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Hutchinson Antivibration

 

Global Terms and Conditions of Purchase

 

Applicability. The terms set forth in these Standard Terms For Purchases of Goods or Services and in the corresponding Hutchinson Antivibration System Inc. (“Buyer”) Purchase Order (the Purchase Order and these Standard Terms For Purchases of Goods or Services are referred to as the (“Order”) are the sole terms for the purchase of goods and services by Buyer, and shall apply to the exclusion of any additional or different terms contained in Seller’s quotation, proposal, or acknowledgment, or otherwise proposed by Seller in any manner.  Any acceptance by Seller is limited to acceptance of these express terms.  Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of these terms is hereby objected to and rejected.  Any such proposal shall not operate as a rejection of the Order, unless the variances are in the terms of the description, quantity, price, or delivery schedule of the goods or services, but shall be deemed a material alteration.  Accordingly, the Order shall be deemed accepted by Seller without such additional or different terms.  If the Order shall be deemed an acceptance of a prior offer by Seller, the acceptance is expressly made conditional on assent to the terms of the Order and such acceptance is limited to those express terms.  Additional or different terms in Seller’s offer or any attempt by Seller to vary in any degree any of the Order terms shall be deemed material and are objected to, rejected and shall not be a part of the Order or any agreement between Buyer and Seller.

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Acceptance. Seller accepts the Order, including these Terms, and forms a contract by doing any of the following: a) commencing any work under the Order; b) accepting the Order in writing; c) receipt or procurement of any Tools (as defined below) related to the Order; d) shipment of any goods or component parts of goods related to; or e) any other conduct that recognizes the existence of a contract with respect to the subject matter of the Order shall be deemed as acceptance of the terms set forth in these Standard Terms For Purchases of Goods or Services and in the corresponding Buyer purchase order (the “Order”).

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Paulstra ProductsTime Period. The Program covered by the Order has an estimated life (the “Life of the Program”).  Unless a specific term is otherwise set forth on the Order, the term of the Order shall be for the Life of the Program.  Seller acknowledges and agrees that the Life of the Program is an estimate only, that the Life of the Program may be terminated or extended at any time by Buyer or Buyer’s customers (whether direct or indirect), and, unless a specific term is otherwise set forth on the Order, that any termination or extension of the Life of the Program shall serve to modify the time period of the Order, related to that Program, to end the Order on the expiration of the Life of the Program.

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Extra Charges. No additional charges of any kind including, but not limited to, charges for boxing, packing, cartage, or other extras will be allowed unless specifically agreed to in writing in advance by Hutchinson Antivibration Systems, Inc.

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Invoicing, Payment, and Price. All invoices must show the Order number.  The standard payment term is “Net 45”. Payment will be made in the currency expressly stated on the Order; if no such currency is noted, payment will be made in U.S. Dollars. Payment for tooling and/or capital equipment will be paid as stated on the Order, except that as necessary in its discretion, Hutchinson may withhold payment pending evidence of receipt of any Product.  Payment does not constitute acceptance of goods or services.  Pricing shall be as set forth in the Order and shall be firm for the Life of the Program covered by the Order with the sole and limited exceptions of: (a) the extent the price is adjusted downward as provided by the terms of any productivity savings requirements; (b) price adjustments, if any, agreed to by Buyer under the Order; or (c) other adjustments agreed to in writing by Buyer.  The price stated in the Order shall not be increased unless specifically authorized in writing by issuance of a revised Order signed by Buyer.

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Quantities; Material Releases. Periodically during the Life of the Program, Seller will provide goods or services to Buyer, pursuant to individual releases (each a “Release”) issued by Buyer to Seller.  Each Release shall set forth the quantity of goods or services, the required delivery date, the delivery point, and any other pertinent details or instructions as Buyer may deem appropriate. Seller is authorized both to produce and deliver goods or services marked as “Fabrication to” and to purchase raw material for the deliveries marked as “Material to” on the applicable Release. Further, Buyer is not bound to reimburse the Seller for material purchases in excess of the authorized quantity marked as “Material To” in the applicable Release for any reason. The quantities and delivery dates set forth in a Release that does not contain any such mark, shall constitute a non-binding supply forecast only. If a Release does not include any authorized approval for fabricating parts or for raw material procurements, the Release shall be binding for Buyer and the Seller to the extent as follows: With regard to delivery dates and related quantities set within the first 3 weeks from the date of issue, the Release shall be considered as a definite order.  The quantities and required delivery dates set within an additional period of 4 weeks (calendar weeks 4-7 subsequent to the issuance date of the Release) shall constitute an authorized approval with regard to raw material procurements.  For any period beyond the time periods set forth above, the Release shall constitute a non-binding supply forecast only. As time is of the essence, any and all timing and processes specified by Buyer in relation to deliveries are legally binding.  In the event that Seller fails to deliver fully conforming goods or services by the required delivery date in any Release, Buyer, at its option and in addition to any of its other rights or remedies contained in the Order, may:  (a) purchase the goods or services from another Seller, and Seller shall be responsible for any resulting increased costs to Buyer; (b) require Seller to expedite delivery of goods or services at Seller’s sole expense; (c) extend the required delivery date; or (d) cancel the applicable Release.  References to estimated production volume or tooling capacity are not to be construed as representations of the quantity of Products to be purchased. Hutchinson may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which entitles Seller to modify the price for Products. Hutchinson is not obligated to accept early deliveries, late deliveries or excess deliveries.

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Requirements. Seller is obligated to supply all of Hutchinson’s requirements for the Products and quantities as specified by Hutchinson in Material Releases. Hutchinson is required to purchase no more than those quantities identified in the Material Releases that are transmitted to Seller during the term of the Contract.  If no quantity is specifically stated in the Order, or if the Order contains the term “Blanket,” Buyer agrees, for the time period that each Order is in effect and has not been terminated, to purchase from Seller 100% of the goods or services covered by the Order that Buyer requires for the Life of the Program.

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Delivery. Seller must include a packing list with all shipments.  Delivery shall be made in one shipment, unless otherwise specified by Buyer to Seller.  Seller shall adhere to shipping directions specified on Buyer’s releases.  Seller acknowledges that time is of the essence and Seller shall notify Buyer immediately if Seller believes it cannot meet Buyer’s delivery requirements under the releases.  Buyer may from time to time change delivery schedules under the releases.  Buyer shall not be liable for payment for goods delivered after the times specified in Buyer’s delivery instructions to Seller.    In performing under the Order, Seller shall comply in all respects with all terms of the Buyer Supplier Manual available for review on Seller’s website, at http://hutchinsonna-antivibration-purchasing.com/sqmanualtoc.htm, and any and all other requirements, including, but not limited to, any engineering requirements or labeling or barcode requirements that are included in or attached to the Order or the applicable Request for Quotation (“RFQ”) or the technical specifications attached to the Order, any of which requirements may be amended by Buyer from time to time unless otherwise agreed in writing by Hutchinson, the risk of loss passes from Seller to Hutchinson upon delivery to Hutchinson’s transportation carrier (or if shipment is by Seller or common carrier, then upon delivery to Hutchinson’s designated facility). Seller will pay all premium freight costs over normal freight costs if Seller needs to use an expedited shipping method to meet agreed delivery dates. Seller will pay any costs incurred by Hutchinson, including costs charged by Hutchinson’s customers to Hutchinson, as a result of Seller’s failure to comply with shipping or delivery requirements.

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Paulstra ProductsPackaging; Marking; Shipping; Disclosure; Ingredient disclosure; Special Warnings and Instructions. Seller will: a) properly pack, mark and ship Products according to the requirements of Hutchinson, the involved carriers and if applicable, the country of destination b) route shipments in accordance with Hutchinson instructions c) properly mark each package with a label/tag according to Hutchinson’s instructions d) provide with each shipment packing slips showing Order number and /or release number Hutchinson’s part number, Seller’s part number(where applicable), number of pieces in the shipment, number of containers in shipment, Seller’s name and number and the bill of lading number e) promptly forward the original bill of lading or other shipment receipt for each shipment according to Hutchinson’s instructions and carrier requirements. Seller will promptly furnish Hutchinson with the following information in the form requested by Hutchinson a) a list of all ingredients and materials in Products b) the amount of all ingredients c) information concerning any changes in or additions to such ingredients. Seller agrees to provide Hutchinson sufficient warning and notice in writing (including appropriate labels including but not limited to, disposal and recycling instructions, material safety data sheets and certificates of analysis on the Products, containers and packing) of any hazardous material that is an ingredient or part of the Products, together with any special handling instructions that are needed to advise carriers, Hutchinson and their employees of how to take appropriate measures and precautions while handling, transporting, processing, using or disposing of the Product, containers and packing.

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Taxes. No sales, use, excise, or other taxes, whether federal, state, or local, shall be added to the Order’s purchase price unless otherwise stated in the Order.

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Extra Products. Products in excess of those specified will not be accepted and such Products will be held at Seller’s risk. Hutchinson may, and at Seller’s direction shall, return such Products at Seller’s risk, and all transportation charges, both to and from the original destination, shall be paid by Seller.

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Inspection; Audit. All goods and services described in this Order shall be subject to Buyer’s inspection and approval.  Buyer reserves the right to reject any nonconforming goods or services. Seller agrees to participate in all Buyer Supplier and Development Program(s) and to comply with all quality requirements and procedures specified by Buyer, as revised from time to time.  In addition, Seller agrees to establish and maintain quality control procedures to satisfy the requirements of Buyer and Buyer’s Customers, including, but not limited to, all applicable automotive manufacturer and other automotive industry standards.  Buyer has the right to periodically inspect Seller’s facility, goods, materials, and property covered by the Order to determine Seller’s compliance with applicable quality control standards, upon reasonable advance notice to Seller.  Buyer’s inspection, whether during manufacture, prior to delivery, or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished goods or services.  Further, Seller shall continuously monitor the goods and services and promptly report to Buyer any goods and services that do not comply with specifications, drawings, and all other specifications applicable to the Order.  The warranties required of Seller in the Order shall apply to all goods and services provided by Seller for Buyer.  Seller shall promptly notify Buyer of any defects or deficiencies in design (including if Seller has reason to believe that any specification provided by Buyer are not adequate to provide the goods and services that will function throughout the greater of the expected life of the goods or services or the applicable warranty period), manufacture, or in use-performance of the goods relating to the Order.  Acceptance of any goods or services shall not relieve Seller from any of its other obligations under the Order.  Seller shall provide samples of goods or services in the amounts and at the times requested by Buyer. Nothing in the Order releases Seller from the obligation of testing, inspection and quality control.

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Non-Conforming Products. All Products shall be received subject to Hutchinson’s right of inspection and rejection. Defective Products or Products not in accordance with Hutchinson’s specifications will be held for Seller’s instruction at Seller’s risk and if Seller so directs, will be returned at Seller’s expense. If inspection discloses that part of the Products received are not in accordance with Hutchinson’s specifications, Hutchison shall have the right to cancel any unshipped portion of the Order. Seller will not replace reduced quantities without a new Release from Hutchinson. In addition to other remedies available to Hutchinson, Seller agrees to accept return, at Seller’s risk and expense, at full invoice price, plus transportation charges, and to replace defective Products as Hutchinson deems necessary, and Seller will reimburse Hutchinson for all reasonable expenses that result from any rejection or correction of defective Products. Seller will document corrective actions within a commercially reasonable period after receipt of a defective sample and will take whatever measures are necessary to correct the defect. Payment for nonconforming Products is not an acceptance, does not limit or impair Hutchinson’s right to assert any legal or equitable remedy, and does not relieve Seller of responsibility for latent defects.

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Paulstra ProductsService and Replacement Parts. To the extent the Order relates to production of component parts (“Parts”) for Buyer, then, in addition to the number of Parts sold by Seller to Buyer to allow Buyer to meet its requirements to its Customer, Seller also agrees to sell to Buyer the number of Parts necessary to allow Buyer to fulfill its past model service and replacement parts requirements during the Life of the Program for which the Parts are produced and for fifteen (15) years following the conclusion of the Life of the Program.  Unless otherwise agreed to in writing by Buyer, the per-Part price during the first five (5) years following the conclusion of the Life of the Program shall be the last price for such Part(s) prior to the expiration of the Life of the Program.  For the remainder of the fifteen (15) year period, the per-Part price shall be increased only by mutual agreement of Buyer and Seller.  Upon request by Buyer, Seller shall make service literature and other materials available at no additional charge to support Buyer’s Parts sales activities.

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Safety and End of Life Vehicle Directive. Seller acknowledges and agrees as follows: (a) All purchased materials used in the manufacture of goods shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials, as well as environmental, electrical and electromagnetic considerations, applicable to the country of manufacture and sale; (b) Seller must submit a Safety Data Sheet (SDS) to Buyer for review and approval before chemicals, oils, lubricants, finishes, adhesives, fasteners, etc. can be brought into any Buyer facility.  Failure to comply with this provision will result in nonpayment for such materials; and (c) Seller agrees to comply with the current End-of-Life Vehicle Directive (ELV) and releases and will hold harmless and indemnify Buyer from any claims, including claims by third parties, resulting therefrom.  Seller agrees to undertake the reporting of all necessary information from applicable SDS sheets into the International Material Data System (IMDS) for all goods or services delivered to Buyer.

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Customer Requirements. Seller agrees to comply with the applicable terms and conditions of any agreements (“Customer Agreements”) received by Buyer from a third party (each a “Customer”), in which Buyer agrees to supply to Customer, or incorporate into goods supplied to Customer, goods purchased by Buyer from Seller.  Buyer may provide Seller with information regarding the Customer Agreements, but Seller shall be responsible for ascertaining any terms and conditions contained in the Customer Agreements that may affect Seller’s obligations under the Order.  Seller will do everything within its control to enable Buyer to meet the terms and conditions of the Customer Agreements.  If this section conflicts with any other paragraph in the Order, Buyer has the right to elect to have the provisions of this section prevail.

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Changes. Hutchinson reserves the right to direct changes, or to cause Seller to make changes, to drawings, specifications, sub-Sellers, samples or descriptions of Products. Hutchinson also reserves the right to change the scope of the work covered by the Order, including work with respect to such matters as inspection, testing or quality control. Hutchinson may also direct the supply of raw materials from itself or from third parties. Seller will promptly make any such requested change. Any agreed-upon changes to the design (including drawings and specifications), processing, methods of packing and shipping, and the date or place of delivery of the goods or services covered by the Order, shall not affect the time of performance or cost of the goods or services, unless Seller notifies Buyer in writing within ten (10) days of receipt by Seller of notice of any change.  Without Buyer’s prior written approval, Seller shall not change: (a) any third-party supplier of services, raw materials, or goods used by Seller in connection with its performance under the Order; or (b) the nature, type, or quality of any services, raw materials, or goods used by Seller or its suppliers in connection with the Orderl.

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Delays. If Seller fails or refuses to proceed with an Order, or if Seller fails to make delivery according to the delivery schedule, Hutchinson may cancel the then remaining balance of the Order unless the delay is an excusable delay. The term “excusable delay” as used in this paragraph means any delay in making deliveries which results without fault or negligence on the part of the Seller and which is due to causes beyond its control including, but not limited to, acts of God or of a public enemy, any preference, priority or allocation order issued by the Government or any other act of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of a Seller due to such causes.

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Warranty. Seller expressly warrants and guarantees as follows to Buyer, Buyer’s successors, assigns, and Customers, and the users of Buyer’s goods: (a)All goods will in manufacture and design, during the Warranty Period (as defined below), conform to the specifications, standards, drawings, instructions, advertisements, and statements on containers or labels, descriptions, and samples; (b) All goods will in manufacture and design, during the Warranty Period, be free from defects in workmanship and materials and shall be new and of the highest quality; (c) Buyer shall receive title to all goods that is free and clear of any liens, encumbrances, and any actual or claimed patent, copyright, or trademark infringement; (d) All goods will, during the Warranty Period, be merchantable, safe, and fit for Buyer’s intended purposes, which purposes have been communicated to Seller; (e) All goods will, during the Warranty Period, be adequately contained, packaged, marked, and labeled; (f) All goods will, during the Warranty Period, be manufactured in compliance with all applicable federal, state, and local laws, regulations, or orders, and with all applicable agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval or certification of goods, including, by way of illustration and not by way of limitation, the Occupational Health and Safety Act, the Fair Labor Standards Act, and any law or order pertaining to discrimination, including any regulations in force in countries where the goods or Buyer’s Customer’s vehicles equipped with the goods are to be sold; (g) All services performed by Seller shall be performed in a competent, workmanlike manner and in accordance with industry standards; (h) Seller will indemnify and hold Buyer harmless for the cost of recall campaigns and all other corrective service actions that, in Buyer’s reasonable judgment, are required to rectify non-conformities in goods that are the result of a breach of the foregoing warranties, whether mandated by any governmental entity, by any Customer of Buyer, or by Buyer; (i) For purposes of this Agreement, “Warranty Period” shall mean the time period extending for twelve (12) months beyond the expiration of any warranty or indemnification provided by or required to be provided by Buyer to Buyer’s Customers or any other party related to the goods or services or for components that may be impacted by the goods or services related to the Order, but in no case shall the Warranty Period ever be less than sixty (60) months from the date such Product is received by Buyer.  Seller may contact Buyer’s representative for information regarding those countries in which vehicles incorporating goods purchased from Seller will be sold. Notwithstanding the foregoing, Seller agrees to waive and extend the expiration of the Warranty Period in the event, in Buyer’s opinion, that there are failures or defects discovered after the Warranty Period of a significant nature or in a significant portion of the goods or services, or a defect is discovered that constitutes a threat of damage to property or to the health and safety of any person; and (j) Seller represents and warrants that the prices for the goods or services under the Order will be no less favorable than those that Seller presently, or in the future, offers to any other customer for the same or similar goods. If Seller offers a lower price for the same or similar goods or services to any other customer, then Seller will immediately offer Buyer the same price for the goods or services on the same terms and conditions as was offered to the other customer.

These warranties shall be in addition to all other warranties, express, implied, or statutory.  These warranties shall survive inspection, test, delivery, acceptance, use, and payment by Buyer and shall inure to the benefit of Buyer, its successors, assigns, Customers, and the users of Buyer’s products.  These warranties may not be limited or disclaimed by Seller.  Buyer’s approval of Seller’s design, material, process, drawing, specifications, or the like shall not be construed to relieve Seller of the warranties set forth herein and shall not be a waiver by Buyer of any Buyer or Customer design, material, process, drawing, specifications, or the like request or any such requirements for the remaining goods to be delivered hereunder, unless so stated by Buyer in writing

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Indemnification. Seller acknowledges and agrees as follows: (a)  To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Buyer and its affiliated companies, their respective directors, officers, employees, agents, and Customers (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all Indemnitee attorneys’ fees and any other costs of litigation (collectively, “Liabilities”) that are in any way related to Seller’s performance or obligations under the Order, including claims arising out of a breach hereof or thereof, warranty claims, product recall claims, product liability claims, injuries to persons (including death), or damage to property caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of Seller, including, without limitation, breach of contract, breach of warranty, or product liability.  Seller’s obligation to defend and indemnify under this section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except for claims that arise as a result of the sole negligence of Buyer.  Seller agrees to indemnify, hold harmless, and defend Indemnities from and against all Liabilities arising out of actual or alleged infringement, including infringement of any patent, trademark, or copyright relative to goods or services; and (b) If Seller provides goods or services to Buyer on Buyer’s premises, Seller will examine the premises to determine whether they are safe for such goods or services and will advise Buyer promptly of any situation it deems to be unsafe.  Seller’s employees, contractors, and agents will not possess, use, sell, or transfer illegal drugs, medically unauthorized drugs, controlled substances, or unauthorized alcohol, and will not be under the influence of alcohol or drugs on Buyer’s premises.  Seller shall be exclusively responsible for, shall bear, and shall relieve Buyer from liability for all loss, expense, damage, or claims resulting from bodily injury, sickness, or disease, including death, at any time resulting therefrom, sustained by any person or persons, or on account of damage to or destruction of property, including that of Buyer, arising out of, or in connection with the performance of work on Buyer’s premises, except that Seller shall not be responsible for or relieve Buyer from liability for claims arising from the willful misconduct or the sole negligence of Buyer.

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Insurance. Seller shall maintain insurance coverage in amounts not less than the following: (a) Workers’ Compensation Statutory Limits for the state or states in which this Order is to be performed (or evidence of authority to self-insure) and Employers Liability insurance for not less than $1 million; (b) A Comprehensive General Liability policy, including extended products liability insurance, which covers third-party liability claims arising out of the supply of defective goods or services or completed operations.

This policy must comprise coverage for claims due to bodily injury, property damage, and financial losses, such as losses arising out of the non-existence of warranted characteristics, mixing and conjunction of products, further processing, disassembling, assembling costs, and testing and sorting costs.

In addition, the Seller has to provide Buyer with written evidence of an existing automotive products recall insurance policy compensating, among other expenses, for communication, transportation of motor vehicles, disassembling and assembling, warehousing, testing and sorting of goods, and the disposal of faulty goods in the event of a recall initiated by an OEM or applicable authorities.

The limits of indemnity for the aforementioned insurance policy or policies must be at least twelve million USD (USD $12,000,000) per occurrence and per insurance period. The policy or policies have to be maintained during the complete course of business under the Order and for the Warranty Period and shall be confirmed by the Seller’s insurance carrier(s) on request of Buyer; (a) Automobile Liability insurance covering all owned, non-owned, and hired vehicles with limits of not less than $3 million combined single limit per occurrence; and (b) Such other liability insurance as may be required by the specific nature of the Order.

Seller shall furnish certificates of the above-required insurance setting forth the amounts of coverage, policy numbers, and dates of expiration for the above-required insurance maintained or procured by or for Seller within ten (10) days of Buyer’s written request.  The above-required insurance policies of Seller shall be primary to any self-insurance or insurance policies carried by Buyer.  In addition, Seller shall name Buyer as additional insured on the Comprehensive General Liability, Automobile, and Umbrella policy(ies).  Such certificates shall provide that Buyer will receive thirty (30) days prior written notification from the insurer of any termination or reduction in the amount or scope of coverages.  Seller’s purchase of the above-required insurance coverage and the furnishing of certificates of the above-required insurance shall not release Seller of its obligations or liability under this Order.  In the event of Seller’s breach of this provision, Buyer shall have the right to cancel the undelivered portion of any goods or services under the Order and shall not be required to make further payments except for conforming goods or services delivered prior to cancellation.  If Seller does not provide Buyer with written certificates of insurance issued by its insurance carrier confirming existence of the above-required insurance policies, Buyer is entitled to purchase the above-required insurance coverage on behalf of Seller.  Costs incurred thereby will be charged by Buyer to Seller and may be deducted from the outstanding accounts receivable of Seller arising out of any contractual relationship between Buyer and Seller.

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Remedies. In the event of a Seller Default, Buyer may exercise any remedies available under applicable law, including, but not limited to: (a) Seller’s immediate correction, repair, or replacement of the goods and services at Seller’s expense; (b) Suspending payments or performance or canceling all or any part of the balance of any Order with Seller; and (c) Requiring Seller to reimburse Buyer for all damages suffered due to Seller’s breach, including, but not limited to, incidental, consequential, and other damages, as well as lost profits, actual attorney fees, and court costs.

The remedies in this Order shall be cumulative and in addition to any other remedies allowed to Buyer under applicable law, including, but not limited to, the Uniform Commercial Code.  No waiver by Buyer of any breach or remedy shall be a waiver of any other breach or remedy.

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Limitation on Seller’s Remedies. If Buyer breaches any term in the Order or in any Customer Agreement, Buyer shall not be liable for any incidental, consequential, indirect, or any other special damages of Seller, including, but not limited to, Seller’s lost profits, attorney fees, and any and all costs of any litigation.  Any action against Buyer arising out of the Order must be filed within one (1) year after Seller’s claim accrues.

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Paulstra ProductsIntellectual Property. Seller acknowledges and agrees as follows: (a) Seller, at its expense, will indemnify and hold Buyer and all others harmless with respect to every claim that may be brought against Buyer or others that use the goods or services delivered under the Order, for any alleged infringement of any present or future patent, copyright, industrial design right, or other proprietary right related to the goods or services under the Order, or the manufacture, sale, or use of goods alone, or in combination, by reason of their content, design or structure.  Seller will investigate and defend or otherwise handle every such claim and, at Buyer’s request, assist Buyer and all others in Buyer’s and all others’ investigation, defense, or handling of any such claim.  Seller will pay all expenses and damages or settlement amounts that Buyer, Buyer’s Customers, and all others using Buyer’s products may sustain by reason of each such indemnified claim.  Seller’s obligations will apply even though Buyer furnishes all or any portion of the design and specifies all or any portion of the processes used by Seller; (b) Seller grants to Buyer, for the period the Order is effective, a nonexclusive, royalty free, permanent, paid-up, irrevocable license related to the goods or services under the Order with a right to Buyer to grant a sublicense to rebuild and have rebuilt goods under the Order; (c) Seller will neither assert nor transfer to another a right to assert against Buyer and/or any of Buyer’s affiliates, dealers, Customers, or suppliers thereof, any intellectual property right of Seller that is applicable to any works of authorship related to the goods or services under the Order; and (d) Seller will not sell, transfer, or otherwise dispose of any goods or services that incorporate any trademark, patentable invention, copyright work, industrial design, or other matter that is the subject of any intellectual property right of Buyer or any of Buyer’s affiliates to any party other than Buyer, except where specifically authorized by Buyer in writing.

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Termination for Breach. Buyer may immediately terminate the Order without further obligation in the event of Seller’s breach of or Default under the Order or any breach of or default under any Customer Agreement.  Either party may terminate the Order without further obligation in the event the other party fails to perform any material obligation under the Order, through no fault of the non-breaching party, which remains uncured after giving twenty (20) calendar days written notice of such material breach.  Delays in delivery or repeated deliveries of non-conforming goods or services, which result in Seller’s failure to meet its delivery time or goods or services conformity obligations for all goods or services shipped, shall automatically be deemed a failure to perform a material obligation for the purposes of the Order;

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Termination for Insolvency, Bankruptcy, or Liquidation. Either party may terminate the Order if the other party: (a) becomes insolvent; (b) makes an assignment immediately for the benefit of creditors; (c) files or has filed against it a petition in bankruptcy; (d) has a receiver appointed for its assets; or (e) is dissolved or liquidated;

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Termination by Buyer. Seller acknowledges and agrees that, in addition to any other rights of Buyer to terminate this Order, Buyer may, at its option, immediately terminate all or part of the Order or any other agreement between Buyer and Seller, at any time and for any reason, by giving written notice to Seller.  Buyer may elect to terminate some, but not all, Orders or other agreements between Buyer and Seller, at Buyer’s discretion.  However, upon such termination, Buyer shall pay to Seller the following amounts, without duplication: (i)The contract price for all goods or services that have been completed and delivered in accordance with the terminated Order, or in accordance with any other agreement between Buyer and Seller that is terminated, and not previously paid for; and (ii)The actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods and services under the terminated Order, or under any other agreement between Buyer and Seller that is terminated, to the extent such costs are reasonable in amount and are properly allocable or apportion able under generally accepted commercial accounting principles to the terminated portion of the Order, or to any other agreement between Buyer and Seller that is terminated, if any; less, however, the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent, and the cost of any damaged or destroyed goods or materials.  Buyer will make no payments for finished goods or services, work-in-process, or raw materials fabricated or produced by Seller in amounts in excess of those authorized by Releases, issued by Buyer prior to the date of termination of the Order, nor will Buyer make any payments for any undelivered goods or services that are in Seller’s standard stock or that are readily marketable.  Payments made under this section shall not exceed the aggregate price payable by Buyer for finished goods or services that would be produced or performed by Seller under Releases issued by Buyer prior to the date of termination.  Except as provided in this section, Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by others, including, but not limited to, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, or general and administrative burden charges from termination of this or any Releases.  Within sixty (60) days from the effective date of termination of the Order, or any other agreement between Buyer and Seller that is terminated, if any, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit Buyer’s audit, and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request.  Buyer or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to any termination claim of Seller.

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Insolvency. Seller will be in default if any of the following occurs (each, a “Seller Default”): (a) Seller breaches, repudiates, or threatens to breach any term in the Order, or in any Customer Agreement, including, but not limited to, failing to deliver goods or services in accordance with Buyer’s required quality and quantity terms; (b) Insolvency of Seller or filing of a voluntary or involuntary petition in bankruptcy with respect to Seller; (c) Appointment of a receiver or trustee for Seller; or (d) Execution of an assignment for the benefit of creditors of Seller. Seller will reimburse Hutchinson for all costs incurred by Hutchinson in connection with any of the foregoing, including but not limited to, all attorneys or other professional fees.

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Transition of Supply. Upon the expiration or earlier termination of any Order for whatever reason, Seller agrees to take such action as may reasonably be required by Buyer to accomplish the transition from Seller to an alternative seller, including, without limitation, the actions set forth below.  The term “alternative seller” expressly includes, but is not limited to, a Buyer-owned facility.  (a) Seller shall provide all notices necessary or desirable for Buyer to resource the Order to an alternative seller; (b) Seller shall provide a sufficient bank of goods covered by the Order to ensure that the transition to any alternative seller chosen by Buyer will proceed with an uninterrupted supply of goods.  Unless otherwise specified by Buyer on the face of an Order amendment or in a signed writing by Buyer’s designated representatives, a six-week goods inventory bank will be deemed sufficient to accomplish the transition.  Such “six-week goods bank” will be calculated using the releases of Buyer from the six weeks immediately preceding the termination/expiration of this Order, not including any temporary interruptions, plant, industry shutdowns, or other reduced schedules; (c) Seller shall provide to Buyer all Tools and any other property furnished by or belonging to Buyer or any of Buyer’s customers in as good of condition as when received, purchased, or fabricated by or for Seller; and (d) Seller shall, at Buyer’s option: (i) assign to Buyer any or all supply contracts or orders for raw materials or components relating to the Order; (ii) sell to Buyer, at Seller’s cost, any or all inventory or work-in-process relating to the Order; and (iii) sell to Buyer, at the unamortized portion of the cost of such items, less any amounts Buyer previously paid to Seller for the cost of such items, any or all property owned by Seller (except for Tools, which are or will be, as detailed, above, Buyer’s property) related to production under the Order.

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Termination. The order shall be terminable as follows: (a) In the event that a Program is terminated prior to the conclusion of the estimated Life of the Program, the Order for the Program shall terminate effective immediately; (b)If any competitor of the Seller offers lower goods or services prices and/or payment or delivery conditions, or if the competitive nature of the Seller no longer exists in terms of price, quality, or time schedule for goods and services under the Order, or if Buyer’s Customer cancels a Customer Agreement, Buyer may terminate the impacted Order or any other impacted agreement between Buyer and Seller, without notice. The same shall apply if other technological prerequisites become necessary or there is no further need for the goods or services; (c)No termination of the Order, regardless of the basis for such termination, shall serve to terminate any other Order or any other agreement between Buyer and Seller in effect at the time of such termination.  Further, the termination of the Order or of any other agreement between Buyer and Seller, regardless of the basis for such termination, shall not impact, in any way, the enforceability of all other outstanding Orders or other agreements between Buyer and Seller, each of which shall remain in full force and effect; and (d) The Parties agree that theses clauses (Warranty, Indemnification, Insurance, Intellectual Property, Hutchinson’s Property, Termination for Breach, Termination by Buyer, Termination, Transition of Supply, Records and Financial Audits, and General) of the terms set forth in these Standard Terms for Purchases of Goods or Services shall survive and continue to apply following the conclusion of the Life of the Program or an earlier termination of the Order or Customer Agreement.

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Assignment. The Order is entered into in reliance upon the Seller’s personal performance of the duties imposed.  Seller will not assign or delegate all or substantially all of its substantive duties under the Order, or transfer to another any intellectual property right that is licensed to Buyer under any Order, without Buyer’s prior and express written approval.  Any such assignment or delegation without the prior written consent of Buyer, at the option of Buyer, may effect a cancellation of the Order. Any consent by Buyer to an assignment shall not be deemed to waive Buyer’s right to recoupment from Seller and/or its assigns for any claim arising out of any rights under the Order, and shall not prohibit Buyer from enforcing any of its rights against an assignee of the Order.  Buyer will have the right to assign any benefit or duty under the Order to any third party upon notice to Seller, with or without Seller’s consent.

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Seller Standards, Quality and Development; PPAP; Required Programs. Seller will conform to the quality control and other standards and inspection systems as established or directed by Hutchinson and Hutchinson’s customer, including without limitation quality control policies, ISO 9001:2000 or ISO/TS 16949:2002 quality certification, OHSAS 18001 health and safety certification and ISO 14001 environmental certification including registration. Seller will also participate in Hutchinson’s Seller quality and development programs as directed by Hutchinson. Seller agrees to meet the full requirements of industry Production Part Approval Processes (PPAP) as specified by Hutchinson and (as applicable) Hutchinson’s customer(s) and agrees to present this information to Hutchinson upon request, at the level requested.

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Set-Off Recoupment. Buyer has the right to deductions or setoffs of any sums due to Buyer or an affiliate of Buyer, under the Order or any other agreement, from Seller (whether or not arising from the Order) against any sums due to Seller from Buyer or an affiliate of Buyer (whether or not arising from the Order). Buyer will provide Seller with a statement describing any offset or recoupment taken by Buyer.

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Specification Review. All dimensional, material, and test requirements have been reviewed by Seller and are understood by Seller. Seller agrees that they are feasible and is quoting in full compliance with those requirements.

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Hutchinson’s Property. The right, title, and interest to all supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, designs, drawings, specifications, spare parts, trial parts, ancillary products, items owned by Buyer, and other items (“Tools”) for use in manufacturing goods under the Order shall be and remain the property of Buyer.  Seller shall bear the costs of maintaining or repairing and the risk of loss of and damage to the Tools.  Seller will: (a) properly house and maintain the Tools on Seller’s premises; (b) not use the Tools for any purpose other than for performance under the Order; (c) prominently mark the Tools as property of Buyer; (d) refrain from commingling the Tools with property of Seller or with that of a third party; (e) adequately insure the Tools against loss or damage, including, but not limited to, maintaining full fire and extended coverage insurance for replacement value, and naming Buyer as an additional insured; (f) ensure that the Tools do not become subject to any liens or other claims; and (g) not move the Tools to another location, whether owned by Seller or a third party, without the prior written consent of Buyer (except, in the case of an emergency, Seller may move the Tools provided that it gives Buyer notice that the Tools have been moved and the location of the Tools as soon as practicable).  Buyer will have the right to enter Seller’s premises at reasonable times to inspect the Tools and Seller’s records pertaining thereto.  Seller expressly waives and releases any and all statutory, equitable, or other liens, including, but not limited to, any molder liens, special tool liens, builder liens, and the like, that Seller has or might have on or in connection with the Tools for any and all work, including, but not limited to, designing, manufacturing, improving, maintaining, servicing, using, assembling, fabricating, or developing the Tools.  Seller hereby agrees to indemnify, defend, and hold Buyer harmless from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all attorneys’ fees and any other costs of litigation that are in any way related to releasing, terminating, or otherwise removing any such liens placed on the Tools.  Seller will assign to Buyer any claims Seller has against third parties with respect to the Tools.  Upon written request, Seller, at its expense, shall immediately deliver the Tools, at Buyer’s option, F.O.B. Carrier Seller’s facility (Ex Works Loaded) or F.O.B. Buyer’s premises (CIF Buyer Plant/Delivered Buyer Plant).  The Tools shall be properly packed and marked in accordance with the requirements of the carrier and Buyer.  Seller will cooperate fully with Buyer’s removal of the Tools from Seller’s premises.  Seller shall assume all risk of death or injury to persons or damage to property arising from the use, maintenance, repair, and shipment of the Tools.  Unless otherwise agreed to in writing by Buyer, Seller, at its own expense, shall keep the Tools in good condition and repair, including repair necessitated by wear and tear and other usage by Seller.  In the event that it becomes necessary, as determined by either Buyer or Seller, to replace the Tools due to normal use by Seller, or otherwise, said replacement tools shall be at the sole expense of Seller and said replacement tools shall be the property of Buyer.  Buyer does not guarantee the accuracy of any Tools or the availability or suitability of any supplies or material furnished by Buyer.  Seller assumes sole responsibility for inspecting, testing, and approving all Tools or other materials supplied by Buyer prior to any use by Seller.  Seller shall assume all risk of death or injury to persons or damage to property arising from the use, maintenance, repair, and shipment of the Tools or other materials supplied by Buyer and hereby agrees to indemnify Buyer against the same.  If Buyer and Seller enter into a specific tooling agreement with respect to certain Tools, to the extent there is any inconsistency between this section and the terms of the specific tooling agreement, the terms of the specific tooling agreement shall prevail.

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Seller’s Property. Seller, at its expense, will furnish, keep in good working condition capable of producing Products meeting all applicable specifications, and replace when necessary, all machinery, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns and other items that are not Hutchinson’s property, and that are necessary for the production of Products.

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Relationship of Parties. Seller and Hutchinson 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 create any obligation on behalf of or in the name of the other.

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Paulstra ProductsCustoms; Related Matters. Credits or benefits resulting from the Order, including but not limited to trade credits, export credits, custom drawbacks, rebate of duties, taxes, or fees belong to Hutchinson. Seller will provide all information and certificates (including NAFTA Certificates of Origin) required to allow Hutchinson (or Hutchinson customers) to receive these benefits or credits. For each shipment, Seller agrees to fulfill any customs or NAFTA related obligations, origins marking or labeling requirements, invoicing and documentation requirements of the destination country, and local content origin requirements. Export licenses or authorizations necessary for the export of Product are Seller’s responsibility unless otherwise indicated in the Order, in which case the Seller will provide the information necessary to enable Hutchinson to obtain the licenses or authorizations. Seller will promptly notify Hutchinson in writing of any materials or components used by Seller in filling the Order that Seller purchases in a country other than the country in which the Products are delivered. Seller will furnish any documentation and information necessary to establish the country of origin or to comply with the applicable country’s rules of origin requirements. Seller will advise Hutchinson of any material or components imported into the country of origin and any duty included in the Products purchase price. If Products are manufactured in a country other than the country in which supplies are delivered, Seller will mark the Product “Made in (country of origin).” Seller will provide to Hutchinson and the appropriate governmental agency the documentation necessary to determine the admissibility and the effect of entry of Product into the country in which the Products are delivered. Seller warrants that any information that is supplied to Hutchinson about the import or export of Product 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 Products are exported.

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Compliance with Laws: Ethics. Seller, and any Products supplied by the Seller, shall comply with all applicable laws, including rules, regulations, orders, conventions, ordinances and standards that relate to the manufacture, labeling, transport, import, export, licensing, approval or certification of Products, including laws relating to conflict minerals, environmental matters, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety and motor vehicle safety, NAFTA and any other similar trade agreements. The Order incorporates by reference all clauses required by these laws. All materials used by Seller in the Products or Services in their manufacture will satisfy current governmental and safety constraints on restricted, toxic and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. At Hutchinson request, Seller shall certify in writing its compliance and/or willingness to cooperate with any or all of the foregoing, including, but not limited to any reporting required to comply with any laws related to conflict minerals. Seller represents that any Products or Services purchased by Hutchinson under an Order will not be produced with forced labor either by Seller or Seller’s Suppliers. Seller shall indemnify Hutchinson against any liability Hutchinson may incur if this representation is incorrect and Hutchinson has the right to terminate an Order if there is a breach thereof. Also reference and act in accordance with the TOTAL SA Corporate Social Responsibility which includes (but not limited to) Ethics and Governance, Code of Conduct and Health, Safety Environment Quality Charter located at www.total.com.

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Directed Buy Status. In the event Buyer’s Customer requires Buyer to source production of certain goods or services to Seller (each, a “Directed Buy”), Seller acknowledges that, notwithstanding Seller’s negotiations with Buyer’s Customer, these terms shall apply to all production of such Directed Buy goods or services as between Buyer and Seller.  Further, Seller acknowledges and agrees that it shall indemnify and hold Buyer harmless from any commercial issue that arises out of the supply of Directed Buy goods or services, which shall be resolved between Seller and Buyer’s Customer directly.  Seller shall not be entitled to cease or withhold the timely supply of any goods or services under any circumstances, including, but not limited to, any unresolved commercial issue, including an unresolved commercial issue between Seller and Buyer’s Customer on a Directed Buy good or service.

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Records and Financial Audits. Seller acknowledges and agrees as follows: (a) Records.  Seller will maintain, in accordance with generally recognized commercial accounting principles and practices, complete and accurate records of all matters relating to Seller’s performance under the Order to enable Seller to demonstrate compliance with its obligations under the Order.  Seller shall maintain such records for the period of time required by the Order; and (b) Right to Audit.  Upon reasonable advance notice to Seller, Seller shall provide Buyer and/or its representatives with access to all such Seller records, during normal business hours, for the purpose of auditing Seller’s charges under the Order.  Seller will cooperate with Buyer and its representatives as reasonably necessary to facilitate the audit process.  Buyer shall be entitled to a refund for all amounts determined in good faith in an audit to have been overpaid to Seller by Buyer.

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Confidentiality. Seller shall use reasonable care to prevent disclosing to others and shall use only for the benefit of Buyer: (i) the technical information and data furnished by Buyer or acquired by Seller in its work under the Order or Customer Agreement, prior development agreement, or early sourcing agreement for goods or services related to or using such technical information or data; and (ii) information relating to any portion of Buyer’s business that Seller may acquire in the course of its activities under the Order or any Customer Agreement, prior development agreement, or early sourcing agreement (collectively, the “Confidential Information”).  This obligation shall continue for a period of two (2) years after the expiration of the term of the Order.  This obligation will not apply to information that is or becomes publicly known through no fault of Seller.  Seller will first obtain the written consent of Buyer if the Seller wants to share Confidential Information with any other party.

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Independent Contractor. The relationship of Seller to Buyer is that of an independent contractor, and nothing contained in the Order, any Customer Agreement, or otherwise shall be deemed to create any other relationship, including, but not limited to, an employment, partnership, agency, or joint venture relationship between Seller and Buyer.  Neither party shall have any authority to employ any person as agent or employee for or on behalf of the other, or to bind, or attempt to bind, the other to any obligation with any third party.  Seller has and retains full control and supervision over the performance of its obligations under the Order and over the employment, direction, compensation, and discharge of all of Seller’s employees, agents, and subcontractors that Seller utilizes in the performance of such obligations.  Each party is and shall be responsible for its own acts and omissions and those of its employees, agents, and subcontractors.

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Notices. Any notice, communication, or statement required or permitted to be given under the Order shall be in writing and deemed to have been given when delivered in person or the next business day after being deposited with a nationally recognized overnight mail service such as UPS, or by overnight courier service, addressed to Buyer or Seller at their address set forth in the Order.

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Remedies. All specific references to remedies available to Buyer in the enforcement of the Order shall be non-exclusive and shall be cumulative together with all legal and equitable remedies available to Buyer, any applicable Customer Agreement, and all applicable laws.

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Section Headings. All section headings herein are for convenience only and shall not be construed as a limitation of the scope of the particular sections to which they refer.

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Advertising and Publicity. Seller shall not use the name or any trademark, trade name, logo, or symbol of Buyer or any of Buyer’s affiliates or Customers, or disclose any matters relating to the Order or any Customer Agreement to any one in any way, including, but not limited to, any advertising, promotion, press/publicity releases, written articles, or communications, without the prior written consent of Buyer.

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Entire Agreement and Amendment. The Order, together with any and all Releases, contain all terms between Seller and Buyer with regard to the subject matter of the Order and supersedes all prior oral or written representations, agreements, or other communications between Seller and Buyer.  The contract evidenced by the Order may be amended only by a writing signed by Seller and an officer of Buyer.

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Severability. All terms may be enforced to the maximum extent permitted by law.  If any term is invalid or unenforceable, all other terms shall remain in effect.

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State Law. The sale of goods and services in accordance with this Order shall be governed in all respects by the laws of the State of Michigan.  The parties expressly agree that the application of the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall NOT apply to this Order.

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Jurisdiction and Venue. Seller and Buyer agree that any action arising out of the sale of goods or services related to the Order will be brought, heard, and decided in a court of competent subject matter jurisdiction in a state or federal court located in Kent County, Michigan, and both parties agree to accept personal jurisdiction by such court and the State of Michigan.

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Buyer’s Right to Attorneys’ Fees and Costs. In the event that either Buyer or Seller brings any action against the other arising out of the sale of goods or services under the Order, Buyer, and Buyer only, shall have the right to recover from Seller, and Seller is obligated to pay to Buyer, Buyer’s actual attorneys’ fees and any and all costs incurred in or for such action.

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updated 1-1-15

 

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