Suppliers Terms & Conditions

1.Statement of Acceptance

The Parties do not intend for these General Terms and Conditions (“Terms”) to be signed, but rather intend for these Terms to be accepted by the performance of Seller for Buyer. Any of the following shall serve as evidence of and constitute Seller’s acceptance of these Terms: (a) Seller’s commencement of work on Parts for Buyer; (b) Seller’s continuing performance under the Contract; (c) Seller’s acceptance of an Award Letter; or (d) the Parties’ execution of a Commercial Commitment Document. Upon acceptance by Seller, these Terms, along with any applicable Contract Documents, shall constitute a valid and binding contract between Buyer and Seller. For the avoidance of doubt, if the Parties enter into a Master Purchase Agreement, these Terms shall not apply.

 

2.Definitions

• “Award Letter” means the document issued by Buyer awarding the Seller the supply Parts to Buyer for a specific automotive program.
• “Commercial Commitment Document” means a document signed by both Parties defining the specific commercial terms of the purchase and sale of Parts for an automotive program awarded by Buyer to Seller.
• “Contract” means the contractual relationship between Buyer and Seller, including these Terms and all Contract Documents.
• “Contract Documents” mean any purchase order, business agreement, Award Letter, confidentiality agreement, Commercial Commitment Document, bailment agreement, and any special conditions, instructions, or other related documents issued by Buyer, as applicable.
• “Seller” means the party providing Parts to Buyer under the Contract.
• “Buyer” means Kasai North America, Inc. f/k/a M-Tek, Inc. and/or any of its affiliated or subsidiary companies as currently exist or may be subsequently formed or acquired.
• “Parties” mean Seller and Buyer.
• “Parts” means all goods more particularly described in or by any purchase order, Award Letter or a Commercial Commitment Document, including production parts, service parts, accessories, raw materials, and vendor tooling together with any related technology and services.

 

3.Delivery and Billing Instructions

• Seller shall deliver the Parts to Buyer in the quantity and by the time specified by Buyer. Seller’s obligations relating to the time for production and/or delivery of the Parts are integral parts of and constitute conditions of the Contract. In the event that the delivery of the Parts to Buyer is likely to be delayed, Seller shall immediately notify Buyer; provided that such notice shall not release Seller from its liabilities for all costs, losses, and consequential damages resulting from incomplete or delayed delivery. Without prejudice to Buyer’s other available rights and remedies, Buyer shall have the right to reject in whole or in part the delivery of the Parts that was incomplete or delayed. Seller is responsible for all costs (including those arising out of line stoppages or currency fluctuations) and losses (including loss of profits), as reasonably calculated by Buyer, due to incomplete or delayed delivery.
• Shipments in excess of quantities specified by Buyer may be returned to Seller, and Seller shall pay Buyer for all return handling and transportation expenses. Buyer reserves the right to accept, in its sole discretion, in whole or in part, any Parts delivered in excess of those specified by Buyer and shall make such payment as Buyer in good faith considers appropriate in respect of the excess Parts. Buyer shall not be obliged to give notice to Seller of its acceptance or rejection of any Parts delivered in excess of those specified.
• Buyer reserves the right to inspect the Parts in accordance with the Buyer drawings, acceptance drawings, specifications, and the standards issued by Buyer from time to time. Buyer may reject any Parts that are defective, damaged, or non-conforming or in breach of Seller’s warranties at any time before sale of the Parts or vehicles equipped with the Parts. In the event that an incoming inspection indicates that such Parts are defective for having failed to meet the quality levels set forth in any of the specifications, Buyer, without waiving any of Buyer’s rights or remedies under the Contract or as provided by law, may at the sole expense of Seller return the entire shipment to Seller, return the defective portion, or request all parts to be sorted at Seller’s expense. Buyer shall be the final authority as to which option is to be selected. Timing for the sorting and/or replacement of defective parts shall be at the request of Buyer. If any Parts are rejected, Seller shall, at Buyer’s request and at no additional cost to Buyer, promptly and as soon as reasonably practical deliver replacement Parts conforming to the specifications and delivery instructions.
• For any Parts that are rejected or which do not comply with the requirements of the Contract, Buyer may seek any and all incidental and consequential damages caused by such breach, including but not limited to costs, expenses, and losses incurred directly or indirectly by Buyer or its customer(s): (i) inspecting, sorting, repairing, or replacing the nonconforming Parts, (ii) resulting from production delays or interruptions, (iii) conducting recall campaigns or other corrective service actions, or (iv) resulting from personal injury (including death) or property damage caused by the nonconforming Parts. Consequential damages shall include attorney’s fees and professional fees incurred by Buyer.
• Each packing slip, bill of lading, shipping notice, and invoice shall bear Buyer’s applicable part number, release number, purchase order number, date of shipment, quantity shipped, address of Buyer, forwarding information, and any other information requested by Buyer, including serial numbers, if applicable.
• If Buyer and Seller have signed a Commercial Commitment Document, Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, one hundred percent (100%) of Buyer’s requirements of the Parts awarded under such Commercial Commitment Document. The specific number of Parts will be defined in releases issued by Buyer from time to time under a purchase order. Any forecasts or annual usage numbers provided by Buyer are “best judgment” numbers which are subject to change as business conditions change and are not binding.

 

4.Changes and Substitutions

• Buyer may, by notice to Seller, at any time change any one or more of the following: (1) quantity (except that if Buyer is obligated to purchase its requirements pursuant to Section 3(f), it cannot change or eliminate such requirements obligation unilaterally without cause but it can change the specific amounts in a particular release or purchase order), (2) specifications, or (3) methods of packaging or shipment. Buyer may, from time to time, require emergency shipments of Parts for production or service requirements, and Seller will use its best efforts to deliver such Parts within the time frame required.
• Seller shall not be allowed to terminate or modify any existing Commercial Commitment Document (during its term) or purchase order or to obtain an adjustment in the price based on its loss of anticipated profits. Seller shall not make any changes in the design or composition of any Parts without Buyer’s prior written agreement.

 

5.Packaging and Transportation

All Parts shall be properly packaged, labeled, marked, and shipped at Seller’s expense in accordance with Buyer’s requirements. Unless Buyer specifies otherwise, such requirements shall mean in accordance with good industry practices and in such a manner that will not only protect the Parts against hazards of shipment, storage, and exposure, but will permit the securing of the lowest transportation rates.

 

6.Rejection/Acceptance of Parts

In the event of Buyer’s rejection of any Parts or revocation of acceptance, for whatever reason, risk of loss or damage shall be treated as never having passed to Buyer and as having remained with Seller. Acceptance of any Parts under any purchase order shall not bind Buyer to accept future shipments, shall not deprive it of the right to return the Parts already accepted, and shall not constitute a waiver of any other right or remedy of Buyer.

 

7.Access to Seller’s Premises; Inspection and Testing

Buyer shall have the right but not the obligation to inspect Seller’s facilities and operations at any time during Seller’s business hours and upon reasonable notice for purposes of verifying Seller’s compliance with its obligations under the Contract, including those relating to Seller’s manufacturing process and quality assurance systems. Seller shall have the right to limit or restrict Buyer’s access to the extent necessary to protect confidential information of or related to Seller’s other customers. In exercising any access rights, Buyer will take commercially reasonable steps to protect the confidentiality of and not interfere with the business relationship between Seller and any of its other customers.

 

8.Independence

• The Contract shall not constitute either Party as the agent or legal representative of the other Party for any purpose whatsoever. Neither Party is granted any express or implied right or authority to assume or to create any obligation or responsibility on behalf of or in the name of the other Party or to bind the same in any manner whatsoever.
• Seller’s personnel, whether or not located on Buyer’s premises, are not, and shall not represent themselves as, Buyer employees or agents. Seller assumes full responsibility for the acts of its employees.

 

9.Warranties

• Seller warrants that it has good and merchantable title to the Parts and that the Parts shall (1) be free from defects in design, materials, workmanship, and performance; (2) be of merchantable quality and fit for the particular purpose for which the Parts are sold; (3) comply with all Buyer drawings, acceptance drawings, and specifications; (4) be free and clear of all liens and encumbrances; (5) comply with all applicable laws; and (6) comply with all other warranties implied or provided for by law. All warranties shall extend to Buyer for at least the time and mileage limitations of relevant customer warranties.
• Seller represents and warrants to Buyer that (1) it is a valid entity, duly organized, validly existing, and in good standing under the laws of the state of its formation; (2) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (3) it has the full right, power, and authority to enter into the Contract and to perform its obligations hereunder; (4) performance of the Contract by Seller will not violate, conflict with, require consent under, or result in any breach or default under any of Seller’s organizational documents, any applicable law, or the provisions of any Seller contract; (5) it is in compliance with all applicable laws and Seller contracts relating to the Contract and the operation of its business; and (6) it has obtained all licenses, authorizations, approvals, consents, or permits required by applicable laws to conduct its business generally and to exercise its rights and perform its obligations under the Contract.

 

10.Force Majeure

Neither Party shall be responsible to the other by reason of failure to perform obligations hereunder to the extent that the failure to perform is caused by an act of God, flood, fire, storm, earthquake, shipwreck, acts of public enemy, or acts or omissions of any sovereign government, branch, or agency thereof and other similar events beyond reasonable control of the Party whose performance is prevented or interfered with. The affected Party shall promptly notify the other Party and shall not be responsible for its failure to perform any obligation required under the Contract as a result of any of the foregoing. The Parties specifically agree that strikes and labor disputes at the Party whose performance is prevented or interfered with shall not be included in the force majeure events.

 

11.Assignment

The rights and obligations under the Contract or the Contract itself shall not be assigned or transferred, either in whole or in part, by either Party without the prior written consent of the other Party. Any assignment or attempted assignment or any part thereof, whether by voluntary act or operation of law, shall be null and void, unless it is approved in writing by the other Party in advance.

 

12.Modification/Use of Tooling

Seller agrees that certain tooling will be owned by Buyer and used by Seller in the manufacturing of the Parts. Seller shall maintain the tooling in good condition so that the manufacture of the Parts is not interrupted. Seller shall properly house, care for, repair or, if necessary, replace all Buyer-owned tooling and shall bear the risk of loss or damage thereto (excluding normal wear and tear). Seller agrees to return all Buyer-owned tooling to Buyer upon request. Seller agrees to be bound by the tooling guidelines as provided to Seller by Buyer. Seller shall only use the Buyer-owned tooling for manufacturing the Parts for Buyer. All Buyer-owned tooling shall be marked as the property of Buyer, shall not be commingled with the property of Seller or any third person, and shall not be moved from Seller’s premises (except for repair or modification) without Buyer’s prior written approval. Seller shall not modify any Buyer-owned tooling unless Seller obtains Buyer’s prior written approval. Seller acknowledges and agrees that Buyer’s remedy at law for any breach of Seller’s obligation pursuant to this paragraph would be inadequate, and Buyer’s actual damages difficult of accurate proof. Seller therefore agrees and consents to the entry of temporary and permanent injunctive relief against Seller to enforce these rights simply upon proof of Seller’s breach of an obligation under this paragraph.

 

13.Non-Disclosure

Seller recognizes and agrees that it may, during the course of the Contract, gain knowledge of, have access to, and have otherwise disclosed to it certain nonpublic information that is proprietary to Buyer and which is of a secret or confidential nature (“Confidential Information”). Seller agrees that it shall treat the Contract, all of its terms and conditions, and any other documents related to the Contract or the purchase of the Parts as Confidential Information. Except as necessary to fulfill Seller’s obligations, Seller shall not disclose, publish, release, transfer, or otherwise make available Confidential Information in any form to, or for the use or benefit of, any third party without Buyer’s prior written consent. Seller, immediately upon becoming aware of it, shall give notice to Buyer of any unauthorized disclosure, misuse, theft, or other loss of Confidential Information, whether inadvertent or otherwise. Seller acknowledges that the disclosure of Buyer’s Confidential Information may result in irreparable injury to Buyer and that Buyer will be entitled to seek injunctive relief in addition to any other legal or equitable remedies that may be available.

 

14. Intellectual Property Rights
    • Seller shall grant and hereby grants Buyer a perpetual, paid-up, royalty-free, non-exclusive, world-wide irrevocable license to all Seller’s intellectual property subsisting or embodied in or used in connection with the acceptance drawings with a right to grant sub-licenses to others, to make, have made, use, offer to sell, sell, repair, reconstruct, or rebuild, and have repaired, reconstructed, or rebuilt, products including the Parts and products similar or identical to the Parts.
    • Seller shall cooperate with Buyer in the development of any new design, process, or other technology with Buyer. Each Party acknowledges and agrees that, as between Buyer and Seller, Buyer exclusively owns and shall own all right, title, and interest in and to any new design, process, technology, or other intellectual property produced, developed, or created by Seller pursuant to this subparagraph during the term of the Contract (whether produced, developed, or created independently, jointly, or in conjunction with Buyer or with some third party), all of which shall be considered “works made for hire,” including but not limited to all copyrights, patents, all registrations that may issue therefore, trade secret rights, moral rights, any contract and licensing rights, and all claims and causes of action of any kind with respect to any of the foregoing. Seller shall execute such documents, render such assistance, and take such other action as Buyer may reasonably request to apply for, register, perfect, confirm, and protect Buyer’s ownership rights set forth herein.
    • Seller shall defend, indemnify, and hold harmless Buyer and its respective officers, directors, and employees, in full against all loss, liability, damages, costs, and all expenses, including attorney fees and expert fees, arising directly or indirectly out of any claims (whether direct or indirect), actions, or lawsuits, alleging infringement of any intellectual property rights in connection with the Parts alone or in combination with any other parts or components or their manufacture.

 

15.Taxes and Duties

Seller shall be responsible for all federal, state, and local taxes levied or assessed with respect to the manufacture, transportation, and sale of the Parts. Seller shall also be responsible for any state and local property taxes assessed on the Buyer-owned tooling. In order to fulfill its responsibility with respect to state and local property taxes on Buyer-owned tooling, Seller will include such Buyer-owned tooling on its own property rendition forms and pay property taxes on such tooling as if it were owned by Seller. Seller shall pay all taxes assessed on such Buyer-owned tooling directly to the appropriate authorities in a timely manner. Seller shall perform the foregoing activities at its own cost and will indemnify Buyer for any taxes, penalties, interest, legal fees, or other costs incurred by Buyer as a result of Seller’s failure to properly perform these activities. As owner of the Buyer-owned tooling, Buyer is entitled to all federal and state income and franchise tax credits applicable to such tooling investment. Other property and inventory taxes shall be borne by the Party holding title to the Parts. Seller shall indemnify and hold Buyer harmless for Seller’s failure to pay any wages, benefits, taxes, or other compensation or amounts owed by Seller on account of the Parts.

 

16.Compliance with Law

• Seller shall comply with and shall ensure that all subcontractors and the entire supply chain for the Parts comply with all applicable laws of countries and regions in which they operate, including, but not limited to, environmental, labor, child labor abuse, forced labor, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.
• Seller will comply with any export control requirements imposed by United States law and will take any actions necessary to ensure that Seller and Buyer remain compliant with United States law with respect to transactions under the Contract.

 

17.Termination

• Buyer may terminate the Contract effective immediately, by notice in writing, without liability to Buyer if Seller is in breach of the Contract and, if such breach is remediable, such breach has not been remedied within 30 days of written notice. Time is of the essence, and any breach of the Contract where Seller fails to meet a deadline set forth therein shall be considered a non-remediable breach and Seller shall not have an opportunity to cure such breach.
• Buyer may also terminate the Contract effective immediately, by notice in writing, without liability to Buyer if Seller becomes insolvent, becomes subject to any voluntary or involuntary bankruptcy procedures, a receiver is appointed over Seller or its property, makes a general assignment for the benefit of creditors, is liquidating, dissolving or ceasing to do business in the ordinary course, or for any other reason becomes unable to perform its obligations hereunder or to its creditors.
• In the event of expiration or termination of the Contract for any reason, unless otherwise directed by Buyer, the following shall apply: (1) Seller shall take all action necessary to protect property in Seller’s possession in which Buyer has an interest; (2) Seller shall immediately deliver, at Seller’s expense, all of Buyer’s property in Seller’s possession in accordance with Buyer’s instructions; (3) upon Buyer’s request, Seller agrees to itemize and/or sell to Buyer any tooling (not owned by Buyer) that is built or procured by Seller that is unique to the Parts and relevant to the manufacture, testing, or maintenance of the Parts, and Seller agrees that the purchase price for any such tooling shall be at fair market value; (4) Seller shall use commercially reasonable efforts to transfer or cooperate fully with Buyer to enable Buyer to transfer the performance of Seller’s obligations to a person designated by Buyer; and (5) Seller shall immediately return all Confidential Information to Buyer or destroy it and certify such destruction.
• Except for programs awarded under a Commercial Commitment Document that has not expired, Buyer may terminate the Contract without cause at any time by giving 10 days’ advance written notice to Seller. Upon receipt of a termination notice pursuant to this paragraph, Seller may submit to Buyer, within 30 days from the effective date of the termination, its termination claim arising out of such termination or orders and related subcontracts. Seller may submit a termination claim for actual costs incurred by Seller for those Parts produced in accordance with a release authorization issued under a purchase order to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles; provided that Seller shall be obligated to make reasonable efforts to minimize these costs. Notwithstanding the foregoing, Buyer will not be liable for, directly or on account of claims by Seller’s subcontractors, loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, and general and administrative burden charges. Payments made pursuant to this paragraph shall not exceed the aggregate price specified in the relevant purchase order in respect of the parts that are the subject of the termination claim. Buyer shall have no obligation or liability to Seller in the event of termination under this paragraph of any purchase order for which no release authorization has been issued.

 

18.Assumption of Risk

Seller assumes all risk of death or injury to persons or damage to property used or employed on or in connection with performance under the Contract, including, without limitation, all risks of injury, death, sickness, or disease to persons or damage to property wherever located, arising out of the negligent performance, willful misconduct, or breach of these Terms or the Contract Documents by Seller or its employees, agents, or representatives, or employees agents, or representatives of its subcontractors or suppliers.

 

19.Indemnification

To the fullest extent permitted by law, Seller shall indemnify and hold harmless Buyer and its respective officers, directors, and employees, in full against all claims (whether direct or indirect), loss, liability, damages, costs, and expenses, including attorney fees and expert fees, arising directly or indirectly out of Seller’s performance of work pursuant to the Contract or the use or sale or importation of any Parts. Seller shall not be required to indemnify Buyer for any such loss, liability, cost, suit, action, or claim for any such loss, liability, cost, suit, action or claim, caused solely and exclusively by the negligence of Buyer.

 

20.Seller’s Insurance

Seller shall purchase and maintain, at Seller’s sole expense, such insurance as will provide sufficient coverage for defense and indemnification for any loss, liability, cost, expense, suit, action, claim, demand, or any other obligation or proceeding which may arise out of or result from Seller’s Parts or from Seller’s actions or omissions in performance of its obligations under the Contract, or by anyone directly or indirectly employed by the Seller, or by anyone for whose acts the Seller may be liable. Such coverage shall include, but not be limited to, Commercial General Liability (including broad form contractual, person injury (including advertising liability), products/completed operations, and independent contractors), Automobile Liability, Workers’ Compensation, Employer’s Liability, Excess Liability, and Property Insurance. Such insurance, excluding worker’s compensation insurance, shall include Buyer as an additional named insured. Upon Buyer’s request, Seller shall provide Buyer proof of such insurance coverage.

 

21.Waiver

• No delay or omission by Buyer in exercising any right or power it has under the Contract shall impair or be construed as a waiver of such right or power. No waiver of any breach of any provision of the Contract shall constitute a waiver of any other breach or any other provision.
• The acceptance of a non-conforming Part is not a waiver of any breach as to that Part or other Parts. The failure of Buyer to insist upon performance of any of the terms or conditions in the Contract shall not be construed as thereafter waiving any such terms or conditions as to an existing or future breach.

 

22.Severability

If any court of competent jurisdiction finds any provision of the Contract to be unenforceable or invalid in whole or in part, such finding shall not affect the validity of the other provisions of the Contract, or the remainder of the provision in question.

 

23.Attorneys’ Fees

In the event that any Party institutes any legal suit, action, or proceeding, against the other Party to enforce the covenants contained in the Contract or obtain any other remedy in respect of any breach of the Contract, the prevailing Party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party related to the suit, action, or proceeding, including reasonable attorneys’ fees, expenses, and court costs.

 

24.Governing Law

The Contract shall be governed by and construed in accordance with the laws of the state of Tennessee and of the United States of America. The UN Convention on Contracts for the International Sales of Goods is expressly excluded from governing the Contract. Any proceeding, suit, or action arising out of or in connection with this these Terms shall be brought in the state court located in Rutherford County, Tennessee or the Federal Court for the Middle District of Tennessee. The Parties agree and consent to the jurisdiction of such courts and to the venue and forums specified herein.

 

25.Continuing Obligations

Any provision of the Contract which by its nature extends beyond the expiration, termination, or cancellation of the Contract, shall remain in full force and effect until fulfilled and/or performed and shall inure to the benefit of and be binding on Seller and Buyer and their respective successors and assigns.

 

26.Notices

All notices required under these Terms must be in writing and mailed by first-class mail or a nationwide overnight courier service and sent to the representative of the respective Party as specified in the most recent purchase order.

 

27.Entire Agreements; Modifications

The Contract, together with all attachments and referenced documents, constitutes the entire agreement between Buyer and Seller and supersede all prior negotiations, representations, and agreements. The Contract may not be modified, supplemented, or amended except by a written agreement executed by Buyer and Seller. In the event of any inconsistencies or ambiguities between these Terms and any Contract Documents, the provisions of these Terms shall prevail. If Seller issues an invoice or acceptance form or other similar document, such document shall only be for administrative purposes and Seller’s documents shall have no other legal effect.

 

28.Payment and Discount Periods

• Payment and discount periods shall commence upon receipt of product or valid invoice, whichever is later. Buyer expressly reserves the right to return to Seller for correction any and all invoices containing errors and/or not in agreement with the purchase order. Buyer shall make payment of the price to Seller in accordance with Buyer’s standard payment terms, which may change by written notice from Buyer, unless otherwise agreed in writing by Buyer and Seller.
• Buyer may withhold payment in full or in part under the Contract or any other agreement between Seller and Buyer and may apply the withheld payments as offsets against costs, damages, or other payments due to Buyer under the Contract, or any other agreement between Seller and Buyer. Disputed invoices shall be paid only after resolution of the dispute. If an obligation of Seller is disputed, contingent, or unliquidated, payment by Buyer of all or any portion of the amount due may be deferred until such dispute contingency is resolved or the obligation is liquidated.

 

29.Buyer Supplier Quality

Seller shall manufacture the Parts in accordance with Buyer’s quality manual and procedures for its suppliers located on Buyer’s supplier portal.  Seller shall promptly notify Buyer of any defects or deficiencies in design, manufacture, or performance (including if Seller has reason to believe that any specifications are not adequate to produce the Parts that will function throughout the applicable warranty period).

 

30. Recall and Reimbursement

Seller shall reimburse Buyer, to the extent attributable to Seller, for all costs incurred by Buyer (including costs for notification, replacement parts, labor, penalties, fines, and buy backs) as a result of any recall, service campaign, or similar program initiated by Buyer or by a customer of Buyer or required for compliance with any applicable law. All decisions regarding recalls, service campaigns, and similar programs shall be made by Buyer, in its sole discretion.

 

31. Service Parts

Unless otherwise agreed in writing between the Parties, Seller agrees to continue to supply service parts, as required by Buyer (“Service Parts”), for each model of vehicle, for fifteen (15) years from the date of last production of such vehicle model for which the Parts were supplied.  The Service Parts shall be supplied at full production assembly level and/or at sub-component level, as required by Buyer.  The Service Parts shall meet all specifications provided by Buyer.

 

The price for the Service Parts will be the same as under purchase orders for corresponding production Parts while Parts are in full production.  Once Parts are past model, Service Parts pricing will be established based on good faith negotiation and mutual agreement but in no event will the price increase more than the documented increase in the actual cost of production for Seller provided Seller made best efforts to reduce any such increase.