(10)(13) Purchase Order, Non-Disclosure and Confidentiality Agreement
PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE. This Purchase Order is Buyer's offer to Seller limited to
the terms and conditions hereof and does not constitute an acceptance
by Buyer of any offer to sell or quotation. Any reference to such offer
to sell or quotation is solely for the purpose of incorporating the
description and specifications of the goods and services contained
therein to the extent that such description and specifications do not
conflict with the description and specifications in the face of this
Purchase Order.
This Purchase Order must be accepted in writing by Seller. If for any
reason Seller should fail to accept in writing, any conduct by Seller
which recognizes the existence of a contract pertaining to the subject
matter hereof shall constitute acceptance by Seller of this Purchase
Order and all of its terms and conditions. Any terms or conditions
proposed in Seller's acceptance of this offer which add to, vary from
or conflict with any of the terms or conditions hereof are hereby
objected to and rejected. The parties hereto agree that this Purchase
Order constitutes a fully integrated contract for the sale of goods
between Buyer and Seller.
2. PRICE. Seller may not supply against this Purchase Order goods or
services priced higher than the prices reflected on the face of this
Purchase Order without written authorization from Buyer. The Seller
shall supply defined product according to the terms and conditions of
the purchase order at the price established for the period outlined on
the purchase order. Seller shall pass on or credit Buyer any price
decrease applicable at actual time of shipment
3. TOOLING. Unless otherwise herein agreed, Seller shall, at its own cost
and expense, keep in good condition, repair and replace when necessary
all dies, tools, gauges, fixtures, molds and patterns as necessary in
the production of the goods ordered, including those owned and made
available to Seller by Buyer.
4. SHIPPING RELEASES. Unless specific delivery dates are provided on the
face of this Purchase Order, all of Buyer's quantity requirements will
be issued in the form of a release. Seller shall produce and ship all
goods in strict accordance with Buyer's releases. Seller agrees that it
shall not produce or ship any of the goods covered by this Purchase
Order or procure any of the materials required in the production of
such goods, or provide any services covered by this Purchase Order,
except to the extent authorized in written instructions set forth in
releases Buyer furnishes to Seller or written on the face of this form.
Buyer shall have no responsibility whatsoever for goods Seller produces
and/or ships in the absence of a release.
5. DELIVERY, MARKING, PACKAGING, SHIPPING. Unless otherwise specified on
this Purchase Order, Seller shall deliver all goods free on board
(F.O.B.) point of destination. In the absence of Buyer instructions,
goods will be routed to provide the most economical transportation
rates. Shipment by air freight or any other form of premium shipment
must be authorized by Buyer prior to shipment if premium cost is for
Buyer's account. Seller must ship and/or effect delivery the goods in
the time stated in this Purchase Order and/or Buyer's release, as
applicable. Seller further acknowledges and agrees that in the event
the goods identified on the face of this form require assembly by the
Buyer, Seller has an affirmative obligation to provide such goods to
Buyer in balance to enable Buyer to assemble fully integrated units
ready for sale and shipment to Buyer's customers. Any goods shipped by
the Seller requiring assembly which Seller ships out of balance, i.e.,
either excess or deficient shall be deemed to be non conforming goods.
In the event goods are delivered prior to the Buyer's scheduled date of
delivery, Buyer may at Buyer's option (1) refuse delivery with no
liability or obligation, (2) return the goods, (3) accept delivery but
postpone payment until date payment would have been due and delivery
been made on date specified. Buyer may reject any goods in excess of
those authorized by this Purchase Order and/or release and return such
goods to Seller at Seller's cost, expense and risk of loss. A minimum
of one package in each shipment shall contain a "packing slip" provided
by Seller, and Seller shall cause to appear thereon Buyer's part
number, the Purchase Order number, the number of packages in the
shipment and the date of shipment.
6. PERFORMANCE. Seller agrees to supply in accordance with the delivery
dates outlined on the purchase order, with delivery due at the
destination point on or before the date of requirement set forth on the
purchase order and or release, as applicable.
The Seller is responsible to pay for expediting freight cost,
special handling, and packaging required to meet delivery dates. If the
due dates are not met, the Seller will expedite the shipment and pay
all special freight charges. The Seller agrees to discount at a rate of
2% of the undelivered value of the released product for each week the
shipment is past the delivery due date. In addition the Seller shall be
responsible for all cost incurred by Buyer if the shipments are not
delivered as stated within the purchase order or release. The Seller
agrees to have all charges deducted from the payment associated with
the order at time of payment disbursement.
1. CHANGES. Buyer reserves the right at any time to direct changes, or cause
Seller to make changes, to drawings and specifications of the goods or to
otherwise change the scope of the work covered by this Purchase Order, and
Seller shall promptly make such changes. Any adjustment in price or time for
performance resulting from such changes shall be equitably adjusted by Buyer
after receipt of documentation in such forms and detail as Buyer may direct. Any
changes to this Purchase Order shall be made in accordance with Paragraph 21
hereof.
7. WARRANTY & INSPECTION.
(a) Seller warrants that the goods covered by this Purchase Order shall be
free from defects in material, design, workmanship and title, shall be
fit and sufficient for the purpose intended, shall be merchantable and
shall conform to the specifications, drawings, samples or other
descriptions furnished or specified by Buyer.
(b) All goods or parts thereof shall be subject to inspection by Buyer for
a reasonable period after receipt thereof by Buyer. No payment prior to
rejection shall be deemed to be an acceptance. Buyer's right to reject
may be based on inspection by reasonable sampling. When Seller is
supplying or furnishing goods in accordance with Buyer's
specifications, Buyer may inspect such goods at reasonable times during
any state of manufacturing, and Buyer may also inspect Seller's
manufacturing facilities at any reasonable time.
(c) If, prior to the expiration of thirty-six (36) months from the date of
Buyer's sale of any goods delivered pursuant to this Purchase Order,
such goods do not meet or satisfy any one or more of the warranties
contained in subparagraph (a) of this Paragraph 7, Buyer, at its
option, (1) may require Seller to make at the location of such goods
any corrections in the such goods that are necessary to conform such
goods to the requirements of the warranties, or (2) may require Seller
to make available, in accordance with Buyer's instructions, a repaired
or replacement part, product or goods, at Buyer's plant or branch or
its dealer's or other customer's place of business, or (3) may revoke
its acceptance of such goods and return them to Seller at Seller's
risk, or (4) exercise any other remedy provided by law or equity, and
Seller shall pay, compensate or reimburse Buyer for all inspection,
packing, handling, sorting, storage, transportation and other
incidental costs or expenses incurred in connection with the revocation
and return of such goods.
If Buyer notifies Seller to perform in accordance with either of
Buyer's first two options, and Seller fails to commence performance
within forty-eight (48) hours after the receipt of such notice or to
continue to perform thereafter in good faith, Buyer may at Seller's
cost and expense either correct any defect or deficiency or have such
defect or deficiency corrected or may exercise any other remedy
provided by law or equity.
If Buyer exercises its option to require Seller to furnish repaired or
replacement parts, product or goods at Buyer's plant or branch or its
dealer's or other customer's place of business. Seller shall be liable
for any costs and expenses incurred by or on behalf of Buyer in
connection with the installation of such repaired or replacement part,
product or goods.
If Buyer exercises its option to revoke and return any defective or
non-conforming goods, any amount theretofore paid by Buyer for such
goods shall be promptly repaid to Buyer by Seller, and Buyer shall be
credited with any unpaid amount charged to Buyer for such goods.
(d) Seller shall bear the risk of loss of injury due to defective goods at
all times, and Seller shall be liable to Buyer for any incidental or
consequential damages caused by or necessitated by such defective
products.
(e) The supplier agrees to carry product liability insurance and name Buyer
as additional insured for all products supplied to Buyer.
(f) The supplier will reimburse the purchaser for manufacture defects, part
damage, and against claims from it"s customers at cost plus 45%, labor
and freight for a period not less than three years from date of sale
for all warranty claims submitted.
(g) If, at any time, Seller does not deliver to Buyer goods, which were to
be delivered pursuant to this Purchase Order or release, as applicable,
Seller, unless such goods may be used by the general trade and are not
specifically manufactured in accordance with Buyer's design or
specifications or under Buyer's trademark or patent shall destroy such
goods, and such goods shall not be sold or offered for sale to anyone
except for purposes of scrap.
8. PART IDENTIFICATION. All goods which are manufactured to Buyer's design
and specifications shall bear Buyer's part number.
9. XXXX OF LADING, INVOICES. Each xxxx of lading and invoice shall bear
the applicable Purchase Order number and the name and destination to
which the goods were shipped. No such invoice shall be dated prior to
the applicable specified shipping date.
10. BUYER'S PROPERTY. All tools, equipment, dies, gauges, models, drawings
or other materials furnished by Buyer to Seller or produced or supplied
by Seller for the purpose of this Purchase Order or paid for by Buyer
and all replacements thereof and materials fixed or attached thereto
shall be and remain the property of Buyer. All Buyer's property and,
whenever applicable, each individual item thereof, shall be plainly
marked and otherwise adequately identified by Seller as "Property of
Marketing Worldwide, LLC.", shall, at Seller' cost and expense, be
safely stored (separate and apart from Seller's property wherever
applicable) and shall be kept free of all liens, claims, encumbrances
and interests of any third party. Seller shall not substitute any
property for any of Buyer's property, shall not deliver or make
available to any third party any of Buyer's property or any property or
goods developed, manufactured or created with the aid of any of Buyer's
property and shall not use any of Buyer's property or any property or
goods manufactured, developed or created with the aid of Buyer's
property, except in filing the orders of Buyer. All Buyer's property,
while in Seller's custody or control, shall beheld at Seller's risk and
shall be kept insured by Seller at Seller's costs and expenses in an
amount equal to the replacement cost, with loss payable to Buyer. Upon
completion by Seller of this Purchase Order, or upon the written
request of Buyer at any time, Seller shall prepare all Buyer's property
for shipment and deliver such property to Buyer in the same condition
as originally produced or received by Seller, reasonable wear and tear
excepted. Any of Buyer's property or any property or goods
manufactured, developed or created with the aid of any of Buyer's
property which, for any reason, is not to be delivered to or accepted
by Buyer shall be destroyed by Seller unless otherwise directed by
Buyer in writing. Buyer shall have the right, at all reasonable times,
upon prior request, to enter Seller's premises to inspect any and all
Buyer's property and any property or goods manufactured, developed or
created with the aid of any of Buyer's property or to receive any of
Buyer's property.
11. INTELLECTUAL PROPERTY INDEMNITY. Seller guarantees that the sale and/or
use of any goods supplied by Seller pursuant to this Purchase Order,
except those goods which are manufactured or produced in accordance
with the specifications and designs of Buyer, shall not infringe or
violate any United States or foreign trade secret, patent, trademark,
service xxxx, or copyright, and Seller shall indemnify and save
harmless Buyer and its successors, assigns, customers and the users of
such goods against any loss, damage, claim, liability, judgment,
indemnification, decree, attorney's fees, cost or expense resulting
directly or indirectly from any such actual or alleged infringement or
violation. Seller shall at Buyer's request and at Seller's cost and
expense defend any suit, action or claim that may be brought against
Buyer or any of its successors, assigns, customers or the users of its
goods in connection with any alleged or actual infringement or
violation of any such trade secret, patent, trademark, service xxxx or
copyright.
12. TERMINATION.
(a) At its option, Buyer may, upon 90 days prior written notice, terminate
all or part of the work under this Purchase Order. In such case Buyer
shall have no liability or obligation with respect to goods or
components thereof procured or work done, or goods partially fabricated
in excess of the quantity authorized in (i) the most recent release
relating to the goods ordered, if any, or (ii) this Purchase Order,
whichever is fewer. In no event shall Buyer be liable for prospective
or anticipated profits or other cancellation charges by reason of such
termination.
(b) Buyer requires strict performance of each and every term and condition
of this Purchaser Order and if goods or services are rejected by Buyer
as nonconforming, Seller shall have no right to remedy such default.
Buyer may by written notice to Seller, cancel or default this Purchaser
Order in whole or from time to time in part (1) if Seller fails to
deliver goods or to perform the services within the time specified in
this Purchaser Order, (2) if the Seller fails to deliver goods which
conform to the contractual requirements or to perform any of the terms
or conditions of this Purchase Order, or so fails to make progress as
to endanger performance of this Purchase Order in accordance with its
terms or conditions, or (3) if Seller becomes insolvent or commits an
act of bankruptcy or if reorganization proceedings are commended by or
against the Seller. The parties acknowledge and agree the occurrence of
any of the above events of default, constitutes a substantial breach of
this Purchase Order entitling Buyer to immediately suspend any further
performance hereunder.
(c) If this Purchase Order is cancelled for default, Buyer shall have any
and all rights and remedies which the law provides for failure of
Seller to fulfill all commitments, including, without limitation, the
right to charge Seller with the costs and expenses incurred by Buyer in
procuring from other sources goods or services which Seller fails to
furnish Buyer in accordance with this Purchase Order to the extent that
such costs and expenses shall exceed the purchase price set forth
herein, and Buyer may set off any such charge against any amount which
may become payable to Seller.
13. BUYER'S PREMISES. Seller shall indemnify and protect Buyer against all
liabilities, claims, suits, losses, costs and expenses for injuries or
damage to any person or property growing out of the performance of this
Purchase Order by Seller or any of its servants, employees, agents or
representatives. Prior to commencement of any services, work or other
performance on Buyer's premises under this Purchase Order, its
insurance carrier or agent shall furnish to Buyer directly a
certificate indicating the limits of liability for which Seller had
adequate Workers' Compensation, Public Liability, and Property Damage
insurance coverage. Such certificate must set forth the amount of
coverage, number of policy and date of expiration. Such certificate
shall also provide that Seller's insurance agent or carrier shall
notify Buyer directly at least ten (10) days prior to any cancellation
or reduction of the limits of liability shown on such certificate.
Unless otherwise specified on the face of this form, Seller
acknowledges that it has insurance to protect against liability in at
least the following amounts: COMPREHENSIVE GENERAL LIABILITY: Per
Person $500,000; Per Occurrence $3,000,000; Property Damage $500,000.
COMPREHENSIVE AUTOMOBILE LIABILITY: Per Person $500,000.00; Per
Occurrence $1,000,000; Property Damage $500.000.
14. COMPLIANCE WITH LAWS. Seller warrants that all work contemplated
hereunder shall be performed in strict conformity with all applicable
Federal, State and Local laws and all lawful regulations of any public
authority.
15. PROPRIETARY INFORMATION. If Buyer furnishes or supplies Seller with any
designs, drawings, specifications, blueprints or other material,
("Proprietary Material"). Seller shall not disclose or use such
Proprietary Material for the benefit of Seller or any third party
without the Buyer's written consent. Seller shall return all such
Proprietary Material including without limitation, any copies thereof
to Buyer at the request of Buyer. Seller agrees that during the term of
this Agreement and for a two (2) year period following the termination
of this Agreement, it will not, for any reason whatsoever, directly or
indirectly (whether as a manufacturer, agent, representative,
consultant, independent contractor or in any capacity of another
company or otherwise) (i) contact, solicit or attempt to solicit, any
client, customer, agent, representative or employee of Buyer, (ii)
perform the same or similar services performed by Buyer for any of
Buyer's current customers or former customers for whom Buyer has
performed such services, or (iii) otherwise interfere with or attempt
in any manner to disrupt any relationship or agreement between the
Buyer and any of its clients, customers, employees, agents,
representatives or others doing business with the Buyer; (iv) Seller
agrees that it shall keep such Proprietary Material confidential and
that it shall not, either during the term of this Agreement or anytime
thereafter, disclose any Proprietary Material of Buyer; provided,
however, that Seller is permitted to divulge such Proprietary Material
relating to the design and manufacture of the Product to its Engineers
and subcontractors in order to manufacture and produce the Product for
distribution to Buyer. The parties hereto understand and agree that a
breach of this paragraph 15 may not reasonably and equitably be
compensated by money damages. Therefore, the parties hereto agree that
in the case of any said breach, the Aggrieved Party(ies) shall be
entitled to injunctive and other extraordinary relief which relief
shall be cumulative in addition to any remedies to which the aggrieved
party may be entitled to at law or equity. In the event that any
portion of this paragraph 15 is deemed to be unenforceable or invalid
for any reason whatsoever, the parties expressly agree and stipulate
that the provisions of this paragraph 15 shall be enforceable to the
extent permitted by law.
16. BLANKET PURCHASE ORDER. In the event that the Buyer has designated that
this is a BLANKET PURCHASE ORDER on the face of this form, Seller
expressly acknowledges and agrees that Buyer is relying upon Seller to
furnish Buyer with all of Buyer's requirements for the goods identified
on the face of this Purchase Order for the life of the part. Seller
further acknowledges and agrees that Seller is the Buyer's exclusive
source of these goods and therefore, the parties hereto expressly
contemplate that the Seller's failure to deliver in accordance with
Buyer's releases or the Seller's stopping shipments of product will
likely cause Buyer substantial damages including without limitation,
consequential damages in the form of the loss of customers and
goodwill, lost profits, lost sales as well as damages associated with
Buyer's need to rebuild its customer base. Thus, because it may take
the Buyer years to recoup its losses due to an interruption or stoppage
of the shipment of product, in the event that the Seller cuts off the
Buyer's source of supply of the goods to be shipped pursuant to an
exclusive requirements Blanket Purchase Order, the Buyer shall not be
limited to a damage period limited to the time it takes Buyer to find
an alternate source of supply.
16. SETOFF. Buyer shall be entitled at all times to set off any amount,
whether arising under this Purchase Order or otherwise, which Buyer
owes to Seller or to any of Seller's subsidiaries or affiliates against
any amount payable by Buyer in connection with this Purchase Order.
17. DUTY DRAWBACK RIGHTS. This Purchase Order includes all related customs
duty and import drawback rights, if any, (including, without
limitation, rights developed by substitution and rights which may be
acquired from Seller's Sellers) which Seller can transfer to Buyer.
Seller shall inform Buyer of the availability of any such rights and
upon Buyer's request supply such documents as may be required to obtain
drawback.
18. ASSIGNMENT. This Purchaser Order or the monies due hereunder shall not
be assigned in whole or in part without the prior written consent of
Buyer. Buyer shall be entitled to assert against the assignee all
rights, claims and defenses of every type which buyer could assert
against Seller (whether acquired prior or subsequent to such
assignment). In no case shall Seller be deemed an agent of Buyer.
19. CLAUSES SEPARABLE. The invalidity or unenforceability of any of the
clauses or terms or conditions of this Purchaser Order shall not affect
the validity or enforceability of any other clauses, terms or
conditions hereof.
20. REMEDIES. The rights and remedies reserved to Buyer shall be cumulative
and additional to all other remedies provided by law or equity. Buyer
shall be entitled to recover costs and attorney fees in the enforcement
or defense of any rights hereunder.
21. INTEGRATION AND MODIFICATION. This Agreement constitutes the entire
Agreement between the Parties with respect to the subject matter hereof
and supersedes any and all prior or contemporaneous agreements,
negotiations and discussions, either oral or written ("Parol
Agreements"). All such Parol Agreements are merged into this Purchase
Order. THIS PURCHASE ORDER MAY NOT BE WAIVED, CHANGED, MODIFIED,
EXTENDED OR DISCHARGED ORALLY BUT ONLY BY AGREEMENT IN WRITING AND
SIGNED BY A PURCHASING OFFICER OF BUYER NO OTHER EMPLOYEE OF BUYER IS
EMPOWERED TO AUTHORIZE ANY OF SUCH ACTIONS.
22. NO IMPLIED WAIVER. The failure of Buyer to require performance by
Seller of any term or condition of this Purchase Order shall in no way
affect the right to require such performance at any time thereafter,
nor shall the waiver by Buyer of any term or condition of this Purchase
Order constitute a waiver of any succeeding breach of the same or any
other term or conditions.
23. GOVERNING LAW. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the
State of Michigan.
