These Terms and Conditions (these “Terms”) govern the purchase of goods or services (“Goods” or “Services”) by the MP Acquisition LLC d/b/a Mopec (“Mopec” or “Buyer”) from the individual or entity selling such Goods or Services (“Seller”).
AGREEMENT OF THE PARTIES
Mopec’s Purchase Order and these Terms & Conditions may be modified only in writing by the parties. Mopec objects to terms or conditions additional to or different from these Terms & Conditions, whether or not material. Mopec’s Purchase Order, these Terms & Conditions, and any other provisions which are otherwise agreed to in writing by Mopec and Seller constitute the complete and exclusive statement of the agreement, superseding any differing statements, oral or written.
PRICE
Unless otherwise stated, prices charged for the Supplies are listed on the Purchase Order in U.S. dollars. Any adjustment to the Price shall be ineffective unless specifically agreed to in writing by Mopec.
Except as otherwise provided in this order, all payments shall be net 45 days after final acceptance by Mopec of the goods and/or services provided.
All invoices shall identify the applicable purchase order number.
TITLE AND RISK OF LOSS
Delivery shall not be deemed to be complete until Supplies have been actually received and accepted by Mopec, notwithstanding any agreement to pay transportation charges, and the risk of loss or damage in transit shall be upon the Seller.
REJECTION AND CANCELLATION
Notwithstanding payment or prior inspection, Mopec reserves the right to reject supplies and to cancel all or any part of the Purchase Order if: (i) Seller fails to deliver all or any part of the Supplies in accordance with the terms, conditions, and specifications contained in the Purchase Order, or (ii) if such Supplies contain defective material or workmanship. Seller will credit or reimburse Mopec for the purchase price of the rejected supplies, or, in the case of defective supplies, the Seller will replace such defective Supplies, in which case such replacement shall be covered by a new purchase order. Rejected Supplies shall be removed at the expense of seller, including transportation both ways, promptly after notification of rejection.
Acceptance of any part of the Supplies covered by the Purchase Order shall not obligate Mopec to accept future shipments nor deprive it of the right to revoke any acceptance theretofore given. Final acceptance shall not be conclusive with respect to latent defects, fraud, gross mistakes amounting to fraud, or misrepresentations. Supplies may be rejected for defects or defaults revealed by inspection, analysis or subsequent manufacturing operations even though such items previously may have been accepted.
SHIPPING AND DELIVERY
Seller shall be responsible for proper packaging sufficient to assure that the Goods arrive at Mopec’s destination without loss or damage. No charge shall be made by Seller for packing, drayage or storage other than as specified.
Seller bears the risk of loss or damage to Goods in transit. Unless otherwise specified, Seller will use the most reasonable and economic shipment method available.
All communications and documents related to the shipment shall include the Mopec’s purchase order number.
Seller shall be responsible for preparing all shipping documents, including packing lists and bills of lading, and transmitting such documents to Mopec. Shipping documents shall include Mopec’s purchase order number, identification of the manufacturer of the Goods, number of units shipped, lot, batch or date code, if applicable, country of origin, and customs tariff number.
Shipment shall be made to the Mopec’s physical address shown on the purchase order unless a different address is specified.
Seller shall notify Mopec as to the identity of the carrier and the identity of any freight forwarder used at the time of shipment.
CANCELLATION
In addition to other rights of cancellation set forth in these Terms, Mopec may at any time cancel or suspend this order, or any part thereof, without cause, by giving five days written notice to Seller specifying the effective date and the extent of such cancellation or suspension. Upon receipt of such notice,
Seller will, to the extent directed by Mopec, immediately terminate all work on Mopec’s purchase order and take all actions reasonably designed to reduce its costs in connection with the work ordered hereunder.
Mopec may cancel for cause in the event that Seller is the subject of a voluntary or involuntary petition in bankruptcy, Seller becomes insolvent or the subject of a receivership, or Seller makes an assignment for the benefit of creditors.
If Mopec cancels this purchase order without cause, Mopec shall reimburse Seller for Seller’s reasonable expenses which are properly allocable to and result from such cancellation as determined according to generally accepted accounting practices. The amount of such reimbursement shall in no event exceed an amount equal to that part of the contract price allocable to the part of this purchase order which is cancelled.
WARRANTIES
Quality. Seller expressly warrants that at the time of delivery, and throughout the Warranty Period, all goods covered by Mopec’s purchase order (1) shall be merchantable, of state of the art quality and workmanship, and free from defects in design or manufacture, latent or patent, (2) shall conform to the drawings, specifications, requirements, descriptions and samples furnished by Seller or provided by Mopec, including, without limitation, all quality assurance requirements delivered to Seller, and (3) shall be suitable and sufficient for the purpose for which they are intended. Seller warrants that all Services will be performed with the highest degree of expertise and skill.
Warranty Period. The warranty period for all goods shall be agreed by the parties and designated in the Purchase Order, and shall start from the date of Mopec’s acceptance, and such period shall apply to any replacement goods supplied by Seller, unless otherwise agreed by Mopec in writing.
If Seller delivers defective or non-conforming Goods, Mopec may at its option and at Seller’s expense: (i) require Seller to promptly correct or replace the goods; (ii) return the goods for refund; (iii) correct the Goods; or (iv) obtain replacement goods from another source. Return to Seller of defective or non-conforming goods and redelivery to Mopec of corrected or replaced goods shall be at Seller’s expense.
Mopec may determine that the Goods are defective based upon random sampling. In such event, Mopec may reject the goods in their entirety and return them to Seller at Seller’s risk and expense. In the event of such rejection, Mopec may (1) require Seller to deliver conforming Goods; (2) undertake to re-work the defective Goods, or have a third party do so, and receive a credit or refund from Seller to the extent of the cost thereof; or (3) cancel its purchase order entirely without liability to Seller. Seller shall be responsible for separating defective Goods from conforming Goods, whether upon return or at Mopec’s facility.
Patents and Intellectual Property. Seller warrants that the sale, resale or use of the Goods furnished hereunder will not infringe, directly or indirectly, any patent, copyright, trademark, trade secret or other intellectual property rights of another party (except insofar as such infringement necessarily arises from the use of plans and specifications furnished by Mopec), and Seller agrees to indemnify, defend, protect and save harmless Mopec and its successors, assigns, customers, and users of the goods from and against all claims, suits, actions and all damages, costs, and expenses (including, without limitation, all attorneys’ fees and expenses) resulting from any and all notices, claims, suits, actions, fines, or proceedings based on any such actual or alleged infringement.
Mopec’s rights under this Section 7 shall not be exclusive and Mopec retains and reserves all other rights and claims for damages, including, without limitation, consequential and incidental damages, provided by law.
This Section 7 shall survive termination, cancellation or completion of delivery.
COMPLIANCE WITH LAWS
Seller represents, warrants and agrees that all goods and services covered by this purchase order will be produced and performed in compliance with all applicable statutes, rules, regulations and orders of Federal, state, and local governments or governmental authorities, including, without limitation, the Fair Labor Standards Act of 1958 and the Occupational Safety and Health Act of 1970.
INSURANCE
Seller shall maintain insurance as follows:
Commercial General Liability. Seller shall carry and maintain, and ensure that all subcontractors thereof carry and maintain, throughout the period when Services are performed and/or until final acceptance of the goods by Mopec, Commercial General Liability insurance with available limits of not less than $2,000,000 per occurrence for bodily injury and property damage combined. Such insurance shall contain coverage for all premises and operations, broad form property damage, contractual liability (including, without limitation, that specifically assumed under paragraph a herein), Stop Gap and/or Employee Liability coverage and Goods and completed-operations insurance with limits of not less than $1,000,000 per occurrence for a minimum of twenty-four (24) months after final acceptance of the work by Mopec. Such insurance shall not be maintained on a per-project basis unless the respective Seller or subcontractor thereof does not have blanket coverage. If requested, Seller shall name Mopec as an additional insured under such insurance.
Automobile Liability. If licensed vehicles will be used in connection with the performance of Services, Seller shall carry and maintain, and ensure that any subcontractor thereof who uses a licensed vehicle in connection with the performance of the work carries and maintains, throughout the period when work is performed and until final acceptance by Mopec, Business Automobile Liability insurance covering all vehicles, whether owned, hired, rented, borrowed or otherwise, with available limits of not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage.
Product Liability. If Seller is supplying goods, Seller shall carry and maintain product liability insurance with minimum limits of $2,000,000 in the aggregate and $1,000,000 per occurrence. Seller shall name Mopec as an additional insured under such insurance.
Workers’ Compensation and Employers’ Liability. Throughout the period when work is performed and until final acceptance by Mopec, Seller shall, and ensure that any subcontractor thereof shall, cover ormaintain insurance in accordance with the applicable laws relating to Workers’ Compensation to all of theirrespective employees working on or about Mopec’s premises. If Mopec is required by any applicable law to pay any Workers’ Compensation premiums with respect to an employee of Seller or any subcontractor, Seller shall reimburse Mopec for such payment.
Seller shall, upon request, provide Mopec with certificate(s) of insurance evidencing Seller’s compliance with the insurance requirements of this Section. Seller, on its own behalf, and on behalf of any of its insurers, hereby waives all rights of subrogation against Mopec, its parent, subsidiary or affiliated companies, successors and assigns. Seller agrees that the existence of available and/or collectible insurance does not in any way limit or relieve Seller from its duties, liabilities or obligations under theTerms or the parties’ contract.
CONFIDENTIALITY
Any non-public, confidential or proprietary information of Mopec or affiliates of Mopec that Seller becomes aware as part of the contractual relationship shall be deemed ”Confidential Information”, whether or not so marked at the time of disclosure and regardless of the form in which such information is disclosed. Confidential Information includes, without limitation, business or financial information drawings, specifications, prototypes, samples, plans, designs, patterns, know how, formulae, composition, ingredients, software, source code, market and marketing information and strategy, application and use of the goods by Mopec, Mopec’s payment method and source of funds, customer information, and trade secrets of Mope
Confidential Information shall be kept confidential at all times and access to Confidential Information shall only be furnished to employees who are directly entrusted with the execution of the order and whose knowledge of the Confidential Information is essential for the execution of the contract and who are bound by a prior written nondisclosure agreement. Confidential Information shall not be disclosed in any way or form to unauthorized employees or any third party, including, among others, Mopec’s competitors or customers, Seller’s subcontractors, affiliates, vendors and suppliers, without the express written permission of Mopec. Seller shall ensure that all documents and materials which might contain Confidential Information of Mopec are safeguarded and protected against access by third parties and unauthorized employees.
Mopec’s Confidential Information shall at all times remain the property of Mopec and disclosure to Seller does not relinquish, transfer or convey to Seller any right to such information, including any intellectual property right.
At any time upon request of Mopec, or at such time as Seller’s performance of the purchase order has been completed, Seller shall immediately return to Mopec all Confidential Information disclosed. At such time, if Confidential Information has been disclosed in electronic form or by electronic mail, Seller shall delete such information from its computer systems and servers, together with any back-up copies thereof.
Mopec shall be entitled to damages and injunctive relief for any violation of this Section 10. This Section 10 shall survive the later of cancellation or Seller’s completion of performance for a period of five (5) years.
FORCE MAJEURE
Any delay or failure of either party to perform its obligations under this Purchase Order shall be excused if it is caused by an event or occurrence beyond the control of the nonperforming party and without the nonperforming party’s fault or negligence, such as acts of God, acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather.
Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within ten (10) days of the event.
During the period of any delay or failure to perform by Seller, Mopec, at its option, may purchase Supplies from other sources and reduce its schedules to Seller by such quantities, without liability to Mopec, or cause Seller to provide the Supplies from other sources in quantities and at times requested by Mopec and at the price set forth in this agreement.
If requested by Mopec, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Mopec deems appropriate. If the delay lasts more than thirty (30) days, Mopec may terminate the Purchase Order.
NON-ASSIGNMENT
No assignment of the Purchase Order or any interest therein or any payment due or to become due thereunder shall be made by Seller without first obtaining the written consent of the Mopec.
REMEDIES FOR BREACH BY SELLER
The rights and remedies reserved to Mopec in each Purchase Order shall be cumulative with, and additional to, all other or further remedies in law or equity.
Seller acknowledges and agrees that money damages would not be a sufficient remedy for any actual, anticipatory or threatened breach of any Purchase Order by Seller with respect to its delivery of supplies to Mopec and that, in addition to all other rights and remedies which Mopec may have, Mopec shall be entitled to specific performance and temporary, preliminary and permanent injunctive or other equitable relief as a remedy for any such breach, without proof of actual damages and without bond or other security being required.
INDEMNIFICATION
Seller agrees to indemnify, defend, and hold harmless Mopec, its customers and users of the supplies purchased hereunder, against all liability, loss, claims, actions, suits, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) whatsoever arising out of any action relating to delivery or use of the supplies covered by the Purchase Order or the performance of any term or condition of the Purchase Order.
Such indemnification shall continue notwithstanding any inspection, acceptance, payment, or processing by Mopec.
LIMITATIONS ON MOPEC’S LIABILITY
In no event shall Mopec be liable to Seller for any lost profits or any incidental, consequential, special, exemplary or punitive damages. Mopec’s liability for a claim of any kind or for any loss or damage arising out of or in connection with or resulting from this agreement, or from any performance or breach, shall in no case exceed the price allocable to the Supplies or unit which directly gives rise to the claim.
SUSPECT / COUNTERFEIT PARTS
Seller represents and warrants that it has policies and procedures in place to ensure that none of the supplies or materials furnished under this Purchase Order are “suspect/counterfeit parts” and certifies, to the best of its knowledge and belief, that no such parts have been or are being furnished to Mopec by Seller.
“Suspect/counterfeit parts” are parts that may be of new manufacture, but are misleadingly labeled to provide the impression they are of a different class or quality or from a different source than is actually the case. They also include refurbished parts, complete with false labeling, that are represented as new parts or any parts that are designated as suspect by the U.S. Government, such as parts listed in alerts published by the Defense Contract Management Agency under the Government‐Industry Data Exchange Program (GIDEP).
If Mopec reasonably determines that Seller has supplied suspect/counterfeit parts to Mopec, Mopec shall promptly notify Seller and Seller shall immediately replace the suspect/counterfeit parts with parts acceptable to Mopec.
Notwithstanding any other provision contained herein, Seller shall be liable for all costs incurred by Mopec to remove and replace the suspect/counterfeit parts, including without limitation Mopec’s external and internal costs of removing such a counterfeit parts, of reinserting replacement parts and of any testing necessitated by the reinstallation of Seller’s goods after counterfeit parts have been exchanged.
In addition, Mopec may unilaterally terminate this order for Convenience depending on the impact of the delivery of Suspect/Counterfeit parts on the Seller’s overall performance on this order. Seller’s warranty against suspect/counterfeit parts shall survive any termination or expiration of this Purchase Order. Mopec reserves the right to seize and quarantine any / all suspected counterfeit products it receives from seller on this Purchase Order. Suspect counterfeit products may be forwarded to the Original Component Manufacturer and / or the appropriate Federal or State authorities for final analysis, possible confiscation and / or destruction. If products furnished by the Seller are determined to in fact be counterfeit, Seller agrees to reimburse Mopec on the full purchase price paid as well as any shipping or 3rd party testing charges incurred by Mopec.
GOVERNING LAW; DISPUTES
This agreement shall be construed and interpreted in accordance with the laws of the State of Michigan. All disputes involving this agreement shall be adjudicated exclusively in Oakland County Circuit Court, or the U.S. District Court for the Eastern District of Michigan.
RELATIONSHIP OF PARTIES
Seller and Mopec are independent contracting parties and nothing in this agreement shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
SEVERABILITY
If any term of this agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this agreement shall remain in full force and effect.
