RELIABLE ENGINEERED PRODUCTS, LLC

PURCHASE ORDER TERMS AND CONDITIONS

These Terms and Conditions apply to all Purchase Orders of Reliable Engineered Products, LLC (“REP”) for goods and services. REP OBJECTS TO ALL ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN ANY DOCUMENT OF SUPPLIER AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL NOT BECOME PART OF ANY AGREEMENT WITH REP. The acceptance of and or payment for goods or services without objection by REP to additional or different terms and conditions shall not constitute acceptance by REP of such additional or different terms and conditions.

 

1.         ORDERS.  All Purchase Orders of REP shall constitute an offer to Supplier. Prior to receipt of a written acceptance of the Purchase Order by Supplier strictly according to the terms of the Purchase Order and these Terms and Conditions, REP may revoke the Purchase Order. Commencement of shipment or performance of work against any Purchase Order issued by REP constitutes acceptance of the Purchase Order and these Terms and Conditions irrespective of whether Supplier confirms its acceptance by a written agreement.

 

Unless otherwise expressly agreed in a writing signed by REP, Supplier’s acceptance of one or more Purchase Orders issued by REP does not establish an exclusive relationship with Supplier for any product or service and REP may purchase similar products or services from other parties.

 

2.         CHANGES.  From time to time, and with reasonable notice, REP may make changes with respect to goods and services that are the subject of a Purchase Order issued by REP. Supplier shall be deemed to have accepted a change if Supplier does not respond in writing within seven (7) days of receipt of written notification of the change.

 

If Supplier determines that a change by REP will require a corresponding change in the price or timing of performance or both, Supplier shall, as promptly as practicable after receiving notice of the change, and in no event later than seven (7) days after receiving notice of a change, provide written notice to REP that Supplier shall, by a date certain, which date shall be stated in the notice and shall not be later than 30 days after the notice of change, be requesting an equitable adjustment in the price or time for performance, or both, resulting from the change. REP will evaluate Supplier’s request in good faith, and amend the terms of its Purchase Order to the extent changes are agreed upon.

 

Supplier will proceed with the change as directed, notwithstanding that the parties have not negotiated the amendment to the Purchase Order to incorporate the equitable adjustment.

 

No change to a Purchase Order issued by REP is binding upon REP unless such change is in writing, specifically states that it amends the Purchase Order and is signed by an authorized representative of REP.

 

3.         CONFORMANCE WITH PURCHASE ORDER.  Supplier’s failure to supply quality goods and services in full compliance with the Purchase Order and these Terms and Conditions is a default unless fully cured by Supplier within fourteen (14) days after written notice, and will entitle REP, in its sole discretion, to cancel any, or all, pending Purchase Orders, and have such other remedies as are allowed by law.

 

Within twenty four (24) hours of learning that goods or services provided by Supplier do not fully comply with the 1) Purchase Order, 2) these Terms and Conditions, or 3) that such goods or services are not in all respects of a good and merchantable quality, Supplier shall give REP written notice 1) describing each non conformity, 2) identifying all goods and services that may be affected, and 3) proposing short term and long term solutions for the problem by which the harm to REP and its customers shall be minimized.  Providing such notice shall not excuse Supplier’s duty to fully comply with the Purchase Order and all other provisions of these Terms and Conditions.

 

4.         SHIPPING.  Supplier will include with each delivery of goods a packing list identifying REP’s Purchase Order number, the REP part number for each of the goods (if applicable), a description and the quantity of each of the goods, and the date of shipment. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.

 

a. LABELING & PACKAGING.  Supplier will label and package all goods as required by REP and the carrier. Supplier will reimburse REP for all expenses incurred by REP due to improper labeling and or packing. Unless expressly stated in a Purchase Order issued by REP, labeling, packing and shipping charges, including where applicable, charges associated with shipping hazardous materials, are all considered to be included in the purchase price.

 

b. SHIPPING TERMS.  Delivery of domestic shipments shall be made DAP (Delivered at Place) and import shipments shall be made DDP (Delivered Duty Paid), REP’s dock at the Delivery Location (in accordance with Incoterms 2010). The parties agree to assist each other in the prosecution of claims against carriers.

 

c. HAZARDOUS MATERIALS.  When shipping goods that contain hazardous materials, Supplier shall be solely responsible for full compliance with all laws and regulations with respect to such shipments, and Supplier will indemnify REP for all claims and expenses, including actual reasonable attorney fees, arising out of Supplier’s failure to comply with such laws and regulations.

 

5.         DELIVERY.  Time is of the essence. Supplier shall notify REP immediately of any circumstance which is delaying, or which threatens to delay Supplier’s timely delivery under the Purchase Order, but such notice shall not excuse performance by Supplier nor affect Supplier’s liability. If, in order to meet the delivery date, Supplier must incur additional costs for expedited transport, the increased transport costs shall be paid by the Supplier unless the necessity for such expedited handling has been caused by REP. Supplier’s failure to deliver or perform services on a timely basis is a default, and will entitle REP, in its sole discretion, to cancel any, or all, pending Purchase Orders, and have such other remedies as are allowed by law. If Supplier’s acts or omissions in breach of an accepted Purchase Order or any of these Terms and Conditions result in REP’s failure to meet delivery requirements to REP’s customer, Supplier shall indemnify REP from all claims, expenses, including actual reasonable attorney fees, and losses resulting in whole or in part from such breach.

 

a. EARLY DELIVERY.  If Supplier delivers early, REP has the right to return goods delivered before the delivery date in the applicable REP Purchase Order and Supplier shall re-deliver such goods on the Delivery Date called for in REP’s Purchase Order all at Supplier’s risk and sole expense.

 

b. QUANTITY.   If Supplier delivers more than the quantity of goods ordered, REP may reject all or any excess goods.  Any such rejected goods shall be returned to Supplier at Supplier’s risk and sole expense.

 

c. LABOR CONTRACTS.   Supplier shall provide REP written notice not less than ninety (90) days prior to the expiration of any labor contract at Supplier.  Within thirty (30) days following receipt of such notice, REP may, in its sole discretion, place Purchase Orders for Product covering REP’s projected needs for the next ninety (90) days with delivery of all such Product before the expiration of the labor contract.

 

6.         WARRANTIES.  Supplier represents that it will perform its services under this Agreement in conformance with the care and skill ordinarily exercised by reputable members of its professional community.

 

Supplier warrants that all goods, material(s) and/or work will conform to the Purchase Order and applicable drawings, designs, samples and other requirements specified by REP in all respects and will: (i) be free from defects in material and/or workmanship, (ii) be fit for the purposes intended, (iii) be free and clear of all liens, security interests or other encumbrances, (iv) be merchantable, (v) and not infringe or misappropriate any third party’s patent or other intellectual property rights. Upon request, Supplier will certify to REP in writing that all goods provided conform to the Purchase Order, conform to these Terms and Conditions and are in all respects, free from defects in material and/or workmanship, and fit for the purposes intended.

 

If goods fail to conform to the Purchase Order, or to these Terms and Conditions, REP may request Supplier at Supplier’s sole expense to rework such goods or to replace the goods with goods that conform to the Purchase Order. If such goods have already been delivered to REP’s Customer, Supplier agrees to accept the determination of REP’s Customer as a reasonable determination that the goods are defective, without the defective goods having been provided to Supplier for its inspection.

 

Supplier shall pay REP all direct and indirect costs incurred by REP due to Supplier’s goods that do not comply with the requirements of the Purchase Order, and the warranties in these Terms and Conditions.

 

Supplier’s warranty period shall be equal to the warranty period that applies to the product into which Supplier’s goods are incorporated in the country where the product is first sold as new product to the end consumer. The warranty period shall in no event extend longer than sixty (60) months. The warranty period shall begin to run with the initial registration of the product into which Supplier’s goods are incorporated, if first sold as a new product, and shall begin to run with the sale of such goods by REP if sold for repair or retrofitting purposes.

 

7.         INSPECTION AND REJECTION.   Supplier waives any requirement that REP must inspect goods before accepting the goods. Goods found by REP to be non-conforming to the Purchase Order may, at REP’s sole discretion, be rejected and returned to Supplier or be retained and corrected by REP, each at Supplier’s sole expense. If retained and corrected, REP will consult with Supplier on the proper method of correction. Supplier shall reimburse REP all reasonable expenses it incurs, including shipping charges, associated with returning or correcting goods found to be non-conforming to the Purchase Order.

 

8.         PRICE.   The price for conforming goods and services is the price stated in the Purchase Order (the “Price”) in US dollars. If no price is included in the Purchase Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Purchase Order, unless otherwise agreed by the parties in writing. Unless otherwise specified on the face of the Purchase Order, the Price includes all packaging, labeling, transportation costs to the Delivery Location, insurance, customs duties, tariffs, fees and applicable taxes, including, but not limited to, all value added, sales, use or excise taxes; except to the extent that Supplier is required by law to collect such taxes or charges from REP and in such cases, Supplier shall separately invoice REP for such charges and taxes.  . No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior signed written consent of REP.

 

9.         PRICE WARRANTY.  Supplier represents and warrants that its price for the goods and services that are the subject of the Purchase Order is the lowest price charged by Supplier to any of its external buyers for similar volumes of similar goods and services. If Supplier charges any other buyer a lower price, Supplier must apply that price to all goods and services under the REP Purchase Order. If Supplier fails to meet the lower price, REP, at its option, may terminate all Purchase Orders issued to Supplier. Upon termination of one or more Purchase Orders under this section 9, REP’s sole obligation to Supplier and Supplier’s sole right to payment are described under section 17.

 

10.       ONGOING SUPPORT.  Supplier will continue to supply spare and replacement parts associated with its goods for fifteen (15) years after termination of the REP Purchase Order. During these fifteen (15) years, the pricing for such spare and replacement parts shall be the final per part price plus the then current costs for packaging and processing which shall be agreed upon.

 

11.       RECALL.   If the vehicle or product into which Supplier’s goods are incorporated are recalled or made the subject of a customer service campaign, Supplier shall be liable to REP for all expenses and damages caused REP associated with such recall or customer service campaign to the extent that such recall or customer service campaign was caused in whole or in part by Supplier’s goods not conforming fully with the Purchase Order and the warranties in these Terms and Conditions.

 

12.       PAYMENT TERMS.   Unless different payment terms are expressly stated in a Purchase Order, payment terms are Net forty-five 45 days.

 

13.       MEANS AND METHODS.  After establishing that Supplier can produce goods and services that fully conform to the Purchase Order, Supplier shall not make changes in materials or processes used, or relocate production to a different facility without first obtaining written approval from REP.

 

14.       SET-OFFS.  REP shall be entitled to set off any claim due or to become due it from Supplier against any amount otherwise due Supplier.

 

15.       TERMINATION OF PURCHASE ORDER WITH NOTICE.  REP may terminate all or any part of a Purchase Order at any time and for any reason by giving Supplier written notice with a reasonable notice period not to exceed thirty (30) days. If REP terminates its Purchase Order with Supplier because REP’s customer terminates its order with REP, reasonable notice by REP to terminate its Purchase Order to Supplier shall in no event be longer than the termination notice REP received from its customer.

 

16.       TERMINATION OF PURCHASE ORDER WITHOUT NOTICE. In addition to every other right of termination in these Terms and Conditions, REP may terminate all or any part of a Purchase Order with cause without any liability in the event of any default by Supplier in the following circumstances: (i) if Supplier repudiates, breaches or threatens to breach any of the terms of the Purchase Order including, without limitation, Supplier’s warranties; (ii) if Supplier fails to perform or deliver goods or services as specified by REP in its Purchase Order; (iii) if Supplier fails to provide REP with adequate and reasonable assurance of Supplier’s ability to perform timely any of Supplier’s obligations under any Purchase Order, including, without limitation, the delivery of goods and services; (iv) if REP terminates any Purchase Order for the default of Supplier, REP may, in its sole discretion terminate every Purchase Order to Supplier; or (v) if Supplier fails to remain competitive with respect to price, quality, delivery, technology, payment terms, or customer support.

 

REP may immediately terminate any Purchase Order without advance notice and without any liability to Supplier upon Supplier’s insolvency, Supplier’s inability to promptly provide REP with adequate and reasonable assurance of Supplier’s capability to timely perform all of Supplier’s obligations under any Purchase Order; filing of a voluntary petition in bankruptcy by Supplier; filing of an involuntary petition in bankruptcy against Supplier; appointment of a receiver; or an execution of an assignment for the benefit of creditors of Supplier.

 

17.       DUTIES UPON TERMINATION.  Unless REP directs otherwise in its notice of termination, Supplier shall, upon receipt of a notice of termination, (i) immediately terminate all work under the Purchase Order or portion of the Purchase Order terminated and direct Supplier’s subcontractors to immediately terminate all such work ; (ii) transfer title and deliver to REP all merchantable finished goods to the extent, and only to the extent, REP has ordered such goods in issued Purchase Orders, (iii) take all actions necessary to protect property in Supplier’s possession in which REP has an interest and (iv) cooperate with REP in resourcing of the goods and services covered by the Purchase Order to an alternative supplier designated by REP.

 

Upon termination of any Purchase Order, and subject to REP’s right of set off described in these Terms and Conditions, REP shall pay Supplier (i) the Purchase Order Price for all finished and completed goods that conform to the requirements of the Purchase Order and these Terms and Conditions not previously paid for which have been delivered to REP and accepted (REP will not accept goods that exceed amounts scheduled and authorized in writing by REP before the termination); (ii) Supplier’s reasonable actual cost (without profit) of usable and merchantable work in process and raw materials/components delivered to REP but only to the extent REP, in its sole discretion, accepts such goods, and (iii) the reasonable costs incurred by Supplier to protect property in Supplier’s possession in which REP has an interest, but only to the extent REP requests Supplier in a writing (other than these Terms and Conditions) to protect such property;

 

Supplier’s claims for payment under this section shall be submitted in writing to REP, with supporting documentation, within sixty (60) days of notice of termination and any legal action, including a demand for arbitration, shall be filed and served within one (1) year from the notice of termination.  REP shall have the right to audit any such claim and Supplier shall make its books and records available to REP for that purpose.

 

Supplier’s failure to timely submit a claim or timely file suit or a demand for arbitration as required by this section shall be a full and final release of all such claims by Supplier.

 

Payment under this section shall be Supplier’s exclusive remedy for termination for other than cause of all or a portion of a Purchase Order.

 

Notwithstanding any other provision in these Terms and Conditions, and subject to REP’s right of set off described in these Terms and Conditions, upon termination of a Purchase Order for default, Supplier shall only be entitled to be paid the Purchase Order Price for all finished and completed goods that conform to the requirements of the Purchase Order and these Terms and Conditions not previously paid for which have been delivered to REP and accepted (REP will not accept goods that exceed amounts scheduled and authorized in writing by REP before the termination). Supplier shall not be entitled to any further payments in connection with a Purchase Order terminated for default.

 

REP shall in no event or circumstance be liable for alleged loss of profits, overhead, product development and engineering costs, facilities and equipment costs or rental, loss of future business, or any other indirect, special, consequential loss or expense of Supplier or any supplier to Supplier resulting from termination of any REP Purchase Order with or without cause.

 

18.       REP’S PROPERTY.  All goods, supplies, material, tools, jigs, gauges, fixtures, molds, patterns equipment and other items furnished by REP, either directly or indirectly, to Supplier in connection with a Purchase Order, (“REP Property”) shall remain property of REP in Supplier’s possession on a bailment basis. Supplier shall at its sole expense keep such property in good condition, and repair and replace REP’s property when necessary. Supplier waives any lien it may have on any property of REP for work done on REP’s Property, or otherwise.

 

Upon written request of REP Supplier will at its sole expense make all REP Property available at Supplier’s facility for return to REP, packed and marked for shipment as required by the carrier and REP. Supplier will cooperate with a request by REP for return of REP’s Property. If the return of REP Property renders Supplier unable to produce product for REP, in such event, REP’s request for return of its property shall act to cancel all unfulfilled portions of all REP Purchase Orders issued to Supplier. Supplier may not refuse to release REP Property based on a claim that there are amounts due Supplier from REP and release of REP Property shall not prejudice Supplier’s claim for any such amounts.

 

Supplier shall indemnify and hold REP harmless from all claims and expenses, including actual attorney fees, incurred by REP to defend against claims or liens adverse to REP’s ownership of REP Property first asserted while such property is in Supplier’s possession except such claims that result from acts or omissions of REP.

 

Supplier is liable for the Full Replacement Value of any parts or product provided Supplier by REP which are lost or damaged while under the control of Supplier.  Full Replacement Value shall be REP’s direct material cost, direct labor cost and manufacturing overhead expense to produce the parts or product.

 

19.       INDEMNITY.  SUPPLIER SHALL INDEMNIFY AND HOLD REP HARMLESS FROM AND AGAINST ALL THIRD PARTY CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLULDING ACTUAL REASONABLE ATTORNEY FEES, CAUSED IN WHOLE OR IN PART BY THE NEGLIGENT ACTS AND/OR OMISSIONS OR WILLFUL MISCONDUCT OF SUPPLIER ITS EMPLOYEES, AGENTS, STAFF, CONSULTANTS, CONTRACTORS OR SUBCONTRACTORS EMPLOYED BY IT OR BY ANY RELATED ENTITY.

 

20.       ASSIGNMENT and SUBCONTRACTS. Supplier may not assign or subcontract its duties under any Purchase Order issued by REP without the express written approval of REP which approval may not be unreasonably withheld. If REP consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify REP for all damages, expenses and costs of any kind, incurred by REP and caused in whole or in part by the acts and omissions of Supplier’s Subcontractors’, (iii) make all payments due to its Subcontractors and (iv) enter into a written contract with each Subcontractor by which each Subcontractor contracts to fully comply with all of Supplier’s obligations and responsibilities under the Purchase Order and these Terms and Conditions. If Supplier fails to timely pay a Subcontractor for work performed, REP will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold REP harmless for all damages expenses, including actual reasonable attorney fees and costs of any kind, without limitation, incurred by REP and caused by Supplier’s failure to timely pay a Subcontractor.

 

21.       GOVERNING LAW and JURISDICTION.   All disputes involving any Purchase Order issued by REP and these Terms and Conditions and all disputes involving REP’s failure to issue a Purchase Order shall be governed by and construed in accordance with the laws of the State of Michigan. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. If such disputes are not before the American Arbitration Association according to the provisions of these Terms and Conditions, such disputes shall be subject to the exclusive jurisdiction of state and federal courts sitting in Michigan without giving effect to the conflicts of law principles thereof.

 

22.       ARBITRATION.  At REP’s sole election, exercised by filing a demand for arbitration, or by serving Supplier written notice within 30 days following the service of process upon REP in a legal action, all disputes involving any Purchase Order issued by REP and all disputes involving these Terms and Conditions and all disputes involving REP’s failure to issue a Purchase Order shall be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered by a court having jurisdiction. The arbitration shall be conducted in a location agreed by the parties. If the parties cannot agree on a location within 30 days after commencement of arbitration, the arbitration will be conducted in Eaton County, Michigan. The arbitration shall be conducted in the English language. The arbitrator(s) will issue written findings of fact and conclusions of law. Each party will bear equally the costs and expenses of AAA and of the arbitrator(s), and each party will bear its own costs and expenses – provided, however, (1) that the failure by one party to pay its share of arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (2) that the arbitrator(s) may award attorneys’ fees and costs, including all costs of AAA and the arbitrator(s) to the substantially prevailing party. In no event will any party be awarded punitive or exemplary damages or any other damages not measured by the prevailing party’s actual damages. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction.

 

In all cases involving a request for equitable or injunctive relief, the parties agree and consent to the exclusive jurisdiction of the Circuit Court for Eaton County, Michigan provided that REP may elect to bring an action against Supplier in any court having jurisdiction over Supplier.

 

23.       ENTIRE AGREEMENT.  These Terms and Conditions, together with the Purchase Order issued by REP, shall constitute the entire agreement between the parties with respect to the goods and services which are the subject of the Purchase Order and replace all prior oral or written representations and agreements. No additional or different terms in any document shall become part of the parties’ agreement, unless specifically agreed to in a writing signed by REP. No agreement, modification, or amendment to these Terms and Conditions shall be binding on REP unless confirmed in a writing signed by REP.

 

24.       CONFLICT.  To the extent there is any conflict between these Terms and Conditions and any Purchase Order issued by REP, the Purchase Order shall control.

 

25.       VISITATION AND AUDIT.  REP shall have the right to enter Supplier’s facility at reasonable times and with reasonable advance notice to inspect the facility, goods, material, and any REP Property covered by this agreement.

 

26.       OWNERSHIP OF DOCUMENTS.  All documents originating from REP, including, if applicable, all engineering drawings, are and remain the sole property of REP. Subject only to Supplier’s patent rights, if any, REP may use, reproduce, modify, disclose and distribute any document, including engineering drawings received from Supplier with respect to work for REP.

 

All engineering drawings, knowhow and confidential information supplied by REP to Supplier in connection with any Purchase Order or request for quote, will only be used by Supplier in connection with work done for REP and will be kept confidential by Supplier according to these Terms and Conditions. Supplier will not disclose any such information to any third person or entity except as is necessary to fulfill Supplier’s work under a Purchase Order issued by REP and, in that event, Supplier shall inform such third person or entity of the confidential nature of the information.

 

27.       WORK FOR HIRE.  Supplier agrees that all works of authorship created by Supplier in the fulfillment of any Purchase Order issued by REP will be considered “work made for hire” and as such all copyright, and all other intellectual property rights, associated with such work shall belong solely to REP. If such work does not qualify as work made for hire, Supplier hereby assigns to REP the irrevocable, nonexclusive, worldwide, royalty free, sub licensable and transferable license to use, reproduce, distribute and modify all copyright and all other intellectual property rights associated with such work.

 

28.       INFRINGMENT.  Supplier will indemnify REP from and against all claims and expenses, including actual reasonable attorney fees, incurred by REP in connection with any claim or demand that REP has infringed any patent, copyright, or other proprietary right by REP’s purchase and or use of goods or services from Supplier. Supplier shall not, however, be required to indemnify REP from a claim that the infringement is the result of a drawing, design, know how or confidential information in a document including engineering drawings, first supplied by REP to Supplier in connection with any Purchase Order issued by REP.

 

29.       LICENSE.   Supplier grants to REP, and each of its subsidiary and related companies, a permanent, irrevocable, paid up, nonexclusive, worldwide, royalty free license to use any and all intellectual property made known to REP by Supplier in connection with goods and services that are the subject of any Purchase Order issued by REP.

 

30.       RELATIONSHIP.   No joint venture or partnership shall be deemed to exist between REP and Supplier. No person or entity shall be construed to be a third party beneficiary of any Purchase Order issued by REP.

 

31.       SEVERABILITY.  In the event any part of these Terms and Conditions shall be deemed invalid or unenforceable, all other provisions hereof shall remain in full force and effect, and binding upon REP and Supplier.

 

32.       SURVIVAL.  All of Supplier’s obligations arising prior to the termination of a Purchase Order issued by REP, and all provisions of these Terms and Conditions with respect thereto, shall survive the completion of services and the termination of the Purchase Order with respect to goods shipped by Supplier.

 

33.       WRITTEN NOTICE.  Written notice required under any Purchase Order or these Terms and Conditions shall be deemed to have been duly served if delivered in person to an officer of the entity for which it was intended, or when sent by registered or certified mail or electronic mail to the last business address of the other known to the party giving notice.

 

34.       APPLICABLE LAW AND DISPUTE RESOLUTION.  This agreement will be construed under laws of the State of Michigan, exclusive of any conflict of law provisions. Except in cases of emergency, the parties shall informally discuss any dispute before demanding arbitration or filing suit. If such informal discussions do not timely resolve any dispute, disputes may be referred to arbitration or a state court of competent jurisdiction in Eaton County, Michigan as provided in these Terms and Conditions.

 

35.       CANCELLATION FOR CONVENIENCE.  REP reserves the right, at any time in its sole discretion and without cause, to cancel all or any undelivered portion of any Purchase Order issued by REP by giving written notice to Supplier. Upon cancellation of a Purchase Order, a Supplier of services shall be paid for services performed up to the date of termination provided in the written notice provided such services comply with the Purchase Order. Upon cancellation of a Purchase Order, a Supplier of goods or materials will be paid as provided in these Terms and Conditions for termination without cause.

 

36.       REGULATIONS.  All goods delivered under a Purchase Order issued by REP shall satisfy all current governmental rules and regulations regarding hazardous materials. All services performed under the Purchase Order shall satisfy all current governmental rules and regulations.

 

37.       FORCE MAJEURE.  Any delay or failure of either party to perform its obligations shall be excused if, and to the extent that, such failure is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, including but not limited to acts of God, actions by any Government authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain material, power, labor, equipment, transportation, court injunction or order provided that written notice of any such delay shall be given as soon as possible after the event or occurrence but in no case more than three (3) business days thereafter. During the period of such delay or failure to perform by Supplier, REP may at its option, purchase goods and/or services from other sources and reduce its schedules to Supplier without liability to Supplier, or have Supplier provide the goods and/or services from other sources at times requested by REP, and at the price set forth in the Purchase Order. If the delay lasts more than thirty (30) days or Supplier does not provide adequate assurance that the delay will cease within thirty (30) days, REP may immediately terminate any Purchase Order issued by REP without liability. Delays or failure to perform by Supplier caused in whole or in part by credit or solvency problems of Supplier shall not be excused.

 

38.       INSURANCE.  Supplier shall maintain insurance coverage with insurance companies acceptable to REP and in amounts not less than the following:

 

(A)         Worker’s Compensation – statutory limits for the state or states in which Supplier is located (or evidence of authority to self-insure).

 

(B)         Commercial General Liability including products/completed operations and blanket contractual liability – $2,000,000 general aggregate limit, $1,000,000 products/completed operations aggregate limit, $1,000,000 personal and advertising injury limit, and $1,000,000 each occurrence limit.

 

(C)         Commercial Automobile Liability including owned, non-owned and hired vehicles – $1,000,000 each accident for combined bodily injury and property damage liability.

 

(D)         Pollution Contractors and Professional Liability Coverage of $1,000,000 per claim, $2,000,000 aggregate.

 

(E)         Special perils or all risks property insurance covering the Full Replacement Value of REP’s property while in Supplier’s care, custody, or control naming REP as loss payee as its interest appears.

 

(F)         These insurance requirements may be fulfilled by either primary policy limits or by umbrella liability policies. The Supplier shall furnish to REP a certificate of insurance setting forth the amount(s) of coverage and limits, policy numbers and dates of expiration for insurance maintained by the Supplier within ten (10) days of REP’s request. This certificate of insurance will provide that REP shall receive thirty (30) days of prior written notice from the insurer of any termination or reduction in the amount or scope of coverage(s) and also name REP as an additional insured to the extent that same is reasonably possible. Supplier’s purchase of appropriate insurance or the furnishing of certificates of insurance shall not release Supplier of its obligations or liabilities under this contract. In the event of Supplier’s breach of this provision, REP shall have the right to cancel the undelivered portion of any goods or services covered by any Purchase Order issued by REP and REP shall not be required to make further payment except for goods received and accepted by REP from Supplier that fully comply with the Purchase Order issued by REP.

 

39.       ASSIGNMENT and CHANGE OF OWNERSHIP.   Supplier may not assign its duties under a Purchase Order without REP’s signed written consent. Supplier shall give REP written notice within seven (7) days of the transfer, in one or more transactions, of ownership of, or beneficial interest in, more than fifty (50%) percent of the stock or member interest of Supplier. Failure to timely give such written notice is a breach of Supplier’s obligations under these Terms and Conditions.

 

40.       RECORD RETENTION AND AUDIT.  Seller shall keep all documents, data and other written and electronically stored information relevant to the production of goods and services sold to REP for at least eight (8) years following the final delivery to REP or REP’s final payment to Seller, whichever is later.

 

With advance written notice by REP, Seller shall permit REP, or its authorized agents, including without limitation, REP’s customer, to examine all documents, data and other written and electronically stored information relevant to the production of goods and services sold to REP, to view any facility or process relating to the production of goods and services sold to REP, and to audit any facility or process involved with the production of goods and services sold to REP. All such examinations shall be conducted only during normal business hours. Supplier shall use its best efforts to secure from Supplier’s subcontractors and vendors their consent to allow REP, and its authorized agents, to conduct similar audit and inspection of Supplier’s subcontractor’s and vendor’s facilities, documents, data and other written and electronically stored information relating to goods and services ultimately sold to REP. REP and its authorized agents shall use information developed in any such audit or inspection solely for purposes of assuring that the production of goods and services sold to REP comply fully with any Purchase Order issued by REP and these Terms and Conditions.

 

As a condition of REP approving a request by Supplier to assign or subcontract any duty of Supplier under a Purchase Order or these Terms and Conditions, Supplier must obtain the signed written agreement of such assignee or subcontractor to comply with the record retention and audit obligations of this section.

 

41.       SPECIFIC PERFORMANCE.   Supplier acknowledges and agrees that if there is an actual or threatened failure to timely deliver goods and services strictly according to the REP Purchase Order and these Terms and Conditions, money damages will not be a sufficient remedy and therefore, in addition to all other legal rights and remedies, REP will be entitled to an order by a court to specifically enforce all accepted REP Purchase Order and these Terms and Conditions without any requirement that REP post a bond or other security.

 

42.       ADEQUATE ASSURANCE.   If REP determines that it has reasonable grounds for insecurity with respect to Supplier’s continued ability to fully comply with accepted Purchase Orders, REP may, in writing, demand that Supplier provide REP with adequate assurance of Supplier’s continued ability to fully comply with accepted Purchase Orders. Upon such demand, Supplier shall within a reasonable time under the circumstances, not to exceed ten (10) days, describe to REP how Supplier will continue to fully comply with accepted Purchase Orders. Supplier’s response that merely states, in effect, that REP should not feel insecure, is not an adequate assurance. Failure to timely provide adequate assurance is a breach of the parties’ agreement by Supplier.

 

43.       GENERAL PROVISIONS

 

The headings of each section and sub-section are included for convenience only and shall not be used to interpret the text.

 

REP’s failure to insist upon strict compliance with the Purchase Order and these Terms and Conditions shall not be deemed a waiver of future strict compliance.

 

If REP purchases goods or services from Supplier on a Purchase Order by Purchase Order basis over any period of time this shall not give rise to a contract or duty of REP by which REP becomes obligated to give advance notice that it is going to stop purchasing from Supplier and Supplier hereby waives any requirement for such advance notice.