DISPLAY PACK, INC.’S STANDARD TERMS OF PURCHASE
12/01/2017 rev. 1
DISPLAY PACK, INC. (“DPI“) purchase orders are subject to the following terms and conditions, and DPI objects to any additional or different terms. In these terms, “Goods” and “Services” refer to the goods or services described on the face of a purchase order to be purchased by DPI from the supplier named on the purchase order (“Supplier“), and the “Agreement” or this “Agreement” refers collectively to any contract or contracts formed pursuant to DPI’s purchase orders, including without limitation the face of the purchase order(s) and these terms and conditions. The use of the term purchase orders shall include not only written purchase orders but also orders given by DPI electronically, and in the context of an electronic order, the reference to the “face” of the purchase order shall mean the terms in the electronic order.
1. Agreement. DPI intends its purchase order to be an offer. If, however, a purchase order is in legal effect an acceptance of a prior offer by Supplier, DPI’s acceptance is conditional upon Supplier’s assent to all terms of DPI’s purchase order that are additional to or different from the terms of Supplier’s offer. By signing and returning the acknowledgment copy of a purchase order, by shipping the Goods or performing the Services in whole or in part, or by accepting part or full payment of the purchase price, Supplier agrees and assents to all of these terms.
2. Payment. Unless DPI agrees otherwise in writing, (i) DPI will not be required to pay any sales, use, or other taxes or any import or export duties, licenses, permits, or fees arising because of DPI’s purchase from Supplier; (ii) no charge shall be made for packing, boxing, insuring, transporting, or storage; and (iii) DPI will not be required to pay any late charge, interest, finance charge, or similar charge. DPI’s payment of the purchase price does not indicate its acceptance of the Goods or Services. Payment terms, including discount periods, shall run from the latest of (i) the scheduled date for delivery or performance; (ii) the actual date of delivery in full of conforming Goods or performance of conforming Services; (iii) the date of Supplier’s invoice; (iv) in the case of capital equipment, completion of DPI’s final inspection and acceptance after installation; and (v) in the case of tooling, approval by DPI and DPI’s customer of production pieces produced by the tooling at DPI’s facility.
3. Price Warranties and Competitiveness. DPI shall pay no more than the specified price on the purchase order. Supplier warrants that the prices for the Goods and the Services are, and shall ensure that such prices remain, not less favorable to DPI than the prices currently extended to any other customer of Supplier for the same or substantially similar goods or services in the same or substantially similar quantities and delivery requirements. If Supplier reduces the prices of such same or substantially similar goods or services during the term of this Agreement, Supplier shall reduce the prices of the Goods and the Services to DPI correspondingly.
Supplier warrants that the prices in this Agreement shall be complete, and no surcharges, premiums or other additional charges of any type shall be added, without DPI’s prior written consent. Supplier expressly assumes the risk of any event or cause (whether or not foreseen) affecting such prices, including any foreign exchange rate changes, increases in raw materials costs, inflation, increases in labor and other manufacturing costs.
Supplier shall ensure that the Goods and the Services remain competitive in terms of price, technology and quality with substantially similar goods and services available to DPI from other suppliers.
4. Delivery. Unless DPI agrees otherwise in writing, the Goods shall be delivered F.O.B. (Uniform Commercial Code term) DPI’s facility. Time of delivery or performance is of the essence, and DPI’s stated delivery or performance date cannot be extended for any reason, including delays in manufacture or shipment that Supplier cannot control (including without limitation strikes, labor disturbances, actions or omissions of Supplier’s material suppliers or subcontractors, etc.); provided, however, that Supplier shall not be liable for any non-performance or delay in performance caused solely by a riot, war, insurrection, or an act of God or a public enemy, if Supplier immediately notifies DPI of the event and gives DPI a detailed description of the non-performance or delay that will be caused by it. DPI shall then have the right to terminate the Agreement, without any liability to Supplier.
Supplier warrants that any representation made in a quote or otherwise regarding its production capacity shall be considered a warranty that Supplier can manufacture or produce the stated quantity of Goods or Services without the imposition of overtime charges or other surcharges. Supplier acknowledges that any estimates or forecasts of production volumes or length of program, whether from DPI or its customer, are subject to change from time to time, with or without notice to Supplier, and shall not be binding upon DPI. Unless otherwise expressly stated in this Agreement, DPI makes no representation, warranty, guarantee or commitment of any kind or nature, whether express or implied to Supplier in respect of DPI’s quantitative requirements for Goods or Services or the term of supply of Goods or Services.
5. Excess, Installment, and Early Deliveries. If Supplier delivers more Goods than DPI ordered, then, unless DPI agrees otherwise in writing, DPI may return the excess at Supplier’s expense. Unless DPI agrees otherwise in writing, Supplier shall deliver all of the Goods in a single delivery and not in installments. DPI’s acceptance of a delivery containing less than the required quantity shall not relieve Supplier of its obligation to deliver the balance of the ordered Goods at the price and on the other terms specified in the purchase order. If Supplier delivers the Goods before the scheduled delivery date, DPI may, at Supplier’s expense and risk, either store them or return them to Supplier. DPI’s acceptance of an early delivery shall not change the payment terms.
6. Customer Requirements. Where the Goods or Services under this Agreement are or will be sold, or incorporated into goods or services that are or will be sold, by DPI to an original equipment manufacturer of vehicles, an upper tier supplier, or to any other third party customer
(collectively, a “Customer”), Supplier shall take such steps, provide such disclosure, comply with such requirements and do all other things as DPI deems necessary or desirable and within Supplier’s control to enable DPI to meet DPI’s obligations under the terms and conditions of any contract or purchase order or other document (the “Customer Terms”) that may be applicable to DPI from time to time in respect of its direct or indirect supply of such goods or services to the Customer, including without limitation delivery, packaging and labeling requirements, warranties and warranty periods, intellectual property rights, indemnification, confidentiality, access to facilities and records, and replacement and service parts. DPI may, from time to time, in its sole discretion, provide Supplier with information regarding the applicable Customer Terms that may affect Supplier’s obligations hereunder.
If there is any conflict between the provisions of the Customer Terms and any provisions of this Agreement, DPI shall have the right to have the provisions of the Customer Terms prevail to the extent necessary or desirable to resolve such conflict.
If the Customer directed, recommended or requested that Supplier be the source from whom DPI is to obtain the Goods and/or the Services: (i) DPI will pay Supplier for the Goods and/or Services only after and to the extent of, and in proportion to, DPI’s actual receipt of payment from the Customer for those goods into which the Goods and/or the Services are incorporated; (ii) any lengthening of the Customer’s payment terms to DPI for those goods into which the Goods and/or Services are incorporated will automatically lengthen the payment terms as between DPI and Supplier by the same amount of time; and (iii) within 3 business days of any change in price, specifications or other terms negotiated or proposed between Supplier and the Customer, Supplier shall notify DPI in writing and immediately adjust its invoices to reflect any price reduction, provided that no change will be binding on DPI without DPI’s specific written consent.
7. Representations and Warranties of Supplier. Supplier represents and warrants to DPI that (i) Supplier has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under the Agreement formed pursuant to a purchase order, (ii) the Agreement is the valid and binding obligation of Supplier, enforceable against Supplier in accordance with its terms, (iii) Supplier is solvent, and (iv) Supplier has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of DPI or of any affiliate of DPI.
8. Representations and Warranties Regarding the Goods and Services. Supplier represents, warrants and agrees that (i) the Goods and Services shall be merchantable, of good material, workmanship, and quality, fit for the purposes for which DPI intends them and free from all faults and defects; (ii) the Goods and Services shall conform to any samples, drawings, specifications, performance criteria standards, vendor quality programs or other requirements that are referred to on the face of a purchase order or that DPI has otherwise specified; (iii) the Goods and Services shall conform to all specifications of the Customer, even if no copy has been furnished by DPI; (iv) the Goods, their manufacture and sale, and the Services shall comply with all applicable federal, state, provincial, local and other laws, regulations, standards and orders, including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970, as amended; and (v) the Goods and Services shall not infringe, misappropriate or violate any patent, copyright, trademark or other intellectual property right of any third party anywhere in the world. Supplier agrees that Supplier will abide by, and that all Goods and Services shall conform to, DPI’s Supplier Quality Policy, as provided to Supplier from time to time. Unless otherwise agreed in writing, any tooling, molds, dies, film, negatives, CAD data, and other electronic documents created by Supplier specifically for DPI or at the expense of DPI shall be the sole property of DPI and shall be delivered to DPI as soon as they are finished. If DPI requests it, Supplier shall give DPI certificates of compliance with all applicable laws and regulations. DPI’s approval of a sample, drawing, specification or standard shall not relieve Supplier of any of its warranties under this paragraph, including, without limitation, its warranties of merchantability, fitness and compliance with laws. Supplier’s warranties extend to future performance of the Goods and Services and survive inspection, tests, acceptance, conversion, assembly and payment. The warranties set forth above shall be expanded or modified to satisfy the Customer Terms if the Customer Terms require a more favorable warranty than the warranty set forth above (by way of example, if the Customer Terms require an extended warranty, then the warranty above shall continue through such extended warranty period).
9. Defective or Non-Conforming Goods or Services. If any of the Goods or the Services fail to meet the Supplier’s warranties, Supplier shall, upon notice thereof from DPI at any time, promptly repair, replace or otherwise satisfactorily deal with the same in a manner acceptable to DPI, all at Supplier’s expense and without limiting or affecting DPI’s other rights or remedies available hereunder or at law. The Supplier’s warranties shall also apply to such repaired, replaced or otherwise satisfactorily dealt with Goods or Services.
If Supplier fails to repair, replace or otherwise deal with any defective or non-conforming Goods or Services in a manner acceptable to DPI, DPI may, without limiting or affecting DPI’s other rights or remedies available hereunder or at law, cancel this Agreement as to the particular Goods or Services and/or cancel the then remaining balance of this Agreement.
After notice to Supplier, all defective or non-conforming Goods shall be held at Supplier’s risk. DPI may, and at Supplier’s direction shall, return such defective or non-conforming Goods to Supplier at Supplier’s risk, and Supplier shall promptly pay, upon DPI’s demand, all transportation and other applicable charges, both to and from the original destination.
Any payment made by DPI for defective or non-conforming Goods or Services shall be refunded by Supplier, except to the extent that Supplier promptly replaces or corrects the same at Supplier’s expense.
None of DPI, its subsidiaries or affiliates, or their respective successors, assigns, representatives, employees, agents or Customers shall be liable for, or be obligated to indemnify or hold any of Supplier, its subsidiaries or affiliates, or their respective successors, assigns, representatives, employees, agents, subcontractors or suppliers harmless from and against, any liabilities, claims, demands, costs, damages or expenses of any kind or nature (including personal injury, property damage, consequential or special damages) arising from or as a result of the improper, unsafe or defective materials, workmanship or design of the Goods or the Services.
10. Indemnity. Supplier shall indemnify and hold DPI harmless from and against any claims, liabilities, losses, damages and expenses(including actual attorney fees) brought against DPI or incurred by DPI because of (i) any breach by Supplier of any of its warranties to, or agreements with, DPI; (ii) any claim that any of the Goods or Services infringes, misappropriates or violates any patent, trademark, copyright or other intellectual property right, anywhere in the world; (iii) any death, injury, or damage to any person or property alleged to have been caused by the Goods or Services or by Supplier’s manufacture of the Goods or performance of the Services; or (iv) any negligence, intentional misconduct or other fault of Supplier, its employees, agents, representatives, suppliers or subcontractors.
11. Inspection. DPI’s employees or agents may on reasonable notice enter Supplier’s premises to inspect and test the Goods, Supplier’s process of manufacture of them, and any materials, components, or work-in-process that is to be used in their manufacture. Materials other than those specified shall not be substituted without DPI’s written consent. All Goods and Services shall be subject to DPI’s inspection and approval after delivery, conversion, assembly or performance, despite prior payment.
12. Changes. DPI may, by written notice to Supplier, because of changes in circumstances, change a purchase order or the Agreement as to (i) designs or drawings of or specifications for the Goods or Services, (ii) time or place of delivery or performance, (iii) method of packing or shipment, or (iv) quantity of the Goods or extent of the Services. If this causes a change in Supplier’s cost or time of performance, an equitable adjustment may be made in the price or time for delivery or performance, or both, if Supplier gives DPI a written request for an adjustment within 20 days after DPI notifies Supplier of the change (and if such request is not made within the 20-day period, then Supplier shall have no right to any adjustment and shall be deemed to have waived any claim for adjustment).
(a) DPI may terminate this Agreement, in whole or in part, at any time if Supplier defaults under the terms of this Agreement. Such termination is addressed in Paragraph 14 below.
(b) DPI may terminate this Agreement, in whole or in part, at any time without cause by written notice to Supplier stating the extent and effective date of termination. Upon receipt of the notice, Supplier shall, unless otherwise directed by DPI, stop work and acquisition of materials under the Agreement and protect property in Supplier’s possession in which DPI has or may acquire an interest. Not later than 30 days after the effective date of termination, Supplier may submit to DPI its claim, if any, for reasonable compensation for termination (and if such claim is not submitted within such 30-day period, such claim shall be waived). DPI shall have the right to audit and inspect Supplier’s books, records and other documents relating to the termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, DPI will pay to Supplier, without duplication, (i) the purchase order price for Goods or Services completed in accordance with the provisions of a purchase order but not previously paid for and (ii) the actual costs incurred by Supplier and properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of the Agreement, but not to exceed the contract price for the terminated portion of the Agreement, less any payments made by DPI. These amounts will be payable after Supplier delivers to DPI any completed Goods.
(c) Termination under this paragraph shall not impair Supplier’s other obligations under Agreement nor impair DPI’s other rights and remedies against Supplier.
14. DPI’s Rights. If at any time (i) Supplier defaults in the performance of any of Supplier’s obligations to DPI, (ii) Supplier repudiates this Agreement, or (iii) any warranty or representation of Supplier to DPI in or in connection with this Agreement shall be false or misleading, then DPI may terminate this Agreement, in whole or part, and Supplier, if and to the extent demanded by DPI, shall immediately deliver to DPI finished and unfinished Goods, work-in-process and raw materials acquired for use in the manufacture or processing of the Goods. Payment of part or all of the purchase price by DPI shall not be a precondition to Supplier’s obligation to make the delivery. Termination by DPI under this paragraph shall not impair Supplier’s other obligations under this Agreement, and DPI reserves all of its rights and remedies against Supplier.
If any part of DPI’s business is shut down, permanently or temporarily, because of anything DPI cannot reasonably control, such as casualty, labor trouble, or a customer cancellation, shutdown, or delay, DPI may terminate the Agreement without liability except as to conforming Goods delivered to DPI or conforming Services performed for DPI before DPI terminated this Agreement.
In addition to DPI’s rights set out in this Agreement, DPI has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages resulting from any breach by Supplier. DPI shall not lose any right just because it does not exercise it. DPI shall have the full statutory period of limitations to bring any action arising out of DPI’s agreement with Supplier. DPI’s damages for Supplier’s breach may include losses for raw materials, work-in-process, and finished goods.
15. DPI’s Website. DPI’s internet website at www.displaypack.com/ ________________ (or such other website as may be directed through links available on such website) (“DPI’s Website”) may contain specific additional requirements for certain items covered by this Agreement, including labeling, packaging, shipping delivery and quality specifications, procedures, directions and/or instructions. Any such requirements shall be deemed to form part of this Agreement. DPI may periodically update such requirements by posting revisions thereto on DPI’s Website. In the event of any inconsistency between this Agreement and DPI’s Website, the terms of this Agreement shall prevail, unless the requirements specified on DPI’s Website expressly provide otherwise.
DPI may modify these purchase order terms and conditions from time to time by posting revised purchase order terms and conditions to DPI’s Website. Such revised purchase order terms and conditions shall apply to all purchase orders and purchase order revisions issued on or after the effective date thereof. Supplier shall review DPI’s Website periodically.
16. Insurance. Supplier shall maintain insurance coverage that will fully protect both Supplier and DPI from any and all claims and liabilities of any kind or nature for property damage, personal injury, death, products liability and economic/financial damage, to any person, that shall arise from the Goods or their use or the performance of the Services or any activities connected with the Services. Supplier shall maintain employee’s liability and compensation insurance that will protect DPI from any and all claims and liabilities made by Supplier or any employee or agent of Supplier under any applicable worker’s compensation or occupational disease laws. All insurance required by this paragraph shall be in amounts and coverages, and shall be issued by insurers, that shall be satisfactory to DPI. Upon request by DPI at any time, Supplier shall furnish DPI with certificates evidencing required insurance.
17. Prepayment. If DPI pays any part of the purchase price of the Goods before delivery to DPI, (i) title (but not risk of loss) to each item of the Goods shall pass to DPI upon identification of the item to the Agreement; (ii) to the extent necessary to protect DPI’s title to the Goods, Supplier grants DPI a security interest in the Goods to secure Supplier’s obligation to deliver them to DPI and all of Supplier’s other existing and future obligations to DPI; (iii) DPI may file appropriate financing statements to evidence DPI’s title to the Goods and that security interest;(iv) DPI may file a photocopy of this Agreement as a financing statement; and (v) Supplier shall obtain from each person holding a security interest in or lien upon the Goods a written agreement releasing that security interest or lien or subordinating it to DPI’s interest in the Goods.
18. Work on Premises. If performance of Services or delivery or installation of Goods by Supplier involves equipment or operations by its employees or subcontractors on the premises of DPI or of a customer of DPI, (i) Supplier shall contain all employees and subcontractors to the immediate area of the work and shall not permit access to unessential parts of DPI’s facilities; (ii) Supplier shall at all times enforce strict discipline and maintain good order among all persons engaged in the activity on the premises and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises; (iii) Supplier shall keep the premises free from accumulation of waste materials and rubbish caused by its employees or subcontractors and upon completion shall promptly remove all of Supplier’s equipment and surplus materials; and (iv) Supplier shall be responsible for any damage or injury arising from the presence of Supplier’s equipment or personnel.
19. Services. If a purchase order covers Services, (i) Supplier is an independent contractor, and neither Supplier nor any of Supplier’s employees, agents, representatives or subcontractors shall be considered agents or employees of DPI; and (ii) Supplier shall furnish, at Supplier’s expense, all labor, materials, equipment, transportation, facilities and other items necessary to perform the Services.
20. Confidentiality. Supplier shall not sell or offer to sell to anyone other than DPI any Goods made in accordance with any drawings or specifications that DPI furnishes to Supplier. Supplier shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Supplier’s subcontractors or suppliers), the Goods, any designs of or specifications for the Goods, any Furnished Item (as defined below) or any information concerning DPI’s business, operations or activities, including, without limitation, information concerning DPI’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information“), except that Supplier may disclose Confidential Information to a third party (other than a competitor of DPI or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Supplier to perform its obligations under the Agreement. If there is a breach of this paragraph or the following paragraph (either actual or threatened) by Supplier, DPI’s remedies at law will be inadequate. Therefore DPI shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and DPI’s rights and remedies shall be cumulative.
21. Intellectual Property. Any drawings, specifications, film, negatives, CAD data, documents (electronic or otherwise) and other information and any tooling, equipment or other property that DPI shall furnish to, or acquire from, Supplier in connection with Supplier’s manufacture of the Goods or performance of the Services (“Furnished Items“) is and shall become or remain DPI’s sole property. Supplier shall (i) maintain in good condition any Furnished Items, (ii) mark the Furnished Items “PROPERTY OF DISPLAY PACK, INC.”, (iii) not commingle the Furnished Items with property of Supplier or third parties, (iv) allow DPI to inspect and examine them at any time, and (v) return them to DPI upon its request. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems and other matters created or developed by Supplier in the course of Supplier’s performance of the Services or development of the Goods (“Intellectual Property“) shall be the sole property of DPI. All Intellectual Property shall be considered “works made for hire” within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. If the Goods or their design are subject to any patent or other proprietary rights held by Supplier, then Supplier grants to DPI an irrevocable, non-exclusive, royalty-free license of the patent and other proprietary rights to the extent necessary to enable DPI to modify, repair, or rebuild any or all of the Goods. This license is in addition to all patent licenses impliedly granted to DPI as a purchaser of the Goods.
22. Remedies. The remedies stated in this Agreement shall be cumulative and not alternative and may be exercised separately or together, in any order or combination, and are in addition to any other remedies provided for or allowed by law, at equity or otherwise. DPI’s rights and remedies include the right to recover incidental and consequential damages upon any breach by Supplier.
Supplier expressly acknowledges and agrees that any failure of Supplier to deliver the Goods on the delivery dates and times as specified in this Agreement will cause irreparable harm to DPI and that DPI shall be entitled to equitable relief, including injunction, in such event.
23. Other Terms. Supplier shall not have and waives any security interest in or lien (including any statutory lien) upon any Furnished Items or the Goods. Supplier may not delegate or subcontract any of its obligations under a purchase order without DPI’s written consent. DPI may deduct from, and set off against, any amounts at any time owing to or to be owing to Supplier under this Agreement any damages or other amounts owing or to be owing to DPI by Supplier, whether under the same purchase order or otherwise. If at any time DPI has reasonable grounds for insecurity as to Supplier’s performance, Supplier shall provide adequate assurance of due performance within 5 days after demand by DPI, which shall be considered to be a reasonable time.
24. Applicable Law. This Agreement shall be governed by, and interpreted according to, Michigan law without regard to conflict of laws principles. Any action based upon or arising out of this Agreement shall be handled by any state or federal court in Kent County, Michigan, and Supplier irrevocably consents that the court shall have personal jurisdiction and venue over Supplier and waives any objection that the court is an inconvenient forum.
25. Complete Agreement. Supplier has not made any promises or representations to DPI, and DPI has not made any to Supplier, that are not in this Agreement. Any change in, or waiver of, any provision of this Agreement must be contained in a writing signed by the party to be charged.