Legal Notices
Terms and Conditions of Sale
1. AGREEMENT.
1.1. General. These terms and conditions of sale (the “Terms and Conditions”) shall exclusively govern the provision of Products and Services by Relay and Power Systems, Inc. (“Company”) to the buyer named on Company’s quote, acknowledgment or invoice or buyer’s purchase order (“Customer”). Company and Customer are each a “Party” and collectively “Parties” under these Terms and Conditions. Company will provide certain goods, items or equipment (“Products”) or professional, engineering, consulting, networking, maintenance or other services described on Company’s proposal or statement of work (the “Services”), which Products and/or Services are ordered by Customer under a purchase order or otherwise (each, an “Order”). Company’s acceptance of Customer’s purchase order is subject to Customer’s acceptance of these Terms and Conditions. Customer’s order of any Products or Services, issuance of a purchase order, and/or Company’s receipt of full or partial payment for Products or Services ordered from Company shall constitute Customer’s unconditional acceptance of these Terms and Conditions. Company hereby expressly objects to and rejects any other terms and conditions as may be proposed on or referenced within an Order or any other transaction document supplied by Customer or within a Customer portal, electronic data interchange, or otherwise.
1.2. Conflict and Amendment. Each Order will be exclusively governed by these Terms and Conditions. If there is any conflict or inconsistency between these Terms and Conditions and any Order, these Terms and Conditions will control. No addition or modification to these Terms and Conditions shall be binding unless set forth in a separate written amendment to these Terms and Conditions, stating the Section(s) to be supplemented or modified, signed by an authorized representative of each Party. If Company and Customer conduct electronic transactions, whether by a portal, electronic data interchange, .xml, or otherwise, Customer agrees that (a) these Terms and Conditions are incorporated into and exclusively govern each and every such transaction; (b) any click-through terms and conditions or terms and conditions otherwise incorporated by reference in any Customer portal, electronic data interchange, or otherwise are hereby rejected by the Parties and shall have no effect; (c) Customer shall not contest any contract of sale resulting from an electronic transaction under the provisions of any law relating to whether agreements must be in writing or signed by the Party to be bound thereby; and (d) Customer shall not contest the admissibility of copies of electronic records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form.
2. TERM AND TERMINATION; CANCELLATION.
2.1. Term for Each Order. Each Order shall remain in effect until: (a) it is terminated or cancelled as provided in these Terms and Conditions; (b) it has expired on its own terms; or (c) the Order has been fulfilled.
2.2 Termination for Cause. Either Party may terminate any Order immediately upon written notice to the other Party if the other Party: (a) fails to perform any of its material obligations under these Terms and Conditions and fails to correct such failure within twenty (20) days after receipt of written notice; (b) stops conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors or becomes the subject of any judicial or administrative proceeding in bankruptcy, receivership or reorganization and the proceeding is not dismissed within ninety (90) days after it begins. If Customer fails to pay any indebtedness Customer owes to Company, then Company may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding Orders, and Company may, without liability to Customer, terminate any or all of those outstanding Orders. In the event of termination by a Party under this Section 2.2, Customer shall pay Company for all Products shipped and Services performed through the date of termination. In the event of Company’s termination of an Order under this Section 2.2, Customer shall also pay Company for any actual cancellation costs incurred by Company from its vendor or service provider resulting from such termination.
2.3 Termination for Convenience. Company reserves the right to cancel any Order prior to shipment for causes beyond the reasonable control of Company without liability to Customer for such cancellation. Except as set forth in Section 2.2 or as may be expressly provided in Company’s proposal, Customer does not have any right to cancel its agreement to buy the Products or Services from Company. If, however, Company agrees in writing to permit cancellation, Customer shall pay Company for all Products shipped and Services performed through the date of termination plus any actual cancellation costs incurred by Company from its vendor or service provider resulting from such cancellation. Non-stock and custom Orders are not cancellable.
3. PRICE AND PAYMENT.
3.1. Fees. Customer will pay Company the amount set forth in the applicable invoice for the Products and Services. Written quotes and proposals are valid for thirty (30) days, unless otherwise stated on the Order. For Services, unless otherwise provided on the applicable proposal from Company, Customer will pay the fees on a time-and-material basis based on Company’s then-current rates and charges for the Services. Any estimate provided by Company is not a guarantee and may be decreased or increased to reflect actual hours expended by Company.
3.2. Expenses. Customer will reimburse Company for all reasonable, pre-approved out-of-pocket expenses, including travel and lodging expenses, incurred by Company in connection with the performance of Services.
3.3. Invoices. Unless alternate terms are extended to Customer by Company’s credit department, all invoices shall be paid within thirty (30) days of issuance. Customer expressly agrees no set-offs or back charges against invoices are permitted. If the invoice is not paid in full by the due date, Customer agrees to pay a late payment charge at the rate of one and one-half percent (1-1/2%) per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount. Company may apply any payment received to any delinquent amount outstanding.
3.4. Taxes. Company’s rates and charges do not include any amounts for taxes. Customer will pay all applicable taxes levied by any tax authority based on the Services performed and Products purchased from Company, excluding any taxes based upon Company’s income.
4. DELIVERY AND INSPECTION; ONSITE SERVICES
4.1. Delivery and Risk of Loss. Unless Company otherwise agrees in writing, Company shall deliver Products FCA (Incoterms 2020) Company’s facilities, or the point of origin if the Products are shipped directly to Customer from a third-party. Risk of loss shall pass to Customer upon delivery of Products to the carrier. Title to Products shall pass upon delivery to Customer, provided, however, Company reserves and Customer grants to Company a security interest in the Products sold and the proceeds therefrom to secure full payment and performance by Customer of its obligations and liabilities to Company. While dates for shipment, delivery, or performance are estimates only, Company shall make commercially reasonable efforts to meet the dates set forth in the Order. In no event shall Company be liable to Customer for any liquidated or other damages resulting from delays.
4.2. Onsite Services. When onsite at Customer’s premise, Company will use all reasonable efforts to comply with Customer’s internal policies, procedures and rules provided to Company in writing, including, those relating to environmental protection, health, safety, work and security.
4.3. Acceptance. Claims for any nonconforming Products or Services must be made by Customer, in writing, within forty-eight (48) hours of delivery of Product to Customer or ten (10) days after the completion of the Services, after which time Customer will be deemed to have accepted such Products or Services. Customer’s acceptance under this Section 4.3 shall not waive Customer’s rights under any warranty for defective Products or Services set forth in Section 6.
5. Product Safety and Permits. Customer is solely responsible for verifying Products conform to Customer’s plans and specifications and are fit for Customer’s intended use. Customer shall comply with any applicable local, state, or national codes, rules, regulations, and laws for approved Product installation and operation. Customer is responsible for obtaining any permits or licensing required for the installation and operation of Products and shall install and operate the Products properly and in accordance with the Products’ operating instructions, if any. Customer shall not remove or change any safety device, warning or operating instructions placed on the Products.
6. WARRANTIES
6.1. Products Manufactured by Company. Company warrants that any Products manufactured by Company (as specified in Company’s proposal) will be free from defects in material or workmanship under normal and intended use and service for a period of one year from the date of delivery, unless an alternate warranty period is set forth in Company’s proposal. If a Product manufactured by Company proves to be defective within one year of delivery, then Company shall, at its option, (i) repair or replace the Product at Company’s expense; (ii) permit Customer to repair the Product and reimburse Customer for its direct costs in correcting the defect; or (iii) credit to Customer the price that Customer paid to Company for the defective Product. Products shall not be considered defective to the extent they (a) conform with drawings or specifications provided by Customer; or (b) were damaged due to inappropriate storage, use, or installation by Customer. Company will not pay for Customer’s labor costs or charges in correcting defects nor will Company accept any returned Products for credit unless Company has provided advance written authorization. Company shall have the option of requiring the return of the defective Products, transportation prepaid, and proof that the Products were not used, installed, or altered or subject to misuse or abuse to establish the claim. Returned Products are subject to freight, handling, and restocking charges. If Company determines that a Product is not defective, it may be returned to Customer at Customer’s expense. This Section sets forth Customer’s sole and exclusive remedy for any defect in the Products manufactured by Company. Customer will notify Company in writing of any breach of this warranty within one year after Product delivery.
6.2. Services Performed by Company. Company warrants that any Services performed by Company (as specified in Company’s proposal) will be performed in a workmanlike manner. Unless an alternate warranty period is set forth in Company’s proposal, if a Service performed by Company proves to be defective (as defined below) within thirty (30) days after Company performs the Service, then Company shall, at its option, either re-perform the Service at Company’s expense, or refund to Customer the price that Customer paid to Company for that part of the Service that was defective. A Service shall be considered “defective” if it is found by Company to have failed to meet the standards in Company’s industry and if that failure materially impairs the value of the Service to Customer, except that if Customer furnished to Company specifications for the Service, then the Service shall not be considered defective to the extent it conforms to the specifications. This Section sets forth Customer’s sole and exclusive remedy for any defect in Services provided by Company. Customer will notify Company in writing of any breach of this warranty within thirty (30) days after completion of the Services.
6.3. Pass-Through Warranties. To the extent transferrable, Company hereby assigns all rights it may have arising out of the warranties given to it by any manufacturer of Products or performer of Services purchased by Company and resold to Customer, and Customer will look solely to such warranty in the event of a claim or action relating to such Products or Services. Company will use all reasonable efforts to assist Customer in making any valid warranty claim to the manufacturer of any Products or performer of Services purchased by Customer from Company. Customer is solely responsible for determining the proper application and use of any Products as well as the actual installation and/or connection of any such Products.
6.4. Disclaimer. The only warranties applicable to any Products or Services provided under an Order are the warranties specified in this Section 6 and the warranties (if any) provided to Customer from the manufacturer of the Products and the performer of the Services resold to Customer by Company, and assigned to Customer under this Section 6. EXCEPT AS TO THOSE WARRANTIES PROVIDED IN THIS SECTION 6, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO THE PRODUCTS AND SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS.
7. INDEMNIFICATION.
7.1. General. Each Party shall indemnify, defend, and hold harmless, the other Party and its affiliates, officers, directors, employees, and agents (each an “Indemnified Party”) from and against all direct liability, loss, damage, claims, actions, and expenses imposed on the Indemnified Party by a third-party, to the extent caused by the indemnifying Party’s gross negligence or willful misconduct resulting in property damage or personal injury, including death.
7.2. Custom Products and Services. If Customer has hired Company to provide custom Products or Services, Customer shall indemnify, defend and hold harmless Company and its affiliates, officers, directors, employees, and agents from and against all liability, loss, damage, claims, actions, and expenses (including reasonable attorneys’ fees) that Company incurs as a result of infringement of the proprietary rights of a third-party or any other claim resulting from the manufacture or sale of Products or performance of Services according to Customer’s specifications.
7.3 Requirements. The indemnifying Party’s obligations under this Section 7 are subject to the Indemnified Party providing the indemnifying Party with: (a) prompt written notice of the claim; (b) reasonable assistance in the defense of such claim; and (c) full authority to defend and settle the claim, provided, however, the indemnifying Party shall not make any admission or settlement which creates any liability for the Indemnified Party without first obtaining the Indemnified Party’s written consent, which consent shall not be unreasonably withheld.
7.4 Exceptions. Notwithstanding the foregoing, neither Party shall be required to indemnify the other Party to the extent that such claims or damages are caused by the Indemnified Party’s negligence or breach of these Terms and Conditions.
8. Limitations. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF CAPITAL, PRODUCT, PROFITS, USE, OR DATA. EACH PARTY AND COMPANY’S VENDORS’ MAXIMUM AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAYABLE BY CUSTOMER TO COMPANY FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE. THIS SECTION IS NOT INTENDED TO LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR ANY MATTER WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR A PARTY’S OBLIGATIONS UNDER SECTION 7.2.
9. CONFIDENTIALITY. “Confidential Information” means and includes information regarding either Party’s business, operations or activities that is not publicly available and that is: (a) first disclosed in written, electronic, photographic or other tangible form and conspicuously marked “Confidential” or “Proprietary” or the like; or (b) first disclosed in non-tangible form and orally identified as confidential or proprietary at the time of disclosure and is summarized in tangible form and conspicuously marked “Confidential” or “Proprietary” or the like within thirty (30) days of the disclosure. Each Party agrees that it will not use or disclose to any third-party any Confidential Information of the other Party for any reason, except to its employees and agents who require such knowledge to assist them in the performance of their obligations under an Order or these Terms and Conditions. Each Party will take all necessary action to ensure that its employees and agents comply with the confidentiality provisions of this Section 9. Each Party agrees to protect the Confidential Information of the other Party in the same manner it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. Upon termination or expiration of any Order, each Party shall, upon request, return or destroy all Confidential Information of the other Party in its possession or control.
10. INTELLECTUAL PROPERTY
10.1. Ownership by Customer. All information supplied or otherwise made available by Customer to Company under these Terms and Conditions, including custom specifications provided by Customer (“Customer Materials”) shall be and remain the sole property of Customer.
10.2. Ownership by Company. Except as it relates to any Customer Materials, all information, materials, concepts, designs, ideas, inventions, developments, trade secrets, and other work produced or advice given by Company, solely or jointly with others, relating to any deliverables provided under an Order shall belong solely to Company.
10.3. Third-Party Licenses. Customer’s use of Products which contain or are comprised of source code, object code, software or firmware developed or provided by a third-party may be subject to a separate license agreement between Customer and such third-party or, in the absence of such, is subject to the terms of any license set forth in such third-party provider’s terms and conditions.
10.4. Company Licenses. Software developed by Company for use within a Product is subject to the terms and conditions set forth herein. Customer is granted a limited, revocable, non-exclusive, non-transferable license to use Company’s Software only in object code form and solely in conjunction with Company-provided Products, with no rights to sublicense, disclose, transfer, disassemble, decompile, reverse engineer, or otherwise modify the Software.
- Data. Customer hereby grants Company and its affiliates a non-exclusive, worldwide, royalty-free license to use, reproduce, transmit, display and store Customer data for the purposes of (a) providing the Products and Services set forth in the Order; and (b) maintaining, evaluating and improving the Product and Services. Customer agrees that Company may share Customer data with third-party providers who provide services to Company in connection with the Services, such as hosting websites, analyzing data, and other professional services.
11. MISCELLANEOUS.
11.1. Independent Contractor. Company is an independent contractor and nothing in these Terms and Conditions will be deemed to make Company an agent, employee or joint venturer of Customer.
- Government Contracts. Application of any government contract regulations and clauses to an Order is contingent upon the separate review and express written consent by an authorized representative of Company. In absence of such consent, Company hereby objects to and rejects all such terms and conditions. Products sold hereunder are not intended to be used, nor should they be used, in any nuclear-related application.
11.3. Export. Customer is responsible for complying with all applicable laws and regulations for any Products it exports.
11.4. Force Majeure. Neither Party will be liable to the other Party for any delay or failure to perform its obligations (excluding payment obligations, which may only be delayed but not excused entirely) if such delay or failure arises from any cause beyond the reasonable control of that Party.
11.5. Recovery. In the event of any legal proceeding between the parties relating to these Terms and Conditions or an Order, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.
11.6. Assignment. The agreement evidenced hereby may not be assigned or delegated by Customer without the prior written consent of Company, which shall not be unreasonably withheld, conditioned or delayed.
11.7. Waiver. No provision of these Terms and Conditions will be deemed waived unless such waiver is in a separate writing and signed by an authorized representative of the Party providing the waiver. Any such waiver provided will not constitute a waiver of any different or subsequent breach.
11.8. Severability. If any provision of these Terms and Conditions is prohibited or unenforceable by applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.
11.9. Entire Agreement. Subject to Section 1, the Order and these Terms and Conditions represent the entire agreement between Company and Customer with respect to any Products and Services sold to Customer by Company. All prior agreements, representations, statements, negotiations, and undertakings, whether oral or written, are hereby superseded.
11.10. Governing Law. The agreement evidenced hereby and all disputes arising thereunder will be governed by and interpreted in accordance with the laws of the State of Michigan, excluding the United Nations Convention on Contracts for the International Sale of Goods, without regard to conflict of laws principals. Any action by either Party must be brought within the state or federal courts in the State of Michigan. The parties consent to the exclusive jurisdiction of such courts and waive any objection that the court is an inconvenient forum.
Terms and Conditions of Purchase
1. AGREEMENT. These Terms and Conditions of Purchase (the “Terms and Conditions”) shall govern each purchase by Relay and Power Systems, Inc. (“Buyer”) from the party to whom Buyer’s purchase order is addressed (“Seller”). Buyer’s offer to buy the goods (“Goods”) and/or services (“Services”) described on the purchase order (“Order”) is expressly limited to Seller’s acceptance of these Terms and Conditions and the terms of the Order and its exhibits. Any terms and conditions referenced within any quote, purchase order acknowledgement, invoice, or other document issued by Seller, or terms and conditions within a Seller portal, electronic data interchange, or otherwise are hereby rejected and shall not be binding on Buyer. By signing and returning a copy of the Order, accepting the Order electronically, or by shipping the Goods or performing the Services, Seller unconditionally accepts Buyer’s offer as set forth in the Order and its exhibits and expressly agrees and assents to these Terms and Conditions.
2. DELIVERY AND INSPECTION.
2.1. Delivery. Seller shall deliver the Goods DDP Buyer’s location or other destination specified by Buyer on the Order (the “Deliver Location”). Seller shall provide the required deliverables by the dates set forth in any milestones schedule provided by Buyer. The Goods shall be delivered and Services shall be performed by the delivery date(s) specified in the Order. Each milestone date and delivery date are each a “Delivery Date”. Time is of the essence. Seller shall not substitute any specified material or other goods unless expressly agreed to by Buyer.
2.2. Title and Risk of Loss. Risk of loss and title to the Goods remains with Seller until the Goods are delivered to and accepted by Buyer at the Delivery Location. Notwithstanding the foregoing, if Buyer pays any part of the Price of the Goods before Seller delivers the Goods to Buyer, then (a) title (but not risk of loss) to Goods paid for shall pass to Buyer upon Buyer’s issuance of payment for such Goods; and (b) to the extent necessary to protect Buyer’s title to the Goods, Seller grants Buyer a security interest in the Goods.
2.3. Delays by Buyer. If Buyer suspends or postpones the Order, Seller shall promptly resume performance when directed to do so by Buyer. In the event of any delay caused solely by Buyer, the affected Delivery Date will be extended for a period equivalent to the period of the delay. If such delay results in a material increase in Seller’s costs to perform under the Order as reasonably determined by Buyer upon its receipt of sufficient documentation from Seller evidencing such increase, the parties will work in good faith to negotiate an equitable adjustment to the Price, which shall be set forth in a Change Order.
2.4. Delays by Seller. Seller shall immediately notify Buyer of any actual or anticipated delays that could affect a Delivery Date. If Seller fails to meet a Delivery Date, unless such delay is caused solely by Buyer, Seller shall be liable for any applicable liquated damages specified in the Order and any other costs incurred by Buyer from its customer resulting from Seller’s delay. In addition, Buyer shall have the right to terminate the Order, in whole or in part, pursuant to Section 4.2. The parties agree that, if such liquidated damages are specified, it is because it would be extremely difficult and impracticable to ascertain and fix the actual damages Buyer would suffer should Seller fail to meet a Delivery Date.
2.5. Key Personnel. If Buyer has named specific personnel of Seller to perform the Services under the Order, no other person shall be substituted without the prior written approval of Buyer. Seller shall immediately replace any of its personnel to whom Buyer reasonably objects and any replacement shall be subject to the prior written approval of Buyer.
2.6. Inspection. Buyer may, at its option, inspect the Goods and/or Services upon completion or delivery. Buyer shall have the right to reject all or any portion of the Goods and/or Services if it determines the Goods or Services are nonconforming. Seller shall, at Buyer’s option (a) promptly replace any non-conforming Goods with conforming Goods and reperform any non-conforming Services so that they are conforming; or (b) refund any amounts Buyer paid for such non-conforming Goods or Services. Additionally, Buyer shall have the right to withhold payment or offset the amount payable to Seller under the Order by an amount equivalent to any charges imposed on Buyer from its customer resulting from Seller’s provision of non-conforming Goods and/or Services. If Seller fails to timely correct any non-conformities, Buyer may acquire conforming goods and/or services from a third party and Seller shall be responsible for the cost thereof. Neither this Section nor Buyer’s acceptance of the Goods and Services shall affect Buyer’s rights or remedies under these Terms and Conditions, including but not limited to, any warranty for defective Goods and Services.
3. PAYMENT.
3.1. Price. The price of the Goods or Services shall be as set forth on the Order (the “Price”). The Order number must appear on all documents pertaining to the Order, such as invoices, packing lists, correspondence, and shipping documents. Unless otherwise stated in the Order, Buyer shall pay all properly invoiced, undisputed amounts due to Seller within thirty (30) days after receipt of the invoice.
3.2. Taxes. The Price is inclusive of any applicable duties, tariffs, or other fees. Any applicable sales tax shall be listed as a separate line item on the invoice, and Seller shall be responsible for remitting such taxes paid by Buyer to the appropriate tax authorities. No sales or use tax shall be added to the invoice when a valid tax exemption certificate is provided by Buyer.
3.3. Liens. Seller agrees it shall not file nor permit to be filed any lien with respect to the Goods provided to Buyer and waives any such rights. Seller shall ensure any subcontractor, materialman or other liens are released and shall provide Buyer with lien waivers in a form acceptable to Buyer evidencing the Goods are free of any liens or encumbrances. Seller shall indemnify and save Buyer and its affiliates harmless from and against any claim, liens, damages, or expenses claimed by its subcontractors, materialmen, or employees relating to such Goods and any costs incurred by Buyer to discharge liens related to the Goods, including, but not limited to, attorneys’ fees and other legal expenses.
4. TERMINATION.
4.1. Termination for Convenience. Buyer may terminate the Order, in whole or in part, for its convenience, upon thirty (30) days’ prior written notice to Seller. In the event of such termination, Buyer shall have no liability to Seller other than payment for any conforming Goods and Services received and accepted by Buyer prior to the termination.
4.2. Termination for Cause. In addition to any remedies provided herein, Buyer may terminate the Order for cause immediately upon notice if: (a) Seller is in breach of the Agreement or has defaulted in its performance of its obligations under the Order, including, but not limited to, failure to meet a Delivery Date or provision of non-conforming Goods and/or Services; or (b) becomes insolvent, commences or has commenced against it bankruptcy proceedings, receivership, or assignment for the benefit of creditors. In the event of any termination pursuant to this Section 4.2, Seller shall be liable to Buyer any damages incurred by Buyer resulting from such termination. Buyer shall have no liability to Seller other than the difference, if any, between the amount owed under the Order for conforming Goods and Services received and accepted by Buyer prior to termination, minus any damages incurred by Buyer resulting from termination of the Order and any other amounts payable to Buyer by Seller under the Agreement.
5. CHANGES. Buyer may at any time make changes to the Order by issuing to Seller written notice of such changes (each, a “Change Order”). If such Change Order causes a material increase in Seller’s cost or time for performance, Seller shall notify Buyer in writing within five (5) days after Seller’s receipt of the Change Order, which notice shall be accompanied by documentation sufficient to substantiate any requested increase. Subject to Buyer’s timely receipt of notice and supporting documentation as required herein, an equitable adjustment in the Price or time of performance, or both, may be mutually agreed upon between Buyer and Seller and set forth in a separate writing executed by both parties. Any failure by Seller to notify Buyer of any requested increase within the time required shall constitute a waiver by Seller to receive any adjustment for the Change Order.
6. REPRESENTATIONS; WARRANTIES.
6.1. Representations and Warranties about Seller. Seller represents and warrants to Buyer that: (a) Seller has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under the Agreement; (b) the Agreement is a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms; (c) Seller is and, at the time of each Order will be, solvent; and (d) 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.
6.2. Representations and Warranties about the Goods and Services. Seller represents and warrants that: (a) the Goods shall be new, merchantable, of good workmanship and quality, fit for the purposes for which Buyer intends them and free from faults and defects; (b) the Goods and Services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the Order or that Buyer has otherwise specified in writing; (c) any Services provided by Seller will be without defect and shall be performed in a workmanlike manner by personnel with sufficient experience, skills, qualifications, and licensing necessary to provide such Services; (d) 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. Seller’s warranties extend to future performance of the Goods and Services. These warranties shall be considered to have been given not only to Buyer but also to Buyer’s customers and to end-users of the Goods. Acceptance, testing, inspection, or use of the Goods shipped to Buyer or Buyer’s customer, or any payment for the Goods, shall not affect Seller’s obligations under this Section 6.2. If Seller is in breach of any of the warranties set out in this Section 6.2, at Buyer’s option, (a) Seller shall promptly remedy such breach at its sole cost and expense, to the satisfaction of Buyer; or (b) Buyer may correct such defect or have such defect corrected, and Seller shall reimburse Buyer for all costs incurred by Buyer in correcting such defect. If Seller does not promptly remedy such breach, in addition to Buyer’s other rights and remedies, Buyer may acquire replacement goods and/or services from a third party and Seller shall be liable for the costs thereof.
6.3. Compliance with Laws. Seller warrants and represents to Buyer that it is and shall remain in compliance with all applicable federal, state, and local laws, regulations, codes, standards and ordinances, including, without limitation, those related to hazardous waste, exportation and importation, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, Toxic Substances Control Act, the Foreign Corrupt Practices Act, equal opportunity employment, including, but not limited to, 41 C.F.R. 60-1 and 41 C.F.R. 60-2, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), and Section 503 of the Rehabilitation Act of 1973,each as amended. To the extent that Seller’s personnel are required to enter Buyer’s or its customer’s site, Seller shall ensure that its personnel comply with Buyer and its customer’s health, safety, and site policies and rules. If Buyer is fined as a result of Seller’s breach of this Section 6.3, Seller shall be liable for all amounts imposed on Buyer as a result of Seller’s breach.
7. INDEMNIFICATION. Seller shall indemnify, defend and hold Buyer and its directors, officers and employees (“Representatives”) harmless (and defend Buyer and its Representatives if it requests) from and against any claims, liabilities, losses, damages, costs, judgments, suits, and expenses (including, without limitation, attorneys’ fees and other legal
expenses) brought against or incurred by Buyer or its representatives because of: (a) any breach by Seller of any of its warranties, or its agreements with Buyer; (b) any claim that any of the Goods or Services infringes any patent, trademark, copyright or other intellectual property right; or (c) any death or injury to any person or damage to property alleged to have been caused by the Goods or Services or by Seller’s design or manufacture of the Goods or performance of the Services.
8. LIMITATIONS. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO OVERHEAD COSTS OR LOSS OF CAPITAL, PRODUCT, PROFITS, USE, OR DATA. BUYER’S MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIMS OR LIABILITIES ARISING FROM THE AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAYABLE BY BUYER TO SELLER FOR THE GOODS OR SERVICES GIVING RISE TO THE CLAIM. THESE DISCLAIMERS AND LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. THIS SECTION IS NOT INTENDED TO LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR ANY MATTER WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
9. CONFIDENTIAL INFORMATION. All confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed or made accessible by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Order is confidential (collectively, “Confidential Information”), solely to be used to the extent necessary to provide the Goods and Services to Buyer under the Order and only disclosed to Seller’s employees who (a) have a need to know such Confidential Information in order provide the Goods and/or Services to Seller; and (b) have agreed in writing to comply with the requirements set forth herein. Seller shall not, nor permit any other party to modify, reverse engineer, disassemble, decompile, create other works from or determine the composition of any formulations, prototypes, software or other objects that embody Buyer’s Confidential Information. Any reproduction by Seller of any Confidential Information of the Buyer shall remain the property of Buyer and, to the extent practicable, shall contain any and all confidential or proprietary notices or legends which appear on the original. Any notes that Seller or its representatives creates regarding Buyer’s Confidential Information shall also be deemed Buyer’s Confidential Information. Upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information and any notes or reproductions of such. Buyer shall be entitled to injunctive relief or other specific performance for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain, through no fault or breach of Seller; (b) rightfully and legally known to the Seller at the time of disclosure; or (c) rightfully and legally obtained by the Seller on a non-confidential basis from a third party with no obligations of confidentiality to Buyer.
10. INSURANCE. Seller shall, at its own expense, maintain, and carry insurance in full force and effect with financially sound and reputable insurers, which includes, at minimum: (a) Commercial General Liability (including product liability) in a sum no less than $1,000,000 for each occurrence and $2,000,000 in aggregate, (b) Workers’ Compensation insurance in compliance with the applicable laws of each jurisdiction affected by the Order; (c) Automobile Insurance covering all liabilities for personal injury and property damage arising from the use of such vehicles, with limits of no less than $1,000,000 per occurrence; (d) Professional Liability Insurance in the amount of no less than $2,000,000 per occurrence; and (e) Excess Liability Insurance with a limit of not less than $4,000,000 per occurrence. Excess coverage shall follow form. All insurance policies, excluding Worker’s Compensation, shall name Buyer and its affiliates as additional insureds. Such insurance shall be primary to any other insurance policy carried by Buyer. Seller shall maintain the required coverages for a period not less than two (2) years from the date Buyer issues certificates of final completion or the date Buyer accepts all Goods and Services under the Order.
11. FORCE MAJEURE. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen and prevented by such party (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Seller’s economic hardship, difficulty obtaining materials or labor, or changes in market conditions are not considered Force Majeure Events. Seller shall exercise all efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and promptly resume performance under the Order. If a Force Majeure Event prevents Seller from performance for a continuous period of fifteen (15) business days or, Buyer may terminate the Order pursuant to Section 4.1 upon written notice to Seller.
12. INTELLECTUAL PROPERTY
12.1. Ownership by Seller. All information supplied or otherwise made available by Seller to Buyer under the Order (“Seller Materials”) shall be and remain the sole property of Seller.
12.2. Ownership by Buyer. Except as it relates to any Seller Materials, all information, materials, specifications, concepts, designs, ideas, inventions, developments, or trade secrets provided by Buyer, solely or jointly with others, related to the Order or otherwise shall belong solely to Buyer.
13. DISPUTES; GOVERNING LAW.
13.1. Dispute Resolution. In the event a dispute arises between the parties, the parties shall meet to negotiate and attempt to resolve the dispute expeditiously and in good faith. During the pendency of any dispute, Seller shall continue its performance under the Order, unless otherwise notified by Buyer in writing. Notwithstanding the foregoing, Buyer shall have the right to file suit or take any other action it deems necessary to protect its rights and interests under the Agreement.
13.2. Governing Law. All disputes arising or related to the Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan, excluding the United Nations Convention on Contracts for the International Sale of Goods, without regard to conflict of laws principals. Any action by either party must be brought within the state or federal courts in the State of Michigan. The parties consent to the exclusive jurisdiction of such courts and waive any objection that the court is an inconvenient forum.
14. MISCELLANEOUS.
14.1. Government Contracts. Seller agrees that it and all Goods and Services provided under an Order shall comply with all government regulations referenced on the Order, or of which Seller is otherwise notified of in writing by Buyer (“Government Terms”), which Government Terms are incorporated into the Order by reference.
14.2. Independent Contractor; Subcontractors. Seller is an independent contractor and not an agent, employee or representative of Buyer. Nothing in the Agreement will be deemed to make Seller an agent or employee of or joint venturer with Buyer. Seller shall not engage any subcontractor to perform any Services under the Order without first obtaining Buyer’s written consent. Seller shall obtain and maintain in effect a written agreement with any subcontractor, which agreement shall contain sufficient terms for such subcontractor to fully comply with all provisions of the Agreement; provided, however, that nothing contained in any such agreement shall create, nor represent to create, a contractual relationship between Buyer and any subcontractor. Seller shall have exclusive control over its employes, agents and subcontractors and shall be entirely responsible for its own acts and omissions and those of its employees, agents and subcontractors.
14.3. Notices. All notices required under these Terms and Conditions shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by certified or registered mail (with proof of delivery confirmation). Any notices to Buyer shall be sent to the address listed on the Order, with a required copy to: The Kendall Group, Inc., Attn: Legal Department, 5101 S. Sprinkle Rd., Portage, MI 49002.
14.4. Severability. If any provision of these Terms and Conditions is found invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect or invalidate any other term herein.
14.5. Conflict of Interest. Seller shall not perform work or have any other interest that directly or indirectly conflicts with the interests of Buyer. By entering into the Order with Buyer, Seller represents that it has and will not have any such conflicting interest. Seller shall notify Buyer promptly upon learning of any conflicting interests. In the event of any conflict of interest, Buyer may terminate the Order pursuant to Section 4.2.
14.6. Assignment. Seller shall not assign, transfer, or delegate any of its rights or obligations under the Agreement without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment shall relieve the Seller of any of its obligations hereunder.
14.7. Cumulative Remedies. The rights and remedies of Buyer under the Agreement are cumulative and are in addition to any other rights and remedies available to Buyer at law, in equity or otherwise.
14.8. Publicity. Seller shall not use Buyer’s name, trademarks nor issue any publicity releases, including but not limited to news releases and advertising, relating to the Order without the prior written consent of Buyer.
14.9. Waiver. No failure by Buyer to exercise, or delay by Buyer in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall Buyer’s single or partial exercise of any right, remedy, or privilege hereunder preclude Buyer from any other exercise of any additional right, remedy, or privilege.
14.10. Entire Agreement. These Terms and Conditions, together with Buyer’s Order and any exhibits attached thereto constitute the entire agreement between the parties with respect to the subject matter therein (collectively, the “Agreement”). In the event of any conflict or inconsistency between these Terms and Conditions and the Order or its exhibits, these Terms and Conditions shall govern and control. All prior agreements, negotiations, and understandings regarding the subject matter herein, whether oral or written, are hereby superseded. No supplementation or amendment of these Terms and Conditions shall be binding unless set forth in a separate written amendment to this Agreement, stating the Section(s) to be amended or supplemented, signed by an authorized representative of each party.