relevant Purchaser Data, and the nature and scope of the Supplies to be provided; (b) are in accordance with Purchaser’s reasonable security requirements; (c) comply with all applicable international, foreign, federal, state and local laws, statutes, rules, orders and regulations; and (d) provide reasonably appropriate administrative, technical, and physical safeguards to protect against accidental or unlawful destruction, loss, alteration or unauthorized disclosure, access or use of Purchaser Data. Without limiting the generality of the foregoing, Seller will take all reasonable measures to secure and defend its location and equipment against anyone who may seek, without authorization, to modify or access Seller systems or the information found therein without consent.
The construction, interpretation and performance of this Purchase Order and all transactions thereunder shall be governed by the laws of the state or province in which Purchaser’s offices are located from which Purchaser issued the Purchase Order, without regard to principles of conflicts of law. The United Nations Convention on the International Sale of Goods is expressly excluded. Seller consents to the exclusive jurisdiction of the appropriate federal, state or provincial court in the state in which Purchaser’s offices are located from which Purchaser issued the Purchase Order , for any legal or equitable action or proceeding arising out of, or in connection with, each Purchase Order. Seller specifically waives any and all objections to venue in such courts.