COMPETITION ENGINEERING, INC. TERMS OF PURCHASE
Competition Engineering, Inc. (“Buyer”)
purchase orders are subject to these Terms of Purchase.
In these Terms, “goods” and “services” refer to the goods or services
described in Buyer’s purchase order that Buyer is to purchase from the seller named
on the face of this order (“Seller”),
“the order” refers to Buyer’s purchase
order, including these Terms of Purchase, and “Contract”
refers to any contract formed pursuant to the order.
1.
Agreement. The order is subject to the terms of any written agreement between
Buyer and Seller in which they have agreed that these Terms of Purchase will apply
to Buyer’s purchases from Seller. If
for any reason, however, no such agreement applies to Buyer’s purchase from Seller
under the order, then (1) the order is an offer to buy by Buyer and Buyer rejects
any earlier offers to sell made by Seller, (2) if the order nevertheless is in legal
effect an acceptance of an earlier offer by Seller, then Buyer’s acceptance is conditional
upon Seller’s assent to all terms of the order that are additional to or different
from the terms of Seller’s offer and (3) by signing and returning a copy of the
order or by accepting the order electronically or by shipping the goods or performing
the services, Seller accepts, and agrees and assents to, all of the terms contained
in the order.
2.
Price and Payment. Unless Buyer
agrees otherwise in writing, Buyer shall not be required to pay any sales, use or
other taxes arising because of Buyer’s purchase from Seller.
Buyer shall not be required to pay any late charge, interest, finance charge
or similar charge. Buyer’s payment
of the purchase price does not indicate its acceptance of the goods or services. Payment terms, including discount periods,
shall run from the latest of (1) the scheduled date for delivery or performance,
(2) the actual date of delivery of conforming goods or performance of conforming
services, (3) the date of Seller’s invoice, (4) in the case of capital equipment,
completion of Buyer’s final inspection and acceptance after installation and (5)
in the case of tooling, Buyer’s approval of production pieces produced by the tooling
at Buyer’s facility. Unless otherwise
agreed in writing signed by Buyer and Seller, all payments shall be in U.S. Dollars.
3.
Delivery and Force Majeure.
Unless Buyer agrees otherwise in writing, Seller shall deliver the goods DDP (“delivered
duty paid”) (Incoterms 2000) at Buyer’s facility identified in the order, except
that if Buyer’s facility and Seller’s facility (from which the goods will be shipped)
are both located in the United States, then Seller shall deliver the goods F.O.B.
(Uniform Commercial Code term) Buyer’s facility identified on the face of the order,
and except that Buyer may at its option take delivery of all or any part of the
goods at Seller’s facility. Time of
delivery or performance is of the essence, and Buyer’s stated delivery or performance
date and the date for performance of any other obligation of Seller shall not be
extended or excused for any reason, including anything that Seller cannot control. Seller shall not, however, be liable
for any non-performance or delay in performance caused solely by a strike, lockout,
riot, war, insurrection or act of God or public enemy, or any other event or circumstance
that is beyond Seller’s reasonable control, if Seller immediately notifies Buyer
of the event and gives Buyer a detailed description of the non-performance or delay
that it will cause. Buyer shall then
have the right to terminate the Contract, without liability to Seller.
Except as provided in this paragraph, no event or circumstance shall limit
Seller’s liability for any non-performance or delay, even if the event or circumstance
is beyond Seller’s control.
4.
Excess, Installment and Early Deliveries.
If Seller delivers more goods than Buyer ordered, then, unless Buyer
agrees otherwise in writing, Buyer shall not have to pay for the excess.
Seller shall deliver all of the goods in a single delivery and not in installments;
provided, however, that if the goods are on backorder, Seller shall ship all available
quantities as soon as possible. Buyer’s
acceptance of a delivery that contains less than the required quantity shall not
relieve Seller of its obligation to deliver the balance of the ordered goods at
the price and on the other terms that the order specifies.
If Seller delivers the goods before the scheduled delivery date, then Buyer
may, at Seller’s expense and risk, either store them or return them to Seller. Buyer’s acceptance of an early delivery
shall not change the payment terms.
5.
Export and Import Requirements; Drawback and Refund Rights.
Seller shall prepare, maintain and, to the extent that that applicable
law, regulation or customs authority requires it to do so, submit to the applicable
customs authorities, all information and documentation that is necessary to comply
with the applicable customs and export and import requirements of each country from
which the goods will be exported and each country into which they will be imported,
and Seller shall comply with all other applicable customs requirements.
Whenever Buyer requests it to do so, Seller shall promptly furnish to Buyer
copies of that information and documentation.
Seller is solely responsible for complying with all technical compliance
and country of origin requirements of each country into which the goods are to be
imported. Seller assigns and transfers
to Buyer all transferable customs duty and tax drawback or refund rights relating
to the goods, including rights developed by substitution and rights that Seller
acquires from its suppliers. Seller
shall promptly inform Buyer of each such right and, upon Buyer’s request, shall
promptly provide to Buyer all documents and information that are required for Buyer
to obtain each such drawback and refund.
Seller at all times shall maintain, and shall cause each of Seller’s suppliers and
logistics providers to maintain, at each facility where the goods are manufactured
or located, strict security measures that are reasonably calculated to prevent acts
of terrorism with respect to the goods.
6.
Inspection and Tests. Buyer’s
employees or agents may at any time enter Seller’s premises to inspect and test
the goods, Seller’s process of manufacturing of them and any materials, components
or work-in-process that Seller will use in their manufacture.
7.
Blanket Order. If the face
of the order states that it is a blanket purchase order or blanket purchasing agreement,
then, except to the extent otherwise expressly stated on the face of the order,
(1) Seller is obligated to deliver to or perform for Buyer all goods or services
that Buyer orders or releases during the period or in accordance with any delivery
or performance schedule specified on the face of the order,
(2) Buyer is not obligated to order, release or purchase from Seller any
particular quantity or volume of goods or services, regardless of any estimates
or projections of future purchases, and (3) Buyer may purchase any or all of the
goods or services from others.
8.
Representations, Warranties And Agreements About Seller.
Seller represents and warrants to Buyer, and agrees, that (1) Seller
has all necessary experience, qualifications, expertise, authority, licenses and
permits to enable it to perform its obligations under the Contract, (2) the Contract
is the valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms, (3) Seller is and, at the time of each order will be, solvent, (4)
Seller has not offered or given, and shall not offer or give, any gratuity or thing
of value to any employee of Buyer or of any affiliate of Buyer and (5) Seller is
and shall continue to be in compliance with all equal employment and affirmative
action provisions of Executive Order 11246, the Vietnam Era Veterans’ Readjustment
Assistance Act (“VEVRAA”), Section 503 of the Rehabilitation Act of 1973 and all
implementing regulations under that Order, VEVRAA and Section 503.
9.
Representations, Warranties And Agreements About the Goods and Services. Seller represents and warrants to
Buyer, and agrees, that (1) the goods shall be new, (2) the goods and services shall
be merchantable, of good material, workmanship and quality, fit for the purposes
for which Buyer intends them and free from faults and defects, (3) the goods and
services shall conform to any samples, drawings, specifications, performance criteria
standards or other requirements that are referred to on the face of the order or
that Buyer has otherwise specified or agreed to in writing, and (4) the goods, their
manufacture, packaging, labeling, branding and sale and the services shall comply
with all applicable federal, state and local laws, regulations, standards and orders,
including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational
Safety and Health Act of 1970, as amended, and all environmental laws, (5) the prices
of the goods or services and any discounts, advertising allowances or other merchandising
payments or services that the Contract requires Seller to provide to Buyer are as
favorable to Buyer as the lowest prices and the highest discounts, advertising allowances
or other merchandising payments or services that Seller provides to other buyers
of comparable goods or services, (6) Seller shall promptly furnish to Buyer all
information and copies of documents (including, but not limited to, complaints,
inquiries, test or inspection results and warnings) that Seller receives from an
end-user of the goods, a government agency, an employee or agent of Seller or any
other person or source and that suggests or indicates that the goods may not conform
to the requirements of this paragraph, and (7) Seller has and follows, and will
continue to have and follow, adequate quality and security procedures that will
assure that the goods and services will comply with the foregoing warranties, representations
and agreements. If Buyer requests it,
Seller shall give Buyer certificates of compliance with applicable laws and regulations. Buyer’s approval of a sample, drawing,
specification or standard shall not relieve Seller of any of its warranties under
this paragraph, including, without limitation, its warranties of merchantability,
fitness and compliance with laws. Seller’s
warranties extend to future performance of the goods and services and survive inspection,
tests, acceptance and payment and shall be considered to have been given not only
to Buyer but also to Buyer’s customers and to end-users of the goods.
10.
Indemnity. Seller shall indemnify
and hold Buyer and its directors, officers and employees (“representatives”)
harmless (and defend Buyer and its representatives if it requests) as to any claims,
liabilities, losses, damages and expenses (including, without limitation, attorneys’
fees and other legal expenses) brought against or incurred by Buyer or its representatives
because of (1) any breach by Seller of any of its warranties to, or agreements with,
Buyer, (2) any claim that any of the goods or services infringes any patent, trademark,
copyright or other intellectual property right, anywhere in the world or (3) any
death, injury or damage to any person or property alleged to have been caused by
the goods or services or by Seller’s manufacture of the goods or performance of
the services.
11.
Changes. Buyer may at any time,
by written notice to Seller, change the order or the Contract as to (1) specifications
for the goods or services, (2) time or place of delivery or performance, (3) method
of packing or shipment or (4) quantity of the goods or extent of the services. If this causes a change in Seller’s
cost or time of performance, then an equitable adjustment shall be made in the price
or time for delivery or performance, or both, if Seller gives Buyer a written request
for an adjustment within 20 days after Buyer notifies Seller of the change.
12.
Termination at Buyer’s Option.
Buyer may terminate the order or the Contract, in whole or in part, at any time
by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination
under the preceding sentence, Seller shall, unless otherwise directed by Buyer,
stop work and acquisition of materials under the Contract and protect property in
Seller’s possession in which Buyer has or may acquire an interest.
Not later than 30 days after the effective date of termination, Seller may
submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit
and inspect Seller’s books, records and other documents that relate to the termination
claim. If the parties cannot agree
within a reasonable time upon the amount of fair compensation for the termination,
then Buyer will pay to Seller, without duplication, (1) the Contract price for conforming
goods or services that Seller shall have completed and delivered or performed (as
applicable) in accordance with the provisions of the Contract and that Buyer shall
not have paid for and (2) the actual costs that Seller incurs and that are properly
allocable or apportionable under recognized commercial accounting practices to the
terminated portion of the Contract, but not to exceed the Contract price for the
terminated portion of the Contract, less (a) any payments that Buyer made and (b)
the value to Seller of any raw materials, work-in-process and finished goods that
Seller retains and that are allocable to the terminated portion of the Contract
under such practices. Buyer will pay
these amounts after Seller delivers to Buyer any completed goods.
If Buyer shall have made payments of the purchase price to Seller that in
the aggregate exceed the total amounts payable by Buyer to Seller under the preceding
provisions, then Seller shall promptly refund the excess to Buyer.
Termination under this paragraph shall terminate only Seller’s obligation
and right to deliver goods or provide services under any provision of the Contract
other than this paragraph and shall not terminate or impair Seller’s other obligations,
or any of Buyer’s rights, under the Contract.
13.
Buyer’s Remedies. Without limiting
other rights and remedies available to it, Buyer may, at its option, (1) return
nonconforming goods to Seller, at Seller’s risk and expense, and require Seller
either to give Buyer full credit against the price or promptly to repair or replace
the goods at Seller’s risk and expense, (2) retain nonconforming goods and set off
losses against any amount that Buyer owes Seller or (3) repair or replace nonconforming
goods and charge Seller with the expense.
If at any time (a) Seller defaults in the performance of any of Seller’s obligations
to Buyer under the Contract or under any other agreement between Seller and Buyer,
(b) Seller repudiates the Contract or (c) any warranty or representation that Seller
made to Buyer in or in connection with the Contract is false or misleading in any
material respect, then Buyer may terminate the Contract, in whole or part, without
liability to Seller, and Seller shall promptly pay to Buyer all damages that Buyer
incurred as a result of the termination and as a result of the event or circumstance
on the basis of which Buyer terminated.
If Buyer does terminate the Contract, then Seller, if and to the extent that Buyer
demands, shall immediately deliver to Buyer all finished and unfinished goods and
all work-in-process and raw materials that Seller acquired for use in the manufacture
or processing of the goods and all designs, drawings, specifications and software
that Buyer is purchasing from Seller under the Contract, including all work-in-process,
all source, object and pseudo codes, all preexisting programs intended to be incorporated
in the software and all intellectual property rights in the foregoing.
Buyer’s payment of part or all of the purchase price shall not be a precondition
to Seller’s obligation to make the delivery.
After Seller has made the delivery and Buyer has determined its damages (including,
without limitation, any cost of “cover” or of completing the manufacture or processing
of the goods), then Buyer will pay to Seller any excess of (1) any unpaid part of
the purchase price properly allocable to any conforming goods, work-in-process and
raw materials that Seller delivered to Buyer over (2) Buyer’s damages.
Buyer’s termination under this paragraph shall terminate only Seller’s obligation
and right to deliver goods or provide services other than as this paragraph requires
and shall not terminate or impair Seller’s other obligations, or any of Buyer’s
rights, under the Contract. In addition
to Buyer’s rights described in these Terms of Purchase, Buyer has all of the other
rights and remedies that the law gives to buyers, including the right to recover
incidental and consequential damages that
result from Seller’s breach. Buyer
shall not lose any right just because it does not exercise it.
Buyer shall have the full statutory period of limitations to bring any action
that arises out of Buyer’s agreement with Seller. A
reasonable time for Buyer to reject or revoke acceptance of the goods is not less
than one year from the date of delivery.
A reasonable time for Buyer to notify Seller of any breach is not less than two
years from when Buyer discovers the breach.
14.
Buyer’s Property. Any designs,
drawings, specifications, methods of manufacture, intellectual property, documents
and other information and any tooling, equipment or other property that Buyer furnishes
to, or acquires from, Seller in connection with Seller’s manufacture of the goods
or performance of the services (“Buyer Property”)
are and shall at all times be Buyer’s sole and exclusive property.
Seller shall (1) maintain the Buyer Property in good condition, (2) mark
the Buyer Property “PROPERTY OF COMPETITION
ENGINEERING, INC.,” (3) not commingle the Buyer Property with property of
Seller or third parties, (4) allow Buyer to inspect and examine the Buyer Property
at any time and (5) return the Buyer Property to Buyer upon its request.
15.
Government Contracts. If Buyer
will use the goods or services covered by the order in connection with a contract
with the
United States
or other government, then all terms and conditions that the government contract
or any law or regulation requires to be included in any contract formed pursuant
to the order (“Government Terms”) are
incorporated in the order by reference.
If any provision of the order is inconsistent with any Government Term, then the
Government Term shall control.
16.
Insurance. Seller shall maintain
insurance coverage that will fully protect both Seller and Buyer from any and all
claims and liabilities of any kind or nature for property damage, personal injury,
death and economic damage, to any person, that arises from the goods or their use
or the performance of the services or any activities connected with the services. Seller shall maintain employee’s liability
and compensation insurance that will protect Buyer from any and all claims and liabilities
that Seller or any employee or agent of Seller makes under any applicable worker’s
compensation or occupational disease acts.
All insurance that this paragraph requires shall be in amounts and coverages, and
shall be issued by insurers, that are satisfactory to Buyer.
Upon Buyer’s request at any time, Seller shall furnish to Buyer
certificates evidencing required insurance.
17.
Prepayment. If Buyer pays any
part of the purchase price of the goods before Seller delivers them to Buyer, then
(1) title (but not risk of loss) to each item of the goods shall pass to Buyer upon
identification of the item to the Contract, (2) to the extent necessary to protect
Buyer’s title to the goods, Seller grants Buyer a security interest in the goods
to secure Seller’s obligation to deliver them to Buyer and all of Seller’s other
present and future obligations to Buyer and (3) Seller shall obtain from each person
that holds a security interest in or lien upon the goods a written agreement releasing
that security interest or lien or subordinating it to Buyer’s interest in the goods.
18.
Work on Premises. If Seller’s
performance of services or delivery or installation of goods involves operations
by its employees or subcontractors on Buyer’s premises or the premises of a customer
of Buyer, then (1) Seller shall at all times enforce strict discipline and maintain
good order among all persons engaged in the activity on the premises and shall cause
them to comply with all fire prevention and safety rules and regulations in force
at the premises and (2) Seller shall keep the premises free from accumulation of
waste materials and rubbish that its employees or subcontractors cause and upon
completion shall promptly remove all of Seller’s equipment and surplus materials.
19.
Services. If the order covers
services, then (1) Seller is an independent contractor, and neither Seller nor any
of Seller’s employees or agents shall be considered agents or employees of Buyer
and (2) Seller shall furnish, at Seller’s expense, all labor, materials, equipment,
transportation, facilities and other items that are necessary to perform the services.
20.
Confidentiality and Non-Use.
Seller shall not sell or offer to sell or otherwise provide to anyone other than
Buyer any goods made in accordance with any drawings, designs or specifications
that Buyer furnishes to Seller or that incorporate, embody or are made in accordance
with any of Buyer’s intellectual property.
Seller shall maintain the confidentiality of, and shall not disclose or use or permit
to be disclosed or used or to be viewed by any third party (including any of Seller’s
suppliers), the goods, any designs of or specifications for the goods, any Buyer
Property or any information concerning Buyer’s business, operations or activities,
including, without limitation, information concerning Buyer’s present or proposed
products, product developments, plans, strategies, finances, know-how, sales, customers
and marketing or sales techniques (“Confidential
Information”), except that Seller may disclose Confidential Information
to a third party (other than a competitor of Buyer or a subsidiary or affiliate
of a competitor) to the extent disclosure is necessary in order for Seller to perform
its obligations under the Contract.
If Seller breaches or threatens to breach this paragraph or
Paragraph 14, then Buyer’s remedies at law will be inadequate.
Therefore Buyer shall have the right of specific performance or injunctive
relief, or both, in addition to any and all other remedies and rights at law or
in equity, and Buyer’s rights and remedies shall be cumulative.
21.
Intellectual Property. All
inventions (whether or not patentable), devices, technologies, ideas, improvements,
processes, systems, trademarks, trade names, trade dress, service marks, names,
software and other works and matters that Seller creates or develops in the course
of Seller’s performance of the services or Seller’s design or development of the
goods for Buyer, including all proprietary rights in the foregoing (“Intellectual
Property”) shall be Buyer’s sole property, and Seller assigns, and agrees
to assign, to Buyer all right, title and interest that Seller now has or in the
future acquires in the Intellectual Property.
All copyrightable works that Seller creates or develops in the course of
Seller’s performance of the services or Seller’s design or development of the goods
for Buyer shall be considered “works made for hire” within the meaning of the federal
Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable
work is not considered a “work made for hire,” it shall be the sole property of
Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest
that Seller now has or in the future acquires in it and in all copyright rights
in it. Seller shall sign and deliver
to Buyer all assignments and other documents, and Seller shall take all other actions,
that Buyer requests for the purpose of perfecting Buyer’s ownership of and title
to the Intellectual Property and in any copyrightable work that is not considered
a “work made for hire” and in all copyright rights in it.
If the goods or their design are subject to any pre-existing patent rights
or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable,
non-exclusive, royalty-free license of the patent rights and other proprietary rights
to the extent necessary to enable Buyer to modify, repair or rebuild any or all
of the goods. This license is in addition
to all licenses impliedly granted to Buyer as a purchaser of the goods.
Seller shall not use Buyer’s name or any trademark, trade name, service mark
or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate
of Buyer, without Buyer’s express, written consent, and Seller shall not sell to
anyone other than Buyer any goods bearing any such trademark, trade name, service
mark or trade dress.
22.
Other Terms. Seller shall not
have and waives any security interest in or lien (including any statutory or common
law lien) upon any Buyer Property or the goods.
Seller may not delegate or subcontract any of its obligations under the order
or the Contract without Buyer’s written consent.
Buyer may deduct, recoup and set off any amounts that Buyer at any time owes
to Seller under the Contract from and against any damages or other amounts that
Seller then owes to Buyer, whether under the Contract or otherwise and whether or
not Seller shall have assigned to another (“Assignee”)
its rights to receive amounts that Buyer is required to pay under the Contract. All such rights of an Assignee shall
be subject to all of the terms of the Contract and to all claims and defenses that
Buyer at any time has against Seller, whether arising under the Contract or otherwise. If at any time Buyer has reasonable
grounds for insecurity as to Seller’s performance, then Seller shall provide adequate
assurance of due performance within 10 days after Buyer demands the assurance, which
shall be considered to be a reasonable time.
Buyer shall continue to have all of its rights under the Contract even if it does
not fully and promptly exercise them on all occasions.
Buyer’s failure to exercise, or Buyer’s waiver of, a right or remedy on one
occasion is not a waiver of that right or remedy with respect to any future occasion.
23.
Governing Law and Language.
The order and the Contract shall be governed by, and interpreted according to,
Michigan
law, excluding the United Nations Convention on Contracts for the International
Sale of Goods. The order and the Contract
shall be interpreted in the English language only.
Any state or federal court in
Ottawa County, Michigan
, may handle any action based upon or arising out of the order or the Contract,
and Seller irrevocably consents that the court shall have personal jurisdiction
over Seller and waives any objection that the court is an inconvenient forum.
24.
Complete Agreement. Seller
has not made any promises or representations to Buyer, and Buyer has not made any
to Seller, that are not in the order.
Any change in, or waiver of, any provision of the order or the Contract must be
contained in a writing signed by Buyer.
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