Production Engineering, Inc. Global Terms and Conditions

  1. The Supplies and Parties Covered by the Order.

    1. Supplies. These Global Terms and Conditions apply to the purchase of the goods and/or services ("Supplies") identified in a purchase order issued by Buyer to Seller, which references these Terms.
    2. Parties. The Buyer and Seller are identified on the face of the purchase order. If no Buyer is identified, the Buyer is Production Engineering, Inc.

  2. The Terms of the Order

    1. Terms of the Order. The Order consists of the following, which are sometimes referred to collectively as the Terms of the Order: (i) the purchase order; (ii) Material Releases (as defined in §3.1) issued by Buyer to Seller under the purchase order (iii) these Global Terms and Conditions; (iii) all other documents specifically incorporated into or otherwise made a part of this Order by Buyer; and (iv) Buyer's Policies, as revised by Buyer from time to time. Buyer's Policies include Statement of Work ("SOWs"), Supplier's Manual, as well as specific terms as written on the Purchase Order or Blanket Purchase Order. Buyer's Policies may be found at or by contacting Buyer's assigned purchasing representative. Seller is responsible for keeping current regarding the terms of Buyer's Seller Policies. The Terms may also include Customer Requirements, as described in §13 and elsewhere in the Order. Customer means any entity to which Buyer, directly or indirectly, sells the Supplies, or sells any goods or services into which the Supplies are incorporated, including any original equipment manufacturer and any upper tier supplier to an original equipment manufacturer.
    2. Seller Acceptance. The Order is an offer by Buyer to purchase the Supplies from the Seller on the Terms of the Order. The contract is formed when the Seller accepts the offer of the Buyer. This occurs upon the earlier of: (a) the Seller beginning work or performance with respect to any part of the Order; or (b) the Seller notifying the Buyer of its acceptance of the offer. The Order is limited to and conditional upon Seller's acceptance of these Terms exclusively.
    3. Seller's Terms Rejected. The Order does not constitute an acceptance of any offer or proposal made by Seller, and Seller acknowledges that: (i) a request for quotation or similar document issued by Buyer is not an offer by Buyer; and (ii) any response by Seller to a request for quotation or similar document issued by Buyer is not an offer by Seller. Any additional or different terms proposed by Seller, whether in Seller's quotation, acknowledgement, invoice or otherwise, are unacceptable to Buyer, are expressly rejected by Buyer, and are not part of the Order. However, additional or different terms proposed by Seller shall not operate as a rejection of this Order if Seller commences work or otherwise accepts Buyer's offer, in which case this Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. Any reference in this Order to any prior communication by Seller is solely to incorporate the description or specifications of the Supplies in such prior communication, but only to the extent that such description or specifications are not directly in conflict with the description and specifications in this Order. If this Order is found to be an acceptance of any prior offer or proposal by Seller, such acceptance shall be limited to the Terms of the Order.
    4. Entire Agreement. The Order is the entire agreement between the parties respecting the Supplies and when accepted, supersedes any prior agreements, negotiations or understandings of the parties respecting the Supplies, whether written or oral. no modification shall be effective unless in writing and signed by Buyer's authorized representative. The Order may be modified only by a writing signed by Buyer.

  3. Quantity; Blanket Orders; Material Releases.

    1. Releases. Unless specified differently in the Order, Seller shall deliver Supplies in strict conformance with the dates, times, quantities and delivery locations determined by Buyer and identified as firm orders in material authorization releases, manifests, EDI broadcasts or similar releases ("Material Releases"). Time, quantities and location are of the essence under the Order and Seller agrees to 100% on-time delivery of the quantities and at the times specified by Buyer. Seller shall not make any commitments for raw materials or other inventory or manufacture any Supplies in advance of the time necessary to meet Buyer's delivery requirements. Buyer is not required to purchase Supplies exclusively from Seller unless the Order expressly states that it is an exclusive supply contract, for 100% requirements, or similar term.
    2. Blanket Orders. If the Order does not specify a quantity or that it is a BLANKET PURCHASE ORDER, this Order is a requirements contract whereby Buyer commits to purchasing (subject to the terms of the Order) and Seller commits to supplying 100% of Buyers requirements for the Supplies. If the Order states that it is a Blanket Purchase Order, Buyer commits to purchasing no less than a minimum quantity of at least one piece or unit of each of the Supplies and no more than 100% of Buyer's requirements of the Supplies; for consideration of $10.00 to be paid by Buyer following expiration or termination of the Order, Seller grants to Buyer an irrevocable option during the term of the Order to purchase Supplies in such quantities specified in Material Releases that are transmitted to Seller during the term of the Order, provided that the Buyer may purchase no less than a minimum quantity of at least one piece or unit of each of the Supplies and no more than 100% of Buyer's requirements for the Supplies.
    3. Forecasts. Seller acknowledges that any estimates or forecasts of production volumes or length of program, whether from Buyer or its Customer, are based upon business variables and assumptions, some or all of which may change over time or may not have been accurate at the time that they were made or later. Purchaser makes no representation, warranty or guaranty of any kind or nature as to the accuracy of the volume/duration projections and Seller acknowledges that that the actual volumes/duration could be significantly less or more than what was projected. Seller bears all risks with respect to such changes.
    4. EDI. Buyer may require Seller to participate in electronic data interchange or similar inventory management program, at Seller's expense, for notification of Material Releases, shipping confirmation and other information.

  4. Shipping and Delivery

    1. Buyer Requirements. Seller will properly pack, mark, and ship Supplies (and provide related documentation) according to the requirements of Buyer, the involved carriers and the country of destination. Seller will promptly provide Buyer with, in the form requested by Buyer, the identity and amount of all ingredients (and any changes in the ingredients) of the Supplies.
    2. Delay in Delivery. If Seller, for any reason, does not comply with Buyer's delivery schedule or any other requirement of a Material Release, Buyer may, in its sole discretion: (a) approve a revised delivery schedule; (b) require expedited or premium shipment of any of the Supplies; or (c) cover, and adjust any quantity requirement under the Order accordingly. Seller shall be liable for all excess costs and for all other direct, consequential, and incidental damages incurred by Buyer as a result of Seller's failure including: (i) additional transportation costs; (ii) the cost of any production disruption; (iii) the cost of obtaining goods from an alternate source. Buyer's rights under this section are at Seller's sole expense, at Buyer's sole discretion and in addition to and without prejudice to any other right or remedy available to Buyer.
    3. Title and Risk of Loss.
      1. Buyer is purchasing the Supplies based on the Shipping Terms specified on the Purchase Order, and shall take title to all Supplies upon delivery of the Supplies in accordance with the specified Shipping Terms. Supplies shall be deemed identified upon fabrication, unless the Supplies are part of Seller's standard stock and sold to persons in addition to Buyer, in which case identification occurs when the Supplies are marked or otherwise designated by Seller as relating to the Order.
      2. If the Supplies are Tooling, Buyer shall take title upon fabrication or acquisition by the Seller, regardless of payment. Tooling includes fixtures, gauges, jigs, patterns, castings, cavity dies and molds, with all related software, appurtenances, accessions, and accessories.
    4. Country of Origin. Upon request, Seller shall promptly furnish to Buyer all certificates of origin or domestic value-added and all other information relating to the costs and places of origin of the Supplies as may be required by Buyer to comply fully with all customs, tariffs and other applicable Laws (as defined in §24). Seller shall comply with all such Laws and warrants that any such information that is supplied to Buyer is true and that all sales covered by the Order will be made at not less than fair value under the anti-dumping laws of the countries to which the Supplies are exported.
    5. Hazardous Materials. Seller agrees to comply with all Laws, as defined below, relating to any hazardous or restricted material that is an ingredient or part of the Supplies. Seller will give Buyer sufficient warning in writing (including appropriate labels, containers, and packing, and handling, disposal and recycling instructions, material safety data sheets and certificates of analysis) of any such materials

  5. Price and Payment

    1. Price. The purchase price of the Supplies is set forth on the face of the purchase order. Unless otherwise stated in the Order, the purchase price: (i) is a firm fixed price for the duration of the Order and not subject to increase for any reason, including increased raw material costs, increased labor or other manufacturing costs, increased development costs, or changes in volumes or program length from those estimated or expected; (ii) is inclusive of all federal, state, provincial, value added and local taxes and any duties applicable to provision of the Supplies; and (iii) is inclusive of all storage, handling, packaging and all other expenses and charges of Seller. Seller will separately invoice Buyer for any sales, value added, or similar turnover taxes or charges that Seller is required by law to pay or collect from Buyer.
    2. Invoices. Unless otherwise stated in the Order, invoices shall be issued on or after delivery of the Supplies to Buyer and payment shall be deemed to occur upon receipt of a check by the Seller for the dollar amount of the invoice, or a wire transfer of payment into the account of Seller. All payment shall be made in U.S. dollars, unless otherwise agreed. Seller shall, at its expense, comply with Buyer's instructions and policies with respect to the form, content and method for submission of invoices.
    3. Payment Terms. Payment Terms are specified on each Purchase Order. Buyer shall pay invoices for Supplies which are properly presented and not subject to dispute according to the terms specified on the Purchase Order. If the payment date is not a business day, payment shall be due the next business day thereafter.
    4. Best Price. The Supplier warrants that the prices for the Supplies sold to Seller are no less favorable than those that the Supplier currently extends to any other Customer for the same or similar Supplies in similar quantities. If the Supplier reduces its prices to third parties during the term of the purchase order for the Supplies, the Supplier will correspondingly reduce the prices charged to Seller. Seller, at all times, must provide the Supplies competitive in the industry as to price, quality, delivery, technology and customer support. Seller's failure to meet the requirements of this subsection is a basis for termination for cause under Section 14.2.2 below. In addition, Seller shall participate in Buyer's (or Buyer's Customer's) cost savings and productivity programs and initiatives to reduce Seller's costs and pass those cost savings through to Purchaser.
    5. Set Off. In addition to any right of setoff or recoupment provided by law, Buyer shall be entitled at any time to set off or recoup against sums payable or to become payable by Buyer to Seller or any of its affiliates any amounts for which the Buyer determines in good faith the Seller or any of its affiliates is liable to it under any Order or other agreements with the Seller or any of its affiliates. If an obligation of Seller to Buyer is disputed, contingent or unliquidated, Buyer may defer payment of all or a portion of the amount due to Seller until such obligation is resolved. Buyer may do so without notice to the Seller.
    6. Payment Not Acceptance. Payment for Supplies shall not constitute acceptance of non-conforming Supplies, nor will it limit or affect any rights or remedies of Buyer.
    7. Credits. Credits or benefits resulting from the Order, including trade credits, export credits or the refund of duties, taxes, or fees, belong to Buyer. Seller will provide all information and certificates (including NAFTA Certificates of Origin) necessary to permit Buyer (or its Customers) to receive these benefits or credits.
    8. Payment of Seller's Obligations. Seller's insolvency and/or failure to pay its suppliers has the potential to create a disruption in the supply chain. If Buyer pays an obligation of Seller to one or more of Seller's suppliers in order to continue the flow of Supplies to Buyer, whether or not Buyer has the legal obligation to do so, Buyer shall have a dollar for dollar setoff of funds so paid against any funds due Seller from Buyer and, if a setoff is insufficient for Buyer to fully recover its payments to Seller's supplier(s), Seller shall pay the remaining balance within ten (10) days of Buyer's payment; any such payment. Further, if Seller becomes a debtor in bankruptcy or surrenders its assets to a lender or state court receiver and, Buyer, to obtain and/or continue the continuous flow of Supplies, participates in a post petition (or post surrender) loan to Seller, Seller acknowledges and agrees that the funds advanced to participate in the loan (including attorneys fees) shall be deemed "cover" damages within the meaning of section 2-712 of the Uniform Commercial Code.

  6. Non-Conforming Supplies;

    1. Rejection. If defective or non-conforming Supplies are rejected by Buyer, the quantities under the Order will be reduced unless Buyer otherwise notifies Seller, and Seller will not replace reduced quantities without a new Material Release from Buyer. Following rejection, Seller shall, without prejudice to any other right or remedy of Buyer, at Buyer's sole discretion and at Seller's sole expense: (a) accept return of the Supplies to Seller at full invoice price, plus transportation charges; or (b)replace the Supplies with conforming Supplies; and (c) correct at any time prior to shipment from Buyer's plant Supplies that fail to meet the requirements of the Order.
    2. Buyer's Losses. The Seller is liable for all direct, incidental and consequential damages, losses, costs, and expenses incurred by the Buyer resulting from Seller's failure to deliver conforming and non-defective Supplies or to comply with the shipping and delivery or other requirements of the Buyer, even if the Seller has cured the failure. This includes but is not limited to compensating Buyer for:
      1. any amounts charged by Customer(s) to Buyer;
      2. all costs of containment, sorting, repair, replacement, cure, cover, or any other costs incurred by Buyer, determined in such manner and in such amount as reasonably determined by Buyer;
      3. all costs of any recall campaign, corrective service action, or other voluntary or involuntary action in which Buyer or any Customer participates in connection with inclusion of Supplies in goods sold by Buyer;
    3. Corrective Action. Promptly upon learning of defective or non-conforming Supplies, Seller will develop, document and implement corrective actions in accordance with all applicable quality control policies and standards of Buyer and its Customers. Seller will immediately notify Buyer in writing when it becomes aware of any ingredient, component, design or defect in the Supplies that is or may become harmful to persons or property.

  7. Buyer and Industry Standards and Policies.

    1. Seller will conform to all quality control and other standards and inspection systems as established or directed by Buyer and its Customer for goods and services similar to the Supplies, including, without limitation, quality control policies ISO 9001:2000 or ISO/TS 16949:2002 quality certification. Seller will also participate in Buyer's supplier quality and development programs as directed by Buyer. For Supplies used in motor vehicle manufacturing, Seller agrees to meet the full requirements of industry Production Part Approval Processes (PPAP) as specified by Buyer and (as applicable) Customer(s) and agrees to present this information to Buyer upon request, at the level requested. Upon PPAP approval, no change in process, manufacturing facility, raw material or any other change which affects the PPAP status of the Supplies are permitted. If any of the standards, policies or systems cited above are amended, supplemented or replaced, Seller's obligations under this Order shall be automatically be amended.

  8. Changes.

    1. Buyer Changes. Buyer reserves the right to change the Supplies, including the design, specifications, engineering level, materials, packaging, testing requirements, shipping date, or time or place of delivery. Seller will promptly make any such change.
    2. Seller Changes. Seller will not make any change to the Supplies except at Buyer's written instruction or with Buyer's written approval. If Seller learns of a possible change to the Supplies that may reduce costs, improve quality, or otherwise be beneficial to Buyer, Seller shall inform Buyer of the possible change. Once the Supplies have been PPAPed, Buyer has the right to reject any change in process, manufacturing location, raw materials and the like. If any changes are approved, Seller shall pay all costs incurred by the Buyer to have the change approved under PPAP and by Buyer's customer.
    3. Impact on Cost. The Seller will within thirty (30) days of making a change notify the Buyer in writing if a change directed or approved by Buyer under 8.1 above will affect cost or timing and provide substantiation of its claim. If the Buyer determines that an adjustment is appropriate, the Buyer and the Seller will negotiate in good faith on an equitable price adjustment (up or down), a change in shipping or delivery terms, or other appropriate adjustment.

  9. Warranties.

    1. In addition to any other express and implied warranties provided by law or otherwise, Seller warrants to Buyer, its Customer(s) and their respective successors and assigns that the Supplies shall:
      1. be new and conform to this Order in all respects;
      2. conform to all specifications, drawings, samples and other descriptions furnished by Buyer or otherwise part of the Order;
      3. be free from all defects in design (to the extent designed by Seller), workmanship and materials and be of highest quality and workmanship;
      4. be selected, designed (to the extent designed by Seller), manufactured and assembled by Seller based upon Buyer's stated use and be fit and sufficient for the purposes intended by Buyer.
      5. conform to all applicable Laws (as defined in Section 24) in countries where the Supplies (or goods into which the Supplies are incorporated) are to be sold, including without limitation, in the case of Supplies used in connection with the manufacture of motor vehicles, the National Traffic and Motor Vehicle Safety Act, United States motor vehicle safety standards and European Union Directive 2000/53/EC;
    2. For all services, Seller further warrants that its work will be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed on with Buyer and otherwise consistent with industry standards.
    3. Seller also warrants that title to all of the Supplies shall be vested in Buyer free and clear of any and all liens and encumbrances of any nature.
    4. All warranties of Seller extend to future performance of the Supplies and are not modified, waived or discharged by delivery, inspection, tests, acceptance and payment. Buyer's approval of any design, drawing, material, process or specifications will not relieve Seller of these warranties. Seller waives any right to notice of breach.
    5. The warranty period is the longest of: four years from the date Buyer accepts the Supplies, the warranty period provided by applicable law, or the warranty period offered by Buyer or its Customer to end-users for the products into which the Supplies are incorporated.

  10. Indemnification.

    1. Seller agrees to indemnify, defend and hold harmless the Buyer, its affiliates, Customers, dealers and users of the products sold by Buyer (or the products in which they are incorporated) and all of their respective agents, successors and assigns, and each of their shareholders, directors, officers, employers and agents, on demand, (collectively "Indemnified Parties") from and against any and all costs, fees, penalties, damages (consequential and otherwise), attorneys' fees and all other liabilities and obligations whatsoever ("Losses"), arising out of any third party claim which, in whole or in part, arises from or relates to any actual or alleged:
      1. defect or non-conformity in the Supplies;
      2. noncompliance by Seller with any of its representations, warranties or obligations under the Order;
      3. negligence or fault of the Seller in connection with the design or manufacture of the Supplies.
      4. any recall campaign, corrective service action, or other voluntary or involuntary action in which Buyer or any Customer participates with respect to the Supplies or products into which the Supplies are incorporated;
      5. any spill, discharge or emission of hazardous wastes or substances which relates, in whole or in part, to the Supplies;
      6. infringement (including claims of direct or contributory infringement or inducement to infringe) of any Intellectual Property Right relating to Supplies provided by Seller, even if they are made to Buyer's specifications;
      7. damages to the property of or personal injuries to Buyer, its Customer, their respective agents, or any other person or entity to the extent arising from or in connection with Seller's work on the premises or Seller's use of Buyer's or Customer's property.
      8. challenge to the Buyer's sole right, title and interest in the Tooling (as defined below), or right to possession of the Tooling, brought by any third party, including toolmakers, subcontractors, and lending institutions.
    2. If Seller is obligated to indemnify under this section, then Buyer may at its option participate in the defense of any claim with its own counsel, at Seller's expense.
    3. To the maximum extent permitted by applicable law, Seller's obligation under this Section will apply even as to Losses caused in whole or in part by an Indemnified Party's negligence, but Seller's indemnification shall not apply to the extent that Losses resulted solely and directly from the negligence or willful misconduct of such Indemnified Party. Seller's obligation to defend and indemnify under this Section will also apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. The indemnification obligation under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the benefit of Seller under Workers' Compensation Acts, occupational disease acts, disability benefits acts or other employee benefits acts.

  11. Inspection and Audit.

    1. Inspection of Facility. Buyer may enter Seller's facility at any time to inspect the facility, Supplies, materials, and any of Buyer's property related to the Order. Seller shall provide, without additional charge, all reasonable facilities and assistance. Buyer's inspection does not constitute acceptance of any work-in-process or finished goods and does not relieve Seller of any of its responsibilities or warranties.
    2. Audit. Upon reasonable notice to Seller, either Buyer or its Customers (or a third party designee) may audit Seller's production facility, Supplies and any other Buyer property (including all pertinent documents, data and other information) related to the Order at facility for the purpose of verifying Seller's costs and its compliance with or its ability to perform its obligations under the Order. Seller shall provide, without additional charge, all reasonable facilities and assistance.
    3. Financial Review. Upon reasonable notice to Seller, Buyer or a third party designated by Buyer may review the financial condition of Seller and its affiliate. Seller will fully cooperate in such review and will promptly provide copies of or access to requested documents, including without limitation financial records and statements, forecasts, business plans, banking contacts and loan documents, and will make its financial managers available for discussions during reasonable business hours. Buyer and any designated third party will keep confidential any nonpublic information about Seller obtained in a financial review and use such information only for purposes of the review, except as needed to enforce the Order.
    4. Buyer's right to conduct any inspection, audit or review under this section or otherwise is at its sole discretion. Buyer has no obligation to Seller to conduct any inspection, audit or review and Buyer's decisions as to whether, how and when to conduct any inspection, audit or review does not modify or relieve Seller of any obligations under the Order, does not give rise to any liability of Buyer to Seller and is without prejudice to any rights or remedies available to Buyer.

  12. Customer Requirements.

    1. As directed by Buyer in writing, Seller agrees to comply with the applicable terms of any agreements between Buyer and its Customer(s). Seller will meet all applicable disclosed Customer terms or requirements. By written notice to Seller, Buyer may elect to have the provisions of this Section prevail over any conflicting term of the Order.
    2. In the event that Buyer's Customer files or has filed against it a petition in bankruptcy or insolvency and, in the course of such proceeding, Buyer permits a reduction in the price(s) paid to Buyer for products incorporating the Supplies, the price paid to Seller for the Supplies from and after the date of such reduction will be automatically adjusted proportionally by the same percentage as the price paid to Buyer by its Customer, and the Order will otherwise remain in effect without modification.
    3. If Buyer's Customer directed, recommended, requested, suggested or otherwise identified Seller as a source of the Supplies: (a) Buyer will pay Seller for the Supplies only following and to the extent of Buyer's actual receipt of payment from that Customer for those goods in which the specific Supplies are incorporated; (b) within three business days of any change in price, specifications or other terms negotiated or proposed between Seller and the Customer, Seller will notify buyer in writing and will immediately adjust its invoices to reflect any price reduction, provided that no change will be binding on Buyer without Buyer's specific written consent.

  13. Duration and Termination of the Order

    1. Duration. The Order shall be effective on the date specified in the Order, or if no date is specified, when issued to Buyer. Unless terminated earlier in accordance with the Terms of the Order, the Order shall terminate on the date specified in the Order; or, if no date is specified, one year from the effective date. The termination date is not extended by an amendment or revision to an Order which does not does not expressly modify the termination date.
    2. Termination by Buyer. In addition to any other rights of Buyer to cancel or terminate the Order, the Buyer may terminate the Order in whole or in part by written notice (a "Termination Notice"), as follows:
      1. For convenience, effective three (3) days following delivery of the Termination Notice or upon such other date specified by the Buyer in writing;
      2. For Default, effective upon delivery of the Termination Notice or upon such other date specified by the Buyer in writing. Seller shall be in Default if it (i) breaches any warranty or other Term of the Order; (ii) repudiates, breaches or threatens to breach any of the terms of the Order; (iii) fails to deliver, or threatens not to deliver, Supplies in connection with the Order; (iv) fails to make progress or to meet reasonable quality requirements so as to endanger timely and proper performance of the Order; (v) Seller makes an assignment for the benefit of creditors, or proceedings in bankruptcy or insolvency are instituted by or against Seller; (vi) Seller needs accommodations from Buyer, financial or otherwise, in order to meet its obligations under the Order; (vii) Seller enters or offers to enter into a transaction that includes a sale of a substantial portion of its assets used for the production of Supplies for Buyer or a merger, sale or exchange of stock or other equity interests that would result in a change in control of Seller within the meaning of section 409A of the Internal Revenue Code and regulations issued thereunder. Seller will notify Buyer within ten days after entering into any negotiations (or the first period in which such negotiations can be made public consistent with applicable law) that could lead to the situation specified in subsection (d) above, provided that upon Seller's request, Buyer will enter into an appropriate nondisclosure agreement related to information disclosed to Buyer in relation to such transaction. or (vii) at any time in the Buyer's sole judgment Seller's financial or other condition or progress on this Order shall be such as to endanger timely performance.
        Termination by Buyer shall not relieve Seller of any liability under the Order.
    3. Termination by Seller. The Seller may terminate this agreement only for non-payment of the purchase price for Supplies which are thirty or more days past due and material in amount, and then only if: (i) Seller first provides Buyer written notice specifying the amounts past due and Seller's intent to terminate the Order if the past due amount is not paid; and (ii) Buyer, within 60 days of such notice, does not either: (x) pay the past due amounts; or (y) notify Seller that the amount claimed to be unpaid are disputed by Buyer. Seller shall terminate under this Section by delivering a Termination Notice to Buyer. Seller may not terminate or cancel the Order for any reason except as permitted under this Section. Seller may not suspend performance of the Order for any reason.
    4. Seller's Obligations Following Termination. Following delivery of a Notice of Termination, Seller shall, unless otherwise directed by Buyer and subject to its obligation to provide Transition Support as provided in §14.8:
      1. terminate promptly all work under this Order and transfer title and deliver to Buyer all finished work completed prior to receipt of the Notice of Termination;
      2. transfer title and deliver to Buyer all work in process, and the parts and materials which Seller produced or acquired in accordance with a Order and which Seller cannot use in producing goods for itself or for others;
      3. verify/settle all claims by subcontractors for actual costs that are rendered unrecoverable by such termination and provided the recovery of materials in Seller's possession is ensured; and
      4. take actions reasonably necessary to protect property in Seller's possession in which Buyer has an interest until disposal instruction from Buyer has been received.
    5. Buyer's Obligations Following Termination. Subject to §14.7.2, Buyer shall pay to Seller in connection with Termination only the following amounts, without duplication, in complete and final satisfaction of any liabilities relating to this Order:
      1. The purchase price for all conforming Supplies received by Buyer prior to Notice of Termination or delivered following Notice of Termination pursuant to §14.4.1, §14.8 or at the written direction of Buyer;
      2. Any amounts owed for Transition Support pursuant to §14.8.3.
      3. if terminated for any reason other than Default by Seller, Seller's reasonable actual cost of: (i) merchantable and useable work- in-process and the parts and materials transferred to Buyer under §14.4.2 above (but not to exceed the Order price of the Supplies had the work been completed); (ii) settling claims under §14.4.3; and (iii) carrying out its obligation under §14.4.4.
    6. Buyer's Obligations Following Expiration. If the Order expires, Buyer shall pay to Seller, in complete and final satisfaction of any liabilities relating to the Order, only the purchase price for all conforming Supplies received by Buyer prior to expiration and, if applicable, any amounts owed for Transition Support pursuant to §14.8.3.
    7. Limitations on Buyer's Obligations Following Termination or Expiration
      1. Buyer's obligations under §14.5 are conditioned upon Seller's furnishing to Buyer, within one month after the date of termination (or such shorter period as may be required by its Customer), a termination claim, which will consist exclusively of the items of Buyer's obligation to Seller that are expressly permitted by this Section. Buyer may audit Seller's records before or after payment to verify amounts requested in Seller's termination claim.
      2. Buyer shall not be obligated to make any payment for Supplies, work-in-process, parts or raw materials inventory: (i) in excess of those authorized or required under any Material Release, (ii) that are damaged or destroyed or that are not merchantable or useable; (iii) that are in Seller's standard stock or that are readily marketable; or (iv) that can be returned to Seller's suppliers or subcontractors for credit.
      3. In the event of a termination of this Order by Buyer as a result of Buyer ceasing to be a supplier to the Customer for the product in respect of which Buyer issued this Order, Buyer shall only be obligated to compensate Seller for any costs under §14.5.3 if, when and to the extent that the Customer reimburses Buyer for such costs.
      4. Buyer will have no obligation for and will not be required to pay Seller, directly or on account of claims by Seller's subcontractors, for loss of anticipated profit, failure to realize anticipated production volumes, revenues or savings, unabsorbed overhead, interest on claims, product development and engineering costs, tooling, facilities and equipment rearrangement costs or rental, unamortized capital or depreciation costs, or general administrative burden charges from termination or expiration of the Order, except as otherwise expressly agreed in a separate Order issued by Buyer.
    8. Transition of Supplies Following Termination or Expiration. Following expiration, cancelation or termination of the Order by either party for any reason (including termination by Seller) and notwithstanding any claimed or actual breach of any obligation by Buyer, Seller will cooperate in the transition of supply to a successor supplier, including the following, which will collectively be referred to as "Transition Support":
      1. Seller will continue production and delivery of all Supplies as ordered by Buyer, at the prices and other terms stated in the Order, without premium or other condition, during the entire period reasonably needed by Buyer to complete the transition to the alternate supplier(s), such that Seller's action or inaction causes no interruption in Buyer's ability to obtain Supplies as needed;
      2. at no cost to Buyer, Seller will promptly provide all requested information and documentation regarding and access to Seller's manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of Supplies and components; and
      3. subject to Seller's actual capacity constraints, Seller will provide special overtime production, storage and/or management of extra inventory of Supplies, extraordinary packaging and transportation and other special services as expressly requested by Buyer in writing. If the transition occurs for reasons other than Seller's termination for Default, Buyer will, at the end of the transition period, pay the reasonable, actual cost of the assistance under this §14.8.3, provided that Seller has advised Buyer prior to incurring such amounts of its estimate of such costs. If the parties disagree on the cost of Transition Support, Buyer will pay the agreed portion to Seller without prejudice to Seller's right to seek to recover any disputed amounts.

  14. Buyer's Property.

    1. Buyer's Property means any tangible or intangible property to which Buyer has title. Buyer's Property includes:
      1. Supplies, as provided in §4.3, together with materials and components incorporated or to be incorporated in the Supplies;
      2. all property which is furnished by Buyer, either directly or indirectly to Seller to perform the Order; or
      3. Inventions, Intellectual Property and Proprietary Information of Buyer, as specified in §§18 and 19;
      4. Tooling and other property (including, by way of example, returnable packaging) which Buyer has agreed in an Order to compensate Seller;
      5. any modifications, repairs, refurbishments, and replacements of Buyer's Property.
    2. With respect to Buyer's Property in the custody or control of Seller or Seller's suppliers, contractors or agents:
      1. Seller shall use it only for the production of Supplies for Buyer.
      2. Seller at its own expense shall: (i) keep it in good working condition house, maintain, repair and replace it, except for normal wear and tear; (ii) keep it fully insured for the benefit of Buyer at all times while in Seller's possession; and (iii) keep it segregated from all other assets and labeled as being the property of Buyer
      3. Seller shall have only temporary possession as a bailee at will. Seller may not release, relocate or dispose of Buyer's Property to any third party without the express written permission of Buyer. Seller shall promptly notify Buyer of the location of the Buyer's Property if located at any place other than Seller's facility.
      4. Buyer will have the right to enter Seller's premises to inspect Buyer's Property and Seller's records regarding Buyer's Property. Only Buyer (or Buyer's affiliates) has any right, title or interest in Buyer's Property, except for Seller's limited right, subject to Buyer's sole discretion, to use Buyer's Property in the manufacture of Products. Seller agrees neither to create nor allow to exist any liens on Buyer's Property and Seller agrees to immediately sign any UCC-1 forms or other documents reasonably required by Buyer to perfect all rights granted herein. Seller grants to Buyer a limited and irrevocable power of attorney, coupled with an interest, to execute and record on Seller's behalf any notice financing statements with respect to Buyer's Property that Buyer determines are reasonably necessary to reflect Buyer's interest in Buyer's Property.
      5. Immediately upon Buyer's request or upon any bankruptcy or insolvency filing, and without payment of any kind, the Seller will return Buyer's Property, and will comply with Buyer's instructions relating to its return, including but not limited to the method and location for its return. Seller is responsible for labor and other costs incidental to its return. The Seller will cooperate with the Buyer and will provide Buyer with access to all facilities at which Buyer's Property is located. Seller expressly waives any right to additional notice or process relating to Buyer's exercise of its rights under this Section. Seller waives, to the extent permitted by law: (i) any lien or other rights that Seller might otherwise have on any of Buyer's Property, including but not limited to molder's and builder's liens; and (ii) any objection to the Buyer's repossession and removal of Buyer's Property for any or no reason, including bankruptcy or insolvency proceedings.

  15. Seller's Property

    1. All Tooling and other items that are not Buyer's Property and that are necessary for the production of Supplies are Seller's Property.
    2. Seller, at its expense, will furnish, keep in good working condition capable of producing Supplies meeting all applicable specifications, and replace when necessary, all Seller's Property. Seller will insure Seller's Property with full fire and extended coverage insurance for its replacement value. If Seller uses Seller's Property to produce goods or services similar to Supplies for other customers, including aftermarket customers, such goods or services will not incorporate any of Buyer's logos, trademarks, tradenames or part numbers. Seller will not disclose or imply in its marketing efforts that such goods or services are equivalent to those purchased by Buyer.
    3. Seller grants to Buyer an irrevocable option to take possession of and title to Seller's Property that is special for the production of Supplies under the Order upon payment to Seller of its net book value less any amounts that Buyer has previously paid to Seller for the cost of such items. This option does not apply if Seller's Property is used to produce goods that are the standard stock of Seller or if a substantial quantity of like goods are being sold by Seller to others.

  16. Tooling

    1. Seller shall not purchase any Tooling for the account of Buyer or charge Buyer for any tooling except as authorized in an Order.
    2. If Buyer has agreed to compensate Seller for Tooling:
      1. The price for Tooling set forth in the Order will be adjusted to credit Buyer in the amount, if any, by which the price exceeds Seller's actual cost as verified. If Seller does not provide such access and documentation, Buyer may determine in its reasonable discretion an appropriate adjustment. Seller will retain all cost records for a period of two years after receiving final payment of the charges. Seller will provide to Buyer, as requested, access to Seller's premises and all documentation relating to the Tooling prior and subsequent to payment, to inspect work performed and to verify charges submitted by Seller against the Order.
      2. The Seller shall be entitled to receive payment only after it is completed. Tooling is not complete until Seller, at its own expense, has successfully completed all required testing (including, for Tooling used in connection with motor vehicle parts production, completion of the PPAP process) and has submitted all necessary documentation.
      3. Seller shall be entitled to receive payment only after and to the extent of, and in proportion to, Buyer's actual receipt of such reimbursement or other payment from the Customer.
    3. If Seller is responsible for fabricating or acquiring Tooling, such Tooling shall: (i) comply with any specifications provided by Buyer (or, where directed by Buyer, those of its Customer); (ii) be capable of producing Supplies that satisfy the Order, including meeting any volume requirements or estimates provided to Seller during the life of the product as well as satisfying the requirements for Service Parts. Time is of the essence for Seller's acquisition or fabrication of Tooling. Seller shall provide Tooling progress reports on Buyer's request and shall promptly notify Buyer in writing if it believes that the Tooling might not be completed by the completion date specified on the Order.
    4. If all or part of the fabrication, modification, repair or refurbishment of Tooling will be subcontracted to a third-party toolmaker, the Seller will: (a) give Buyer advance written notice of the identity of the toolmaker and the location of the Tooling; (b) inform the toolmaker in writing that it is a bailee-at-will, through the Seller, of Tooling owned by the Buyer; and (c) be solely responsible for payments to the toolmaker. The Buyer has no obligation to the Seller or subcontractor other than payment to the Seller of the Order price. If a subcontractor brings an action against the Seller for payment of the Tooling, the Seller will not join the Buyer in the action.

  17. Intellectual Property.

    1. Seller warrants that the Supplies and the sale and/or use thereof (before or after incorporation into products during manufacture) do not and will not infringe any Intellectual Property Rights. Intellectual Property Right means any right arising under U.S. or foreign law relating to patent, trademark, copyright, moral, industrial design right or misuse or misappropriation of trade secrets.
    2. If Seller, or any person employed by or working under the direction of Seller, in the performance of the Order conceives or first reduces to practice: (i) any invention or any experimental, development or research activities, including engineering related thereto, whether or not patentable, (ii) any reduction to practice of any subject matter, application or discovery which could be patented or copyrighted, or (iii) any improvement in the design of the Supplies or any alternative or improved method of accomplishing the objectives of this Order (collectively, Inventions), such Inventions shall be owned by Buyer and be deemed confidential and proprietary property of Buyer, whether such Inventions or any portions thereof can be copyrighted or patented or not. Seller shall immediately disclose all Inventions to Buyer and shall cooperate (and cause its employees to cooperate) in executing any documents and taking any other actions necessary or convenient to patent, copyright, assign to the Buyer or otherwise perfect or protect such Inventions for the benefit of Buyer.
    3. Seller shall not manufacture or provide, or offer to manufacture or provide, any goods or services that are based in whole or in part upon Inventions, confidential or proprietary information of Buyer or intellectual property of Buyer, whether for its own purposes (other than to satisfy its obligations under this Order), for the Customer or any other third parties, without Buyer's prior written consent.
    4. Seller hereby grants to Buyer, its subsidiaries and affiliates, and their respective successors and assigns, and Buyer hereby accepts, a non-exclusive, irrevocable, royalty-free, fully paid up worldwide license, including the right to sublicense to others in connection with providing the Supplies to Buyer or the Customer, under: (i) any Intellectual Property Rights owned or controlled by Seller or its affiliates, and relating to the Supplies, to make, have made, repair, reconstruct, rebuild, relocate, use, sell and import the Supplies, and (ii) any works of authorship fixed in any tangible medium of expression (including drawings, prints, manuals and specifications) furnished by Seller in the course of Seller's activity under this Order, to reproduce, distribute and display such works and to prepare derivative works based thereon, subject to the other provisions of this Order (all items in clauses (i) and (ii) above, collectively, "Seller's Intellectual Property", and such license in respect thereof, the "License"). Seller acknowledges and understands that the License shall be effective from the first date of delivery of the Supplies under this Order and extend for so long as Buyer has contractual obligations to the Customer. The License is intended to be subject to 11 USC Section 365(n), as an executory agreement under which Buyer has license rights to Seller's Intellectual Property, and is supplementary to any other rights of Buyer under this Order and any other agreement with Seller.
    5. Seller will ensure that the terms of its contracts with its subcontractors and employees are consistent with the terms of this Section.

  18. Proprietary Information.

    1. Any information or knowledge which Buyer may have disclosed or may hereafter disclose to Seller in connection with this Order (including but not limited to the Terms of the Order) and any and all services to be rendered and/or work to be performed pursuant to this Order is and shall be deemed confidential and proprietary information of Buyer. Seller shall not, without authorization in writing from Buyer, use (except as necessary to the performance of the Order), communicate or disclose the confidential and proprietary information of Buyer or use such information for any purpose other than to perform its obligations under the Order. Seller agrees to safeguard the confidential and proprietary information of Buyer by using reasonable efforts, consistent with those used in the protection of its own proprietary information of a similar nature, to prevent its disclosure to third parties. Seller agrees to cause its employees, "contractors", officers, directors, agents and representatives to be bound by and comply with the foregoing restrictions regarding the use or disclosure of such confidential and proprietary information. Seller further agrees not to assert any claims with respect to any technical information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the Supplies.
    2. The restrictions and obligations of §19.1 will not apply to information that: (a) is already publicly known at the time of its disclosure by Buyer; (b) after disclosure by Buyer becomes publicly known through no fault of Seller; or (c) Seller can establish by written documentation was properly in its possession prior to disclosure by Buyer or was independently developed by Seller without use of or reference to Buyer's information. Notwithstanding anything to the contrary in these Terms, any confidentiality or non-disclosure agreement between the parties that predates the Order will remain in effect except as expressly modified by the Order, and to the extent of a conflict between the express terms of such an agreement and this Section, the terms of that agreement will control.
    3. All documents containing proprietary information relating to the Supplies produced or acquired by Seller in connection with this Agreement will belong to Buyer. All drawings, know-how, and confidential information supplied to Seller by Buyer and all rights therein will remain the property of Buyer and will be kept confidential by Seller in accordance with Paragraph 28 (a) above.
    4. Seller shall, within five (5) business days of Buyer's request or the expiration or termination of this Order, return all confidential and proprietary information (including all copies, notes and/or extracts thereof).

  19. Insurance; Waiver of Liens.


    Seller agrees to furnish to Buyer promptly upon request a certificate from its insurance brokers or agent showing that it carries adequate Workers' Compensation, and Comprehensive General Liability insurance coverage, including Contractual Liability insurance applicable to this Order. The certificate must show the amount of coverage, policy number, and date of expiration and must require the broker or agent to give Buyer thirty (30) days prior written notice of any lapse or cancellation of any policy. Buyer shall also be shown as an Additional Insured on the Comprehensive General Liability policy reflected on the certificate of insurance if services are to be performed on Buyer's premises. If Seller is self-insured for Workers Compensation coverage, it will, if requested by Buyer, provide the applicable state certificate establishing such status to Buyer. Seller hereby waives all mechanics' liens and claims and agrees that none shall be filed or maintained against Buyer's premises on account of any Supplies and shall cause all its subcontractors, materialmen and suppliers (and subcontractors of such parties) to provide similar waivers and agreements in form satisfactory to Buyer.

  20. Excusable Delay.

    1. Any delay or failure of either party to perform its obligations will be excused if and to the extent that the party is unable to perform due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; embargoes; fires; explosions; natural disasters; riots; wars; sabotage; or court injunction or order (collectively "Excusable Delay"). However, in no event will the Seller's performance be excused by: (i) the change in cost or availability of materials, components or services based on market conditions, supplier actions, labor disruptions or contract disputes; (ii) Seller's financial distress; or (iii) any labor strike or other labor disruption applicable to Seller or to any of its subcontractors or suppliers.
    2. Seller shall immediately give written notice to Buyer of any event or occurrence that threatens to delay or actually delays Seller's performance under this Order. Such notice shall include all relevant information with respect to such threat, including the possible duration and impact of a delay. In addition, Seller will notify Buyer in writing: (i) at least sixty (60) days prior to the expiration of any labor contract or collective agreement; and (ii) as soon as Seller becomes aware of any actual or threatened labor strike or other labor disruption; in each case as may be applicable to Seller or to any of its subcontractors or suppliers that are engaged in manufacturing or providing goods or services to Seller in connection with Seller's obligations under this Order. Notwithstanding notice and Seller's provision of a safety stock for a strike, labor disputes are not an event of force majeure which will excuse performance under the Order.
    3. Seller, at its expense, shall use its best efforts to mitigate any adverse effects or costs to Buyer due to any actual or potential delay, including: (i) the implementation of a production contingency plan; and (ii) upon Buyer's express written authorization, increasing Seller's inventory of Supplies to a level sufficient to sustain deliveries during such delay.
    4. During any delay or failure to perform by Seller , Buyer may at its option and at Seller's expense: (a) purchase Supplies from other sources and reduce its schedules to Seller by such quantities, without liability to Seller; (b) require Seller to deliver to Buyer at Buyer's expense all finished goods, work in process and parts and materials produced or acquired for work under the Order; or (c) have Seller provide Supplies from other sources in quantities and at a time requested by Buyer and at the price set forth in the Order. In addition, Seller at its expense will take all necessary actions to ensure the supply of Supplies to Buyer for a period of at least 30 days during any anticipated labor disruption or resulting from the expiration of Seller's labor contracts.

  21. Buyer's Liability.

    1. Buyer's sole liability under the Order (including its termination, expiration or cancellation) is to pay for the Supplies in accordance with §4.4 and to pay the specific termination related amounts described in §§14.5 and 14.8.
    2. In no event shall Buyer be liable for anticipated profits, interest, penalties or incidental, consequential, punitive, multiple, or exemplary damages or liabilities in connection with this Order, whether for breach of contract, late payment, property damage, personal injury, illness, or death or otherwise

  22. Limitation on Assignment and Subcontracting.

    1. This Order is issued to the Seller, in reliance upon its personal performance of the duties imposed. Without prior written consent of the Buyer, Seller may not: (i) assign this Order or delegate the performance of its duties hereunder; or (ii) assign any accounts receivable from Buyer to third parties.
    2. Seller will ensure that the terms of its contracts with its sub-suppliers and sub-contractors provide Buyer and the Customer with all of the rights specified in this Order, including but not limited to §§12, 13, 14.4, 14.8, 15, 16, 17, 18 and 19
    3. Any subcontracting, assignment or delegation does not relieve Seller of any responsibility under this Order.

  23. Compliance with Laws.


    Seller agrees to comply with all applicable laws, rules, regulations, ordinances or other requirements of any national, state, provincial, local, multi-national or international body (collectively "Laws") relating to the manufacture, sale, delivery and use of the Supplies. Upon request, Seller will submit to Buyer evidence of such compliance. For all Supplies to be imported into the United States, Seller shall comply with all applicable recommendations and requirements of the United states Bureau of Customs and Border Protections Customs-Trade Partnership Against Terrorism (C-TPAT) initiative. At Buyer's request, Seller shall certify its compliance with C-TPAT. Seller shall indemnify and hold Buyer harmless from any and all claims, liability, damages and expenses (including reasonable attorney's and/or other professional fees) arising from or related to Seller's breach of this provision.

  24. Special Situations

    1. In addition to its indemnity obligations under §11.1.7, if Seller performs any work on Buyer's or Customer's premises or utilizes the property of Buyer or its Customer, whether on or off Buyer's or Customer's premises, (i) Seller will examine the premises to determine whether they are safe for the requested services and will advise Buyer promptly of any situation it deems to be unsafe; (ii) Seller's employees, contractors, and agents will comply with all regulations that apply to the premises and may be removed from Buyer's premises at Buyer's discretion; and (iii) Seller's employees, contractors, and agents will not possess, use, sell, transfer or be under the influence of alcohol or unauthorized, illegal, or controlled drugs or substances on the premises.
    2. If the Order includes the removal, moving or installation of production equipment, the following clauses apply:
      1. Seller agrees that it has inspected the equipment and the site from which it is to be removed or where it will be installed, and that the price includes everything necessary to complete the work, including without limitation the cost of providing access and egress, relocating other equipment, power lines and other utilities, preparing a proper foundation to receive the machinery, and all special permits and equipment required to accomplish the move. If any of the foregoing is to be furnished by Buyer, such items shall have been clearly and specifically identified on the face of the Order. With respect to items or services furnished by Buyer, including without limitation foundations or lifting or moving equipment, Seller agrees to inspect same before use thereof and to be fully and completely responsible for the adequacy thereof.
      2. Seller or its mover shall provide insurance against any harm to Buyer or its employees, Sellers or the mover's employees, or the public arising out of its activities hereunder. The minimum combined single limit of such insurance is to be $5,000,000, written by an insurer reasonably acceptable to Buyer. In addition, Seller shall maintain Broad Form Property Damage Liability insurance covering the activities described in this paragraph. All policies shall name Buyer as an additional insured.

  25. Remedies

    1. The rights and remedies reserved to Buyer in the Order will be cumulative with and in addition to all other legal or equitable remedies.
    2. In any action brought by Buyer to enforce Seller's obligations in connection with the production or delivery of Supplies or transition support, or for possession of property, the parties agree that Buyer does not have an adequate remedy at law and Buyer is entitled to an immediate order for specific performance of Seller's obligations (including related temporary and preliminary injunctive relief).
    3. Buyer shall recover actual and reasonable attorneys fees (including the cost of in-house counsel) in any action arising out of this Order, unless Seller is the prevailing party.

  26. Miscellaneous

    1. Jurisdiction and Applicable Law.
      1. If the location of Buyer from which this Order issued is in the United States of America: (i) this Order shall be interpreted and enforced in accordance with the local, domestic laws of the State of Michigan and of the United States of America, without giving effect to choice of law rules thereof; and (ii) the state courts presiding in Oakland County, Michigan or the federal courts in the Eastern District of Michigan shall have exclusive jurisdiction and venue over any lawsuit arising out of or related to this Order.
      2. If the location of Buyer from which this Order issued is in Canada: (i) this Order shall be interpreted and enforced in accordance with the local, domestic laws of the Province of Ontario and of Canada, exclusive of the choice of law rules thereof; and (ii) the federal or provincial courts presiding in the location from which the Order is issued shall have exclusive jurisdiction and venue over any lawsuit arising out of or related to this Order.
      3. Seller irrevocably waives and agrees not to raise any objection it might now or hereafter have to any such claim or proceeding in any court having jurisdiction under this Section, including any objection that the place where such court is located in an inconvenient forum or that there is any other claim or proceeding in any other place relating in whole or in part to the same subject matter.
      4. The United Nations Convention on Contracts for the International Sale of Supplies shall not apply to this Order.
    2. Dispute Resolution. Buyer and Seller will first endeavor to resolve through good faith negotiations any dispute arising under the Contract. If a dispute cannot be resolved through good faith negotiations within a reasonable time, either party may request non-binding mediation by a mediator approved by both parties. If mediation fails to resolve the dispute within 30 days after the first mediation session, all disputes arising out of or relating to the Contract shall be resolved through binding arbitration. The arbitration proceedings will be conducted before a panel of three arbitrators (one appointed by each party and the neutral appointed by the other two arbitrators) in accordance with the Commercial Rules of the American Arbitration Association including application of the Optional Rules for Emergency Measures of Protection and will be governed by the United States Arbitration Act, 9 U.S.C. §§1-16, and this Section 27.2. The arbitration will be conducted in Chicago, Illinois and the language of the arbitration shall be English. The arbitrators will issue a written opinion setting forth the basis for the arbitrator's decision, which may include an award of legal fees and costs. The arbitrators' award will be final and non-appealable absent fraud or manifest error and a judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. While arbitration proceedings are pending, the parties will continue to perform their obligations under the Contract without setoff for any matters being contested in the arbitration proceedings.
    3. Waiver. Either party's failure to insist on the performance by the other party of any term or failure to exercise any right or remedy reserved in this Order, or either party's waiver of any breach or default hereunder by the other party shall not, thereafter, waive any other terms, conditions, rights, remedies, breaches or defaults, whether of the same or a similar type or not.
    4. Severability. If any provision of this Order, or portion of any provision, is declared or found to be unenforceable, the balance of this Order or such provision shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof. In particular, if any interest rate provided for herein is higher than that permitted by applicable law it shall automatically be amended to the highest legal rate.
    5. Survival. The obligations of Seller to Buyer survive termination of the Order, except as otherwise provided in the Order.
    6. Interpretation. No provision may be construed against the Buyer as the drafting party. Section headings are for convenience or reference only, and do not affect the meaning of the Order.
    7. No Publicity. Seller will not advertise, publish or disclose to any third party (other than to Seller's professional advisors on a confidential and need-to-know basis) in any manner the fact that Seller has contracted to furnish Buyer the Supplies covered by the Order or any terms of the Order (including prices), or use any trademarks or trade names of Buyer in any press release, advertising or promotional materials, without first obtaining Buyer's written consent.
    8. Relationship of Parties. Seller and Buyer are independent contracting parties and nothing in the Order will make either party the employee, agent or legal representative of the other for any purpose. The Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Order, except as expressly provided in a written agreement signed by Buyer. All employees and agents of Seller or its respective contractors are employees or agents solely of Seller or such contractors, and not of Buyer, and are not entitled to employee benefits or other rights accorded to Buyer's employees. Buyer is not responsible for any obligation with respect to employees or agents of Seller or its contractors.
    9. Conflict of Interest. Seller represents and warrants that its performance of the Order will not in any way conflict with any continuing interests or obligations of Seller or its employees or contractors. Seller further warrants that while the Order is in effect, Seller and those of its employees and contractors participating in the performance of the Order will refrain from any activities which could reasonably be expected to present a conflict of interest with respect to Seller's relationship with Buyer or its performance of the Order.