Decker Manufacturing Corporation
Decker Fasteners, Ltd
(Both are referred to as Decker in this document. The individual Orders indicate which company is the party to an Order)
GENERAL TERMS AND CONDITIONS OF SALE
Introduction
Decker and its Customers (the Parties) acknowledge the following mutually beneficial goals and objectives in doing business together: (i) to ensure a reliable and timely supply of goods covered by an Order; (ii) to implement common or complementary processes to forecast necessary quantities, place orders, ship, receive and make payments for goods; (iii) to identify, contain and resolve promptly and fairly any issues as to timeliness and quality of goods delivered; and (iv) collaboratively to identify opportunities and implement cost savings measures related to the goods covered by an Order and the processes of creating, shipping, receiving, and using of those goods, all in accordance with applicable law and these specific terms and conditions.
This statement of these shared goals and objectives is intended to be a general introduction and is not intended to expand or limit the scope of the Parties’ obligations or alter the plain meaning of an Order. However, to the extent the terms and conditions of an Order are unclear or ambiguous, such terms and conditions are to be construed so as to be consistent with the goals and objectives set forth herein.
1) ORDERS: An Order is a request for a contract to provide goods or services. All accepted Orders are a one-time spot order and a new Order will be needed to purchase additional parts unless a specific term is stated and accepted by Decker.
2) INCORPORATED AGREEMENT TERMS. All Decker bids, quotations, offers, counteroffers, and accepted purchase Orders are subject to these General Terms and Conditions, which are a part of the agreement between Decker and its Customer. These General Terms and Conditions are available on Decker’s website and are incorporated by reference into all Decker agreements. All shipments by Decker are intended and deemed to include these terms. Any conduct or course of dealing by the Parties which is inconsistent with these terms does not create a new or different agreement. Any acceptance of an Order by Decker is expressly conditional to the Customer agreeing to these General Terms and Conditions. All terms inconsistent with these General Terms and Conditions that may be stated or referenced in an Order or an authorization to release goods or services are expressly rejected by Decker unless manually approved in a writing signed by the President or Chief Executive Officer of Decker.
3) FINAL AGREEMENT. The accepted Order and these General Terms and Conditions constitute the entire and final agreement of the Parties and cancels and supersedes any prior or contemporaneous negotiation, agreements, or information provided as background in any Proposal. An Order as used in these General Terms and Conditions means a purchase order transmitted electronically to Decker or delivered to Decker in a paper format. The Order may only be modified by issuance of an amended Order which is subsequently accepted by Decker. Any amended Order remains subject to these General Terms and Conditions.
4) SALE-PURCHASE. Decker agrees to sell and deliver goods or services and Customer agrees to purchase goods and services which are identified as to price, quantity, quality, description, packaging, labeling, and time for delivery in a purchase Order which is accepted in accordance with these General Terms and Conditions,
5) ACCEPTANCE. An Order is not binding on Decker until accepted by Decker. Decker accepts an Order, subject to these Terms and Conditions: (a) if Decker acknowledges in writing (including any electronic communication) its acceptance of the Order, (b) if Decker performs any work or renders any services related to goods to be specially manufactured pursuant to the Order after Decker’s receipt of the Order; or (c) if Decker delivers any of the goods or provides any of the services. The Parties each waive any defense to the validity and enforceability of the Order arising from the electronic submission and acceptance of the Order and these General Terms and Conditions.
6) DELIVERY. Delivery will be made within the time specified in the Order, or in accordance with Customer’s subsequent releases or written requirements, unless delivery has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the Order was accepted or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid. However, in the event the releases or written requirements change the delivery in an amount or outside of the delivery time (as set forth in the Order), the Parties will agree on a new delivery time as close to the original request as is commercially reasonable. A change in the delivery quantity or time may result in an adjustment to the price for the goods or services already delivered if there is a material difference in the total amount to be delivered or the time by which they are delivered. Absent another mutually agreed quantity or time, Decker may tender delivery of the goods in the quantity and at the originally scheduled time in fulfillment of the contract.
7) BLANKET ORDERS, VOLUME PROJECTIONS, CAPACITY, REQUIREMENTS, AND RELEASE AUTHORIZATION. If Customer provides Decker with estimates, forecasts, or projections of its anticipated future quantity requirements for goods which are used in determining the price charged Customer, any material change in the actual quantities ordered or released or in the time for delivery of the goods may result in repricing the goods already sold and those yet to be delivered to reflect changes in the cost of materials, tooling, labor, transportation, and overhead that were considered by Decker in setting the original price. Customer agrees to pay for any increases due to the change. An Order for which there has not been a release and delivery of the ordered goods or services during the prior six months will automatically terminate. In no event will Decker be obligated to provide goods or services for more than six months after Decker’s most recent delivery.
8) PLACE OF DELIVERY. Unless otherwise agreed on the Order, delivery will be FOB Decker’s loading dock and Customer bears all risk of loss or damage occurring thereafter.
9) PACKING, MARKING AND SHIPMENT.
(a) Decker will pack and mark goods and make shipments in accordance with Customer’s prior written instructions which are provided at the time of the Order and included in the quoted cost for the goods or services. Subsequent requests for a change may result in a different price and delivery time. Decker will comply with all carrier requirements and assure delivery free of damage and deterioration.
(b) If the Customer specifies the carrier and/or method of transportation for the goods then Decker will process shipping documents and route shipments of the goods from the delivery point accordingly. Customer is responsible for all of transportation routing instructions, including, but not limited to, mode of transportation, utilization of assigned carrier and identification of the shipping point. Customer is responsible for all costs and damage arising from using the Customer’s designated carrier or method of transportation.
10) INSPECTION AND REJECTIONS; QUALITY. The acceptable PPM defective rate for each shipment of product is 25 PPM. Customer may inspect, evaluate, and test all goods within seven days after delivery. If the goods are considered non-conforming, Customer shall return samples of any parts deemed defective to Decker for analysis and as evidence of the non-conformance. The Customer must maintain lot control and integrity of the parts while in possession of any parts. The lot number must be identified and communicated to Decker along with a statement describing any alleged non-conformance. Upon receipt by Decker, the samples will be reviewed by Decker personnel and confirmation from Decker of any non-conformance must be provided before any rework or any other action is taken, including any sorting performed by the customer or a 3rd party. All costs resulting from rework or sorting by the customer or a 3rd party must be agreed upon in advance and in a writing signed by Decker or after receipt of a signed Decker Purchase order before the rework or sorting service is started. Upon confirmation by Decker that the parts are non-conforming, Decker will replace or correct any non-conforming goods or services at its own expense. Upon request, all non-conforming goods shall be returned to Decker. Pending return to Decker, the Customer shall hold the goods with reasonable care for a sufficient time to permit Decker to recover them. In the event of a dispute over whether the goods or services are non-conforming, then the Parties may request arbitration to resolve the dispute.
11) FORCE MAJEURE. Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached the agreement for failure or delay in fulfilling or performing any obligation when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, pandemic, war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, acts of God, or other outside events which make performance commercially unreasonable. However, the Party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance with reasonable dispatch whenever such causes are removed. Either Party shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure. If the cause may by avoided by the payment of unusual or excessive fees or costs, those fees or costs may be passed on to the Customer if the Customer requests performance after notice of the cause of the failure or delay and the estimated amount of the related fees or costs.
12) GENERAL WARRANTY.
(a) Subject to the other terms in this agreement, Decker warrants that the goods or services will (i) comply with all performance standards and product characteristics, including specifications, drawings, descriptions or samples, furnished and/or specified by Customer, (ii) be merchantable, and (iii) be free from defects in material and workmanship except for rust for a period of one year from delivery. To the extent that Customer provides the specification or design for any goods purchased, Decker relies on Customer’s expertise in specifying or designing the goods communicated to Decker, and Decker does not warrant that those goods will be fit and sufficient for the purposes intended.
(b) Decker’s liability for any warranty claim shall be limited to the repair or replacement of the non-conforming goods and the cost of delivering them to the Customer. Decker reserves the right to inspect the goods which the Customer deems non-conforming, and to require the Customer to return all non-confirming goods to Decker. Refer to section 10 for additional requirements for non-conforming goods.
(c) Decker further warrants that the Customer will receive good title upon delivery of goods or services under the Order, free and clear of all liens and encumbrances. Unless designed by Decker, there is no warranty that any goods, services, tooling, fixtures, or equipment will be free from any actual or claimed patent, copyright or trademark infringement.
(d) These warranties are in lieu of any other warranties implied by law.
13) PRICES. The prices stated in an accepted Order will be maintained under normal circumstances, but may be subject to adjustment for material changes in volume, price of raw materials or labor, transportation, currency valuation, or for any other cause not initiated by Decker.
14) INDEMNIFICATION. Customer will defend, indemnify, and hold Decker and its subsidiaries, including their respective employees, officers, directors, agents or representatives harmless against all claims, suits, actions or proceedings (“Claims”) and pay (i) all liabilities, losses, damages (including without limitation judgments, amounts paid in settlement and other recoveries), (ii) fees and expenses (including without limitation fees of counsel and experts) and (iii) other costs (collectively, “Expenses”) in connection with any breach or nonperformance by Customer of the Order, or for injury or death of any person and damage or loss of any property allegedly or actually resulting from or arising out of any act, omission or negligent work of Customer or its employees, agents, or subcontractors in connection with Customer’s use or any subsequent purchaser’s use of the goods provided under the Order.
15) CHANGES. If the Customer make changes in the Order, Decker reserves the right to make a price adjustment based on costs actually incurred, or to be incurred, as a result of the change.
16) PAYMENT
(a) Payment terms are as set forth in the Order. In the absence of any other agreement, payment terms are NET 30. Decker will promptly submit correct and complete invoices or other agreed billing communications with appropriate supporting documentation and other information reasonably required by Customer (collectively, the “Invoice”) after delivery of goods and performance of services. If an error exists in the Invoice, Customer will promptly notify Decker and use commercially reasonable efforts to assist Decker in correcting any invoice that has been rejected as incomplete or otherwise incorrect.
(b) Customer must pay Decker the amounts which are due pursuant to the terms of the Order and these General Terms and Conditions, and to provide Decker with periodic information concerning Customer’s financial condition and ability to fulfill its payment obligations.
(c) In the event Customer at any time withholds, deducts, sets-off, or recoups from Decker’s claims for money due or to become due from Customer against any claims that Customer has or may have arising out of this or any other transaction between the Parties, Decker may withhold further deliveries until the dispute is resolved. Upon Decker’s request, Customer will substantiate the basis for any deduction, set-off, or recoupment within fifteen (15) days of such request or within such other period as may be agreed upon by the Parties.
17) CUSTOMS; EXPORTS. Upon request, Decker will notify Customer in writing of material or components used by Decker in filling an Order which Decker purchases in a country other than the country in which the goods are delivered and any duty included in the purchase price of the goods. Decker will furnish Customer with any documentation and information necessary to establish the country of origin, comply with the destination country’s rules of origin requirements, any special trade programs, and content reporting.
18) USE OF NAMES. Neither Decker nor Customer may, without the prior written consent of the other, use in any manner the name or trademarks of the other Party, its products, or any of its affiliated companies, in advertising or other publication. A request to use the name or trademarks of the other party shall be communicated in a writing separate from an Order to ensure it is brought to the attention of the correct personnel.
19) CONFIDENTIALITY. Each Party shall keep confidential and use commercially reasonable methods to maintain confidential the trade secrets and proprietary information provided by the other Party.
20) PATENTS; NONINFRINGEMENT WARRANTY AND INDEMNITY. Customer represents and warrants that any goods or services provided under the Order will not infringe any Intellectual Property of any third party. Customer agrees to investigate, defend, indemnify and hold harmless Decker, its affiliated companies, their respective customers, distributors and dealers, and their respective customers, against any and all claims made against any of them that any good or service infringes any Intellectual Property of any third party. Customer will pay all expenses that are incurred or sustained by reason of any such claim.
21) ASSIGNMENT. An Order may not be assigned or delegated, in whole or in part, without Decker’s prior written consent, and any attempted assignment or delegation will be void and of no legal effect.
22) CANCELLATION FOR CAUSE.
(a) Decker may cancel the whole or part of this Order without liability for future deliveries, and is entitled to receive payment due for goods and services already delivered and accepted. In addition, Decker may exercise any of its legal rights, upon the occurrence of any of the following specified events (each an “Event of Default”):
(1) Customer fails to timely accept goods or perform services and Customer fails to give Decker a correction plan within one day of Decker’s notice to Customer of such failure, obtain Decker’s acceptance of such plan, and perform such plan to Decker’s satisfaction; or
(2) Customer violates any other provision in, fails to meet any other requirements contained in, or fails to perform any other provision under the Order at the time specified therein and to the extent such other failure is capable of being cured, fails to so cure such failure within thirty days after such Event of Default; or
(3) Customer (i) becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, or (ii) voluntarily commences any proceeding or files any petition under any bankruptcy, insolvency or similar law or seeking dissolution, liquidation or reorganization or the appointment of a receiver, trustee, custodian, conservator or liquidator for itself or a substantial portion of its property, assets or business or (iii) takes corporate action for the purpose of effecting any of the foregoing in (i) or (ii) above; an order for relief is entered in a case under the Bankruptcy Code in which Customer is a debtor; or involuntary proceedings are or an involuntary petition is commenced or filed against Customer under any bankruptcy, insolvency or similar law, unless any such petition is dismissed within forty-five days; or
(4) Customer repudiates the Order (absent a legal right to do so,) in writing, including via e- mail, takes any action evidencing its intention not to perform (including threatening non- payment for goods), or omits to take any action required to be performed by Customer, which is necessary for Decker to timely deliver goods and services under the Order; or
(5) Customer fails to pay any trade payables or other accounts payable owed to Decker, or its subsidiaries or affiliates, incurred in the ordinary course of such Customer’s business that are not reasonably disputed and have been outstanding for more than sixty days after the date such payable is due.
(b) Decker may terminate this Order due to Customer’s material breach of the Order that is not remedied within thirty days of Decker’s notice to Customer of the material breach.
(c) Upon notice of termination under this clause, Decker may stop work on the date and to the extent specified in such notice and terminate all orders and subcontracts that relate to the terminated Order or the applicable terminated portion thereof.
(d) If a Court of competent jurisdiction determines that any purported termination by Decker under this clause was made without legally sufficient cause, then the purported termination will be a termination subject to any other clause of these General Terms and Conditions.
23) DISPUTE RESOLUTION; GOVERNING LAW.
(a) An Order and all transactions between Decker and Customer will be governed by and construed in accordance with the laws of Michigan as if entirely performed therein.
(b) For all disputes arising out of an Order, Customer irrevocably consents to the personal jurisdiction of the state and federal courts in and for Calhoun County, Michigan, USA, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum. Any suit regarding or relating to an Order may only be brought in the state or federal court in and for Calhoun County, Michigan, USA, which are the exclusive venue for any such suit.
(c) Any dispute arising out of or in connection with an Order or these General Terms and Conditions (other than Decker’s rights to injunctive relief), or any other dispute, may, by agreement in writing of both Parties be referred to and finally resolved by binding arbitration in accordance with the Michigan Uniform Arbitration Act. The place of arbitration will be Albion, Michigan, U.S.A., with Michigan-based arbitrators. Any election to arbitrate hereunder must be preceded by negotiations to resolve the dispute (provided, however, such negotiations may be terminated by either party at any time in their sole discretion, with seven days’ advance notice of such termination furnished to the other party) and, upon election of either party during such negotiation period, a non-binding mediation session, which must be completed within forty-five days of the delivery of written notice by either party to the other requesting mediation.
24) LIMITATION OF LIABILITY. In no event will Decker be liable to Customer or others for anticipated profits or for special, incidental, or consequential damages. Without limiting the foregoing, the parties agree that with respect to a claim arising out of or in connection with the termination or breach of an Order, the Customer’s damages, if any, are limited to the lesser of (i) the purchase price of the products purchased by Customer from Decker in the three months immediately preceding the termination or alleged breach, or (ii) $100,000.
25) SURVIVAL. The provisions of these General Terms and Conditions under any Order will by their terms survive any termination, cancellation or expiration of the Order.
26) NOTICE. Notices must be in writing to a known address customarily used by the Party to whom it is sent. E-mail notification will be sufficient and acceptable written notice. Any e-mail notice sent will be deemed to have been received on the second business day after such notice was sent. Any written notice sent using any other manner will be deemed to have been received upon the earlier of (i) actual receipt by the party to whom the notice is directed, and (ii) the second business day after delivery, in the case of U.S. and Canadian deliveries, or the fifth business day after delivery for all other deliveries.
27) SEVERABILITY. If any term of these General Terms and Conditions or an Order is invalid or unenforceable under any law, regulation, executive order or other rule of law, such term will be deemed to be reformed or deleted, as the case may be, but only to the extent necessary to comply with such law, regulation, order or rule, and the remaining provisions of the General Terms and Conditions and the Order will remain in full force and effect.
28) TAXES. (a) The goods purchased from Decker are for resale or for an exempt purpose and are exempt from state and local sales or use taxes. Customer will provide an appropriate Certificate of Exemption upon Decker’s written request. Customer is responsible to pay any sales, use, goods, and services taxes wherever applicable, and shall defend, indemnify, and hold Decker harmless from all such taxes.
29) COMPUTER NETWORK; ACCESS CONFIDENTIALITY.
(a) If Decker grants Customer access to Decker’s computer network, Customer understands that the access extends only to those employees of Customer who have a need for the access to concerning the goods and services specified for Customer. Customer must inform its employees that the data files they review are confidential and must not be communicated to others nor used for any purpose other than in connection with goods and services being purchased by Customer.
(b) Decker does not grant any intellectual property right including, but not limited to, trade secret, patent or copyright, by granting Customer access to Decker’s computer network. No right to use Decker-owned or leased hardware, facilities or software application programs, including by way of example but not of limitation, communication software or software design programs, may be inferred from Decker’s granting access to its computer network to Customer.
(c) Decker may terminate Customer’s access to Decker’s computer network in Decker’s sole discretion. Upon termination of Customer’s access privileges, Customer must return any copy of data file obtained from Decker’s computer network or any information obtained from the data file that Customer possesses. Customer’s confidentiality obligation with respect to each datum of information obtained from Decker survives termination of its access privileges and continues until the data becomes public knowledge.
(d) Customer must inform Decker whenever Customer suspects that data obtained from Decker’s computer network has been wrongfully released to a third party or that an unauthorized third party has accessed Decker’s computer network. Customer must defend, indemnify, and hold Decker harmless from the wrongful disclosure of any information obtained from Decker’s computer network.
(e) Customer assumes all risk of accessing Decker’s computer network. Decker makes no warranty, either express or implied, regarding its computer network, including implied warranties of merchantability and fitness for a particular purpose. Decker’s computer network and data files may contain errors or viruses. Decker is not liable for any damage arising from Customer’s use of Decker’s computer network including, but not limited to, loss of profit, use, goodwill, work stoppage, computer failure or malfunction, interruption of business, or any direct, indirect, special, exemplary, incidental or consequential damage arising out of the use or performance of Decker’s network.
