TROY ENGINEERED COMPONENTS and ASSEMBLIES
GENERAL TERMS AND CONDITIONS
Seller acknowledges and agrees that these General Terms and Conditions are incorporated in, and a part of, this contract and each purchase order, release, requisition, work order, shipping instruction, specification and other documents, whether expressed in written form or by electronic data interchange, relating to the goods and/or services to be provided by Seller pursuant to this contract (such documents are collectively referred to as this “Contract”). Seller acknowledges and agrees that is has read and understands these General Terms and Conditions. If Seller accepts this contract in writing or commences any of the work or services which are the subject of this Contract, Seller will be deemed to have accepted this Contract and these General Terms and Conditions in their entirety without modification, Any additions, changes in, modifications of, or revisions of this Contract (including these General Terms and Conditions) which Seller proposes will be deemed to be rejected by Buyer except to the extent that Buyer expressly agrees to accept any such proposals in writing.
2. SHIPPING AND BILLING
2.1 Shipping. Seller will (a) properly pack (to prevent damage during transit), mark, and ship goods as instructed by Buyer or any carriers and in accordance with any applicable laws or regulations, (b) route shipments as Buyer instructs, (c) not charge for costs relating to handling, packaging, storage or transportation (including duties, taxes, fees, etc.) unless otherwise expressly stated in this Contract, (d) provide packing slips with each shipment that identify Buyer's contract and/or release number and the date of the shipment, and (e) promptly forward the original bill of lading or other shipping receipt with respect to each shipments as Buyer instructs. Seller will include on bills of lading or other shipping receipts the correct classification identification of the goods shipped, as Buyer or the carrier requires. The marks on each package and identification of the goods on packing slips, bills of lading and invoices must enable Buyer to easily identify the goods.
2.2 Billing. Seller will (a) accept payment based upon Buyer's Evaluated Receipt Record, which will be matched to the Seller's invoice and (b) accept payment by electronic funds or check. If the due date is not otherwise specified in this Contract, the payment due date will be thirty (30) days from the receipt date of Seller's invoice or 30 days from the receipt of the shipment, in the event that the shipment arrives after the invoice. Buyer may withhold payment for and goods or services until Buyer receives evidence, in such form and detail as Buyer requires, of the absence of any liens, encumbrances and claims on such goods or services.
2.3 Delivery Schedules. Deliveries will be made in the quantities, on the dates, and at the times specified by Buyer in this Contract or any subsequent releases or instruction Buyer issues under this Contract. Time is of the essence with respect to all delivery schedules Buyer establishes. Buyer will not be required to pay for any goods that exceed the quantities specified in the Buyer's delivery schedules or to accept goods that are delivered in advance of the delivery date specified in Buyer's delivery schedules. Seller bears the risk of loss of all goods delivered in advance of the delivery date specified in Buyer's delivery schedules. If Buyer determines that the requirements of Buyer's customers or market, economic or other conditions require changes in delivery schedules, Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments without entitling Seller to a price adjustment or other modification of this contract. Due Dates on Buyer's Purchase Orders are dates products are expected to be delivered to Buyer. It is the responsibility of Seller to ship in a timely manner, taking in consideration of transit time to meet Buyer's delivery request. Due to the uncertainty of Buyer's business, although Buyer will endeavor to submit advanced release dates for products and services to Seller, Buyer reserves the right to move out release dates based on Buyer's production requirements. Buyer has the right to refuse and/or return goods (at Seller's expense), shipped in of advance of Buyer's delivery and/or release date.
2.4 Premium Shipments. If seller fails to have goods ready for shipment in time to meet Buyer's delivery schedules using the method of transportation originally specified by Buyer and, as a result, Buyer requires Seller to ship the goods via a premium (more expeditious) method of transportation, Seller will ship the goods as expeditiously as possible. Seller will pay, and be responsible for the entire cost of such premium shipment, unless Buyer's action caused Seller to fail in meeting the Buyer's delivery schedules, in which the Buyer will pay any costs for premium shipment.
3. SPECIFICATION, DESIGN AND SCOPE CHANGES
Buyer may at any time require Supplier to implement changes to the specifications or design of the goods or to the scope of any service or work covered by this Contract, including work related to inspection, testing or quality control. While Buyer will endeavor to discuss any such changes with Seller as early as practical, Seller will promptly implement such changes. Buyer will equitably determine any adjustments in price or delivery schedules resulting from such changes, including Buyer's payment of reasonable costs of modifications to Seller's Equipment and Facilities (as defined in article 16) necessary to implement such changes. In Order to assist in the determination of any equitable adjustment in price or delivery schedules, Seller will, as requested, provide information, including documentation of changes in Seller's cost of production and the time to implement such changes, In the event of any disagreement arising out of such changes, Buyer and Seller will work to resolve the disagreement in good faith, provided, however, that Seller will continue performing under the contract, including prompt implementation of change required by Buyer, while Buyer and Seller resolve any disagreement arising out of such changes.
4. QUALITY AND INSPECTION
Seller will participate in Buyer's supplier quality and development program(s) and comply with all quality requirements and procedures Buyer specifies from time to time. Seller will permit Buyer and its representative and consultants to (i) inspect Seller's books and records in order to monitor Supplier's compliance with this Contract and Seller's financial condition and (ii) enter Seller's facilities at reasonable times to inspect such facilities and any goods, material and property that relate to this Contract. No such inspection by Buyer will constitute acceptance by Buyer of any work-in-process or finished goods.
5. NON-CONFORMING GOODS
Buyer is not required, but may choose to perform incoming inspections of any goods, and Seller waives any right to require Buyer to conduct any such inspections. Seller will not substitute any goods for the goods covered by this Contract unless Buyer consents in writing. If Buyer rejects any goods as non-conforming, Buyer may, at its option, (a) reduce the quantities of goods ordered under this Contract by the quantity of non-conforming goods, (b) require Seller to replace non-conforming goods, and/or exercise any other applicable rights or remedies. If Seller fails to inform Buyer in writing of the manner in which Seller desires that Buyer dispose of non-conforming goods within forty-eight (48) hours of notice of Buyer's rejection of non-conforming goods (or such period as is reasonable under the circumstances), Buyer will be entitled to dispose of the non-conforming goods without liability to Seller, provided, however, that in any event Buyer may elect to arrange for the shipment of any non-conforming goods back to the Seller at Seller's expense. Seller will bear all risk of loss with respect to all non-conforming goods and will promptly pay or reimburse all costs incurred by the Buyer to return, sort, stock or dispose any non-conforming goods. Buyer's payment for any non-conforming goods will not constitute acceptance by Buyer, limit or impair Buyer's right to exercise any rights or remedies, or relieve Seller of responsibility for the non-conforming goods.
6. FORCE MAJEUR
If Seller is unable to produce, sell or deliver any goods or services covered by this Contract, or Buyer is unable to accept delivery, buy or use any goods or services covered by this contract, as a result of event or occurrence beyond the reasonable control of the affected party and without such party's fault or negligence, then any delay or failure to perform under this Contract that results from such event or occurrence will be excused for so long as such event or occurrence continues, provided, however, that the affected party gives written notice of such delay (including the anticipated duration of the delay) to the other party as soon as possible after the event or occurrence (but in no event more than three (3) days thereafter). Such events and occurrences may include, by way of example and not limitation, natural disasters, fires, floods, windstorms, severe weather, explosions, riots, war, sabotage, labor problems (including lockouts, strikes and slowdowns), equipment breakdowns and power failures. During any delay or failure to perform by Seller, Buyer may (i) purchase substitute goods from other available sources, in which case the quantities under this Contract will be reduced by the quantities of such substitute goods and Seller will reimburse Buyer for any additional costs to Buyer for obtaining the substitute goods compared to the prices se forth in this Contract and/or (ii) have Seller provide substitute goods from other available sources in quantities and at times Buyer requests and at the prices set forth in this Contract. If Seller fails to provide adequate assurances that any delay will not exceed thirty (30) days of if any delay lasts more than the thirty (30) days, Buyer may terminate this Contract without liability. Before any of Seller's labor contracts expire and as soon as Seller anticipates or learns of any impending strike, labor dispute, work stoppage or other disruption at Seller's facilities that might affect the delivery of goods to Buyer, Seller will produce (and locate in an area that will not be affected by any such disruption) a finished inventory of goods in quantities sufficient to ensure the supply of goods to Buyer for at least thirty (30) days after such interruption.
7.1 General. Seller warrants and guarantees to Buyer, its successors, assigns and customers that the goods and services covered by this Contract will (a) conform to all applicable specifications, drawings, samples, descriptions, brochures and manuals furnished by Seller to Buyer, (b) will be merchantable, (c) of good material and workmanship, (d) free from defect, and (e) are fit and sufficient for the particular purposes intended by Buyer and any customer of Buyer. If requested by Buyer, Seller will enter into a separate agreement for the administration of processing of warranty charge backs for non-conforming goods.
7.2 Date and Time Processing . Seller warrants and guarantees to Buyer and its customers that any products (including computer hardware, software, firmware, machinery and equipment) covered by this Contract must at all times accurately process, handle. Calculate, compare and sequence date and time data from, into and within time periods, including leap year calculations.
7.3 Warranty Period. The period for each of the foregoing warranties will be that provided by applicable law, except that if Buyer ever provides a longer warranty to its customers, such longer warranty period will apply to the goods covered by this contract.
8. INGREDIENT AND HAZARDOUS MATERIALS
If Buyer requests, Seller will promptly furnish to Buyer, in such form and details as Buyer directs, (a) a list of all ingredients in the goods, (b) the amount of all ingredients, and (c) information concerning any changes in or additions to those ingredients. Prior to, and together with the shipment of the goods, Seller will furnish to Buyer and all carriers sufficient written warning and notice (including appropriate labels on the goods, containers and packaging) of any hazardous material that is an ingredient or a part of any of the goods, together with all handling instructions, safety measures and precautions ass may ne necessary to comply with applicable law, to inform Buyer and all carriers of any applicable legal requirements and to best allow Buyer and all carriers to prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the goods, containers and/or packaging.
9. INSOLVENCY OF SELLER
Buyer may immediately terminate this Contract without liability to Seller if any of the following or similar events: (a) insolvency or financial difficulties of Seller, (b) filing of a voluntary petition in bankruptcy by Seller, (c) filing of any involuntary petition in bankruptcy against Seller, (d) appointment of a receiver or trustee for Seller, (e) execution of an assignment for the benefit of creditors by Seller, of (f) any accommodation by Buyer, financial or otherwise not contemplated by this Contract, that are necessary for Seller to meet its obligations under this Contract. Seller will reimburse Buyer for all costs Buyer incurs in connection with any of the foregoing or not this Contract is terminated, including, but not limited to, all attorney or other professional fees.
10. TERMINATION OF COVENIENCE
In addition to ay other rights of Buyer to terminate this Contract, Buyer may immediately terminate all or any part of this Contract, at any time and for any reason, by notifying Seller in writing. Upon such termination, Buyer may, at its option, purchase from Seller any or all raw materials, work-in-process and finished goods inventory related to the goods under this Contract, which are useable, and in merchantable condition. The purchase price for such finished goods, raw materials and work-in-process, and Seller's sole and exclusive recovery from Buyer (without regard to the legal theory which is the basis for any claim by Seller) on account of such termination, will be (a) the contract price for all goods or services that have been completed in accordance with this Contract as of termination date and delivered and accepted by Buyer and not previously paid for, plus (b) the actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods or services under this Contract to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this Contract less (c) the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer's written consent. In no event will Buyer be requested to pay for finished goods, work-in-process or raw materials which Seller fabricates or procures in amounts that exceed those Buyer authorizes in this Contract. Within sixty (6) days after the effective date of termination, Seller will submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit an audit by Buyer, and will thereafter promptly furnish any supplemental and supporting information requested by Buyer.
11. TECHNICAL INFORMATION
11.1 Exchange of Information. Buyer and Seller will cooperate to create, maintain, update and share technical information about the goods, products, machinery, materials, formulations and their manufacture, use, application and control in compliance with Buyer's drafting and math data standards. Such technical information will not be subject to any use or disclosure restrictions. Accordingly, Seller agrees not to assert any claims against Buyer, its customers or their respective suppliers with respect to any technical information that Seller discloses in connection with this Contract.
11.2 Waiver of Claims. Seller agrees not to assert any claim against Buyer, Buyer's customers or their respective suppliers with respect to any technical information that Seller shall have disclosed or may hereafter disclose in connection with the goods or services covered by this Contract.
11.3 Computer Programs and Written Works. All works of authorship, including without limitation, software, computer programs, and databases (including object code, micro code, source code and data structures) and all enhancements, modification and updates thereof and all other written work products or materials, which are created in the course of performing this Contract (separately or as part of any goods and components) are “works made for hire” and the sole property of Buyer. To the extent that such works of authorship do not qualify under applicable law as works made for hire, Seller agrees to assign and assigns to Buyer all right, title and interest in any intellectual property rights in such works of authorship.
12.1 Infringement. Seller will defend, hold harmless and indemnify Buyer and its customers, and their respective successors and assigns, against any claims of infringement (including patent, trademark, copyright, moral, industrial design or other property rights, or misuse or misappropriation of trade secret) and resulting damages and expenses (including, without limitation, attorney and other professional fees and disbursements) relating to the goods or services covered by this Contract, including any claims in circumstances where Seller has provided only part of the goods and services. Seller waives any claim against Buyer that any such infringement arose out of compliance with Buyer's specifications.
12.2 Activities on Buyer's Promise. Seller will defend, hold harmless, and indemnify Buyer from and against any liability, claims, demands, damages, costs or expenses (including, without limitation, reasonable attorney and other professional fees and disbursements) arising from or in connection with the performance of any service or work by Seller or its employees, agents, representatives and subcontractors on Buyer or Buyer's customers premises or the use of the property of Buyer of any customer of Buyer except to the extent such liability arises out of the negligence or willful misconduct of Buyer or Buyer's customer.
12.3 Product Liability. Seller will defend, hold harmless, and indemnify Buyer from and against any liability and expenses (including, without limitation, attorney and other professional fees and disbursements) arising from or in connection with any third party claims or demands to recover personal injury or death, property damage or economic loss caused by any of the goods or services supplied by Seller (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or other legal theories), except to the extent such injury, damage or loss results from Buyer's specifications as to design or materials or from alteration or improper repair, maintenance or installation by any party other than Seller.
13. COMPLIANCE WITH LAWS
Seller and any goods or services supplied by Seller, will comply with all applicable laws, rules, regulations, orders, conventions, ordinances and standards of the country(ies) of origin and destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods or services, including, but not limited to, those relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Neither Seller nor any of its subcontractors will utilize slave, prisoner or any other form of forced or involuntary labor in the supply of goods or services under this Contract. Upon Buyer's request, Seller will certify in writing its compliance with the foregoing. Seller will defend, hold harmless and indemnify Buyer from and against any liability, claims, demands, damages, or expenses (including reasonable attorney fees or other professional fees and disbursements) arising from or relating to Sellers's noncompliance with this Article.
Seller will maintain insurance coverage as required by applicable las or as reasonably requested by Buyer with carriers reasonably acceptable to Buyer. With respect to any insurance coverage, Seller will furnish Buyer either a certificate evidencing satisfaction of the above mentioned insurance requirements under this Contract or certifies copies of all insurance policies within ten (1) days after Buyer's requests. The certificate must provide that Buyer will receive thirty (30) days prior to written notice from the insurer of any termination or reduction in the amounts or scope of coverage. The furnishing of certificates o insurance and purchase of insurance will not limit or release from Seller's obligations of liabilities under this Contract.
15. SELLER'S EQUIPMENT
Seller, at its expense, will furnish, keep in good condition, and replace when necessary all of its machinery and equipment, including related tooling, jigs, dies, gauges, fixtures, mold, patterns and other accessories required for the production of the products covered by the Contract (Seller's Equipment). Seller will insure Seller's equipment with fire and extended coverage insurance for its full replacement values. Seller grants Buyer an irrevocable option to take possession of, and title to, all or part of Seller's Equipment that is specially designed or outfitted for the production of the goods covered by this Contract upon payment to Seller of the net book value of such Seller's Equipment less any amounts that Buyer has previously paid to Seller for the cost of such Seller's Equipment. This option will not apply to the extent that Seller's Equipment is used to produce goods that are the standard stock of Seller or if of a substantial quantity of like goods that are being sold by Seller to others. Buyer's right to exercise this option is not conditioned on Seller's breach or Buyer's termination of this Contract or upon payment of any other amounts due under this Contract.
16. BUYER'S PROPERTY
16.1 Bailment of Property. All supplies, materials, tooling, jigs, dies, gauges, fixtures, molds, patterns, equipment and other items furnished by Buyer, either directly or indirectly, to Seller, or for which Buyer gives consideration to Seller in whole or in part (:Buyer's Property”) will be and remain the property of Buyer and will be held by Seller on a bailment basis. To the extent that this Contract provides that Buyer will reimburse Seller for any specific items of Buyer's Property (such as tooling), Seller will not assert any person claiming an interest through Seller to assert any claims of ownership to or any other interest in Buyer's Property. When permitted by law, “Seller waives any lien or other rights that Seller might otherwise have on or in any of Buyer's Property for work performed on such property or otherwise. Goods manufactured based on Buyer's drawings and/or specifications may not be used for Seller's own use or sold to third parties without Buyer's express written authorization.
16.2 Seller's Duties with Respect to Buyer's Property. While Buyer's Property in in Seller's possession and until Seller delivers Buyer's Property back to Buyer, Seller bears the risk of loss and damage to Buyer's Property. Seller will be responsible for the cost of repairing or replacing Buyer's Property if it is damaged or destroyed regardless of cause of fault. Seller will at all times (a) regularly inspect, maintain in good condition, and repair Buyer's Property at Seller's expense, (b) use Buyer's Property only for the performance of this Contract, (c) deem Buyer's Property to be personal property, (d) conspicuously mark Buyer's Property as the property of Buyer and maintain such markings, (e) not commingle Buyer's Property with the property of Seller or with that of a third party, (f) not move Buyer's Property from Seller's premises without Buyer's written approval, and (g) use Buyer's Property in compliance with Buyer's or the manufacturer's instructions and in compliance with all federal, state and local laws, ordinances and regulations. Buyer will have the right to enter Seller's premises at all reasonable times to inspect Buyer's Property and Seller's records with respect to thereto.
16.3 Return of Buyer's Property. Seller agrees that Buyer has the right, at any time, with or without reason, to take possession of or request the return of Buyer's Property. Without further notice or court hearings, which rights, if any, are hereby waived, Buyer or its designee(s) will have the right to enter Seller's premises and take possession of any and all of Buyer's Property. If Seller foes not release and/or deliver Buyer's Property in accordance with this Article, Buyer may obtain an immediate writ of possession without notice and without posting of bond and/or enter Seller's premises, with or without legal process, and take immediate possession of Buyer's Property.
17.4 Disclaimer of Warranties. Seller acknowledges and agrees that (i) Buyer is not the manufacturer of Buyer's property nor the manufacturer's agent nor a dealer therein, (ii) Buyer is bailing Buyer's Property to Seller for Seller's benefit, (iii) Seller is satisfied that Buyer's property is suitable and fit for its purposes, and (iv) Buyer has not made an does not make any warranty or representation whatsoever, either expressed or implied, as o the fitness, condition, merchantability, design or operation of Buyer's Property or its fitness for any particular purpose.
The rights and remedies reserved to Buyer in this Contract are cumulative with and in addition to all other or future remedies provided in law or equity.
Buyer may assign its rights and obligations under this Contract without Seller's prior written consent. Seller may not assign or delegate its rights or obligations under this contract without Buyer's prior consent.
20. MATERIAL LAB CERTIFICATIONS AND CERTIFICATIONS OF PERFORMANCE
Troy Engineered Components and Assemblies is a registered ISO/TS 16949:2009 company. Therefore, we are held to very high standards regarding compliance to our customer's requirements. It is therefore a requirement that Seller supplies copies of their Material Lab Certifications and/or Certifications of Compliance with each shipment delivered to Buyer. Any goods received without Material Certifications and/or Certificates of Compliance may be rejected and returned (at Seller's expense), until proper documentation is submitted to Buyer.
21. NO ADVERTISING
Seller will not, in any manner, advertise or publish that Seller has contracted to furnish Buyer the goods or services covered by this Contract or use any Trademarks or Trade Names of Buyer in Seller's advertising or promotional materials without Buyer's written consent.
22. ENTIRE AGREEMENT
This Contract, together with any attachments, exhibits, supplements or other terms of Buyer specifically referenced in this Contract, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in this Contract and supersedes all prior oral and written representations and agreements. This Contract may only be modified by a written contract amendment issued by Buyer. Notwithstanding anything to the contrary contained herein, Buyer explicitly reserves (this Contract will not constitute a waiver or release of) any rights and claims against Seller arising out of, or relating to, any fraud or duress in connection with the formation of this Contract or any breach or anticipatory breach of any previously existing Contract between Buyer and Seller whether or not such previously existing Contract related to the same or similar goods or subject matter as this Contract). All payments by Buyer to Seller under this Contract are without prejudice to Buyer's claims, rights and remedies.