Supplier Terms and Conditions Agreement

 

General: As a supplier (“Supplier”) to Trimer Technologies, LLC, a Michigan limited liability company (“Trimer Technologies”), Supplier agrees to meet the following stipulations / requirements whenever Trimer Technologies issues a Purchase Order to Supplier (each a “PO”). These requirements are, therefore, to be considered as terms and conditions to all POs.  Trimer Technologies hereby gives notice of its objection to any different or additional terms on the Supplier’s invoice or any attachment thereto which the Supplier may issue, or any prior general agreement, which add to, vary from, or conflict with the terms and conditions herein (the “Terms”). Any such proposed terms shall be void and the Terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between Trimer Technologies and Supplier and may hereafter be modified only by written instrument duly signed by an authorized representative of Supplier and of Trimer Technologies.  Any reference to “goods” herein shall mean all products, parts, items, inventory, or other property sold by Supplier to Trimer Technologies.

In certain circumstances, Trimer Technologies and Supplier may enter into separate written contracts, executed and signed by authorized representatives of both parties, that have terms that may or may not be different from the Terms herein. In such contracts, the contract terms that conflict with the terms herein will be controlling.  Otherwise, the Terms herein shall control.

1. Supplier’s acknowledgement and acceptance of a PO is conditioned on Supplier’s acceptance of these Terms, which Terms shall be deemed to have been accepted by Supplier unless Supplier shall have given Trimer Technologies written notice of rejection within ten (10) days after issuance of the applicable PO, whether oral or written, to Supplier or the day before the delivery date specified in such PO, whichever shall first occur. These Terms, together with any document attached to or incorporated by reference herein by Trimer Technologies, constitute the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO. In the event of any conflict between these Terms and the PO or Supplier’s corresponding invoice, these Terms shall govern.  These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions.

2. Time is of the essence with respect to all purchase orders issued by Trimer Technologies. Scheduled shipping dates are exact.  Trimer Technologies reserves the right at any time to make changes or modifications to specifications and purchase orders as to any goods ordered from Supplier. The parties will agree upon and equitably adjust any difference in price or time for performance resulting from such changes and modify the related purchase order and/or invoice in writing accordingly.  Shipments of goods from Supplier must equal the exact quantity ordered by Trimer Technologies and must meet the requested delivery date, unless otherwise agreed to in writing. In the event of an over-shipment, Trimer Technologies, at its sole option, may return the over-shipment to Supplier at Supplier’s expense, including Trimer Technologies’ administration fee for handling the over-shipment.

3. Supplier is expected to implement a quality system in accordance with AS9100 and will provide Trimer Technologies with evidence of such system, and Supplier’s compliance therewith, upon request from Trimer Technologies. Where required on the PO, Supplier must use Trimer Technologies’ customer-approved special process sources.

4. Supplier ensures that all of its personnel involved or connected to the manufacturing of goods for a PO have appropriate competence, including any required qualifications, when applicable, to perform his/her individual task in the manufacturing of such goods in compliance with AS9100. Supplier ensures that such personnel are aware of their contribution to product or service conformity, their contribution to product safety, the importance of ethical behavior, and their compliance with AS9100 standards.

5. Trimer Technologies may monitor Supplier performance, including both on-time delivery and quality of purchases, related to POs and may react accordingly based on any performance concerns identified by Trimer Technologies. When applicable, Trimer Technologies retains all rights and controls regarding design and development activities for goods identified in a PO, and Supplier agrees to abide by Trimer Technologies’ direction in the design, development, and manufacturing of goods ordered in a PO.  The Supplier is required to notify Trimer Technologies of any changes to a product and/or process not approved by Trimer Technologies and is required to obtain approval from an authorized Trimer Technologies manager or designee (if applicable) of such product and/or process.

6. (a) Trimer Technologies shall inspect the goods received from Supplier for all visible and inspectable defects (e.g., dents, scratches, paint issues, etc.). “Nonconforming Goods” include the following: (i) goods shipped are different than identified in the related PO; (ii) goods’ labels or packaging incorrectly identifies its contents; and (iii) goods that are not timely received by Trimer Technologies. (b)  If Trimer Technologies timely notifies Supplier of any Nonconforming Goods, Supplier shall (i) promptly replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Trimer Technologies in connection therewith. Supplier shall be liable to Trimer Technologies for all damages, including, but not limited to, special and consequential damages, incurred by Trimer Technologies and resulting from Supplier’s shipment of Nonconforming Goods.  If Supplier wants any Nonconforming Goods returned to it, Supplier shall pay Trimer Technologies for all costs to ship such Nonconforming Goods, at its expense and risk of loss. (c)  Supplier agrees and acknowledges that any legal action against the Trimer Technologies related to these Terms, any invoice from Supplier, or any shipment of goods to Trimer Technologies shall be commenced within nine (9) months from the date such claim or issue arose.  Any claim not commenced in this time period will be deemed waived by Supplier.  (d) Trimer Technologies is to be contacted (by the Supplier) in the event of nonconforming product/material. Arrangements for the approval of Supplier nonconforming product/material must be as directed by a Trimer Technologies’ authorized manager or designee.

7. The Supplier agrees that all goods manufactured by it in connection with a PO shall be manufactured in compliance with the AS9100 standards. The AS9100 standards require, and Supplier agrees, that all applicable customer/regulatory/AS9100 requirements for the Supplier flow down to its sub-tier suppliers (including requirements in the purchasing documents and key characteristics where required). Supplier agrees not to subcontract to any third party any product or process related to a PO without Trimer Technologies’ prior expressed written consent.  Supplier must ensure that goods manufactured in connection with a PO are produced / manufactured / packaged / shipped in a manner that eliminates the presence of any dust, debris, or other foreign objects / material that may damage or put into question the conformity of such goods.

8. The Supplier agrees that Trimer Technologies, their customers, and regulatory authorities have the right of access to (i) all Supplier facilities involved in the manufacturing of any good related to a PO and (ii) all Supplier records related to any such goods. This right of access includes the right to inspect Supplier products / services / documents, and such inspections may be performed by a designated employee of Trimer Technologies. Trimer Technologies may verify the authenticity of any certificate of conformity, material certificates, etc. and other accompanying documentation provided by the Supplier by reviewing and comparing (as is appropriate) the goods provided to the drawing and/or industry specifications or by other means. In Trimer Technologies’ sole discretion, Trimer Technologies may inspect or conduct an audit at the Supplier’s facilities related to any goods in a PO.  Goods manufactured by the Supplier in connection with a PO may be inspected to ensure that they meet requirements (dimensions, etc.) specified by Trimer Technologies, and Trimer Technologies may record the results of such inspection (as appropriate). All special processes (anodizing, heat treat, etc.) where the compliance cannot be verified by inspections will require a Certificate of Conformity from the Supplier.  When appropriate, and in Trimer Technologies’ sole discretion, Trimer Technologies may delegate the inspection authority to one of its approved suppliers. Trimer Technologies will communicate the inspection requirements (including approved monitoring and measurement equipment/methods), and Trimer Technologies will maintain a record of those individuals and/or entities approved to carry out such inspections.  When Trimer Technologies or its customer(s) intends to perform an inspection and/or verification at the Supplier’s facilities, Trimer Technologies will provide advance notice to the Supplier of such inspection and/or verification.

9. Trimer Technologies’ customers and their representatives will be afforded the right to inspect and verify the Supplier’s facilities and confirm that the Supplier is compliant with AS9100 standards. Inspection and/or verification by a customer of Trimer Technologies is not used by Trimer Technologies as evidence of effective control of quality by the Supplier and shall not absolve the Supplier of the responsibility to provide acceptable goods pursuant to a PO, nor shall it preclude subsequent rejection by the customer.

10. To prevent the purchase of counterfeit or suspect/unapproved goods and to ensure product identification and traceability (and for other reasons), Trimer Technologies will institute controls, in Trimer Technologies’ sole discretion, that include the requirement of Material Certificates, Certificates of Conformity, and/or other supporting documentation from the Supplier as deemed appropriate by Trimer Technologies. These requirements may be specified on the PO or may otherwise be communicated to the Supplier.

11. Supplier is responsible for ensuring that all goods it provides to Trimer Technologies, or their use, does not infringe the intellectual property rights of any third party. Supplier agrees to defend, at its expense, any claim or suit against Trimer Technologies or Trimer Technologies’ customers, or any of their officers, directors, employees, agents, and affiliates based on an assertion or claim that the goods furnished by Supplier to Trimer Technologies hereunder or the sale or the use by Trimer Technologies or its customers infringes any patent or copyright or other intellectual property right or is a wrongful use of a third party trade secret or proprietary information, and further agrees to indemnify and hold Trimer Technologies, or its officers, directors, employees, agents, and affiliates harmless from any losses, including attorneys’ fees, settlements associated with said claim, or any damages, including attorneys’ fees or costs, finally awarded in any such claim. If the use or sale of any goods furnished by Supplier to Trimer Technologies is enjoined as a result of such suit, Supplier, at its option and at no expense to Trimer Technologies, shall obtain for Trimer Technologies and its customers the right to use and sell such goods or shall substitute an equivalent good acceptable to Trimer Technologies and extend this indemnity thereto. Supplier shall, at Trimer Technologies’ request, assist Trimer Technologies in disputes in which Trimer Technologies could become involved by reason of such infringement and, if required by Trimer Technologies, assume the defense of any dispute.

12. (a) All non-public, confidential, or proprietary information of Trimer Technologies, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Suppliers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Trimer Technologies 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,” in connection with the provision of any goods and/or services to Supplier is confidential, and shall not be disclosed or copied by Supplier without the prior written consent of Trimer Technologies. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Supplier at the time of disclosure without obligation of confidentiality to Trimer Technologies; or (iii) rightfully obtained by Supplier on a non-confidential basis from a third party. (b) Confidential Information furnished to Supplier by Trimer Technologies pursuant to these Terms shall in no event become the property of Supplier.  Trimer Technologies’ provision of Confidential Information shall not be construed as granting any rights whatsoever, express or implied, under any intellectual property of Trimer Technologies.  (c) Trimer Technologies shall be entitled to injunctive relief for any violation of this Section.

13. The Supplier shall maintain all records and documents related to the manufacturing of goods pursuant to a PO and shall make such records and documents available for review by Trimer Technologies, its customers, and regulatory authorities. Such records and documents shall otherwise be kept confidential by the Supplier.  The Supplier shall retain such records and documents for a minimum of three (3) years.

14. Trimer Technologies may require specific actions where timely and/or effective corrective actions to a Supplier issue(s) are not achieved. These actions may include but are not limited to any or all of the following: withholding payment until the issue is resolved, removal of the Supplier from Trimer Technologies’ approved supplier list, and/or legal actions.

15. All prices are FOB Trimer Technologies’ plant, unless otherwise specified on the face of the PO. Title to, and risk of, loss of each good to be delivered by Supplier to Trimer Technologies shall pass from Supplier to Trimer Technologies upon receipt thereof by Trimer Technologies, regardless of which party pays the freight.

16. Supplier shall indemnify, defend, and hold harmless Trimer Technologies, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders, and employees, and Trimer Technologies’ vendors (collectively, the “Indemnitees”), against any and all liability, loss, injury, death, deficiency, claims, actions, suits, judgments, settlements, costs, penalties, fines, and expenses (including reasonable attorneys’ and professional fees and costs), the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or related to: (i) Supplier’s negligence, willful misconduct, or breach of these Terms; and (ii) any actual or alleged death of, or injury to, any person and/or damage to any property, by whosoever suffered, resulting or claimed to result, in whole or in  part, from any actual or alleged defect in the supplied goods from Supplier, including actual or alleged improper design, manufacture, or assembly of such goods, or arising out of any actual or alleged violation by Supplier with regard to such goods, or their manufacture, possession, use or sale, of any law,  statute, or ordinance, or any governmental administrative order, rule, or regulation.

17. (a) Trimer Technologies may terminate any PO or invoice with immediate effect upon written notice to Supplier, if Supplier: (i) has not performed or complied with any of these Terms, in whole or in part; (ii) becomes insolvent, files a voluntary petition in bankruptcy, has an involuntary petition in bankruptcy filed against it, appoints or has appointed for it a receiver or trustee, or makes an assignment for the benefit of creditors, provided such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event; (iii) ceases to conduct its operation in the ordinary course of business (including its inability to meet its obligations as they mature); or (iv) breaches any other contract between the parties or such contract is terminated.  (b) Supplier shall indemnify Trimer Technologies from all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liability, of any nature incurred by Trimer Technologies with the foregoing.  (c) In case of any dispute regarding these Terms or any related invoice or purchase order, including, but not limited to, a dispute over pricing or a pricing discrepancy, Supplier agrees to continue to ship goods to Trimer Technologies for a reasonable length of time, but no less than 180 days, following written notice of a dispute, to give Supplier and Trimer Technologies the opportunity to resolve the dispute.

18. If Trimer Technologies reasonably deems itself insecure with respect to Supplier’s ongoing performance, whether due to Supplier’s financial capacity or otherwise, Trimer Technologies may demand that Supplier provide assurance of future performance to Trimer Technologies within five (5) days of the demand. This assurance may be in any security acceptable to Trimer Technologies, including but not limited to, collateral consisting of cash, letter(s) of credit, surety bond, parent guaranty, or lender releases. This security shall be in an amount satisfactory to Trimer Technologies and shall also be sufficient to offset costs and expenses incurred or reasonably expected to be incurred by Trimer Technologies in securing for itself completion of the project or other performance due from Supplier. Trimer Technologies reserves its right to any other remedies allowed in law or equity. Failure to provide the requested performance assurance within the stated period shall constitute a default of these Terms, and Trimer Technologies shall be free to procure any goods from an alternate source and/or terminate its relationship with Supplier in its discretion immediately upon expiration of the time specified for delivery of the requested performance assurance.

19. LIMITATION OF LIABILITY. (a)  IN NO EVENT SHALL TRIMER TECHNOLOGIES BE LIABLE TO SUPPLIER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TRIMER TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL TRIMER TECHNOLOGIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS SET FORTH ON ANY RELATED PURCHASE ORDER(S) ISSUED BY TRIMER TECHNOLOGIES TO SUPPLIER FOR CERTAIN GOODS. (c) The limitation of liability set forth this Section 19 above shall not apply to liability resulting from Trimer Technologies’ gross negligence or willful misconduct.

20. No waiver by Trimer Technologies of any provision of these Terms shall be effective unless explicitly set forth in writing and signed by Trimer Technologies. A failure by Trimer Technologies to exercise any right under these Terms shall not affect any rights subsequently arising under the same or similar clauses hereof, nor shall it operate as a waiver of the clause or condition under which such rights arise.

21. Trimer Technologies shall not be liable for a failure to perform hereunder arising from causes or events beyond the reasonable control and without Trimer Technologies’ fault or negligence and which by their nature could not have been reasonably foreseen by Trimer Technologies or, if they could have been foreseen, were unavoidable, including but not limited to, labor disputes of any kind, fires or accidents.

22. No assignment of these Terms, an invoice, or any interest therein or any payment due or to become due thereunder shall be made by Supplier without first obtaining the written consent of Trimer Technologies, which it may withhold in its sole discretion. Any purported assignment or delegation in violation of this section shall be null and void.  No assignment or delegation shall relieve Supplier of any of its obligations hereunder.  Trimer Technologies may, at any time, assign, transfer, or subcontract any or all of its rights or obligations under these Terms without Supplier’s prior written consent.

23. Supplier shall comply with all applicable laws, regulations and ordinances. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Supplier shall comply with all export and import laws of all countries involved in the sale of goods under these Terms or any resale of goods by Supplier. Supplier assumes all responsibility for shipments of goods requiring any government import clearance. Trimer Technologies may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.

24. The relationship between the parties is that of independent contractors. Nothing herein 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 these Terms or any related invoice or purchase order.

25. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

26. All matters arising out of or relating to these Terms, and any related invoice, shall be governed by and construed and enforced in accordance with, the laws of the State of Michigan, without giving effect to any conflict of laws rules, and each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in Wayne County in the State of Michigan for the purposes of any legal, equitable, or other action or proceeding arising out of or relating to these Terms. Each party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder.  If Trimer Technologies brings any legal action or other proceeding in connection with these Terms or any related invoice, Trimer Technologies shall be entitled to recover its reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.  FOR PURPOSES OF ANY SUCH COURT PROCEEDINGS, EACH PARTY AGREES, AFTER CONSULTATION WITH ITS COUNSEL, THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE, AND NOT A JURY, AND EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BEFORE A JURY.

27. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the related POs, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.

28. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

29. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms or any related invoice(s).

30. These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of each party.