VENDOR PURCHASE ORDER TERMS AND CONDITIONS

PURCHASE ORDER TERMS AND CONDITIONS.

This Purchase Order is subject to the following terms and conditions.

1. OFFER, ACCEPTANCE, ORDER OF PRECEDENCE.  

1.1 Each Purchase Order is an offer to Seller by Buyer for the purchase of Products and/or Services identified in that Purchase Order. Seller accepts a Purchase Order upon the first to occur of the following: (a) if Seller fails to object to it in writing within five (5) business days after receipt, (b) Seller’s commencement of any work or services that are related to or in anticipation of performance of the Purchase Order, (c) Seller’s acknowledgement of the Purchase Order in writing, or (d) execution of an Individual Supply Contract.  

1.2 Seller’s acceptance of the Purchase Order is limited to the specific terms of the Purchase Order. Any additions, modifications, or different terms proposed by Seller, including any standard terms or forms that Seller may use or submit to Buyer, are material and expressly rejected and are not part of the Contract unless specifically agreed to in a writing signed by an authorized representative of Buyer. Any reference on the face of the Purchase Order to Seller’s quotation or other prior communication does not imply acceptance of any term, condition or instruction in the quotation, but is solely to incorporate the description or specifications of the Products or Services to be supplied to Buyer, and only then to the extent that such description or specifications are not in conflict with the Specifications.

1.3 In the event of any conflict between any of the documents that comprise the Contract, the following priority shall be applied: (a) the Release (excluding references to the Terms), (b) the Purchase Order (excluding references to the Terms), (c) the Individual Supply Contract, and (d) the Terms

2. DELIVERY - RISK OF LOSS.  

2.1 Deliveries must be made in quantities and at times specified on the face of this Purchase Order or a Release and time is of the essence. Each Release is an integral part of the Contract, is governed by these Terms, and is not an independent contract. Buyer will not be required to pay for Products delivered to Buyer that are in excess of quantities specified in a Release. Buyer may reject any deliveries made more than two weeks after or before the specified delivery date.

2.2 If Seller fails to have Products ready for shipment in time to meet Buyer's delivery schedules, Seller will be responsible for any additional costs of premium or expeditious transportation of Products. Buyer will have the right to either arrange for expeditious shipment of the Products or require Seller to ship the Products, and Seller will pay or reimburse Buyer for the entire cost of such expeditious shipment.

2.3 Unless provided otherwise in this Contract, all Products are sold Ex Works (Incoterms 2010) origin.

3. INVOICING. 

3.1 After delivery of Products or performance of Services, Seller shall promptly render correct and complete invoices to Buyer and shall accept payment by check or, at Buyer's discretion, other cash equivalent (including purchase cards or electronic transfer of funds). 

3.2 Seller will comply with the requirements of the electronic payment system that Buyer may direct Seller to use to receive payment. Seller will be responsible for any breach of such electronic payment system caused by Seller’s access to the electronic payment system and, if payment is made or received via payment card, shall at all times remain in compliance with the Payment Card Industry Data Security Standard requirements. Seller should inform the Buyer of any breach of Personal Information.

3.3 All amounts due Seller shall be considered net of indebtedness or obligations of Seller to Buyer. Buyer may set off against or recoup from any amounts due or to become due to Seller, any amounts due or to become due from Buyer. If Seller’s obligation to Buyer is disputed, contingent or unliquidated, Buyer may defer payment of all or a portion of the amount due to Seller until such obligation is resolved. If Buyer reasonably feels itself insecure or at risk, Buyer may withhold and recoup a corresponding amount due Seller to protect against such risk.  

4. WARRANTIES OF SELLER.  

4.1 Seller expressly warrants that all Products and Services (a) conform to the Purchase Order, Specifications, drawings, samples, and descriptions furnished to, specified by, or approved by the Buyer, (b) are merchantable, of good material and workmanship, and free from defect in materials and design (to the extent the design is provided by Seller, its subcontractors, Sellers, or agents, even if the design is approved by Buyer), (c) conform to all applicable Laws, (d) are fit for the particular purpose set forth in the Specifications, and (e) are free of all liens, claims, defects in title, and encumbrances, including claims of Intellectual Property infringement. In carrying out any Services, Seller will ensure that the best technical practices, skills, procedures, care, and judgment will be employed.  

4.2 Buyer is relying upon the expertise of Seller in the selection, manufacture and integration of the Products or Services. If Seller is aware that the Products or Services are not appropriate for the use intended by Buyer or that the Specifications will result in less than optimal performance of the Products or Services, Seller shall immediately notify Buyer. Seller shall also notify Buyer if the location or environment of the Products or Services within the vehicle or product will affect their performance or if anything (different than that called out in the Specifications) is necessary for the Products to perform for the intended use. 

4.3 All Products and Services are subject to Buyer's inspection. Payment for, inspection of, or receipt of, Products or Services will not constitute acceptance of the Products or Services or a waiver of any breach of warranty. All warranties contained in this Contract run, and 5 all remedies shall be available to, Buyer, its Affiliates, and their customers and all such warranties will survive any delivery, inspection, acceptance, or payment by Buyer. Seller hereby waives the objection of delayed of notification of defects.

4.4 Unless otherwise stated in the Contract, these warranties will be effective for the longer of: (i) the period provided by applicable Law where the Products are used; or (ii) the warranty period Buyer provides to its Customer.

4.5 Buyer will have the right to fully defend any claims from Customer that any Products supplied by Seller are in breach of warranty, or otherwise did not meet applicable legal or contractual requirements, and all statements by Buyer to Customer regarding the Products are without prejudice to any rights Buyer may have against Seller with respect to the Products. Seller will not assert that a position taken by Buyer with Customer in response to Customer’s claims limits Buyer’s right to assert a claim against Seller for breach of warranty, contribution, indemnification or any other claim that may arise from or be related to the subject matter of any of the foregoing. Seller may request in writing to participate in any negotiations with Customer regarding any Products supplied by Seller under this Contract or any related claim or litigation regarding such 6 Products Seller’s participation in any negotiations with Customer is solely at Buyer’s discretion and nothing in this Contract grants Seller the right to participate in such negotiations.

5. REJECTION OF PRODUCTS & RECALL. 

5.1 In addition to any other rights specifically provided elsewhere in the Contract, and subject to Section 5.2, if Buyer reasonably determines that a substantial quantity of Products does not conform to the Contract, Buyer may: (a) reject the non-conforming or defective Products or Services, (b) require Seller, at Seller’s risk and expense (including applicable shipping, labor, and materials costs), to either repair or replace the nonconforming Products or Services, and/or (c) require Seller to implement at Seller’s expense, containment, inspection, sorting, and other quality assurance procedures. If, after reasonable notice, Seller fails to promptly repair or replace nonconforming or defective Products or Services, Buyer may repair or replace the nonconforming or defective Products or services and charge all related costs to Seller without voiding the warranties in this Contract and without Buyer waiving any other rights or remedies.  

5.2 Notwithstanding the expiration of the warranty period set forth in Section 4, Buyer, its Customer, and/or the manufacturer of the vehicles (or other finished product) on which the Products are installed may voluntarily or pursuant to a government mandate make an offer to owners of such vehicle to remediate a defect that relates to motor vehicle safety or the failure of the vehicle to comply with any applicable Law, safety standard or guideline (a “Recall”). Seller will be liable for Losses associated with the Recall to the extent the Recall is based upon a reasonable determination that the Products fail to conform to the warranties set forth in this Contract. 

6. CHANGES. Buyer may, upon written notice to Seller, make changes in the drawings, designs and Specifications of the Products or otherwise change the scope of the work covered by this Contract, including work with respect to such matters as drawings, designs, Specifications, inspection, testing or quality control, the method of packing and shipping, the place of delivery, shipping instructions, and quantity or delivery schedules. Seller shall promptly make such changes. If such changes affect the cost or time required for performance, Seller may make a written claim for adjustment with appropriate supporting documentation within 14 days of receipt of notification of change, and the Parties may make an equitable adjustment to the Purchase Price, and modify this Purchase Order. Otherwise, such claim for equitable adjustment is waived and the Purchase Order will be deemed to be modified. Seller shall diligently continue performance of the Purchase Order, as changed, pending agreement on the amount of an equitable adjustment. Nothing in this Purchase Order excuses Seller from proceeding without delay in performing this Purchase Order as changed. Seller must not make any change in the Specifications, Products, or Services, design, processing, packing, shipping, or place of delivery without Buyer's written approval.

7. TERMINATION.

7.1 If the Products or Services are associated with a specific Customer program then the term of the Contract will run for the length of the production life of the program.

7.2 Buyer may terminate all or any part of this Contract, without liability to Seller if Seller: (a) repudiates or breaches any of the terms of this Contract, including Seller's warranties; or (b) fails to perform Services or deliver Products in accordance with the requirements of the Contract; and does not correct such failure or breach within ten (10) days (or such shorter period of time as Buyer may determine, if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such failure or breach. Seller will be liable to Buyer for all Losses caused by or resulting from its default under the Contract. Buyer may immediately terminate this Contract without liability upon the happening of any of the following or any other comparable event: (a) insolvency of the Seller; (b) filing of a voluntary or involuntary petition in bankruptcy by or against Seller; (c) appointment of a receiver or trustee for Seller; or (d) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment, or assignment is not vacated or nullified within 15 days after such event. Seller shall reimburse Buyer for all Losses Buyer incurs in connection with any of the foregoing whether or not this Purchase Order is terminated.

7.3 In addition to any other rights of Buyer to terminate the Contract, Buyer may terminate all or any part of this Purchase Order at any time and for any reason by giving written notice to Seller. Upon receipt of such notice, Seller will immediately stop work on this Purchase Order or the terminated portion thereof and notify any subcontractors to stop work. Buyer will pay to Seller the Purchase Price for all Products or Services that have been completed in accordance with this Purchase Order prior to the effective date of termination. Where articles or materials are to be specifically manufactured for Buyer and where Seller is not in default, an equitable adjustment shall be made to cover Seller's actual cost, excluding profit, for work-in-process and raw materials as of the effective date of termination, to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the 10 terminated portion of this Purchase Order. Buyer will not be liable for any charges or expenses incurred by Seller that are not consistent with Buyer’s Releases, nor for any expenses, charges or liability incurred after the effective date of termination. Buyer will make no payments for finished Products, work-in-process, or raw materials in amounts in excess of those authorized by Buyer in a Release or for any undelivered Products that are in Seller's standard stock or that are readily marketable. Seller must submit any claim to Buyer within 30 days after the date of termination or that claim will be waived. Payments made to Seller under this Section 7.3 represent the sole responsibility of Buyer in case of termination of the Purchase Order.  

7.4 Buyer depends on Seller’s performance under this Contract to meet its obligations to Customers. Seller may not suspend its performance under this Contract or terminate all or any part of this Contract without the written consent of Buyer. In the event of any dispute between Seller and Buyer in connection with this Contract, Buyer and Seller will work to resolve the dispute in good faith, and Seller will continue to provide Buyer with an uninterrupted supply of Products in accordance with the terms of this Contract. In the event of any uncertainty relating to Seller’s performance or actual or potential delay in the performance of Seller’s obligations under this Contract, Buyer may require Seller to manufacture and deliver Products in excess of Buyer’s current requirements in amounts Buyer determines in good faith, so long as those requirements do not exceed the capacity constraints that Seller has previously communicated to Buyer in writing.   

7.5 In connection with the expiration or termination of the Purchase Order in whole or in part, Seller will cooperate in the transition of supply. Seller will continue production and delivery of all Products and Services as ordered by Buyer, at the prices and in compliance with the terms of the Purchase Order, without premium or other condition, during the entire period Buyer reasonably needs to complete the transition to alternate Seller(s). Subject to Seller’s reasonable capacity constraints, Seller will provide special overtime production, storage and/or management of extra inventory of the Products or Services, extraordinary packaging and transportation and other special services (collectively, “Transition Support”) as requested by Buyer in writing. If transition of supply occurs for reasons other than Seller’s termination or breach, Buyer will, at the end of the transition period, pay the reasonable, actual cost of Transition Support as requested and incurred, provided that Seller has advised Buyer prior to incurring such amounts of its estimate of such costs. If the Parties disagree on the cost of Transition Support, Buyer will pay the agreed portion to Seller and pay the disputed portion into third-party escrow for disbursement after the dispute has been resolved.  

8. EXCUSABLE DELAYS. Any delay or failure by a Party to fulfill its obligations under this Contract will not be deemed a breach to the extent that Excusable Delay causes the failure or delay. “Excusable Delay” means acts of God, unavailability of electric power or other utilities, fire, flood, earthquake, tornado, explosions, riot, war, acts of terrorism, embargoes, government actions issued in an emergency, including those that prevent a Party from exercising control over its facility, and any similar circumstance beyond the reasonable control of a Party and without such Party’s fault or negligence. Raw material shortages, labor shortages, or system failures are not Excusable Delays, unless directly caused by an event that constitutes Excusable Delay. The Party impacted by an Excusable Delay must make all reasonable efforts and incur all reasonable costs to mitigate the effect of the Excusable Delay. In no event, however, will Seller’s inability to perform as a result of any of the following constitute Excusable Delay: (a) Seller’s insolvency or financial condition; (b) change in cost or availability of raw materials or components based on market conditions; (c) change in cost or availability of a method of transportation; (d) changes in, or implementation of new government regulations, taxes or incentives; (e) failure to obtain permits, licenses or other government approvals; (f) failure to use available substitute services, alternate sources, workaround plans or other means by which the requirements of a buyer of products or services substantively similar to the Products or Services would be satisfied; or (g) labor disruptions, strikes, lockouts and slowdowns affecting a Seller’s facility or a Seller’s sub-Seller’s facility. If the non11 performing party cannot provide adequate assurances that the Excusable Delay will last less than 30 calendar days, or if the non-performance exceeds 30 calendar days, the other Party may terminate the Contract by notice given to non-performing Party before performance resumes without liability. 

9. LABOR DISPUTES. Seller shall provide at least 120 days' written notice to Buyer prior to the scheduled expiration of any current labor contract. If requested by the Buyer, Seller shall establish, at Seller's expense, a 30-day inventory of finished Products, at a site mutually agreed upon with Buyer, before the expiration of any such labor contract and/or any foreseeable or anticipated labor disruption. Seller shall notify Buyer immediately of any actual or potential labor dispute delaying or threatening to delay the timely performance of any Purchase Order.

10. INDEMNIFICATION AND INSURANCE.  

10.1 Seller will indemnify, defend, and hold harmless the Indemnitees and users of its and their products against any and all Losses that are alleged to relate to or arise from: (a) personal injury, death, or damage to any property in any way connected with Seller’s performance of this Contract or the Products and/or Services, (b) failure of the Products or Services to comply with the representations and warranties contained in this Contract, (c) Seller’s failure to perform its obligations under the Contract, (d) the performance of any service or work by Seller or its employees, agents, representatives and subcontractors on Buyer's or Customer's premises or the use of Buyer’s or Customers’ property, except to the extent such liability arises out of the gross negligence or willful misconduct of Buyer or Customer, or (e) failure of the Products or Services to comply with applicable Laws. At Buyer's request, Seller shall defend such claims or suits at Seller's expense by reputable counsel satisfactory to Buyer. Buyer will have the right to control the defense of any claim made against Buyer. This indemnity will survive acceptance of the Products or completion of the Services, the expiration of the warranty covering the Products or Services, and any expiration or termination of the Contract.

10.2 Seller shall, at its expense, maintain insurance at the following minimum levels: (1) general liability insurance with coverage limits of at least $2,000,000, (2) all risk property perils insurance of at least $2,000,000 covering property while in Seller’s care, custody, or control and naming Buyer as loss payee, and (3) worker’s compensation insurance as required by applicable law. Seller will maintain an umbrella policy coverage with a limit of at least $10,000,000. Seller shall also at all times, at its expense, be covered by a blanket fidelity bond in the amount of at least $1,000,000. All insurance will be primary and non-contributory to any insurance coverage purchased by Buyer. Seller releases Buyer, Buyer’s agents and employees, on behalf of Seller and its insurers, from any claims (or rights of subrogation for such claims) to the extent such claims are insured against whether or not such insurance is required by Buyer. All liability insurance will name Buyer as an additional insured. Upon Buyer’s request, Seller shall furnish Buyer with certificates setting forth the amounts of coverage, policy number(s) and expiration date(s).

11. COMPLIANCE.  

11.1 Seller will comply with applicable Laws in connection with the supply of the Products or Services to Buyer. Upon request by Buyer, Seller shall certify in writing, from time to time, its compliance with applicable Laws.  

11.2 Seller represents that it complies with applicable Laws relating to contracting with small and disadvantaged business concerns and to equal employment opportunity and affirmative action in the employment of minorities, women, individuals with disabilities, and certain veterans. Consistent with applicable law, Seller agrees not to discriminate against any employee or applicant for employment because of age, race, color, religion, sex, national origin, veterans' status, or any other protected category.  

11.3 Seller shall, at Buyer’s request, provide information necessary for Buyer to comply with all applicable Laws, including, without limitation, related legal reporting obligations, in the country(ies) of destination. Seller shall provide all documentation and/or electronic transaction records to allow Buyer to meet customs related obligations, any local content and origin 13 requirements, and to obtain all tariff and trade program duty avoidance(s) and/or refund benefits. Seller shall indemnify Buyer against all Losses arising from Seller's failure to comply with these requirements. The rights to and benefits of any (1) duty drawback, including rights developed by substitution and rights that may be acquired from Seller's suppliers and (2) export credits, to the extent transferable to Buyer, are the property of Buyer. Seller will inform Buyer of such rights and Seller will provide all documentation and information and take any necessary steps to obtain refunds or drawback of any duty, taxes or fees paid, and to receive export credits from, the government of the country of origin or export country. Seller will provide Buyer with all documentation and information required by applicable Laws necessary to determine admissibility, timely release, customs clearance and entry of the Products into the destination country. Seller will advise Buyer if the importation or exportation of the Products requires an import or export license and will assist Buyer in obtaining any such license, but will not be required to incur any costs without reimbursement by Buyer. Seller warrants that the information regarding the import or export of the Products is true and correct, and that all sales covered by the Purchase Order will be made at no less than fair value under the anti-dumping laws of the countries to which the Products are exported.

11.4 Seller shall use commercially reasonable efforts to ensure that all Products and the processes used to make them minimize life-cycle environmental impact, including minimizing waste generation, the use of energy and nonrenewable resources, and the emission of greenhouse gases. Seller shall maximize the use of recycled, recyclable, biodegradable and nontoxic materials.

11.5 Seller must periodically submit to reasonable sustainability assessments by Buyer and/or, at Buyer’s request, by an independent third party, or Customer, to verify compliance with Buyer’s sustainability requirements.

11.6 Seller represents that it does not, and shall not, utilize slave, prisoner, child, or any other form of forced or involuntary labor, as defined by applicable Law, in connection with the supply of Products or Services to Buyer under the terms of this Contract. 

11.7 Seller shall certify in writing that it is either a participating member of the Customs-Trade Partnership Against Terrorism (“C-TPAT”) Program as promulgated by the U.S. Customs and Border Protection Bureau or that it is in compliance with all applicable supply chain security recommendations or requirements of the C-TPAT program initiative (for more information go to   http://cbp.gov/xp/cgov/import/commercial_enforcement/ctpat/). Seller shall    indemnify and hold Buyer harmless from and against any Losses arising from or relating to Seller's noncompliance with this section.

11.8 Seller will, and will ensure that its subcontractors will, not take any action that could be reasonably expected to render Buyer liable for a violation of the FCPA, the Bribery Act, and any other similar Law that prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, governmental entity or agency, political party or instrumentality to assist Seller or Buyer in obtaining or retaining business or to gain an unfair business advantage.   

11.9 Customer may ask or require Buyer to disclose the country of origin of the raw materials or components of Buyer’s product or assembly including, without limitation, the location of the mines from which the minerals were extracted that were used to form such raw materials. At Buyer’s request, Seller shall provide all relevant information and reporting as may be requested (including, without limitation, information related to Seller’s Sellers) to enable Buyer to completely and accurately make its disclosures, and will take any other actions reasonably required by Buyer to comply with this Section, including, but not limited to, purchasing or otherwise acquiring access to (and requiring Seller’s Sellers to purchase or otherwise acquire access to) any raw material 14 “tracking” software or other products or activities required by Buyer. By way of example, the requirements of this Section would include the disclosure to Buyer of information necessary to enable Customers (or original equipment manufacturers) to comply with the Conflict Minerals disclosure mandate under section 1502 of the U.S. Dodd Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and regulations promulgated thereunder, potential legislation or regulations enacted by other countries or states pertaining to conflict minerals, as well as for social policies that Buyer, Customer or the original equipment manufacturer wish to pursue. If further guidance on compliance with section 1502 is provided by governmental or regulatory sources from and after the date hereof, Seller acknowledges and agrees that this section will be automatically and without any action required by Buyer modified to require compliance with such additional guidance. 

12. MISCELLANEOUS. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANTICIPATED OR LOST PROFITS, INTEREST, PENALTIES OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR EXEMPLARY DAMAGES OR LIABILITIES IN CONNECTION WITH THIS CONTRACT, WHETHER FOR BREACH OF CONTRACT, TORT LIABILITY, LATE PAYMENT, PROPERTY DAMAGE, PERSONAL INJURY, ILLNESS, OR DEATH OR OTHERWISE.