STANDARD TERMS AND CONDITIONS OF PURCHASE
The following terms and conditions (“Standard Terms”) shall apply to and are incorporated in every purchase order and other contractual document (collectively, “order” or “Sales Document”) pertaining to purchases of goods and services by Fori Automation, Inc. (hereinafter “Fori Automation” or “Purchaser”). These Standard Terms may conflict with terms affixed to a sales order or confirmation of a purchase order or other document issued by the seller named in the purchase order (“Seller”), in which case, these Standard Terms shall govern. Any offer by Fori Automation to enter into an order for the purchase of goods or services incorporates these Standard Terms and such offer limits acceptance to inclusion of these Standard Terms without modification or amendment except to the extent modified or amended in a writing signed by Fori Automation. If there exists a conflict between these Standard Terms and a term or condition set forth in a Sales Document signed by Fori Automation of which this is a part, the term or condition if the Sales Document will control.
- PRICES; PAYMENT. Unless otherwise specifically agreed to by Purchaser in writing, all prices are firm and no extra charges of any kind including, but not limited to charges for boxing, packing, loading, bracing or cartage will be allowed. Purchaser’s payment of the purchase price does not indicate its acceptance of the goods or services. Payment terms shall run from the latest of (1) the scheduled date for delivery or performance, (2) the actual date of delivery of conforming goods or performance of conforming services, (3) the date of Seller’s invoice, (4) in the case of capital equipment, completion of Purchaser’s final inspection and acceptance after installation and (5) in the case of tooling, Purchaser’s approval of production pieces produced by the tooling at Purchaser’s facility.
If Purchaser pays any part of the purchase price of the goods before Seller delivers them to Purchaser, then (1) title (but not risk of loss) to each item of the goods shall pass to Purchaser upon identification of the item to the order, (2) to the extent necessary to protect Purchaser’s title to the goods, Seller grants Purchaser a security interest in the goods to secure Seller’s obligation to deliver them to Purchaser and all of Seller’s other present and future obligations to Purchaser and (3) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Purchaser’s interest in the goods.
- ACCEPTANCE AND MODIFICATIONS. Purchaser shall not be bound by this order until Seller executes and returns the Acknowledgement Copy of this order. Shipment of the goods covered by this order without execution and return of the Acknowledgement Copy of this order shall be deemed conclusive of Seller’s acceptance of the terms and conditions of Purchaser’s order, including these Standard Terms. All specifications, drawings, and data submitted to Seller with this order are hereby incorporated herein and made part hereof. Reference in this order to Seller’s proposal does not imply acceptance of any terms or conditions contained in such proposal. The terms in this order shall govern in any instance where they conflict with the provisions of any forms used by Seller. This order together with anything expressly incorporated herein by reference shall constitute the entire agreement between the parties and no obligations not expressly set forth herein are binding upon them. No waivers, alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by a duly authorized representative of both parties.
The terms of this contract and Purchaser’s instructions in regard to it must be followed carefully and Seller assumes responsibility for any damage resulting from any failure to comply fully therewith. Such damage will include any expense and liability foreseen or unforeseen which Purchaser may incur in connection with this contract and the delivery of the goods mentioned herein to Purchaser’s customer(s) which result from any such failure on the part of the Seller.
- SHIPPING INSTRUCTIONS. Transportation charges must be collect. No prepay and add shipment will be allowed. Goods sold FOB origin must be shipped per routing instructions listed on purchase order. Failure to follow the routing instructions will result in a freight charge back. No insurance charges will be allowed unless authorized by Purchaser. All shipments must be accompanied by a packing list identifying Purchaser’s order number and each item shipped.
- TITLES TO GOODS. Title to, and risk of loss for the goods shall pass only upon delivery to the specified point of delivery.
- DELIVERY SCHEDULE. It is Seller’s responsibility to comply with Purchaser’s delivery schedule, but not to anticipate Purchaser’s requirements. Goods shipped to purchaser in advance of schedule may be returned to Seller at Seller’s expense. Purchaser’s acceptance of an early delivery shall not change the payment terms.
- DELAYS IN DELIVERY. Time of delivery or performance is of the essence and Purchaser’s stated delivery or performance date and the date for performance of any other obligation of Seller shall not be extended or excused for any reason, including anything that Seller cannot control. Seller shall not, however, be liable for damages for delays in delivery or non-performance by reason solely of strikes, Governmental interference or regulation, riots, acts of God or war; or other cause of force majeure, if Seller notifies Purchaser in writing within fifteen days of such occurrence, describing the occurrence and the delay it will cause. Within forty days after receipt of such notice, Purchaser may elect either to terminate any unexecuted portion of this contract or to agree to a modification hereof. If Seller; however, for any other reason does not substantially comply with Purchasers delivery schedule, Purchaser, in addition to remedies provided by law; at its option may either approve a revised delivery schedule or unless otherwise agreed, may terminate the order without liability to Seller on account thereof.
- INSPECTIONS; REJECTIONS. Goods and/or services purchased hereunder are subject to inspection and approval by Purchaser. Purchaser’s employees or agents may at any time enter Seller’s premises to inspect and test the goods, Seller’s process of manufacturing of them and any materials, components or work-in-process that Seller will use in their manufacture. Purchaser reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings, and data or Seller’s warranties (express of implied). If rejected, goods may be returned at Seller’s risk, and all handling, cost of inspection, and transportation expenses both ways shall be assumed by Seller. When goods have been rejected and returned for replacement, Seller shall not make such replacement before the receipt of new shipping instructions from Purchaser. If the method of inspection, if any, herein designated becomes impracticable or inconvenient, any reasonable inspection may be substituted therefore at Purchaser’s option.
Nothing herein shall be deemed to limit or exclude those remedies otherwise available to the Purchaser at law. Payment for any article hereunder shall not be deemed an acceptance thereof.
- PURCHASER’S PROPERTY. Unless otherwise agreed in writing, any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and all tools, equipment or material furnished to Seller by Purchaser or specifically paid for by Purchaser shall be and remain the personal property of Purchaser. Such property shall be held at Seller’s risk, shall be maintained by Seller in good condition, shall be marked as property of Purchaser, shall not be commingled by Purchaser with its property or the property of third parties, and shall be delivered to Purchaser upon filing its order or upon its written request.
- CHANGES. Purchaser shall have the right to make changes in the order, but no additional charges will be allowed unless authorized in writing by Purchaser. If such changes would materially affect delivery or Seller’s costs, an equitable adjustment shall be made if Seller shall notify Purchaser 10 days after Purchaser notifies Seller of the change. Seller shall not make substitutions for parts or materials ordered and shall not deviate from Seller’s specifications, drawings, and data unless authorized by a Purchase Order Change Notice.
- EXPORT AND IMPORT REQUIREMENTS; DRAWBACK AND REFUND RIGHTS. Seller shall prepare, maintain and, to the extent that that applicable law, regulation or customs authority requires it to do so, submit to the applicable customs authorities, all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the goods will be exported and each country into which they will be imported, and Seller shall comply with all other applicable customs requirements. Whenever Purchaser requests it to do so, Seller shall promptly furnish to Purchaser copies of that information and documentation. Seller is solely responsible for complying with all technical compliance and country of origin requirements of each country into which the goods are to be imported. Seller assigns and transfers to Purchaser all transferable customs duty and tax drawback or refund rights relating to the goods, including rights developed by substitution and rights that Seller acquires from its suppliers. Seller shall promptly inform Purchaser of each such right and, upon Purchaser’s request, shall promptly provide to Purchaser all documents and information that are required for Purchaser to obtain each such drawback and refund. Seller at all times shall maintain, and shall cause each of Seller’s suppliers and logistics providers to maintain, at each facility where the goods are manufactured or located, strict security measures that are reasonably calculated to prevent acts of terrorism with respect to the goods.
- INSURANCE. Seller shall maintain insurance coverage that will fully protect both Seller and Purchaser from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain employee’s liability and compensation insurance that will protect Purchaser from any and all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker’s compensation or occupational disease acts. All insurance that this paragraph requires shall be in amounts and coverages, and shall be issued by insurers, that are satisfactory to Purchaser. Upon Purchaser’s request at any time, Seller shall furnish to Purchaser certificates evidencing required insurance.
- CONFIDENTIALITY AND NON-USE. Seller shall not sell or offer to sell or otherwise provide to anyone other than Purchaser any goods made in accordance with any drawings, designs or specifications that Purchaser furnishes to Seller or that incorporate, embody or are made in accordance with any of Purchaser’s intellectual property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller’s suppliers), the goods, any designs of or specifications for the goods, any property of Purchaser or any information concerning Purchaser’s business, operations or activities, including, without limitation, information concerning Purchaser’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information”), except that Seller may disclose Confidential Information to a third party (other than a competitor of Purchaser or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the order. If Seller breaches or threatens to breach this paragraph or paragraph 8, then Purchaser’s remedies at law will be inadequate. Therefore Purchaser shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Purchaser’s rights and remedies shall be cumulative.
- NON-ASSIGNMENT. Assignment of this order or any interest therein or any payment due or to become due thereunder, without written consent of Purchaser, shall be void.
- SUBCONTRACTING. The Seller shall not subcontract nor delegate performance of all or any substantial part of the work called for under this order without the written consent of the Purchaser.
- LIENS. Seller agrees to deliver to Purchaser the goods covered by this order free and clear of all liens, claims and encumbrances.
- WARRANTY. No disclaimers or modifications, or attempted disclaimers or modifications, by the Seller, or any express or implied warranties relating to goods shall be valid or effective. Seller warrants the goods and/or services furnished hereunder (1) to be of the best quality of their respective kind, (2) to be in full conformity with Purchaser’s specifications, drawings, and data, or Seller’s samples, (3) to be fit and suitable for the use intended by Purchaser, (4) to be free from defects in labor, material, and manufacture for a period of 24 months after equipment assembled from Seller’s goods or based on his services is taken into operation by Purchaser or his customer(s), and (5) shall conform to all other representations and warranties customarily extended by Seller; however, such period is not to extend beyond 30 months after receipt of goods and/or services at FOB point specified in this order. Seller agrees that this warranty shall survive acceptance of the goods and/or services and agrees that this warranty shall survive acceptance of the goods and/or services and that it shall extend and pass to, and protect and be enforceable by Purchaser’s successors, assigns and customers. Said warranty shall be in addition to any warranty of additional scope given to Purchaser by Seller.
- COMPLIANCE WITH LAWS. In the performance of work under this order, Seller shall comply at all times with, and give all stipulations and representations required by all applicable executive orders, federal, state and local laws, and the rules, orders, requirements and regulations thereunder. Such Federal laws include but are not limited to, the Foreign Corrupt Practices Act, Espionage and Censorship Act of June 25, 1948; the Fair Labor Standards Act of 1938, as amended, and the Occupational Safety and Health Act of 1970.
- DISCLOSURE OF KNOWLEDGE OR INFORMATION. Any knowledge or information which the Seller shall have disclosed or may hereafter disclose to the Purchaser in connection with a request for a quotation or the purchase of goods or the services covered by this order, shall not, unless otherwise specifically agreed upon in writing by the Purchaser, be deemed to be confidential or proprietary information, and shall be acquired, free from any restrictions (other than a claim for patent infringement) as part of the consideration of this order.
- FOR WORK ON PURCHASER’S OR ITS CUSTOMER’S PREMISES. If Seller’s work under the order involves operations by Seller on the premises of Purchaser or one of its customers, Seller shall at all times (1) enforce strict discipline and maintain good order among all persons engaged in the activity on the premises and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises, (2) take all necessary precautions to prevent the occurrence of an injury to persons or property during the progress of such work and (3) keep the premises free from accumulation of waste materials and rubbish that its employees or subcontractors cause and upon completion shall promptly remove all of Seller’s equipment and surplus materials. Except to the extent that any such injury is due solely and directly to Purchaser’s or customer’s negligence, as the case may be, Seller shall indemnify Purchaser against all loss which may result in any way from any act or omission of the Seller, its agents, employees, or subcontractors. Seller shall maintain such Public Liability, Property Damage and Employee’s Liability and Compensation insurance as will protect Purchaser from such risks and from any claims under any applicable Workmen’s Compensation and Occupational Disease Acts.
- TERMINATION. If Seller ceases to conduct its operations or to engage in a normal course of business, or becomes unable to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment for the benefit of creditors is made by Seller, Purchaser may terminate the order without liability except for deliveries previously made or for goods covered by the order then completed and subsequently delivered in accordance with the terms of the order.
- PURCHASER’S REMEDIES. Without limiting other rights and remedies available to it, Purchaser may, at its option, (1) return nonconforming goods to Seller, at Seller’s risk and expense, and require Seller either to give Purchaser full credit against the price or promptly to repair or replace the goods at Seller’s risk and expense, (2) retain nonconforming goods and set off losses against any amount that Purchaser owes Seller or (3) repair or replace nonconforming goods and charge Seller with the expense. If at any time (a) Seller defaults in the performance of any of Seller’s obligations to Purchaser under the order or under any other agreement between Seller and Purchaser, (b) Seller repudiates the order or (c) a warranty or representation that Seller made to Purchaser in or in connection with the order is false or misleading in a material respect, then Purchaser may terminate the order, in whole or part, without liability to Seller, and Seller shall promptly pay to Purchaser all damages that Purchaser incurred as a result of the termination and as a result of the event or circumstance on the basis of which Purchaser terminated. If Purchaser does terminate the order, then Seller, if and to the extent that Purchaser demands, shall immediately deliver to Purchaser all finished and unfinished goods and all work-in-process and raw materials that Seller acquired for use in the manufacture or processing of the goods and all designs, drawings, specifications and software that Purchaser is purchasing from Seller under the order, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Purchaser’s payment of part or all of the purchase price shall not be a precondition to Seller’s obligation to make the delivery. After Seller has made the delivery and Purchaser has determined its damages (including, without limitation, any cost of “cover” or of completing the manufacture or processing of the goods), then Purchaser will pay to Seller any excess of (1) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Purchaser over (2) Purchaser’s damages. Purchaser’s termination under this paragraph shall terminate only Seller’s obligation and right to deliver goods or provide services other than as this paragraph requires and shall not terminate or impair Seller’s other obligations, or any of Purchaser’s rights, under the order. In addition to Purchaser’s rights described in these Standard Terms, Purchaser has all of the other rights and remedies that the law gives to purchasers, including the right to recover incidental and consequential damages that result from Seller’s breach. Purchaser shall not lose any right just because it does not exercise it. Purchaser shall have the full statutory period of limitations to bring any action that arises out of Purchaser’s agreement with Seller. A reasonable time for Purchaser to notify Seller of any breach is not less than two years from when Purchaser discovers the breach.
- INSECURITY AND ADEQUATE ASSURANCE. If Purchaser ever believes in good faith that it has grounds for insecurity as to Seller’s performance, then Seller shall provide adequate assurance of due performance within 20 days after Purchaser demands the assurance, which shall be considered to be a reasonable time. Seller’s failure to do so shall be considered to be a repudiation by Seller of the order and of all other then-existing contracts that provide for Seller to sell goods and/or services to Purchaser (“Outstanding Contracts”). “Grounds for insecurity” include (1) Seller’s failure to perform an obligation under the order or an Outstanding Contract, (2) Seller’s insolvency, and (3) a deterioration in Seller’s financial condition after the order was entered into.
- NON-WAIVER. The failure of the Purchaser to enforce any of the provisions hereof, at any time or for any period of time, shall not be construed to be a waiver of such provisions or of the right of Purchaser to enforce each and every such provision.
- CANCELLATION. The Purchaser may cancel this order at any time upon written notice and payment of reasonable and proper cancellation charges which will include a profit only on the work performed to the date of receipt of the notice of cancellation.
- PATENT INFRINGEMENT. The Seller shall defend any suit or proceeding brought against the Purchaser or its customers so far as based on a claim that any goods or any parts thereof, furnished under this order, constitutes an infringement of any patent, trademark, copyright or other intellectual property right, if Seller is notified in writing and given authority information and assistance (at the Seller’s expense) for the defense of the suit or proceeding, and the Seller shall indemnify and hold Purchaser harmless and shall pay all damages and costs awarded therein. In case the use of said goods or part is enjoined in such suit, the Seller shall at its own expense and at its option, either procure for the Purchaser and its customers the right to continue using said goods or part or replace the infringing item with an equivalent non-infringing item or modify it so it becomes non-infringing; or, upon showing inability to do any of the foregoing shall remove said goods and refund the purchase price and the transportation and installation costs thereof.
- INDEMNIFICATION. Seller shall defend, indemnify, and hold Purchaser and its directors, officers and employees (“representatives”) harmless against any and all claims, liabilities, losses, damages, and expenses (including reasonable attorneys fees) of any nature whatsoever which may be made against or incurred by Purchaser or its representatives because of (1) any breach by Seller of any of its warranties to, or agreements with, Purchaser, or (2) any death, injury or damage to any person or property alleged to have been caused by the goods or services or by Seller’s manufacture of the goods or performance of the services.
- DRAWINGS SUBMITTED BY SELLER. The Purchaser’s check and approval of drawings submitted by the Seller will be for and will cover only general conformity to the specifications. The approval will not constitute a blanket approval of all dimensions, quantities and details of the material shown by such drawings. Such approval shall not relieve the Seller of its responsibility to meet all requirements contained in the purchase order.
- INFORMATION FURNISHED BY PURCHASER. Seller agrees not to make use of or disclose to others any specifications, designs, descriptions, drawings, data and other information furnished by Purchaser except, and only to the extent necessary, in performance of work covered by this order. Upon request by Purchaser, Seller shall promptly return to Purchaser all specifications, drawings and other data or papers furnished by Purchaser in connection with this order together with all copies, reprints or photographs then in Seller’s possession or control.
- TAXES. Seller agrees to pay any taxes imposed on Seller by law upon or on account of goods and/or services covered by this order or by virtue of a sale consummated under this order, unless otherwise agreed. Purchaser agrees to pay any taxes imposed upon Purchaser by law, including sales and use taxes, if applicable.
- GOVERNMENT CONTRACT. If it is indicated on the face of this order that the articles are for use in a Government contract, this order shall be deemed to contain all the provisions of the supplement(s) attached. Acceptance of this order constitutes an acceptance of the Additional terms and Conditions contained in the supplement(s). If supplement(s) are not attached, the Seller shall immediately request same from the Purchaser.
- EQUAL OPPORTUNITY. Seller agrees to comply fully with the requirements of Executive Order 11246, as amended, and it’s implementing regulations.
- INDEPENDENT CONTRACTOR. Seller is an independent contractor under any order for the purchase of goods or services with Purchaser. Nothing in any such order shall be deemed to make Seller or Seller’s employees or agents an employer, employee, partner or joint venture of Purchaser.
- OTHER TERMS. Seller shall not have and waives any security interest in or lien (including any statutory or common law lien) upon any Purchaser property or the goods. Purchaser may deduct, recoup and set off any amounts that Purchaser at any time owes to Seller under the order from and against any damages or other amounts that Seller then owes to Purchaser, whether under the order or otherwise and whether or not Seller shall have assigned to another (“Assignee”) its rights to receive amounts that Purchaser is required to pay under the order. All such rights of an Assignee shall be subject to all of the terms of the order and to all claims and defenses that Purchaser at any time has against Seller, whether arising under the order or otherwise. Purchaser shall continue to have all of its rights under the order even if it does not fully and promptly exercise them on all occasions. Purchaser’s failure to exercise, or Purchaser’s waiver of, a right or remedy on one occasion is not a waiver of that right or remedy with respect to any future occasion.
- GOVERNING LAW AND LANGUAGE. This order, the rights and obligations of the parties under this order, its performance and any claim arising out of or relating to the products or services sold by Seller to Purchaser pursuant to this order (collectively hereinafter all referred to as the “order”) shall be governed and interpreted by Michigan law, without giving effect to the conflict of law principles of any jurisdiction. The United Nations’ Convention on the International Sale of Goods shall not apply to this order. This order is entered into in the English language. Should a translation of this order into any other language be required or desired for any reason, it is understood that in all matters involving interpretation of this order, the English text shall govern.
- JURISDICTION AND SERVICE OF PROCESS. Any legal action or proceeding with respect to this order shall be brought in the courts of Macomb County, Michigan. Seller and Purchaser irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the courts designated herein. Seller and Purchaser agree that Macomb County is a mutually convenient forum, and waive any claim to the contrary, and that the Seller and Purchaser both conduct business in Macomb County. Seller and Purchaser irrevocably and unconditionally consent to the service of process of any of the courts designated above in any action or proceeding by the mailing of copies, in English only, thereof by certified mail, postage prepaid to the party at a regular place of its business, and to the extent permitted by law, waive any right to service of process in accordance with the United Nations’ Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
- WAIVER OF JURY TRIAL. SELLER AND PURCHASER EACH IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL OF THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM THAT RELATES TO OR ARISES OUT OF THE ORDER.
- HEADINGS. The headings to the paragraphs of these Standard Terms and Conditions of Purchase are included only for convenience of reference and shall not be used to interpret the meaning of a provision of these Standard Terms and Conditions of Purchase.