GENERAL TERMS AND CONDITIONS FOR SUPPLIERS
Clause 1 – Parties; Certain Definitions: “Buyer” means Madison Heights Glass Company, Inc. “Seller” means the party to whom the Purchase Order is submitted. “Delivery Schedule” means the delivery schedule provided by Buyer. “Project” means the project set in the Purchase Order and/or for which Seller is furnishing Materials. “Owner” means the owner of the Project. “Materials” means the equipment, parts, supplies, materials, or other goods to be sold by Seller to Buyer pursuant to these General Terms and Conditions (“Terms”). “Plans and Specifications” has the meaning set forth in Clause 6 below. “Prime Agreement” means the agreement between the prime contractor (“Prime Contractor”) and Owner. “Customer” means the party with whom Buyer has a contract for the Project.
Clause 2 - Acceptance: Seller acknowledges and agrees that these Terms are incorporated in, and are a part of, each Purchase Order, release, requisition, work order, shipping instruction, specification, and other document, whether expressed in written form, by electronic data interchange, or other tangible format, relating to the products to be provided by Seller pursuant to this contract (such documents are collectively referred to as the “Contract”). Seller acknowledges and agrees that it has read and understands these Terms in their entirety without modification. Any additional or different terms, including additions to, changes in, modifications of, or revisions of this Contract (including these Terms) which Seller proposes are deemed to be rejected by Buyer and otherwise objected to.
Clause 3 - Delivery: Time is of the essence in this Contract and deliveries are to be made both in quantities and at times specified in the Delivery Schedule, without deviation for any reason or cause (whether foreseen or unforeseen, within or outside of Seller’s control, or otherwise). Shipping instructions furnished by Buyer shall be strictly complied with and shall be considered a part of this Contract. Any provisions for delivery of Materials by installment shall not be construed as making the obligations of either Party severable. Risk of loss or damage shall be upon Seller until the Materials are physically delivered to Buyer at the Project or other authorized destination designated by Buyer. If Seller's deliveries fail to meet the Delivery Schedule, Buyer, without limiting its other rights or remedies, may direct Seller to expedite delivery at Seller’s sole cost and Buyer is entitled to additional costs incurred by Seller’s late delivery. Buyer may, in accordance with Clause 9, cancel all or part of this Contract in the event Seller fails to deliver goods or services in accordance with the Delivery Schedule. Goods which are delivered in advance of the Delivery Schedule may, at Buyer's option, either (a) be returned at Seller's expense for proper delivery; (b) have payment therefore withheld by Buyer until the date goods are actually scheduled for delivery; or (c) place goods in storage at Seller’s sole cost until the date specified in Delivery Schedule. Any float time contemplated by the Delivery Schedule or ascertained as the work progresses is the exclusive property of the Buyer and shall be utilized and/or allocated at Buyer’s sole discretion. Seller shall be responsible for any and all penalties, damages (liquidated or otherwise), and late fees or charges assessed or charged against Buyer in connection with the Project if resulting from or attributable to Seller’s failure to strictly comply with the Delivery Schedule.
Clause 4 - Inspection and Tests: All goods ordered hereunder will be subject to inspection and test by Buyer, Customer, Owner, or other third-party inspectors, in accordance with the Plans and Specifications. Seller agrees to permit access to Seller's facilities at all reasonable times for inspection of goods by Buyer and/or Owner and/or Customer, and will provide all tools, facilities, and assistance reasonably necessary for such inspection at no additional cost to Buyer. Such goods will be subject to final inspection and acceptance by Buyer, Customer, and/or Owner. Inspections and/or payments prior to delivery will not constitute final acceptance. If the goods ordered herein do not meet the Plans and Specifications or otherwise do not conform with the requirements of this Contract, Buyer shall have the right to reject such goods. Goods which have been delivered and rejected may be returned to Seller for reimbursement, credit, replacement, or correction as Buyer may direct, or may be corrected and/or replaced by Buyer with cost of correction or replacement at the expense of Seller. Any goods rejected by Buyer shall be at Seller's risk and expense and shall not thereafter be tendered for acceptance unless the former rejection or requirement of correction is disclosed. The packaging and handling expense incidental thereto, and the applicable transportation costs will be charged to Seller's account. Seller agrees to provide and maintain an inspection and quality control system acceptable to Buyer. The system of quality control shall conform to the quality control requirements that are specified in this Contract including the Plans and Specifications, and other data which are a part of this Contract.
Clause 5 - Changes: Buyer may at any time, by a written Purchase Order and without notice to the sureties, make changes within the general scope of this Contract, in any one or more of the following: (a) Plans and Specifications, where the goods to be furnished are to be specially manufactured for Buyer in accordance therewith; (b) method of shipment or packing; (c) place of delivery; (d) Delivery Schedule; (e) quantities, and Seller shall comply therewith. If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Contract, an equitable adjustment shall be made in the Contract price or Delivery Schedule, or both, and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this clause must be asserted within ten days from the date of receipt by Seller of the notification of change; provided, however, that Buyer, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this Contract. Where the cost of property made obsolete or excess as a result of a change is included in Seller's claim for adjustment, Buyer shall have the right to prescribe the manner of disposition of such property. Failure to agree on any claim for equitable adjustment under this clause shall be a dispute and the forum of dispute resolution will be in accordance with Clause 16 below. Pending the resolution of any such dispute, Seller shall diligently pursue the performance of the Contract as changed.
Clause 6 – Project Plans and Specifications: A complete set of Project design documents contained in the Prime Agreement, including but not limited to, plans, drawings, bulletins, addenda, specifications, technical specifications, general, special, and supplementary specifications, and other design information (“Plans and Specifications”) are available upon request from Buyer. Plans and Specifications are incorporated by reference and made a part of this Contract. All Materials furnished shall conform to the Plans and Specifications and other information incorporated herein. To the extent terms and conditions of the Plans and Specifications apply to the Materials supplied by Seller, Seller assumes towards Buyer all obligations, rights, duties, and redress that Buyer assumes towards Customer. If during the term of this Contract, Buyer's representatives review drawings, specifications, or other data developed by Seller in connection with the Contract and make suggestions or comments or approve such documents and data, such action is only an expression of opinion by Buyer and shall not serve to relieve Seller of any responsibility for the reliability, quality, rate of input, cost, delivery, performance, or any other requirements of this Contract.
Clause 7 – Confidentiality: Seller shall keep confidential all information, Plans and Specifications, or data furnished by Buyer, or prepared by Seller specifically in connection with the performance of this Contract and shall not divulge or use such information, Plans and Specifications, or data for the benefit of any other party. Except as required for the efficient performance of this Contract, Seller shall not make copies or permit copies to be made without prior written consent of Buyer. Seller shall thereafter make no further use, either directly or indirectly, of any such data or of any information derived therefrom without obtaining Buyer's written consent. Seller agrees that all information heretofore or hereafter furnished or disclosed to Buyer by Seller, in connection with the placing or filling of this Contract, is furnished or disclosed as a part of the consideration for this Contract, that such information is not, unless otherwise agreed to by Buyer in writing, to be treated as confidential or proprietary, and that Seller shall assert no claims (other than for patent infringement) by reason of the use or disclosure of such information by Buyer, its assigns, or its customers. No employee of Buyer has the authority to make an agreement providing for the confidential treatment of, or limiting the use or disclosure of, information so furnished or disclosed, unless such agreement is made in writing and signed by Buyer’s president. Seller shall not in any manner advertise or publish the fact that it has furnished, or contracted to furnish, Buyer the goods or services herein mentioned without written consent of Buyer. Seller shall not disclose any details in connection with this Contract to any party except as may be otherwise provided.
Clause 8 - Tooling: Unless otherwise specified in this Contract, all tooling and/or other articles required for the performance hereof shall be furnished by Seller, shall be maintained in good condition and replaced when necessary at Seller's expense. If Buyer agrees to pay Seller for special tooling and other such articles either separately or as a stated part of unit prices of goods purchased, Buyer shall upon making payment therefor have the option to take title and possession of such special tooling including any dies, tools, gauges, fixtures, patterns, and other such articles.
Clause 9 – Termination: Buyer may terminate this Contract in the event of the happening of any of the following: (a) insolvency of Seller; (b) filing of a voluntary petition in bankruptcy by Seller; (c) filing of an involuntary petition to have Seller declared bankrupt, or the appointment of a Receiver or Trustee for Seller; (d) execution by Seller of an assignment for the benefit of creditors; or (e) any breach of this Contract. If the Seller fails within two calendar days after written notification to commence and continue satisfactory correction of any default with diligence and promptness, then the Buyer, without prejudice to any right or remedies, shall have the right to take whatever steps it deems necessary to correct the deficiencies and charge the cost thereof to Seller, who shall be liable for such payment, and which costs may be deducted from amounts owed Seller, including reasonable overhead, profit, and attorneys’ fees, for any and all of the following remedies: (a) supply workers, materials, equipment, and facilities as the Buyer deems necessary for the completion of the Contract or any part which Seller has failed to complete or perform; (b) contract with one or more additional Sellers or Buyers to perform such part of the Contract as Buyer determines will provide the most expeditious completion of the Work; (c) withhold any payments due or to become due Seller pending corrective action in amounts sufficient to cover losses and compel performance to the extent required by and to the satisfaction of Buyer; and/or (d) terminate the Contract in whole or in part and seek recovery of damages, fees, and costs from Seller. Seller shall be also liable for costs which exceed the unpaid balance of the Contract. Failure of Buyer in any particular instance to enforce its rights in this Contract shall not be deemed to be a waiver of such rights. Should Customer terminate any part of the Project which includes Seller’s Materials, Buyer shall notify Seller of termination and, upon written notification from Buyer, this Contract shall be terminated and Seller shall immediately stop work, follow all of the Buyer's instructions, and mitigate all costs. In the event Customer terminates the contract with Buyer, Buyer’s liability to Seller shall be limited to the extent of Buyer’s recovery on Seller’s behalf under Buyer’s contract with Customer. Buyer may cooperate with Seller, at Seller’s expense, in the prosecution of any of Seller’s claim arising out of Customer’s termination and may permit Seller to prosecute the claim, in the name of Buyer, for the use and benefit of Seller or assign the claim to Seller. In the event Customer terminates Buyer for cause, through no fault of Seller, Seller shall be entitled to recover from Buyer its costs, including overhead and profit, for goods accepted as complete. No overhead and profit may be claimed by Seller on goods not supplied. Buyer shall have the right to terminate this Contract without cause for its convenience. In the event Buyer terminates the Contract for convenience, Seller shall be entitled to payment for that portion earned through the date of termination, conditioned upon Buyer’s receipt of such amounts from Customer or Owner; however, Seller shall not be entitled to any profit or overhead on that portion of work not performed, nor any other damages. In the event Seller is terminated by Buyer for cause and it is later determined that such termination was improper, Seller shall be deemed to have been terminated by Buyer for convenience.
Clause 10 - Indemnification: To the fullest extent permitted by law, Seller shall defend, indemnify, and hold harmless Buyer, its successors, assigns, Customer, and Owner, and their respective agents, consultants, employees, and representatives, from any and all claims, actions, demands, costs, damages, and liabilities that may at any time (including after delivery of Materials) arise from or are in any way attributable to the Materials and/or Seller’s performance or non- performance of the Contract, or anyone employed directly or indirectly by Seller or by anyone for whose acts Seller may be liable. This indemnification agreement shall not be limited in any way by any limitation, or other employee benefit laws. This indemnification provision shall not apply in the event Buyer is found to be solely negligent. Seller, on behalf of itself and its insurers, agrees to waive any right of subrogation against Buyer, to the extent covered by Seller's insurance.
Clause 11- Intellectual Property Indemnification: To the fullest extent permitted by law, Seller shall defend, indemnify, and save harmless Buyer, its successors, assigns, customers, or users of its products, from and against all loss, liability, and damage, including costs and expenses, resulting from any claim that the manufacture, use, sale, or resale of any goods supplied under this Contract infringe any patent, copyright, or patent rights, and Seller shall when notified, defend any action or claim of such infringement at its own expense. Indemnification shall not apply to goods manufactured in accordance with Buyer's detailed design or any infringement based solely upon the use of goods supplied hereunder in combination with other goods not furnished by Seller, unless such combination is in accordance with recommendations or specifications furnished by Seller. In the event the sale and/or use of such goods is enjoined, Seller shall at its own expense, either at Buyer's option procure for Buyer the right to continue using such goods, or replace same with equivalent non-infringing goods, or modify such goods so they become non-infringing, or remove same and refund the purchase price, including transportation, installation, removal, and other charges incidental thereto, as mutually agreed.
Clause 12 - Buyer's Property: Title to Buyer's property furnished to Seller shall remain in Buyer. Seller shall not alter or use such property for any purpose other than that specified by Buyer, or for any other person without prior written consent of Buyer. Seller shall keep adequate records which shall be made available to Buyer upon request, and shall store, protect, preserve, repair, and maintain such property in accordance with sound industrial practice, all at Seller's expense. Unless otherwise agreed to by Buyer in writing, Seller shall insure Buyer's interest in such property, including against loss or damage by reason of fire (including extended coverage), riot, or civil commotion. Copies of such insurance shall be furnished to Buyer on demand. In the event that Buyer's property becomes lost or damaged to any extent for any cause while in Seller's possession, Seller agrees to defend and indemnify Buyer or replace such property, at Seller's expense, in accordance with Buyer's request. Upon completion or termination of the Contract for which Buyer's property was required, Seller shall request disposition instructions for all such property, or the remainder thereof, whether in its original form or in semi processed form. Seller agrees to make such property available to Buyer at Buyer's request, in the manner requested by Buyer, including preparation, packaging, and shipping as directed. Expenses for preparation for shipment will be at Seller's expense.
Clause 13 - Compliance with Laws: Seller shall, in the performance of work or services under this Contract, fully comply with all applicable federal, state, or local laws, rules, regulations, or ordinances and shall hold Buyer harmless from any liability resulting from failure of such compliance.
Clause 14 - Taxes: Seller's prices shall be inclusive of any federal, state, or local sales, use, or excise taxes levied upon, or measured by, the sale, the sale price, or use of goods required in the performance of this Contract. Seller shall list separately on its invoice any such tax lawfully applicable to any such goods, and payable by Buyer, with respect to which Buyer does not furnish to Seller lawful evidence of exemption. Seller's prices shall not include any taxes on property owned by the U.S. government unless authorized in writing by Buyer. Seller agrees to comply with any reasonable request by Buyer regarding payments under protest, and regarding any refunds, claims, litigation, or proceedings with respect to any such taxes and to make appropriate adjustments to afford Buyer the benefit of any refund or reduction in such taxes.
Clause 15 – Dispute Mitigation and Resolution: Seller shall give Buyer written notice of all claims within seven days of Seller’s knowledge of facts giving rise to the event for which claim is made; otherwise, such claims shall be deemed waived. All unresolved claims, disputes, and other matters in question between Buyer and Seller shall be resolved in the manner provided in this Contract. Unless otherwise agreed in writing, Seller shall continue to complete the Contract and maintain the Delivery Schedule during any dispute resolution proceedings. If Seller continues to perform, Buyer shall continue to make payments to the extent undisputed and otherwise in accordance with this Contract. The Parties agree, to the extent permitted by the Prime Agreement, that all Parties necessary to resolve a claim shall be Parties to the same dispute resolution proceeding. To the extent disputes between Buyer and Seller involve in whole or in part disputes between Buyer and Customer and/or Owner, disputes between Seller and Buyer shall be decided by the same tribunal and in the same forum as disputes between Buyer and Customer and/or Owner. If a dispute arises out of or relates to this Contract, the Parties shall endeavor to settle the dispute through direct discussion between representatives who possess the necessary authority to resolve such matter. Disputes between Seller and Buyer not resolved by direct discussion shall be submitted to mediation pursuant to the Construction Industry Mediation Rules of the American Arbitration Association (“AAA”). The Parties shall select the mediator within 15 days of the request for mediation. Engaging in mediation is a condition precedent to any form of binding dispute resolution. If the matter is unresolved after submission of the matter to mediation, the dispute shall be submitted to the AAA and arbitrated in Wayne County, Oakland County, or Macomb County, Michigan, using the Construction Industry Arbitration Rules of the AAA. The award rendered by the arbitrator or arbitrators shall be final and binding, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Any court action required to enforce the terms of this binding dispute resolution procedure and/or any legal proceeding to enforce, enter judgment upon, vacate and/or modify the award shall solely be filed in a court of competent jurisdiction in Michigan. The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity. This subsection shall apply to and survive termination of this Contract.
Clause 16 - Insurance Requirements: Seller shall carry the types and amounts of insurance as required by Buyer. Seller shall furnish proof of such types and amounts of coverage upon entering into this Contract.
Clause 17 – Submittals; Material Safety Data Sheets. Along with the delivery of Materials, at no additional cost, Seller shall promptly submit to Buyer any and all available manufacturer’s warranties, product data, and literature relating to such Materials. Seller shall submit to Buyer all Material Safety Data Sheets, if applicable and as required by Law, for Materials sold to Buyer.
Clause 18 - Assignment: This Contract, or any interest therein, including any claims for monies due or to become due with respect thereto, may only be assigned upon the written consent of Buyer.
Clause 19 - Notice of Labor Dispute: Whenever Seller has knowledge that any actual or potential labor dispute is delaying, or threatens to delay the timely performance of this Contract, Seller shall immediately give written notice thereof, including all relevant information with respect thereto to Buyer. Seller agrees to insert the substance of this clause, including this sentence, in any subcontract hereunder.
Clause 20 - Warranty: Seller assigns to Buyer any applicable vendor or manufacturer warranties or remedies. In addition to the foregoing warranties, Seller expressly warrants that all Materials and equipment covered by this Contract shall be (a) fit and sufficient for the intended purpose for which such Materials or equipment was manufactured; (b) free and clear of all liens; and (c) conforming to applicable Plans and Specifications, and/or other data (if applicable). In the event of a breach of such warranties, Seller shall (a) refund the Price, (b) repair, or (c) replace, at Buyer’s option and Seller’s expense, any defective Materials or equipment. All warranties shall survive acceptance and payment, and shall run to Buyer and Owner. Such warranties shall be valid for one year from the date of substantial completion of the Project, the term of any express warranty made by Seller, or any express or implied warranty period in the Prime Agreement and/or Buyer’s Contract with Customer, whichever is longer.
Clause 21 - Subcontracting: Seller agrees to obtain Buyer's written approval before subcontracting this Contract or any substantial portion thereof.
Clause 22 - Payment for Materials: Payment for conforming material or equipment shall be made by Buyer in accordance with the terms set forth on the face of the Purchase Order and after the receipt by Buyer of Seller's invoice. Seller shall make prompt and timely payment of any debts or liabilities incurred by Seller in connection with this Contract. Seller at its sole cost shall obtain the prompt release of any bond, mechanic’s, or materialmen’s lien or any similar lien or claim. Seller hereby waives all claims or bond rights against Buyer arising from debts and liabilities incurred by Seller in the performance of this Contract. Final payment owed to Seller by Buyer under the terms of this Contract shall be contingent on full release of any outstanding liens. Prior to final payment, Seller shall provide to Buyer copies of warranties, applicable manuals, and all other close-out documents required for the materials or equipment by this Contract.
Clause 23 - Governing Law: This Contract shall be governed by the laws in the State of Michigan without regard to its conflict of law rules.