North American Terms and Conditions of Purchase
North American Terms and Conditions of Purchase
These North American Terms and Conditions of Purchase (“Purchase Terms”) applies to all purchase orders issued by Bleichert, Inc., a Michigan corporation, or any of its subsidiaries or affiliates (“Bleichert”). The entity receiving the Purchase Order (as defined below) is referred to as “Supplier”.
1. Each purchase order, supply agreement, work authorization, subcontract, or other type of written instruction(s) that Bleichert issues (a “Purchase Order”) is Bleichert’s offer to purchase the products (“Products”) and services (“Services”) identified in that Purchase Order. Supplier will be deemed to have accepted a Purchase Order as issued if: (A) Supplier begins performance under the Purchase Order, or (B) Supplier acknowledges in writing its acceptance of the Purchase Order. Upon acceptance, the Purchase Order together with these Purchase Terms, and any other documents specifically incorporated in the Purchase Order or separately agreed to in writing, such as specifications, drawings, requirements of Bleichert’s customer, or quality requirements, will become a binding contract between Bleichert and Supplier (collectively, the or a “Contract”).
If Supplier objects to a Purchase Order or proposes alternate, different, or additional terms but commences or has commenced performance under the Purchase Order before Bleichert agreed to such alternate, different, or additional terms in writing, the Purchase Order will still become a Contract but will not include the alternate, different, or additional terms proposed by Supplier. A Purchase Order may incorporate one or more agreements (a “Prime Contract”) between: (i) Bleichert and a third party (the “Owner”) or (ii) two third parties. If a Purchase Order does incorporate a Prime Contract by reference, the Prime Contract shall be part of the Contract, Supplier shall assume toward the Owner and Bleichert all obligations and responsibilities that Bleichert, under the Prime Contract, assumes toward the Owner and its affiliates (architects, engineers, consultants, etc), and Bleichert shall have the benefit of all rights, remedies, and redress against Supplier that the Owner, under the Prime Contract, has against Bleichert. All applicable Prime Contracts will be available for inspection upon Supplier’s written request.
2. The term of each Contract (the “Term”) shall begin on the date set forth on the respective Purchase Order and shall end either on the date set forth on the Purchase Order, or if no end date is set forth, then when Supplier and Bleichert complete all of their respective obligations under the Contract, unless terminated earlier by Bleichert in accordance with the Contract.
3. In the event any terms or conditions of these Purchase Terms conflict with other terms or conditions of a Purchase Order, the terms and conditions of the respective Purchase Order shall prevail. Bleichert may from time to time by notice to Supplier make reasonable changes, within the scope of the Contract, to the specifications, materials, packaging, testing, quantity, time or method of delivery or shipment, or similar requirements prescribed in the Contract. At Supplier’s request with appropriate supporting documentation, the parties may agree upon an equitable adjustment to the Contract prices and times for performance as a result of Bleichert’s changes. Contract changes shall be in writing and must be signed by Bleichert’s authorized representative (“Authorized Representative”) in order to be effective. Except for the changes described in this Section, neither party may make any changes to the Contract during its Term without the written consent of Bleichert’s Authorized Representative.
4. If quantities or delivery schedules are not specified in the Contract, they will be as reasonably determined from time to time by Bleichert and communicated to Supplier following formation of the Contract. In all events, Supplier shall use best efforts to meet Bleichert’s quantities and delivery schedules. Bleichert may return over-shipments to Supplier at Supplier’s expense. Unless otherwise specifically stated in the Contract, the Contract is not exclusive (neither an “output” or “requirements” contract) and Bleichert may purchase similar products and services from third parties.
5. Supplier shall exercise due diligence to start and complete the work in accordance with Bleichert’s schedule and shall carefully provide and perform all Products and Services under the Contract in a good and workmanlike manner. Supplier shall furnish all labor, supervision, machinery, materials, equipment, and supplies necessary to timely complete the Contract. Unless otherwise specifically set forth in the Purchase Order, Supplier shall obtain all necessary permits and licenses necessary to commence and complete the Contract. Supplier shall also comply with all applicable governmental laws, ordinances, rules and regulations, while performing its obligations under the Contract, including without limitation, all safety and labor laws. Supplier shall be fully responsible for the condition of all Products and Services until properly accepted by Bleichert. In the event the Contract provides for Bleichert to pay for any of Supplier’s travel costs, Supplier must book the respective arrangements through Bleichert’s approved travel management company.
6. Supplier may not assign this Agreement without the prior written consent of Bleichert, provided that Supplier may use sub-suppliers where appropriate and when disclosed in advance to Bleichert. Supplier’s use of any sub-suppliers shall in no event relieve Supplier from responsibility for the entire Contract and for the conduct of all such sub-suppliers. Supplier, in delegating any part of the Contract, if permitted, shall bind each such sub-supplier by an appropriate contract consistent with the terms, obligations, and conditions of the Contract, without in any way creating any contractual relations between such sub-supplier and Bleichert. Supplier shall properly direct, control, and coordinate the work of all sub-suppliers.
7. Bleichert may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Supplier will pack and ship Products in accordance with Bleichert’s instructions, including labeling and hazardous materials instructions. If Bleichert has not provided packing or shipping instructions, Supplier will pack and ship Products in accordance with sound commercial practices. Unless otherwise stated in the Contract, Products will be delivered DDP Bleichert’s location specified on the Purchase Order Intercoms ® 2020 and title and risk of loss will transfer to Bleichert upon receipt of the Products by Bleichert at the specified location. If Bleichert does not identify a specific carrier, Supplier shall select and use a nationally recognized carrier of sound reputation that carries adequate insurance coverage.
8. Time is of the essence for all Contracts. Supplier will deliver Products and Services in strict accordance with the Contract terms. If Products are not ready for delivery in time to meet Bleichert’s delivery schedules, Supplier will be responsible for any additional costs associated with such failure and Bleichert may, in its discretion, terminate the Contract without being required to pay Supplier any sums that would have been otherwise due under the Contract. Supplier shall ensure it has adequate labor available to meet all scheduling demands set forth in the Contract. Bleichert may periodically review worksite lead time situations and adjust or confirm its delivery demands. In the event Bleichert requests that Supplier hold the Products beyond the scheduled delivery date, no additional charges may be made for warehousing, trucking, or other expenses incident to such delay.
9. Without limiting any remedies available to Bleichert at law or under the Contract, Bleichert’s remedies for Products or Services that do not conform to the Contract shall include but are not limited to: (A) rejecting the non-conforming Products or Services and, in the event of non-conforming Products, returning the non-conforming Products to Supplier at Supplier’s sole expense, or (B) requiring Supplier, at Supplier’s sole expense, to either repair or replace the non-conforming Products or Services. In the event Bleichert is required to purchase Products or Services from a third-party due to Supplier’s failure to meet the Contract requirements, Bleichert shall be entitled to set off the costs it incurs in obtaining such alternative Products or Services against amounts owed to Supplier. Notwithstanding anything contained in these Purchase Terms to the contrary, Bleichert is not required to inspect Products delivered or Services performed and no inspection or failure to inspect will reduce or alter Supplier’s obligations under the Contract.
10. Unless otherwise stated in the Purchase Order, the Contract price includes all applicable federal, state, provincial, local, or other type of tax, duty, or regulatory fee (individually a “Tax” and collectively, “Taxes”) related to the Products, Services, or the Contract in general. Supplier will separately list each applicable Tax on each respective invoice that Supplier sends to Bleichert.
11. Supplier shall, at all times during the Term and at its sole expense, maintain insurance coverage that (A) is adequate to insure timely fulfillment of Supplier’s obligation under the Contract, (B) protects Bleichert (and its customers) from product liability issues, losses, or damages related in any way to the Products or Services, (C) provides full fire and extended coverage insurance for the replacement value of all Products prior to Bleichert’s acceptance of the Products.
12. Payment terms are as set forth in the Contract. Supplier will promptly submit correct and complete invoices or other agreed billing communications with appropriate supporting documentation and other information reasonably required by Bleichert after delivery of Products and performance of Services, and Bleichert may withhold payment until a correct and complete invoice or other required information is received and verified. Supplier will accept payment by check or other cash equivalent, including electronic funds transfer. Bleichert shall pay Supplier in the currency specified in the Contract or, if none is specified, in the currency of the United States of America. Bleichert may setoff or deduct from sums owed to Supplier under the Contract those sums owed by Supplier to Bleichert under the subject Contract or under any other Contract.
13. If one or more Prime Contracts is incorporated into the Contract, Bleichert’s obligation to pay Supplier is expressly conditioned upon Bleichert’s receipt of payment from the Owner for Supplier’s Products or Services. If Bleichert does not receive all or any part of the payment from the Owner with respect to Supplier’s Products or Services, for whatever reason, Supplier shall not be entitled to collect payment for those Services or Products from Bleichert. Supplier expressly accepts the risk of non-payment by the Owner. Bleichert shall not be in breach on any payment terms under the Contract due to the Owner’s late payment or nonpayment.
14. Supplier represents and warrants to Bleichert that the Products: (A) shall conform with all specifications, including, without limitation, specifications of formulation and quantity; (B) shall be free from defects and of good quality and workmanship; (C) shall be permitted to be legally introduced into interstate commerce; and (D) do not and will not infringe on any patents, trademarks, copyrights, service marks, trade secrets, intellectual property rights, or other rights held by third-parties.
15. If the Contract requires Supplier to perform any Services at Bleichert’s or Bleichert’s customer’s facilities, in addition to the requirements set forth in the Contract, Supplier shall follow all safety programs and regulations implemented from time to time by Bleichert or any of Bleichert’s customers.
16. In the event that the Owner terminates the Prime Contract, for any reason, then Bleichert shall also have the right to terminate the Contract.
17. All supplies, materials, machinery, equipment, tooling, dunnage, packaging, blueprints, designs, specifications, drawings, photographic negatives and positives, artwork, copy layout, electronic data, consigned material for production or repair and other items furnished by Bleichert (or Bleichert’s customers), either directly or indirectly, to Supplier or to any sub-supplier of Supplier in connection with or related to the Contract, or for which Supplier has been at least partially reimbursed by Bleichert (“Bailed Property”) will be and remain the property of Bleichert (or Bleichert’s Customer(s), as applicable) and be held by Supplier on a bailment-at-will basis.
Supplier will bear the risk of loss of and damage to Bailed Property and Supplier, at its own expense, will keep Bailed Property fully insured for the benefit of Bleichert, naming Bleichert as the loss payee and an additional insured. The Bailed Property will at all times: (A) be properly housed and maintained by Supplier, (B) will not be used by Supplier for any purpose other than the performance of the Contract, (C) will be deemed to be personal property and not fixtures, (D) will be conspicuously marked by Supplier to identify it as the property of Bleichert and indicate Bleichert’s name and address, (E) will not be commingled with the property of Supplier or with that of a third person, and (F) will not be moved from Supplier’s premises without the prior written approval by Bleichert. Supplier will maintain a written inventory of all Bailed Property that sets forth a description and the location of all Bailed Property, and provide a copy of this inventory to Bleichert upon request. Supplier, at its expense, will maintain, repair, and refurbish Bailed Property, except as otherwise instructed by Bleichert. All replacement parts, additions, improvements, and accessories for such Bailed Property will automatically become Bleichert’s property upon their incorporation into or attachment to the Bailed Property. Any missing components of or inserts to any Bailed Property will be replaced by Supplier.
Bleichert may, at any time, for any reason and without payment of any kind, retake possession of any Bailed Property without the necessity of obtaining a court order. Upon Bleichert’s request, Bailed Property will be immediately released to Bleichert. Notwithstanding anything to the contrary, Bleichert may commence an injunctive action or proceeding to obtain possession of the Bailed Property in any federal or state court having competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER WAIVES ANY LIENS, CLAIMS, OR OTHER RIGHTS OR INTERESTS THAT SUPPLIER MIGHT OTHERWISE HAVE ON OR WITH RESPECT TO ANY OF THE BAILED PROPERTY FOR WORK PERFORMED ON SUCH PROPERTY AND FOR THE PURCHASE PRICE OF ANY PRODUCTS MANUFACTURED OR PRODUCED UNDER A PURCHASE ORDER.
Supplier acknowledges and agrees that each of the following is true and accurate: (A) Bleichert is bailing the Bailed Property to Supplier for Supplier’s benefit; (B) Supplier has inspected the Bailed Property and is satisfied that the Bailed Property is suitable and fit for its intended purposes; and (C) BLEICHERT HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE BAILED PROPERTY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Bleichert will not be liable to Supplier for any loss, damage, injury (including death), or expense of any kind or nature caused, directly or indirectly, by the Bailed Property including, without limitation, its use or maintenance, or its repair, service or adjustment, or by any interruption of service or for any loss of business whatsoever or howsoever caused, including, without limitation any anticipatory damages, loss of profits or any other indirect, special or consequential damages.
Supplier authorizes Bleichert to file a financing statement or similar document with the appropriate filing authority(ies) to give notice of Bleichert’s ownership interest in the Bailed Property. Failure to file a financing statement will not alter or affect Bleichert’s ownership rights to the Bailed Property.
In the event of any dispute between Bleichert and Supplier regarding whether any Bailed Property is owned by Bleichert or Supplier, the Bailed Property subject to the dispute will be presumed to be owned by Bleichert pending resolution of the dispute, and Bleichert will have the right to immediate possession of the Bailed Property pending resolution of the dispute (and Supplier may not withhold delivery or possession of the Bailed Property subject to the dispute with Bleichert pending such resolution), but will remain subject to any claim or right to payment of Supplier for the disputed amounts (despite Supplier’s relinquishment of possession).
18. To the extent the design, implementation, and manufacturing information regarding the Products or Services is the result of Bleichert’s efforts, the information is proprietary to Bleichert and Bleichert considers such information its trade secrets. All non-public information regarding Bleichert or its business, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Bleichert to Supplier, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, constitute confidential information of Bleichert (collectively, “Confidential Information”). Supplier agrees that, upon demand by Bleichert, it shall return all such items to Bleichert. Supplier further agrees that its use of any such Confidential Information is to be strictly limited to the purposes required by a Contract and that it shall not disclose such Confidential Information to any third-party and shall only disclose such Confidential Information to those employees of Supplier who are necessary for the purpose for which Supplier has received such information.
19. Any and all improvements, inventions, formulas, ideas, works of authorship, processes, computer programs, know-how, or trade secrets (“Inventions”) developed in the course of performing the Contract hereunder, whether patentable or unpatentable, or whether made or conceived or reduced to practice or developed either alone or jointly with others during the Term of the Contract, shall be and remain the sole property of Bleichert. Bleichert shall have the sole right and authority to apply for any patents, copyrights, trademarks, or other intellectual property rights with respect to any Inventions. All technical and quality assurance files and data, and any other activities or work produced under the Contract in any form, including electronic and magnetic media, for Bleichert or its customers shall be the property of Bleichert and shall be provided to Bleichert upon request. Supplier shall execute any assignments to Bleichert deemed necessary by Bleichert for purposes of effectuating the provisions of this Section.
20. Supplier shall not use any of Bleichert’s marks or logos without the prior written consent of Bleichert on a case by case basis. Supplier shall not advertise Bleichert (or any of its affiliates) as being a customer of, or doing business with, Supplier without the prior written consent of Bleichert on a case by case basis.
21. Supplier shall indemnify, defend, and hold harmless Bleichert, its designees and its respective officers, directors, employees, related companies, successors, assigns, and agents (each, an “Indemnified Party”), from and against any and all demands, claims, actions, causes of action, losses, damages, liabilities, liens, judgments, costs and expenses of every type and nature including, without limitation, attorneys’ fees and costs actually or allegedly arising out of or in any manner related to or resulting from any of the following events: (A) Supplier’s negligence or misconduct; (B) Supplier’s breach of the Contract; (C) any injury to, or illness or death of, any person, or property damage or economic loss, actually or allegedly resulting from or arising out of the handling, purchase, consumption or use of, or otherwise relating to, any Product; (D) any assertion that any Product is adulterated, misbranded, defective, or unsafe; or (E) any actual or alleged infringement of any patent, trademark, service mark, copyright, trade secrets or other intellectual property right by Supplier, the Products, or the Services.
22. Supplier will not be deemed to be in default or otherwise responsible for delays or failures in performance under a Contract resulting from any of the following events: (A) acts of God; (B) acts of war; (C) epidemics; (D) governmental action or inaction (that was not caused by Supplier’s failure to comply with applicable law); or (E) natural disasters (each a “Force Majeure Event”). In the event that Supplier ceases to perform its obligations under any Contract due to any Force Majeure Event, Supplier will immediately notify Bleichert in writing of such Force Majeure Event and its expected duration and take all reasonable steps to recommence performance of its obligations under the applicable Contract as soon as possible. In the event that any Force Majeure Event delays Supplier’s performance for more than ninety (90) days, Bleichert may terminate the applicable Contract immediately upon notice to Supplier.
23. Supplier will provide Bleichert with material safety data sheets, as applicable, regarding the Products and, upon Bleichert’s request, will provide Bleichert with other information reasonably required in order to comply with applicable laws.
24. These Purchase Terms and each Contract shall be governed by and construed in accordance with the laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal action by Bleichert or Supplier, or by any person or party claiming any right or seeking to avoid any obligation under the Contract, or otherwise relating in any way to the Contract, shall be brought and maintained exclusively in the United States District Court for the Eastern District of Michigan if it has subject matter jurisdiction, and otherwise in a district or circuit court in the State of Michigan as determined by the venue statutes of the State of Michigan. The parties consent to personal jurisdiction and venue in all such courts, and further agree not to seek to invoke the jurisdiction of any other courts. Bleichert and Supplier expressly waive any and all rights to a trial by jury.
25. The parties agree that any breach or threatened breach of the terms of any Contract would cause irreparable injury to Bleichert and that money damages would not provide an adequate remedy. Accordingly, the parties agree that if Supplier breaches the terms of any Contract, in addition to all other remedies available to Bleichert at law or in equity, Bleichert shall be entitled to injunctive relief and/or shall have the right to have the terms of the applicable Contract specifically enforced by a court of competent jurisdiction.
26. If any provision(s) of these Purchase Terms or a Contract is found to be wholly or partially invalid, illegal, or unenforceable in any judicial proceeding, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed removed from the respective Contract, as the case may require, and such Contract shall be construed and enforced to the maximum extent permitted by law.
27. The relationship between Bleichert and Supplier is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Contract.
28. The rights and remedies under these Purchase Terms are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
[End of North American General Terms and Conditions of Purchase]