Supplier P.O. Terms
Purchase Order Terms and Conditions
1. Acceptance
Each Purchase Order issued by Fisher Coachworks, LLC (FCW) will be deemed accepted by the Supplier unless the Supplier rejects the same in writing within five business days after the date thereof or delivers the ordered items to FCW. Acceptance of a Purchase Order is expressly limited to the terms thereof. If there is any inconsistency between the terms of a Purchase Order and any purported acceptance, the terms of the Purchase Order will prevail.
2. Price
The supplier agrees that (a) if the price is omitted from this order or any part of this order, Supplier’s price will not be higher than supplier’s lowest prevailing price for corresponding items as of the date hereof, and (b) Any reduction in price in any item covered by this order made subsequent to its receipt by the supplier shall be applicable hereto.
3. Extra Charges
No extra charges of any kind, including charges for packing or cartage will be allowed unless specifically agreed to by FCW in advance.
4. Overshipments, Installments
FCW will pay only for maximum quantities of products ordered. Overshipments will be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Supplier’s expense. Any provision in a Purchase Order for delivery of items by installment will not be construed as rendering the obligations of the Supplier severable and FCW will only be obliged to pay the price of the products included in such installment after such installment is actually received by FCW.
5. Packing and Shipment
No charges will be allowed for boxing, crating, handling damage, carting, drayage, storage or other packing requirements. Unless otherwise specified, all supplies shall be packed, packaged, marked and otherwise prepared for shipment in a manner which is: (a) in accordance with good commercial practice; (b) acceptable to common carriers for shipment at the lowest rate for the particular supplies (c) adequate to insure safe arrival of the supplies at the name destination. Seller shall mark all containers with necessary lifting, handling and shipping information, purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment. No partial or complete delivery shall be made hereunder prior to the date or dates shown unless FCW has given prior written consent.
6. F.O.B. Point
Unless otherwise specifically provided on the face of the purchase order, the supplies called for hereunder shall be delivered on a F.O.B. origin basis.
7. Warranties
The Supplier warrants, represents, covenants and agrees as follows: (a) the products supplied pursuant to each purchase order will (I) be in full compliance with the specifications, blueprints, drawings and data as may be
amended from time to time, (ii) be of merchantable quality; (iii) fit for the use intended by FCW; (iv) be in conformance with samples, if any, approved by FCW; and (v) free from any actual or claimed patent, copyright, trade secret, mask work right or trademark infringement and (vi) be so supplied, and FCW will have title thereto, free and clear of all liens, charges, encumbrances and security interests; (b) the warranties contained in this §7 are the only warranties made by the Supplier concerning the products and such warranties will survive the acceptance of the products and the payment therefor by FCW. For greater certainty, FCW acknowledges that the Supplier has given no warranties, express or implied, other than those set forth in this §7. (c) The warranty period is for one year after delivery unless otherwise stated in a purchase order. (d) If any product delivered hereunder does not meet the warranties specified herein or otherwise applicable, FCW may, at its option: (i) require the Seller to correct at no cost to FCW any defective or non-conforming supplies by repair or replacement; or (ii) return such defective or non-conforming supplies at the Supplier’s expense to the Supplier and recover from the Supplier the order price thereof; or (iii) correct the defective or non-conforming supplies itself and charge Seller with the cost of such correction. (iv) purchase the product from other sources and recover the difference in price from the Supplier. The foregoing remedies are in addition to all other remedies at law or in equity or under this order, and shall not be deemed to be exclusive. (e) FCW’s approval of the Supplier’s material or design shall not relieve the Seller of the warranties set forth in this clause, nor will any waiver by FCW of any drawing or specification requirement for one or more of the items ordered constitute a waiver of such requirements for the remaining items to be delivered hereunder unless so stated by FCW in writing.
8. Invoices
Each invoice issued as a result of a purchase order shall: (a) be rendered separately for each delivery;
(b) not cover more than one Purchase Order; (c) contain the Purchase Order number under which it is issued; and
(d) be rendered to the proper Accounts Payable Department of FCW as set forth on the Purchase Order. Invoice payment terms will be calculated from the date the invoice is received by the proper Accounts Payable Department of FCW.
9. Inspection
Each and every item purchased hereunder is subject to FCW inspection and approval at any place FCW may reasonably designate. FCW expressly reserves the right, without liability hereunder or otherwise, to reject and refuse acceptance of items that do not conform in all respects to: (a) any instructions contained in the relevant purchase order; (b) FCW’s specifications, drawings, blueprints and data; and (c) The Supplier’s warranties and each of them whether such warranties be expressed or implied. With respect to any items which do not so conform, FCW may, in FCW’s sole discretion, hold such items for Supplier’s inspection at the Supplier’s risk upon notification to Supplier or return such items to the Supplier at the Supplier’s expense. Payment for any items shall not be deemed an acceptance thereof.
10. Changes
FCW reserves the right at any time to change any one or more of the following: (a) specifications, drawings, blueprints and data concerning the products; (b) method of packaging, packing or shipment of the products; and (c) place and/or time of delivery of such products. The Supplier will not unreasonably deny any request by FCW for such changes. If the Supplier agrees to make such changes, and such changes cause an increase or decrease in the cost or the time required for the delivery of the products ordered, an equitable adjustment will be made in the price or delivery schedule, or both. Any claim for adjustment by the Supplier will be deemed waived unless asserted in writing within 30 calendar days after receipt by the Supplier of the requested change. Nothing in this section §10 will relieve the Supplier from proceeding without delay in the performance of its obligations under a purchase order as changed. Any changes to the specifications, drawings, blue prints and data concerning the Products that are requested by FCW will be deemed to be the confidential information of FCW. The Supplier and FCW will, at FCW’s option, enter into a development agreement to provide for the exclusive supply to FCW for the changed product. Further, the Supplier and FCW will, at FCW’s option, enter into a Confidentiality Agreement to protect FCW’s confidential information.
11. Indemnification:
The Supplier shall indemnify and hold FCW harmless from any claim, demand, cause of action or damage for which FCW might become liable arising from or in connection with the Supplier’s under a purchase order.
12. Patents
The Supplier agrees to defend at the Supplier’s own expense, all suits, actions or proceedings in which FCW, any of the FCW’s users, lessees or customers of any of FCW’s products, are made defendants for actual or alleged infringement of any copyright, trademark, trade secret, mask work right or Canadian, U.S. or other foreign patent resulting from the use or sale of the items purchased hereunder. If any virtue of a patent infringement suit an injunction shall issue against FCW, which prohibits or limits the use of any items purchased hereunder, the Supplier at FCW’s request shall supply FCW with non-infringing replacement items of a similar kind and quantity. Supplier further agrees that to the extent FCW enters into agreements with governmental agencies that require adherence to specific statutes, rules and regulations, the Supplier agrees at FCW’s request to accept those governmental conditions if required for entities within FCW’s supply chain.
13. Compliance with Law
The Supplier warrants and represents that it has complied with, and will continue, during the performance of it’s obligations hereunder, to comply with, all laws and conform to all requirements of each applicable governmental authority with respect to the supply of the Products, including those concerning the packaging, storage and shipment thereof, and will ensure that no chemical substance delivered to FCW is on the list of prohibited substances described in applicable environmental laws. The Supplier will obtain all federal, state, municipal and other government or regulatory licenses, permits or other documents or permissions that are required by FCW or are incidental to the sale or shipment of the products to FCW.
14. Non-Publicity
Without the prior written consent of FCW, the Supplier shall neither: (a) issue any news release, public announcement, denial or confirmation of any Purchase Order or its subject matter; or (b) in any manner advertise or publish the fact that FCW has placed a purchase order for any product with the Supplier.
15. FCW’s Property
All tooling, equipment and products of every description furnished to the Supplier by FCW or specifically paid for by FCW and any replacement thereof, shall remain the property of FCW. Such property, and whenever practical, each individual item thereof, shall be plainly marked or otherwise adequately identified as “Property of Fisher Coachworks, LLC.” and shall be safely stored separately and apart from the Supplier’s property. The Supplier shall not substitute any property for FCW’s property and shall not use such property, except in filling FCW’s orders. Such property while in the Supplier’s custody or control shall be held at the Supplier’s expense, and will be insured by the Supplier in an amount equal to the replacement cost with loss payable to FCW. Such property shall be prepared for shipment and delivered in good condition, normal wear and tear excepted to FCW, F.O.B. the Supplier’s plant, immediately upon request by FCW.
17. Confidential Relationship
The Supplier shall treat as confidential all specifications, drawings, blueprints and data supplied by FCW. The supplier shall not disclose any information relating to this order to any third person that is not entitled to receive it. In the event Supplier discloses any information relating to FCW’s order to any third person that is not entitled to receive it, Supplier, in addition to FCW’s right of termination under Section 18, shall be entitled to monetary damages from Supplier measured by the extent to which the non-authorized disclosure has damaged FCW including prospective damages for lost sales opportunities. Further, Supplier, at its expense, shall seek injunctive relief to enjoin the third party from utilizing FCW’s confidential information for the third party’s benefit.
18. Termination
FCW may require the Supplier to terminate work under a purchase order in whole or in part at any time by notice to the Supplier in writing, whereupon the Supplier will immediately stop work on such purchase order, or the terminated portion thereof, and notify its subcontractors to do likewise. except for such termination as is caused a default or delay of the Supplier, Supplier will be entitled to actual costs incurred to the date of notice of termination incurred by it as result of such termination as determined by verifiable evidence of the actual costs as determined in accordance with generally accepted accounting principle. The Supplier will be bound to mitigate its damages. In no event will the amount claimed by the Supplier as a result of such termination exceed the cancelled commitment value of the relevant purchase order. Further, Supplier may not claim lost profits as part of its calculation of actual costs incurred.
19. Termination for Default
FCW and the Supplier covenant and agree as follows: (a) FCW may, written notice, terminate a purchase order in whole or in part if the Supplier fails (i) to make delivery of the Products or to perform the services in the manner and within the time specified therefor or any extension thereof by written change order or amendment, or (ii) to replace or correct defective products in accordance with §7, or (iii) to perform any other provision of the purchase order, or (iv) fails to make progress so as to endanger performance of its obligations under a purchase order. FCW is the sole judge of the circumstances described in this §19(a); (b) If a purchase order or any part thereof is terminated by reason of the Supplier’s default, FCW may procure from other sources, upon such terms and in such manner as FCW may deem appropriate, products or services the same as or substantially similar to those that were the subject matter of the terminated portion of the purchase order, and the Supplier will be will be liable to FCW for any additional costs incurred by FCW thereby. The Supplier will continue to be responsible for its obligations under the purchase order to the extent that the same have not been terminated. (c) If a purchase order is terminated by reason of the Supplier’s default, the Supplier will transfer title to and deliver to FCW, promptly at FCW’s request, in the manner and to the extent directed by FCW, (i) any completed products, and (ii) such partially completed products as the Supplier has produced or acquired for the performance of the terminated part of the purchase order. The Supplier will protect and preserve all such property that is in the possession of the Supplier. The Supplier’s obligations hereunder as to delivery, protection and preservation will not be contingent upon prior agreement as to the pricing or cost of such products; and (d) failure by FCW to enforce any of its rights under a purchase order will not be deemed a waiver thereof. The rights and remedies of FCW under a purchase order will not be exclusive and are in addition to any other rights and remedies available to FCW.
20. Attorney’s Fees
If the Seller and FCW are unable to resolve any dispute arising under this order and any suit or other judicial proceeding is instituted with reference thereto, the successful party in any such suit or other judicial proceedings shall be paid promptly by the other party an additional amount equal to the successful party’s reasonable attorney’s fees and costs incurred.
21. General
(a) time will be of the essence thereof; (b) in the event of any conflict between any term of a Supply Agreement and the terms of a purchase orders, the terms of the Supply Agreement will govern unless the terms of the purchase order specifically state otherwise; (c) waiver by a party of any of its rights or default by the other under a purchase order will not be deemed a waiver by such party of any other right or default; (d) the Supplier will not change a purchase order or ship non-conforming products without first obtaining the written consent of FCW. (e) The Supplier will, from time to time upon request by FCW, do, execute, acknowledge, deliver, or cause to be done, executed, acknowledged and delivered, all and every such further acts, bill of sale, bills of lading, deeds, transfers and assurances as FCW may reasonably request to evidence or protect FCW’s interest in the products ordered.
22. Assignments
The Supplier may not assign any rights or obligations under a purchase order (including the right to receive monies due thereunder) without the prior written consent of FCW, and any purported assignment without such consent will be void. No assignment will relieve the assigning party from its obligations under a purchase order.
23. Notice of Labor Disputes
Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, The Supplier will immediately notify FCW of such dispute and furnish all relevant details. Receipt by FCW of such notice shall not constitute a waiver of the delivery schedule hereunder.
24. Applicable Law
This order shall be governed by, subject to and construed in accordance with the laws of the State of Michigan.
