Each quotation together with these Terms and Conditions (“Offer”) is an offer by the issuing PGS company (“Seller”) to the party to whom such Offer is addressed (“Buyer”) to sell to Buyer the goods (“Products”). A contract (the “Agreement”) is formed when Buyer accepts the Offer of Seller. Following acceptance, references to the term “Offer” hereunder shall be deemed to be references to the term “Agreement.”
Each Offer shall be deemed accepted upon the terms and conditions of such Offer by Buyer by written acknowledgement or by the issuance to Seller of a purchase order or other acceptance document for the Products/Services. Acceptance is expressly limited to the terms and conditions of the Offer and Buyer expressly rejects any other terms. No purported acceptance of any Offer on terms and conditions which modify, supersede, supplement or otherwise alter these terms and conditions, whether contained in Buyer’s purchase order or other acceptance document, shall be binding upon Seller and such terms and conditions shall be deemed rejected and replaced by these terms and conditions. Notwithstanding any contrary provision in Buyer’s purchase order or other acceptance document, delivery of Products/Services or commencement of work by Seller shall not constitute acceptance of Buyer’s terms and conditions.
3. DRAWINGS and SPECIFICATIONS
This Offer is conditional upon the timely receipt of drawings and specifications from Buyer. Seller shall not be responsible for delays caused by failure of Buyer to provide its purchase order, drawings and specifications within the required time frame. Buyer agrees to reimburse Seller for any overtime or additional costs required to meet accelerated dates. Seller reserves the right to re-quote cost and delivery in the event of changes in the drawings and specifications or in the event of changes in estimated annual volumes. All customer verbal and written communication will be provided in the English Language.
4. DESIGN, USE and SUITABILITY
Suggestions as to design, use and suitability made by Seller are submitted in good faith; however, Buyer assumes final responsibility for accepting and/or using such suggestions. Buyer assumes all risk and liability for the results obtained by use of the Products that are attributable to Buyer.
Credit and delivery of goods shall be subject to the Seller’s approval and the Seller reserves the right to alter the payment terms; require additional security; fix a limit of credit and require an irrevocable letter of credit. Because financial uncertainty puts the entire supply chain at risk, failure of Buyer to comply with Seller’s credit terms, as the same may be adjusted from time to time, shall be grounds for Seller to cease shipment and shall constitute Buyer’s consent for Seller to address Buyer’s credit situation and the payment status of Buyer’s account by informing Buyer’s customers [or its customer(s) including, without limitation, the ultimate OEM customer].
6. PRICES and PRICE REDUCTIONS
Seller reserves the right to increase prices in the event of increases in its raw material or other direct costs arising after the date of this Offer. No price reductions shall apply unless specifically agreed to in writing by Seller. Unless otherwise agreed in writing, such price reductions shall not commence prior to one year following the start of production.
A. WARRANTY AND DISCLAIMER.
EXCEPT FOR THE FOLLOWING EXPRESS WRITTEN WARRANTY:
PGS warrants that it will produce Product per our accepted work instruction. If a PGS process fails to meet this warranty, at PGS’s election, PGS shall (i) reprocess the part, which would need to be returned from the customer as originally received as per the original scope of work (SOW) or (ii) provide a replacement for the Product or (iii) return to the customer the cost of the particular Product that breached this warranty. OTHER THAN THE LIMITED WARRANTY PROVIDED ABOVE, PGS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) CONCERNING ANY PRODUCT. ALL OTHER GUARANTEES, WARRANTIES, CONDITIONS AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, ARE HEREBY EXCLUDED.
B. REMEDY FOR BREACH OF WARRANTY. DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT PGS’s SOLE RESPONSIBILITY IN THE CASE OF BREACH OF THE FOREGOING WARRANTY SHALL BE FOR PGS, AT PGS’s ELECTION, (I) TO REPAIR THE PRODUCT OR (II) TO PROVIDE A REPLACEMENT FOR THE PRODUCT OR (III) TO RETURN TO THE CUSTOMER THE COST OF THE PARTICULAR RETURNED PRODUCT THAT BREACHED THIS WARRANTY.
C. LIMITATION OF LIABILITY. IN NO EVENT, INCLUDING BREACH OR NON-FULFILLMENT OF THE FOREGOING LIMITED REMEDY, SHALL PGS BE LIABLE FOR LOSS OF PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND.
8. BUYER’S WARRANTIES, REPRESENTATIONS, INDEMNIFICATION and STAUTORY & REGULATORY REQUIREMENTS
Buyer warrants and represents that: (a) any information, material or other items disclosed or delivered to Seller hereunder is Buyer’s rightful property; and (b) Buyer has the right to disclose or deliver all information, material or other items disclosed or delivered to Seller by Buyer hereunder. If a claim, suit or action alleging infringement arises out of (i) compliance by Seller with specifications or designs furnished by Buyer which describe that aspect of said Products on which such alleged infringement is based, or (ii) the performance of a process not recommended in writing by Seller, or (iii) sale of said Products to a Buyer customer not approved by Seller in writing, or (iv) the use or sale of the Products provided by Seller hereunder in combination with other products not provided by Seller to Buyer, or (v) any use by Seller of a supplier directed or suggested by Buyer or any parts or products therefrom, then in any such event, Buyer shall defend such claim, suit or action and indemnify and save Seller harmless therefrom. Customer must provide Statutory and Regulatory customer specific requirements. Customer will communicate any Known Safety Critical products or services.
No returned Products will be accepted for any reason unless a valid return authorization to return such Products is first secured from Seller and such return is shipped in accordance with Seller’s instructions. Any returns received without a Seller issued valid return authorization shall, at Seller’s option, be: 1) immediately returned to Buyer at Buyer’s sole expense, or 2) ten (10) days after notification to Buyer, disposed of at Buyer’s sole expense. Buyer shall be responsible for all damage to returned Products resulting from improper packing or handling of the Products.
10. CHANGES, DEFERMENT and CANCELLATION or DELIVERIES
Insofar as practical, Seller will accept changes, deferments or cancellations of deliveries without charge. However, deliveries of firm orders which have been accepted by Seller may be changed, deferred or canceled only upon agreement by Seller and Seller may condition said agreement upon Buyer’s assumption of liability and payment to Seller for: (1) all completed work at the order price; (2) a sum equal to the costs of work in process including costs accrued for labor and material and, (3) any amount for which Seller shall be liable by reason of commitments made by it to its suppliers, including both internal and external suppliers.
11. BUYER’S FINANCIAL STATUS
If a receiver or trustee is appointed for any of Buyer’s property, or Buyer is adjudicated bankrupt, or an application for reorganization under the Bankruptcy Act is filed by or against Buyer which is not dismissed within ten (10) days or if Buyer becomes insolvent or makes an assignment for the benefit of creditors or takes, or attempts to take, the benefit of any insolvency acts, or an execution is issued pursuant to a judgment rendered against Buyer, or should Buyer be unable or refuse to make payment to Seller in accordance with any of its obligations to Seller, Seller may at its option in any of such events terminate this Quotation and/or all related purchase orders by giving to Buyer a written notice. Upon such termination, Seller shall be relieved of any further obligation to Buyer and Buyer shall reimburse Seller for Seller’s termination costs and expenses and a reasonable allowance for profit and all sums paid to Seller up to that time shall be retained by Seller and applied toward the termination costs and expenses (and profit) payable hereunder. The excess, if any, of such sums over the total termination amount shall be returned to Buyer by Seller.
12. LIABILITY LIMITATION
Specific performance shall not be available to either party as a remedy in connection with Seller’s providing of the Products. Monetary damages against Seller shall be limited to the dollar amount charged to Buyer for the most recent order placed by Buyer and accepted by Seller for any of the Products or services alleged to be the cause of any loss or damage, whether founded in contract or tort (including negligence) arising out of, or resulting from, (a) any order placed by Buyer and accepted by Seller or Seller’s performance or breach, (b) the design, manufacture, delivery, sale, repair, replacement or use of any such Products, or (c) the furnishing of any service. In no event shall either party have any liability to the other for any incidental or consequential damages.
13. PRECLUSION FROM SETOFF or RECOUPMENT
Buyer is prohibited from and shall not setoff against or recoup from any invoiced amounts due or to become due from Buyer, its parent or affiliates against Seller, its parent or affiliates in this or in separate transactions.
14. RIGHTS IN PROPRIETARY DATA
Reports, specifications, drawings, designs, computer programs and any other property, tangible or intangible, furnished by Seller remains Seller’s exclusive property and may not be used, copied or disclosed without Seller’s prior written consent.
Buyer and Seller, upon receipt of all Confidential Information, agrees to create and enforce guidelines and procedures to ensure that disclosure, publication or dissemination of Confidential Information received from Buyer or Seller is prevented.
This Offer and/or all related purchase orders shall not be assigned in whole or in part by either party without the prior written consent of the other party, except that Seller may assign its rights, liabilities and obligations arising out of this Offer and/or any related purchase order to any parent, subsidiary, affiliate or any corporation with which Seller may merge or consolidate or to which Seller may assign all or substantially all of its assets or that portion of its business to which this Offer and/or any related purchase order pertains without prior consent.
17. EXPORT and IMPORT LICENSES
Nothing herein contained shall be construed as imposing an obligation on Seller to furnish or obtain any export or import license or similar authorization or to be in any way responsible for its issuance or its continuance in force if issued.
No modifications of any order placed by Buyer and accepted by Seller shall be binding unless in writing signed by both parties hereto.
19. SECURITY INTEREST
To secure the payment of the purchase price of the Products/Services sold hereunder, Buyer hereby grants to Seller a continuing security interest in the Products/Services and in the proceeds of any subsequent resale.
20. COMPLIANCE WITH LAWS
Buyer represents that the Products/Services delivered hereunder will be produced and supplied in compliance with all applicable state and federal laws and regulations.
21. EXCUSABLE DELAY:
Seller shall not be liable for any delays or inability to perform if such delay or inability to perform is caused by circumstances beyond its reasonable control, including without limitation Acts of God or public authority, riots or other public disturbances, labor disputes of any kind, inability to obtain raw materials, power failures, failure of Buyer to provide required information [or failure of Buyer to provide adequate containers].
22. TERMINATION BY SELLER:
Seller reserves the right to terminate this Offer and all related purchase orders if Buyer fails to perform any of its obligations under this Offer and all related purchase orders and does not cure such failure or breach within ten (10) days after receipt of notice from Seller specifying such failure or breach. In the event of termination, Buyer shall be liable for prompt payment of any amounts due as well as Seller’s claims for raw materials, work in process and finished goods under any releases issued by Buyer.
23. EXCESS ORDER QUANTITIES
Seller shall not be liable for failure to perform where Buyer requires, in any calendar week, more than 120% of the stated capacity of the tooling provided and Buyer agrees to reimburse Seller for overtime costs incurred due to Buyer requiring more than 100% of the stated tooling capacity in any calendar week, unless otherwise agreed in writing by the parties.
Buyer agrees to certify that goods and services purchased from Seller are eligible for state and federal tax exemption. Buyer agrees to be liable for any tax (not including income tax) which may be imposed by any taxing authority arising out of the sale, delivery or use of the Products or services.
Waiver by Seller of any of the terms set forth herein or in the Offer to which it is attached shall not constitute a waiver of such terms as to any subsequent events or conditions, whether similar or dissimilar. A course of dealing or custom in the trade shall not constitute a modification or waiver by Seller of any right.
26. Applicable Laws, Construction and Captions:
This Offer and any related purchase orders shall be interpreted in accordance with, and the construction thereof shall be governed by, the internal laws of the state of Michigan, without application of conflict of laws provisions. The U. N. Convention on the International Sales of Goods shall not apply. Captions, as used in these terms and conditions, are for convenience of reference only and shall not be deemed or construed as in any way limiting or extending the language of the provisions to which such captions may refer.
27. WAIVER OF JURY TRIAL
THE BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. THE PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS QUOTATION AND ANY RELATED PURCHASE ORDER OR ANY OTHER AGREEMENTS BETWEEN THE PARTIES. NO PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED.
All disputes arising under or in connection with this Offer and any related purchase order shall be finally settled by arbitration in Southfield, Michigan, before a single arbitrator appointed by the American Arbitration Association (“AAA”) which arbitration shall be conducted under AAA’s commercial arbitration rules then in effect at the time of this Offer provided, however, that discovery shall be permitted in accordance with the Untied States Federal Rules of Civil Procedure. The decision of the arbitrator shall be final and binding upon Buyer and Seller, shall not be appealable, and judgment on the award rendered may be entered in any court of competent jurisdiction. Each party will bear equally the costs and expense of AAA and of the arbitrator. Each party will bear its own costs and expenses.
29. TERMINATION or CANCELLATION BY BUYER
If Buyer terminates or cancels any related purchase order (other than for Seller’s breach), Buyer shall be liable for the prompt payment of amounts due, raw materials, work in process, finished goods under Buyer’s releases as well as all claims by Seller’s subcontractors and Seller’s claims for its unamortized investments involved in preparing to or producing the Products/Services.
30. TIME FOR REQUESTING ARBITRATION
Any claim by Buyer against Seller arising from or in connection with this Offer and any related purchase order must be made pursuant to the Arbitration provisions and cannot be filed, made or maintained unless it is commenced within one (1) year after Seller has shipped the Products in question.
31. PARTIAL INVALIDITY
If any term or provision of these Standard Terms and Conditions of Sale, or the application thereof to any situation or circumstance, shall be invalid or unenforceable, the remainder of these Standard Terms and Conditions of Sale or the application of such term or provision to situations or circumstances other than those as to which it is invalid or unenforceable, shall not be affected; and each term or provision of these Standard Terms and Conditions of Sale shall be valid and enforceable to the fullest extent permitted by applicable law.
These Standard Terms and Conditions of Sale shall survive and continue in full force and effect following the expiration, cancellation or termination of this Offer and any related purchase order.
33. ENTIRE AGREEMENT
The terms and conditions of this Offer constitute the entire agreement between the parties hereto and shall supersede any previous communications, representations, or agreements, either oral or written, between the parties hereto with respect to the subject matter hereof, including any subsequent terms of purchase of the Buyer. No modification of the terms and conditions of this Offer shall be effective unless agreed to in writing by the President or CEO of Seller.