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These Terms of Sale will apply to all goods (“Products”) that Buyer purchases from Seller. The Seller is Milson Foundry LLC or a Milson affiliated entity identified as the Seller (sometimes “Milson”) on the face of the Offer, as defined in Section 2.1, into which these Terms of Sale are incorporated. The Products and the Buyer are identified on the face of the Purchase Order. The Buyer and Seller are sometimes identified separately as a “Party” and collectively as the “Parties.”
2.1 Offer and Acceptance. “Offer” means the written document communicated by Seller to Buyer (whether identified as a “quotation,” “proposal,” “bid” or otherwise, setting forth the terms on which Seller will sell the Products to Buyer. These Terms of Sale are incorporated by reference into each Offer. Buyer will be deemed to have accepted Seller’s Offer if Buyer: (1) issues and “award letter,” “nomination letter,” or similar document identifying Seller as the seller of the Supplies; (2) issues a Purchase Order for the Supplies; (3) acknowledges in writing its acceptance of Seller’s Offer; (4) authorizes Seller to provide the Products or to commence work related to the Supplies; (5) accepts delivery of the Supplies; or (6) otherwise indicates its agreement that Seller is to provide the Supplies.
2.2 Contents of the Contract. Upon acceptance, the Contract shall solely consist of the: (i) the Offer, including these Terms of Sale, together with (ii) any other documents specifically incorporated or referenced in the Offer; and (iii) any other documents separately agreed to in writing. The Agreement is limited to and conditional upon Buyer’s acceptance of these terms exclusively. Any additional or different terms proposed by Buyer, whether in a request for proposal, purchase order, or otherwise, are expressly rejected by Seller. However, additional or different terms proposed by Buyer’s shall not operate as a rejection of the Offer if Buyer accepts or pays for any Products or otherwise accepts Seller’s Offer, in which case the Agreement shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. If the Offer is found to be an acceptance of any offer or proposal by Seller, such acceptance shall incorporate and be limited to these Sale Terms exclusively. Buyer acknowledges that any purchase order issued by Buyer to Seller is for Buyer’s administrative purposes only and does not modify the terms of the Contract.
2.3 Changes to the Supplies. Buyer may from time to time by notice to Seller propose reasonable changes, within the scope of the Contract, to the drawings, specifications, materials, packaging, testing, quantity, time or method of delivery or shipment, or similar requirements prescribed in the Contract. Seller will, within a reasonable period of time, and exercising its reasonable judgment, inform Buyer of whether the proposed change is technically practical and, if so, the effect of the proposed change on the cost, timing or other relevant aspect of Seller’s performance. If the Parties thereafter agree in writing to the necessary modifications to the Contract, Seller will proceed to implement the change. If Seller chooses to implement the proposed changes without first agreeing to the necessary modifications to the Contract, Seller will nevertheless be entitled to an equitable adjustment to the Contract prices, times for performance and other affected Contract terms as a result of Buyer’s changes. If a change to the Products makes any Supplies, work in progress or components or materials obsolete, then Buyer will compensate Seller (i) for the Products at the then current price; (ii) for the components or materials at their acquisition cost; and (iii) for work in progress at an equitable price, provided that the quantities of Supplies, work in progress and/or components or materials are reasonable in amount under the circumstances.
2.4 Other Changes. Subject to Section 2.3, Neither party may make any changes to the Contract without the written agreement of Buyer and Seller’s authorized representative.
The quantity and delivery schedule is as stated in the Contract. If the Contract states “requirements,” or a quantity of “0”, then Buyer will buy and Seller will sell Buyer’s requirements, as reasonably determined by Buyer. If the delivery schedule is not specified in the Contract, delivery dates and quantities are as reasonably determined by Buyer and stated in Buyer’s firm releases issued to Seller from time to time. Whether quantities or delivery terms are “reasonably determined” shall take into account, without limitation: (i) any capacity limitations specified in the Contract or otherwise agreed to by Buyer and Seller in writing; (ii) unusual volume or timing fluctuations that are inconsistent with customary lead time requirements or any lead time requirements specified in the Contract or otherwise agreed to by Buyer and Seller in writing; (iii) any output fluctuations of Seller that are agreed by the parties or, if not agreed, acceptable within the industry in light of the nature of the Products and production methods; and (iv) the amount, if any, of contractually agreed inventory. However, in all events, Seller shall use best efforts to meet Buyer’s quantities and delivery schedules. Unless otherwise provided in the Contract, Buyer shall retain, at Buyer’s expense, a reasonable quantity of over-shipments as inventory, on a consignment basis, until removed from inventory. .
4.1 Packing. The form of packaging, including labeling and hazardous materials instructions and any other special requirements, the method of transportation, and the type and number of packing slips and other documents to be provided with each shipment shall be as provided in the Contract, or if not in the Contract, in accordance with Seller’s reasonable commercial practices. Buyer is responsible for the cost of non-customary forms of packaging required by the Buyer.
4.2 Shipment. Seller will deliver Products in accordance with the Contract. Unless otherwise stated in the Contract, Products will be delivered FOB Milson Warehouse and title will transfer upon receipt of the Products by the carrier. Any delivery related charges in connection with postponement or cancellation of delivery are the responsibility of the Buyer. Buyer will also be responsible for additional costs of expedited or other special transportation that Buyer may require as a result of changes to its firm releases or delivery schedules, from “unreasonable” releases, or for other reasons not caused by Seller.
5.1 Prices. All prices are FOB Seller’s warehouse location (INCOTERMS 2020), unless otherwise specified. Prices are for the Products only, and do not include any amount for freight, insurance, fees, customs duties or federal, state or local excise, value added, sales, use, service, occupation, gross income, property or any other taxes, all of which shall be paid by Buyer even if the tax is assessable against Seller (except for taxes on Seller’s net income), unless otherwise specifically stated in Seller’s Offer, Prices contained in the Offer are valid only for the period stated therein and otherwise for 30 days from the date of the Offer, provided that Seller may equitably adjust the quoted price if based on material new information subsequent to the date of the Offer. If the Offer is not accepted within 30 days of the Offer date, the offered prices are subject to change. All prices are in United States dollars and must be paid in U.S. dollars at the location specified in Seller's invoice. Unless otherwise indicated in the Offer, prices are based on costs as of the date of the Offer. If the Agreement calls for some or all of the Products to be delivered more than 90 days from the Offer date, then after 90 days Seller may equitably adjust prices to reflect material increases in costs. An increase shall be material if Seller’s costs, as reasonably determined by Seller, increase more than 5% from those on which the offered price was based or from the date of the last price adjustment.
5.2 Payment. If no payment terms are specified, payment will be due thirty (30) days from invoicing. Seller will accept payment by check or other cash equivalent, including electronic funds transfer. Interest will accrue on late payments at the rate of 12% per year, pro-rated daily.
6.1 Seller’s Warranties. Seller’s sole warranties to the Buyer are:
(a) The Products will be free from material defects in workmanship and material and will conform to the specifications, drawings, samples, and performance requirements (collectively, “Specifications”) agreed to by Seller in writing. Products which conform to approved samples shall be conforming, notwithstanding any variation from other specifications or drawings.
(b) Seller will transfer to Buyer ownership and good title to Products delivered free of all liens, encumbrances, and rights of third parties (except those created by Buyer).
(c) Notwithstanding anything in this Section 6.1 , the above warranties do not apply to and Seller shall not be responsible for any defect, non-conformity or failure resulting from: (i) Buyer’s Property (as defined in Section 10.1) or any constituent part or materials of the Product procured by Buyer from a source other than Seller, including a directed supplier; (ii) any alterations, machining or finishing of the Product after delivery by the Seller; (iii) compliance with Buyer’s Specifications; or (iv) the integration or interaction of the Products with systems or components not supplied by Seller.
THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES AND ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING IMPLIED WAR¬RANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. SELLER DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR THE DESIGN OF THE PRODUCTS.
6.3 Exclusive Remedy. Except as otherwise specifically provided in the Contract and subject to Sections 6.4, 7, and 13, Buyer’s sole remedy for Products that do not conform to the warranties in Section 6.1 will be, at Seller’s option, to either repair or replace the non-conforming Products or refund the amounts paid by Buyer for those Products. To the full extent possible, Buyer will provide Seller with access to any available warranty data related to the Products and any available field-returned Products. Buyer will also provide Seller with an opportunity to participate in any root cause analysis performed by Buyer concerning the Products.
6.4 Recalls. This Section 6.4 applies to any voluntary or government-mandated offer by Buyer (or Buyer’s direct or indirect customer) to consumers or other end users to remedy an alleged Product defect that affects safety or to address an alleged failure of the Product to comply with an applicable safety standard or guideline (a “Recall”). Except as otherwise stated in the Contract, Seller will be liable for costs and damages resulting from a Recall only if and to the extent that the Recall results from a failure of the Products to conform to the warranties in Section 6.1. The extent of Seller’s Recall liability will be negotiated on a case-by-case basis based on (1) a good faith allocation of responsibility for the Recall, (2) the reasonableness of the costs and damages incurred, (3) the quantity purchased and Contract price of the affected Products, and (4) other relevant factors. As a condition precedent to Seller’s liability under this Section 6.4, Buyer must (i) notify Seller as soon as practicable after Buyer learns that a Product Recall is being considered, (ii) provide Seller with available performance evaluations, accident reports, engineering investigations, and other data relating to the potential Recall, (iii) provide Seller a reasonable opportunity to participate in inquiries and discussions among Buyer, its customer, and governmental agencies regarding the need for and scope of the Recall, and (iv) consult with Seller about the most cost-effective method of modifying or replacing vehicle systems or component parts, including the Products, in order to remedy the alleged defect or non-compliance.
7.1 Seller’s Indemnification. Seller will indemnify and defend Buyer against third-party claims or demands for injury or death to persons, property damage, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by Seller’s delivery of Products that do not conform to the warranties in Section 6.1. This Section 7.1 will not apply to the extent that the injury, loss, or damage results from causes for which Seller is entitled to indemnification under Section 7.2.
7.2 Buyer’s Indemnification. Buyer will indemnify and defend Seller against third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by any reason other than Seller’s delivery of Products that do not conform to the warranties in Section 6.1, including (1) Buyer’s design of the Products , (2) any alteration or improper repair, maintenance, handling, or installation of the Products by anyone other than Seller, (3) the integration or interaction of the Products with systems or components not supplied by Seller. (4) Buyer’s Property (as defined in Section 10.1) or any constituent part or materials of the Product procured by Buyer from a source other than Seller, including a directed supplier; (5) any alterations, machining or finishing of the Product after delivery by the Seller; (6) compliance with Buyer’s specifications; or (7) the integration or interaction of the Products with systems or components not supplied by Seller.
7.3 Procedure. The party seeking indemnity (“Indemnitee”) will notify the other party (“Indemnitor”) promptly after it becomes aware of the basis for a claim under Section 7. The parties will cooperate with each other to determine the root cause of a defect in or failure of the Products (and related systems and components) and an equitable allocation of responsibility among all responsible parties. Each party may examine and test all available Products and related systems and components that are subject to a third-party claim. Indemnitor will endeavor to include Indemnitee in settlement discussions where indemnity has been or will be sought..
7.4 Other Indemnity Excluded. This Section 7 and Section 9.6 (regarding intellectual property infringement) are the sole bases for indemnification under this Contract. All other indemnification obligations, express or implied, by law or contract, are disclaimed.
Seller agrees to comply with all applicable laws, rules, regulations, ordinances or other requirements relating to its performance under this Contract (collectively “Laws”) of any national, state, provincial, or local governmental unit of the jurisdictions where the Products are manufactured, as well as the Laws of any other governmental unit agreed to by Seller in a signed writing.
9.1 Definitions. “Intellectual Property Rights” means any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right. “Background Intellectual Property Rights” means any Intellectual Property Rights of either Buyer or Seller relating to the Products (i) existing prior to the effective date of this Contract or prior to the date Buyer and Seller began any technical cooperation relating to the goods or services contracted, whichever is earlier; or (ii) that each Party acquires or develops after these dates but in a strictly independent manner and entirely outside of any work conducted under the Contract. “Foreground Intellectual Property Rights” means any Intellectual Property Rights, except Background Intellectual Property Rights that are developed in connection with this Contract.
9.2 Background Intellectual Property. Buyer and Seller will each retain ownership of their respective Background Intellectual Property Rights.
9.3 Foreground Intellectual Property. Buyer and Seller will each retain ownership of any Foreground Intellectual Property Rights that are solely created or made by their respective employees, agents or subcontractors (“Personnel”) without material assistance of the other Party (“Buyer’s Foreground Intellectual Property” and Seller’s Foreground Intellectual Property,” respectively). Foreground Intellectual Property Rights that are created with material assistance of both Parties (“Joint Intellectual Property“) will be jointly owned, and Buyer and Seller will each have the ability to immediately grant licenses without consultation and without any duty of accounting to each other for any use or purpose.
9.4 Seller’s License Rights. Buyer grants to Seller a license to use Buyer’s Background and Foreground Intellectual Property solely in connection with the performance of Seller’s obligations under the Contract.
9.5 Buyer’s License Rights. Seller grants to Buyer only the right to use Seller’s Background and Foreground Intellectual Property to make, have made, use, reproduce, modify, improve, prepare derivative works of, distribute, display, perform, offer to sell, sell and import the Products that are the subject of this Contract (the “Buyer’s Limited License”), provided that Buyer or its affiliates may only use this Limited License in the event that (i) Seller terminates the Contract except for Default (ii) Buyer terminates the Contract for Default (iii) Seller breaches or repudiates its obligations by being unable or unwilling to deliver Products under this Contract; or (iv) Seller is unable to supply goods or services under this Contract as a result of an Excusable Event. Buyer’s Limited License under subparts (iii) and (iv) of the prior sentence exists only for the duration of Seller’s inability to supply. In no event will the term of Buyer’s Limited License extend beyond the expiration date of this Contract.
9.6 Infringement. Buyer will indemnify and defend Seller and its sub-suppliers against claims, liabilities, losses, damages, costs, and expenses, including reasonable legal fees, arising out of the actual or alleged infringement by the Products of a third-party Intellectual Property Right Products to the extent that a claim of infringement is based on (1) Product design, (2) a Product modification made by Buyer or a third party, (3) a Product modification made by Seller at Buyer’s request, (4) use or interconnection by Buyer of the Product in combination with other products not made or sourced by Seller, or (5) Products made to specifications not provided by Seller.
10.1 Buyer’s Property.
(a) Buyer will own the tooling, jigs, dies, gauges, fixtures, molds, patterns, supplies, materials, and other equipment and property used by Seller to manufacture, store, and transport Products if (1) the Property is so designated in the Contract, or (2) Buyer or its customer has provided or paid for the Property (“Buyer’s Property”). Seller will assign to Buyer contract rights or claims in which Seller has an interest with respect to Buyer’s Property and execute bills of sale, financing statements, or other documents reasonably requested by Buyer to evidence its or its customer’s ownership of Buyer’s Property. Seller will hold Buyer’s Property on a bailment basis. All replacement parts, additions, improvements, and accessories to Buyer’s Property will become part of Buyer’s Property, so long as they are paid for. Rapid wear components shall be the property of the Seller, unless paid for by the Buyer.
(b) Seller will at its expense provide routine maintenance to Buyer’s Property throughout the useful life of Buyer’s Property, All other maintenance, repairs or replacements shall be at Buyer’s expense. Seller may make recommendations to Buyer regarding the need for such maintenance, repairs, or replacements. If Buyer declines to follow Seller’s recommendations, then Seller shall have no responsibility (including warranty responsibility) for any non-conforming Products or other consequences of Buyer’s failure. Seller may undertake any maintenance, replacement or repair without first seeking Buyer’s approval if doing so is reasonably necessary to prevent a supply disruption or other substantial harm.
(c) Seller will: (i) use Buyer’s Property only for the manufacture, storage, and transport of Products for Buyer unless Buyer otherwise approves in writing, and (ii) at Buyer’s request, mark Buyer’s Property as belonging to Buyer or its customer.
(d) Buyer will pay for Buyer’s Property that it is required to purchase at the price specified in the Contract or, if no amount is specified in the Contract, at (1) Seller’s actual cost of the Buyer’s Property, if manufactured by a third party, or (2) Seller’s actual cost of purchased materials, components, and services plus Seller’s actual cost of labor and overhead allocable to the Buyer’s Property, if manufactured by Seller. Unless otherwise stated in the Contract, payment for Buyer’s Property is due: (i) one third on issuance of the purchase order; (ii) one third upon completion or receipt of the Property by Seller; and (iii) one third upon completion of testing, acceptance of sample parts or commencement of production, whichever is earlier.
(e) Subject to Section 10.1(f), Seller will immediately release to Buyer upon request, and Buyer may retake immediate possession of, Buyer’s Property and other property of Buyer or its customers at any time, with or without cause and without payment of any kind unless otherwise provided in the Contract. Seller will release the requested Buyer’s Property and other property to FOB origin, properly packed and marked in accordance with the requirements of Buyer’s carrier. If the release or recovery of Buyer’s Property or other property renders Seller unable to produce a Product, the release or recovery will be deemed a termination without cause of the Contract with respect to that Product (including any Service Part obligations) pursuant to Section 11.
(f) Seller’s obligation to release and allow Buyer possession of Buyer’s Property under Section 11.1(e) shall be conditioned on payment by Buyer of all amounts owed for Buyer’s Property, except that if there is a good faith dispute the amount owed, Seller shall release and allow Buyer possession upon payment by Buyer of the undisputed portion of the amount claimed by Seller to be owed. Seller's relinquishment of possession shall not prejudice any claim or right to payment of Seller for the disputed amounts.
10.2 Seller’s Property. Seller will own all Property that is not Buyer’s Property (“Seller’s Property”).
11.1 Duration. If unless earlier terminated on notice or for Default.no duration is stated in the Contract, each Contract will remain in effect until fully performed,
11.2 Termination on Notice. Either party may terminate this Contract, with or without cause, upon 180 days advance written notice to the other party.
11.3 Termination for Default. Either party may terminate this Contract for Default pursuant to Section 12.
11.4 Obligations Following Termination. Following termination or expiration for any reason, Buyer will: (i) purchase from Seller completed Products at the Contract price and work-in-process, components and materials at Seller’s cost, each of which will be owned by Buyer upon payment in full, provided that the quantities of Products, work in progress or components or materials are reasonable in amount under the circumstances; (ii) pay to Seller all unpaid amounts owed for Buyer’s Property and (ii) reimburse Seller for the amounts, if any, reasonably paid to third parties by Seller on account of commitments made by Seller. In addition, if the Contract is terminated by Buyer for convenience or Seller for Default, Buyer will pay to Seller the reasonable cost of unreimbursed and unamortized research and development and capital equipment purchased to perform the terminated Contract.
Subject to Section 15, either party will be in “Default” under the Contract if it (1) fails to perform any material obligation under the Contract and, if the non-performance can be cured, fails to cure the non-performance within 15 business days after notice from the other party specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, or (3) becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement..
(a) Subject to the express limitations of the Contract (including Sections 6, 7.4, and 13(b)), either party may exercise seek all remedies available at law f(or equity.
(b) EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED IN THE CONTRACT, ALL IN-DIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING CONSEQUENTIAL LOST PROFITS OR MARKET SHARE OR DAMAGE TO BRAND VALUE), INCIDENTAL, MULTIPLE, PUNITIVE, AND EXEMPLARY DAMAGES, WHETHER OR NOT FORESEEABLE, ARE EXCLUDED UNDER THESE GENERAL TERMS AND CONDITIONS TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Trade secrets, specifications, drawings, notes, instructions, engineering data and analyses, compositions of matter, financial data, and other technical and business data which are supplied or disclosed by Buyer or Seller in connection with the Contract, in each case that are marked or otherwise identified as confidential or where their confidential nature is apparent at the time of disclosure (“Confidential Information”), will be deemed confidential and proprietary to, and remain the sole property of, the disclosing party. The receiving party may not disclose Confidential Information or use Confidential Information for any purpose other than as contemplated under the Contract without in each case the written consent of the disclosing party. Confidential Information will not include information that (1) is or becomes generally available to the public other than as a result of a violation of this Section 14 by the receiving party, (2) was obtained by the receiving party on a non-confidential basis from a third party who had the apparent right to disclose it, or (3) is legally required to be disclosed. Buyer and Seller will each use the same degree of care to safeguard Confidential Information that it uses to protect its own confidential information from unauthorized access or disclosure (but not less than a reasonable degree of care). Upon request by the disclosing party, the receiving party will promptly return or destroy the original and all copies of Confidential Information received.
A delay or failure by either party to perform its obligations under the Contract will be excused, and will not constitute a breach or Default, if (1) caused by an event or occurrence beyond the reasonable control of that party and without its fault or negligence, including a labor dispute, and (2) the party unable to perform gives timely notice of the non-performance (including its anticipated duration). Seller and Buyer shall share information, confer, seek agreement and otherwise act cooperatively to avoid or mitigate the effects of the potential or actual failure of performance. If Seller is unable to perform for any reason, Buyer may purchase Products from other sources and reduce its purchases from Seller accordingly without liability. If the non-performance exceeds 30 days, the other party may terminate the Contract by notice given to the non-performing party before performance resumes. If Seller reasonably incurs extraordinary costs in order to maintain or restore supply in response to an inability to perform (or what would be an inability to perform except for those extraordinary costs), the cost shall be allocated between the parties in an equitable manner.
Unless otherwise agreed in writing, the Contract will be governed by and interpreted according to the internal laws of Michigan, excluding its choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Contract. Any litigation arising out of or related to the Contract will be commenced in the State or Federal courts of competent jurisdiction in Oakland County, the State of Michigan.
17.1 Relationship of the Parties. Buyer and Seller are independent contractors, and nothing in the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
17.2 Waiver. The failure of either party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
17.3 Entire Agreement. The Contract constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Contract, including Buyer’s request for quotation and Seller’s quotation unless specifically incorporated in the Contract. Except as authorized in Section 2.3, no subsequent terms, conditions, understandings, or agreements purporting to modify the terms of the Contract will be binding unless in writing and signed by both parties.
17.4 Severability. A finding that any provision of the Contract is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of the Contract or the validity or enforceability of that provision in any other jurisdiction.
17.5 Notices. Any notice or other communication required or permitted in the Contract must be in writing and will become effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the date of actual receipt is not a business day.
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