1. APPLICABILITY. These Terms and Conditions of Sale (“Terms”) are incorporated by reference into every quotation, acknowledgement, invoice or other sales document (collectively, “Sales Documents”) issued by Mennie Machined Components, LP, an Illinois limited partnership, and/or if specifically designated thereon, Mennie’s Machine Company, an Illinois corporation doing business as Mennie Machine Company (“MMC”) to the buyer and/or its applicable affiliate(s) named thereon (“Buyer”). MMC’s quotation constitutes an offer or counteroffer by MMC to sell the goods and/or services described therein (“Products”) to Buyer, subject in all respects to, and strictly in accordance with, these Terms and the Sales Documents exclusively, and these Terms together with such Sales Documents are the only terms and conditions that govern or otherwise apply to any sale of Products by MMC to Buyer. Any of the following acts by Buyer shall constitute Buyer’s acceptance of these Terms and the Sales Documents in their entirety: (a) acknowledging the quotation; (b) issuing a purchase order, release or other similar document for Products on the same or substantially the same terms as reflected on the face of the quotation; (c) accepting delivery of the Products; or (d) by any other conduct which recognizes the existence of a contract for the purchase and sale of the Products. Once accepted, the quotation and other Sales Documents, the applicable final drawings, specifications, statements of work, and assignment of tasks and responsibilities, as each may be amended from time to time by mutual written agreement of the parties, and any other documents signed by an authorized representative of each party relating to the sale and purchase of Products, are incorporated herein by reference and, together with these Terms, constitute the “Agreement.” Neither MMC’s issuance of any Sales Document nor MMC’s manufacture, delivery or performance of any Products shall constitute acceptance by MMC of any additional or different terms and conditions attached to or purportedly incorporated into any RFQ materials, purchase order, release or other purchasing document issued by Buyer (collectively, “Purchasing Documents”), and any such terms and conditions are specifically excluded and are not incorporated into the Agreement. The parties have agreed and it is their intent that the battle of the forms described in Section 2-207 of the Uniform Commercial Code (or any similar rule of contract formation) shall not apply to the Agreement or these Terms. For avoidance of doubt, MMC hereby objects to any additional or different terms proposed by Buyer in its Purchasing Documents (or otherwise) as wholly unacceptable to MMC, and such proposed additional or different terms shall not become part of the Agreement (or otherwise a part of any contract between MMC and Buyer) and shall have no effect with respect to any sales by MMC or purchases by Buyer of any Products. MMC’s performance under any accepted purchase order or release issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of the terms and conditions of the Agreement exclusively (including these Terms). Without limiting and notwithstanding the foregoing, MMC reserves the right at any time to reject any order or release not issued in compliance with the Agreement or any order or release that purports to include other terms not included in the Agreement.
2. RISK OF LOSS. Unless otherwise stated on the quotation, all sales of Products shall be Ex Works MMC’s facility listed on the quotation (Incoterms 2020). Title and the risk of loss or other damage to Products shall pass to Buyer upon delivery of the Products as determined by the applicable Incoterm.
3. PRICE; MINIMUM PURCHASE REQUIREMENTS. Price quotations for the Products shall remain valid only for the period of time specified in the quotation, and after such period or if no time period is specified, prices are subject to change without notice and MMC shall invoice Buyer for Products based on prices in effect at the time of shipment or performance. Prices are not subject to decrease for any reason, including prices charged for similar goods or services sold or otherwise quoted to other customers of MMC (including Buyer’s affiliates), any productivity, quality or other periodic price reduction programs, industry, commodity or other benchmarking activities, or Buyer’s receipt of a quotation for similar goods or services at lower price. Prices do not include supplying Buyer with prototypes, development, pre-production, evaluation samples, test data, service Products, returnable or expendable packaging or dunnage, tooling or any development, engineering, testing, certification, qualification or other services. Buyer hereby acknowledges and agrees that the prices set forth in the Agreement are contingent upon Buyer’s agreement to purchase the total quantities during the applicable period as set forth in Buyer’s request for quote/proposal or MMC’s quotation, whichever is greater. If Buyer fails to purchase at least ninety (90%) of such quantities during the applicable period, Buyer agrees that the pricing on Products delivered to Buyer shall be adjusted retroactively to reflect the impact of lower volume on the costs and expenses of MMC’s performance, including with respect to raw material, labor, development and non-recurring engineering expenses, capital expenditures, facilities and equipment, manufacturing and logistics efficiencies, and other direct and indirect costs and expenses of MMC. Buyer hereby agrees to pay MMC such additional amounts upon demand following Buyer’s receipt of MMC’s invoice. Notwithstanding anything to the contrary, and without limiting MMC’s rights under this paragraph 3, MMC may unilaterally adjust prices for Products upon written notice, whether by permanent price increase or temporary surcharge, in connection with increases in the cost of perishables and raw materials (including metals, alloys, resins, and other input commodities), labor, energy or utilities, Taxes, or any other direct or indirect costs of performing the Agreement, in each case as reasonably determined by MMC in good faith based on generally recognized third-party industry indices, published commodity pricing sources, MMC’s records or otherwise, and without Buyer’s consent or approval. Any price increase or surcharge implemented pursuant to the preceding sentence shall be reasonably related to actual or anticipated increases in the applicable cost categories, and MMC may, upon Buyer’s written request, make available supporting documentation or information for such adjustment(s), in each case as MMC deems reasonable and necessary.
4. PAYMENT. Payment terms are net forty-five (45) days from date of delivery or performance unless otherwise specified on the quotation. Payment is due in U.S. dollars via electronic funds transfer with no discount for earlier payment. A one and one-half percent (1.5%) monthly service charge, or, if lower, the maximum permitted by applicable law, will be added for every month or part of a month that the amount due remains unpaid after its due date, which rate the parties agree represents a reasonable pre-estimate of MMC’s costs for carrying the unpaid balance and that actual damages from late payment would be difficult to calculate precisely. Notwithstanding the foregoing, MMC may require advance payment or additional collateral from Buyer in the event: (a) MMC has reasonable doubt as to Buyer’s credit worthiness; (b) MMC determines in its sole discretion a substantial risk of its claim to payment exists due to declining assets of Buyer; or (c) Buyer is in arrears with respect to any payment owed MMC; and Buyer agrees to promptly provide to MMC all information reasonably requested by MMC to make such determinations. If Buyer becomes delinquent in payment, MMC shall have the immediate right, in addition to any other right it may have, without notice, to terminate the Agreement or otherwise cancel all or any part of any order or release, to recall or withhold further deliveries or performance, and declare all unpaid amounts for any Products previously delivered immediately due and payable. Until the Products have been paid for in full, Buyer or any agent of Buyer: (i) will hold the Products subject to a security interest or lien in favor of MMC allowing for the right of re-possession by MMC to the extent permitted by applicable law, and (ii) will not alter, remove, destroy, or damage any identifying mark on the Products or their packaging. MMC shall also have a security interest in all tooling and other property of Buyer or its affiliates, which come into the possession or control of MMC, as security for all sums owing from Buyer to MMC. MMC may take possession of the Products and such tooling and other property under this paragraph at any time after payment for the Products or any other payment owed to MMC has become due, and Buyer shall cooperate with and provide MMC necessary access to facilitate such repossession.
5. INVOICE DISPUTES. Buyer shall notify MMC in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the date of such invoice. Buyer will be deemed to have waived all rights to dispute any invoice for which MMC does not receive timely notification of dispute and shall timely pay all undisputed amounts. The parties shall seek to resolve any invoicing disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations during any such dispute, including Buyer’s obligation to timely pay all due and undisputed invoice amounts.
6. SETOFF. Buyer acknowledges and agrees that it may not set off or otherwise debit against or recoup from any amounts due or to become due to MMC or its affiliates, any amounts due or become due to Buyer or its affiliates, unless and until MMC receives sufficiently detailed supporting information and agrees in writing to such setoff, debit or recoupment, and shall not exercise any purported right to set off, debit or otherwise recoup any amounts in connection with any disputed, contingent or unliquidated claim. In the event Buyer fails to comply with the foregoing and without authorization or otherwise improperly sets off, debits or recoups from amounts due or to become due to MMC or its affiliates, MMC shall be entitled, in addition to all of its other rights hereunder or otherwise, to suspend performance of its obligations under the Agreement until Buyer (or its applicable affiliate(s)) reverses such setoff, debit or recoupment. Further, any amounts due or to become due to MMC shall not be otherwise reduced on account of any price reduction or compromise on receivables that Buyer may agree to with its Customers, including in connection with any systems, assemblies, components, modules or other goods or services incorporating or otherwise utilizing Products. Buyer shall pay all MMC’s costs of collection, including MMC’s attorneys’ fees.
7. SCRAP. Unless a higher percentage is specified on the quotation, MMC shall be entitled to a ten percent (10%) scrap allowance during the first forty-five (45) days of production and a three percent (3%) scrap allowance thereafter; provided further, however, that MMC shall have no liability for materials, components or other items to the extent Buyer fails to inform MMC in writing of the cost of such items prior to quotation. Buyer shall be responsible for all costs directly or indirectly incurred by MMC, including machining cost reimbursement, related to vendor scrap over two percent (2%), and Buyer hereby agrees to pay MMC such additional amounts upon demand following Buyer’s receipt of MMC’s invoice.
8. DELIVERY; PACKAGING. All delivery dates and quantities are estimates only and are not guaranteed. Notwithstanding the foregoing, MMC shall use reasonable efforts to meet Buyer’s requested delivery dates and quantities provided that Buyer has complied with MMC’s then applicable lead-time requirements. Without limiting the foregoing, Buyer acknowledges and agrees that MMC may deliver up to fifteen percent (15%) more or less than the ordered/released quantities up to five (5) business days early or late and Buyer shall accept and timely pay for any such excess or shortfall quantities or early or late deliveries. Unless Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner designated by MMC. Without limiting the foregoing, MMC shall not be liable for any delays or defaults in deliveries except to the extent arising solely and directly as a result of MMC’s gross negligence or willful misconduct. Products shall be packaged and shipped as specified in the quotation or, in the absence of such specifications, Products shall be packaged in accordance with sound commercial practice. If MMC is requested to use Buyer’s returnable packaging but such packaging is unavailable or deficient (as determined by MMC in its sole discretion), MMC may use expendable packaging and Buyer shall reimburse MMC for the costs of such expendable packaging on demand. Unless otherwise specified in the quotation, all crating, marking, labeling, corrosion protection, export or other special packaging will be an additional charge to Buyer.
9. FORECASTS; RELEASES. Unless a longer period is required and communicated by MMC in writing, Buyer shall provide MMC no less than six (6) weeks of firm orders or releases for finished Products, no less than twelve (12) additional weeks of firm authorization to purchase perishables and raw materials, and no less than thirty-four (34) additional weeks for planning volumes. In no event shall MMC be obligated to produce or deliver Products not in accordance with this paragraph or MMC’s standard capacity rates (as modified and communicated from time to time). Without limiting the foregoing, MMC reserves the right to charges overtime premiums, and Buyer hereby agrees to pay MMC such additional amounts upon demand following Buyer’s receipt of MMC’s invoice.
10. INSPECTION; ROOT CAUSE ANALYSIS. The remedies afforded Buyer under paragraph 12 below shall be exclusive for any non-conforming Products but shall be unavailable to Buyer if Buyer inspected or reasonably should have inspected the Products and could have discovered the non-conforming Products upon such inspection, which failure shall be deemed an irrevocable waiver by Buyer of such or any other remedies. After identifying any non-conforming Products and so notifying MMC as required under paragraph 11 below, Buyer will provide MMC the results of its internal root cause analysis of the non-conformance(s) within five (5) days together with any other information requested by MMC relating to the non-conformance(s). Buyer shall further cooperate with MMC in a joint root cause analysis led by MMC, and in developing and implementing corrective action programs or other plan(s) to remediate potential failures that may have contributed to such non-conformance(s), which cooperation shall include, without limitation, providing MMC and its agents reasonable access to Buyer’s personnel and operations.
11. LIMITED WARRANTY. MMC warrants to Buyer: (a) that MMC has good transferrable title to the Products delivered, free and clear of liens upon receipt of final payment for such Products; and (b) that at the time of delivery, the Products delivered will conform in all material respects to the final material specifications issued or otherwise approved by MMC and set forth in the Agreement. MMC shall not be liable for a breach of the foregoing limited warranty unless: (i) Buyer gives written notice to MMC, describing the nonconformance in reasonable detail, within sixty (60) days following delivery or, if Buyer’s initial inspection of the Products could not have uncovered the nonconformance, within seven (7) days of Buyer’s discovery of the nonconformance or when Buyer reasonably should have discovered the nonconformance, but in no event later than one (1) year following the date of delivery; (ii) MMC is given a reasonable opportunity to examine the Products and Buyer (if requested to do so by MMC) promptly returns such Products to MMC’s place of business for examination at Buyer’s cost; and (iii) MMC reasonably verifies Buyer’s claim that the Products are nonconforming in MMC’s sole discretion. Notwithstanding the foregoing, prototypes, development, pre-production and evaluation samples are provided “AS IS,” without warranty of any kind. SPECIFICALLY EXCLUDED FROM ANY WARRANTY OFFERED BY MMC UNDER THE AGREEMENT ARE THE FOLLOWING, FOR WHICH MMC SHALL HAVE NO LIABILITY WHATSOEVER: (A) DAMAGES OR DEFECTS CAUSED BY A THIRD PARTY OR ANY UNAUTHORIZED OR IMPROPER INSTALLATION, ALTERATION, MODIFICATION, REPAIR, MAINTENANCE (INCLUDING FAILURE TO PERFORM APPROPRIATE MAINTENANCE), STORAGE, HANDLING, USE OR OPERATION OF THE PRODUCTS BY BUYER OR ANY THIRD PARTY; (B) DAMAGES CAUSED BY THE FAILURE OF THE PRODUCTS TO COMPLY WITH APPLICABLE LAW, INCLUDING ENVIRONMENTAL, HEALTH, AND SAFETY LAWS; (C) DAMAGES OR DEFECTS CAUSED BY ANY EQUIPMENT, COMPONENT, SYSTEM, OR ASSEMBLY NOT MANUFACTURED OR SOLD BY MMC (“THIRD-PARTY COMPONENTS”) AND/OR THE INTEGRATION, INCORPORATION, INTERACTION, CONNECTION, PLACEMENT, OR USE OF CONFORMING PRODUCTS IN OR WITH ANY THIRD-PARTY COMPONENTS; (D) DAMAGES OR DEFECTS ATTRIBUTABLE TO OR CAUSED BY (1) MISUSE, NEGLECT, ACCIDENT, ABUSE, OR VANDALISM OR ANY TRANSIT-RELATED DAMAGE, (2) ACTS OF GOD OR INSURRECTION, (3) NORMAL WEAR AND TEAR, OR (4) ANY OTHER ACTS THAT ARE BEYOND MMC’S REASONABLE CONTROL; OR (E) DESIGN DEFECTS TO THE EXTENT PRODUCTS ARE DESIGNED BY BUYER, BUYER’S AFFILIATE(S) OR ANY OTHER THIRD PARTY. CONFORMANCE OF THE PRODUCTS TO BUYER’S WRITTEN SPECIFICATIONS IS AN ABSOLUTE DEFENSE TO ANY MMC WARRANTY LIABILITY. THE WARRANTIES SPECIFIED IN THIS PARAGRAPH ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, OR THE REMEDIES OR LIMITATIONS CONTAINED HEREIN, WILL BE BINDING UPON MMC UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF MMC EXPRESSLY REFERENCING THIS PARAGRAPH.
12. REMEDIES. In the event that the Products are determined nonconforming by MMC in accordance with paragraph 9 above following Buyer’s timely compliance with the notice requirements thereof, MMC’s sole liability to Buyer and Buyer’s sole remedy for such nonconformance (whether or not the nonconforming Products have been installed and whether or not the Products are the subject of a voluntary or involuntary recall, customer satisfaction or other service campaign or similar action) is limited to, at MMC’s option: (a) the reperformance, repair or replacement, at MMC’s facility, of such nonconforming Products; or (b) refund or credit of the price actually paid by Buyer to MMC for such nonconforming Products. For avoidance of doubt, in no event shall MMC be liable to Buyer or any other party for any damages, costs or expenses arising as a result of or otherwise relating to any voluntary or involuntary recall, customer satisfaction or other service campaign or similar action. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES, AND COMPRISE MMC’S ENTIRE LIABILITY FOR ANY BREACH OF THE AGREEMENT, INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 11 ABOVE.
13. LIMITATION OF LIABILITY. In the event any remedy provided herein fails its essential purpose and monetary damages may be imposed, except to the extent arising solely and directly as a result of MMC’s gross negligence or willful misconduct, MMC’s liability, whether founded in contract or tort, arising as a result of or relating to (a) the Agreement or any performance or breach thereof, (b) any design, manufacture, delivery, sale, repair, replacement or use of Products, or (c) the furnishing of any service, shall not exceed, in any given calendar year, a maximum of the greater of $10,000 or five percent (5%) of the revenue actually received by MMC from Buyer during the immediately preceding calendar year for the Product(s) giving rise to such remedy. No legal action arising as a result of or otherwise relating to the Agreement, whether alleging breach of warranty or other breach, default or tortious acts, shall be commenced against MMC more than one (1) year after delivery of the Product(s) giving rise to such claim, or one (1) year after claimant could reasonably have discovered the basis for such action, whichever comes first. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL MMC BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, RECALL OR OTHER SERVICE CAMPAIGN RELATED EXPENSES, LOSS OF USE, COST OF CAPITAL, COST OF ASSEMBLY, PLANT OR LINE SHUTDOWNS, STOPPAGES OR SLOWDOWNS, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE OR CLAIMS OF BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES, ARISING AS A RESULT OF OR OTHERWISE RELATING TO ANY BREACH BY MMC, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED (CONTRACT, TORT OR OTHERWISE), AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. INTELLECTUAL PROPERTY RIGHTS. Buyer acknowledges and agrees that: (a) any and all of MMC’s Intellectual Property Rights (defined below) are the sole and exclusive property of MMC or its licensors; (b) Buyer shall not acquire any ownership interest in any of MMC’s Intellectual Property Rights under the Agreement or otherwise (notwithstanding any payment by Buyer relating to development or non-recurring engineering), or any other rights in or to MMC’s Intellectual Property Rights, except for the limited license described in this paragraph, and all right, title to, and interest in all Intellectual Property Rights and related materials (including all plans, diagrams, specifications, designs, data, drawings and models) which are developed, designed or generated by MMC prior to and/or in the performance of the Agreement shall be owned solely by MMC as legal and beneficial owner; and (c) Buyer shall use MMC’s Intellectual Property Rights solely for purposes of using the Products and only in accordance with the instructions provided by MMC, if any. Buyer is hereby granted a limited, revocable, non-exclusive, non-transferrable license to use, sell and repair the Products and as required to otherwise incorporate the Products into Buyer’s goods and services. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) copyrights, works of authorship, expressions, designs and design registrations, whether or not copyrightable; (iv) trade secrets; and (v) design rights and all industrial and other intellectual property rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing. MMC shall conduct, at its own expense, the entire defense of any claim, suit or action alleging that the use or resale by Buyer or any subsequent purchaser or user of the Products directly infringes any U.S. patent issued at the time of delivery of such Products, but only on the condition that: (A) MMC receives prompt written notice of such claim, suit or action and full opportunity and authority to assume the sole defense thereof, including settlement and appeals, and all information available to and the cooperation of Buyer for such defense; (B) the Products were made according to a specification or design furnished solely by MMC; and (C) the claim, suit, or action is brought against Buyer. Provided all of the foregoing conditions have been met, MMC shall, at its own expense, either settle such claim, suit or action, or pay all unappealable direct damages finally awarded by a court of last resort (“MMC’s IP Indemnification Obligation”). If otherwise permitted use or resale of such Products is finally enjoined, MMC shall, at MMC’s option, procure for Buyer the right to use or resell the Products, replace the Products with equivalent non-infringed goods, modify the Products so they become non-infringing but substantially equivalent, or refund or credit the price actually paid by Buyer to MMC for such Products (less reasonable allowances for use, damage and obsolescence).
15. INDEMNIFICATION. To the fullest extent permitted by applicable law, Buyer hereby expressly agrees to indemnify, defend, and hold harmless MMC and MMC’s affiliates, and its and their officers, directors, managers, employees, agents, successors and assigns from and against any and all claims, liabilities, lawsuits, losses, costs, expenses and damages (including attorneys’ and professionals’ fees) of any kind or nature whatsoever, including claims for personal injury (including death) or property damage, whether such claims are founded in contract, tort or otherwise, including strict liability, which arise as a result of or otherwise relate to the Agreement (including any breach thereof) and/or the Products, except to the extent arising solely and directly as a result of MMC’s gross negligence or willful misconduct. MMC’s obligation to indemnify, defend, and hold harmless Buyer, any third party or any other person from any direct or indirect claims, liabilities, lawsuits, losses, costs, expenses and damages is limited solely to MMC’s IP Indemnification Obligation.
16. TERMINATION BY MMC. MMC may immediately terminate the Agreement or all or any part of any order or release, without liability to Buyer or any other party, as a result of: (a) Buyer’s breach, threatened breach or repudiation of any representation, warranty, covenant or other term of the Agreement; (b) any assignment for the benefit of creditors or any institution of proceedings in bankruptcy or insolvency by or against Buyer; (c) Buyer’s request for accommodation from MMC, financial or otherwise, in order to meet its obligations under the Agreement; (d) Buyer entering or offering to enter into one or more transactions effecting a sale of a substantial portion of Buyer’s assets or business or any merger, sale or exchange of equity interests that would result in a Change of Control (as defend below) of Buyer; or (e) financial or other condition that could, in MMC’s sole discretion, endanger Buyer’s ability to make required payments or otherwise perform. In addition, MMC may terminate the Agreement or all or any part of any order or release, with or without cause, upon delivery of thirty (30) days’ advance written notice to Buyer. Following MMC’s termination, Buyer shall reimburse MMC, upon receipt of MMC’s written demand, for all Products completed in accordance with Buyer’s order or release and for all reasonable and allocable material management, labor, overhead and general and administrative costs and expenses, and any work-in-progress, raw materials acquired for manufacture of Products, un-captured amortized capital expenditures for the research, development, and manufacture of Products, any unreimbursed non-recurring engineering, and MMC’s costs for settling any claims or disputes with its sub-suppliers in connection with component parts, raw materials, or services related to the Products (collectively, “Termination Costs”). Under no circumstances shall MMC have any obligation to assist Buyer in any transition of supply of the Products (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by MMC, and then, only upon MMC’s actual receipt of all Termination Costs owed by Buyer to MMC together with any applicable fees for such transition support.
17. TERMINATION BY BUYER. Buyer may only terminate the Agreement (together with all orders and releases) for cause upon a material breach by MMC which remains uncured thirty (30) days following MMC’s receipt of written notice of such breach from Buyer (together with all necessary supporting information evidencing such breach), and then, only upon delivery of not less than fifteen (15) additional days’ advance written notice to MMC. Following Buyer’s termination and upon MMC’s written demand, Buyer shall reimburse MMC all Termination Costs. Under no circumstances shall MMC have any obligation to assist Buyer in any transition of supply of the Products (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by MMC, and then, only upon MMC’s actual receipt of all Termination Costs owed by Buyer to MMC together with any applicable fees for such transition support.
18. FORCE MAJEURE. MMC shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement for any failure or delay in fulfilling or performing its obligations when such failure or delay is, at least in part, directly or indirectly caused by or results from acts or circumstances beyond the reasonable control of MMC including acts of God, flood, fire, earthquake, explosion, foreign or domestic governmental actions, regulations or orders (whether or not later determined invalid), war, invasion or hostilities (whether war is declared), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, disease or other public health emergency (including government-mandated quarantine and travel restrictions), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, directed suppliers, telecommunication, tooling or other equipment breakdown (or any repair, maintenance or rehabilitation thereof), shortage of fuel, power or other utilities, supplies, infrastructure, or transportation, or other similar or dissimilar events beyond the reasonable control of MMC or MMC’s suppliers. For avoidance of doubt, to the extent that any such failure or delay causes MMC to reduce or suspend its production, deliveries or performance, the time for MMC’s performance shall be automatically extended for so long as required for MMC to remove or otherwise overcome such failure or delay. MMC reserves the right to equitably allocate available Products, materials and resources based on production capacity and customer needs, and Buyer shall cooperate with any such allocation.
19. CHANGES. MMC shall have no obligation to accept or otherwise implement any change to the Products requested by Buyer, including changes to design, specifications, materials, packaging, testing or delivery requirements. To the extent requested changes are agreed upon by MMC, if any, the parties will negotiate in good faith appropriate adjustments to the time for performance, an equitable price adjustment for MMC’s increased costs, and the amount of reimbursement by Buyer for the costs of any finished Products or raw materials or supplies, tooling, dies, jigs, and other equipment which become obsolete or any other costs or appropriate adjustments resulting from the requested changes. Buyer shall issue an updated order or release, or the parties shall otherwise memorialize such agreement in writing as an amendment to the Agreement, before MMC is under any obligation to commence work on any such agreed-upon change. In addition, all costs and expenses associated with the implementation of any such requested change shall be paid by Buyer in advance unless otherwise agreed in writing by MMC. MMC reserves the right to request changes to the Products to offer improvements as to cost, quality and/or safety, and the right to unilaterally implement changes required by applicable law or that do not materially affect quality or performance, with or without notice. Without limiting the foregoing, MMC further reserves the right to transfer its performance of the Agreement among MMC-owned or affiliated facilities, including on account of capacity, quality or delivery considerations.
20. TOOLING; SERVICE PARTS. All tooling, dies, jigs, and other equipment (including any special tooling) required to produce Products shall remain MMC’s property unless otherwise agreed in writing. MMC will manufacture and supply service parts for automotive Products for a maximum period of ten (10) years after end of current-model production as determined by MMC in its sole discretion. The price for the first year will be the price for current-model production Products in effect in the last year of current-model production, plus the actual cost differentials for packaging, materials, and any other agreed upon special accommodations. For each year thereafter, the parties shall agree to an adjustment in price that fully compensates MMC for all increased costs of manufacture, including as a result of decreased volume levels versus the last year of current-model production. Applicable minimum order quantities, forecasts, and other incidental commercial requirements for service Products shall be as determined by MMC in its sole discretion from time to time. Notwithstanding the foregoing, MMC reserves the right to stop manufacturing and supplying service parts and require Buyer to make a one-time final purchase of its services requirements. Except as described herein or otherwise required by applicable law, MMC shall have no obligation to manufacture or supply service parts or any literature, materials or other information relating thereto.
21. SALES AND OTHER TAXES. Prices for Products do not include sales, use, excise, VAT, or any other tariffs or taxes that may be imposed by any taxing authority arising as a result of or otherwise relating to the sale, performance, delivery or use of the Products and for which MMC may be held responsible for collection or payment either on its own behalf or on behalf of Buyer (collectively, “Taxes”). The amount of any present or future Taxes is in addition to the price for the Products and shall be paid by Buyer upon demand without regard to the party assessed such Tax or where such Tax is imposed, or, in lieu thereof and as applicable, Buyer shall furnish MMC with a Tax exemption certificate acceptable to the appropriate taxing authority and MMC.
22. BUYER’S CUSTOMERS. Buyer acknowledges and agrees that MMC is not bound by any, and expressly rejects all, terms and conditions imposed upon Buyer, or purportedly imposed upon MMC, by Buyer’s direct or indirect customer(s) (“Customer(s)”), including any purported flow-down, flow-through or similar provisions, whether or not MMC has notice of such terms and conditions. Regardless as to whether Buyer was directed to use MMC for the manufacture of parts, Buyer’s obligations to MMC under the Agreement will not be affected by: (a) the filing of a bankruptcy or insolvency proceeding or an assignment for the benefit of creditors by or against such Customer(s) under the laws of any jurisdiction; (b) a consensual, negotiated or court imposed or authorized modification or termination of all or any portion of the contractual arrangements between Buyer and such Customer(s); (c) any amendments or modifications to such Customer’s contractual arrangements with Buyer, including any pricing, payment terms, discounts, rebates, cost or other improvement plans, set offs, debits, recoupments or other deductions, specifications or delivery or capacity requirements; or (d) the failure of such Customer(s) to timely or fully pay Buyer, including for any materials, components or services which include, incorporated or utilized the Products.
23. COMPLIANCE WITH LAWS; EXPORT. Buyer shall fully comply with all applicable law, statutes, rules, regulations, conventions, orders, standards and ordinances, including all applicable anti-corruption laws, as such acts may be amended from time to time. Each party acknowledges and agrees that the Products are subject to export controls imposed by the U.S. government under various federal laws. Buyer is responsible for compliance with all applicable U.S. export and international trade control laws, including the U.S. Department of Commerce’s Export Administration Regulations (EAR), the U.S. Department of State’s International Traffic in Arms Regulations (ITAR), and all economic and trade sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC). Without limiting the foregoing, Buyer agrees that it will not export, re-export, or otherwise transfer any Products or technical data provided in connection with the Agreement to any country, person, entity or end-user subject to U.S. export restrictions. Without limiting any other rights or remedies available to MMC under the Agreement or applicable law, MMC may refuse to enter into or perform any order or release, and may cancel any order or release if MMC determines, in its sole discretion, that entry into or performance of such order or release would violate any applicable law or regulation.
24. GOVERNMENT SALES. If Buyer elects to resell Products (including by incorporation into other goods or services) to the U.S. or foreign government, including any state, provincial or local government authority or quasi-government entity, or to a prime contractor or other subcontractor selling to any such persons, Buyer does so solely at its own risk and no provisions required in any government contract or subcontract related thereto shall be a part of the Agreement or otherwise imposed upon or binding upon MMC, and the Agreement shall not be deemed an acceptance of any government provisions that may be included or referenced in any document issued to or by Buyer. Buyer shall be exclusively responsible for compliance with all applicable law for such sales and agrees not to obligate MMC as a subcontractor or otherwise to such persons. MMC makes no representations, certifications or warranties whatsoever with respect to the ability of the Products or any related pricing to satisfy requirements under applicable law, including Federal Acquisition Regulation, Defense Federal Acquisition Regulations, or any similar or dissimilar applicable law.
25. AUDITS AND FINANCIAL REVIEW. MMC shall have no obligation to participate in any Buyer financial review or otherwise provide any of MMC’s financial information to Buyer or any other person, including as it relates to Buyer owned tooling and/or capital equipment. Notwithstanding the foregoing, upon an uncured material breach by MMC and written request by Buyer, MMC will only be required to produce financial information relative to the default and ability to perform its obligations in the future after mutually agreed to procedures have been established for the review of actual and forecasted financial information, which financial information shall be limited in all respects to annual, fiscal, interim or internal financial statements consisting of an income statement and balance sheet of MMC and MMC’s general ledger records related to its direct and indirect costs relevant to the subject Products. MMC shall have no obligation to participate in any Buyer audit, inspection or quality review except with respect to MMC’s ability to perform its obligations in the future, and only after mutually agreed to procedures have been established. Such audit, inspection or quality review shall be at Buyer’s cost, upon at least four (4) weeks prior written notice, and in no event more frequently than once in any 12-month period.
26. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of MMC, including specifications, samples, patterns, designs, plans, drawings, documents, data, hardware, software, material formulations and compositions, manufacturing processes and methods, business operations, customer or supplier lists, pricing, discounts or rebates, disclosed or otherwise made available by MMC or its agents to Buyer, and any representations, compilations, analysis, and summaries of the foregoing, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, or observed or otherwise learned, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement shall be held by Buyer in strict confidence and used solely for the purpose of doing business with MMC pursuant to the Agreement, and may not be otherwise used, disclosed or copied by Buyer unless authorized in advance by MMC in writing. Buyer shall restrict access to and limit disclosure of MMC’s confidential information to only those of Buyer’s employees, directors, officers, managers, and advisors with a need to know the information to accomplish the purpose of the Agreement, provided that they have been instructed and are bound in writing not to disclose the confidential information or use it for any purpose other than as permitted under the Agreement; and provided further that Buyer shall at all times remain fully liable to MMC for any act or omission by such persons that would constitute a breach of the Agreement if taken or not taken by Buyer. Upon MMC’s request, Buyer shall promptly return all documents and other materials received from MMC and promptly and securely destroy (with written certification thereof) any compositions, summaries or other embodiments thereof. MMC shall be entitled to injunctive relief for any violation of this paragraph. The obligations of non-use and confidentiality set forth in this paragraph do not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure as evidenced by Buyer’s written records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party as evidenced by Buyer’s written records. The obligations contained in this paragraph shall not prevent Buyer from disclosing MMC’s confidential information to the extent required by applicable law or a valid order issued by a court or government agency of competent jurisdiction, determined on advice of competent counsel, provided that Buyer provides MMC prompt written notice of such requirement so as to permit MMC to seek an appropriate protective order to prevent disclosure of all or part of such confidential information and Buyer reasonably cooperates with MMC in obtaining such protective order, and provided further that Buyer will disclose only that portion of the confidential information that Buyer is legally required to disclose and will make reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such confidential information. For the avoidance of doubt, Buyer’s obligations under this paragraph shall survive any expiration or termination of the Agreement.
27. ASSIGNMENT. Buyer may not assign or delegate the Agreement or any of Buyer’s rights or obligations under the Agreement without MMC’s prior written consent. Notwithstanding any such consent granted by MMC: (a) the person(s) to whom the Agreement or any portion thereof is assigned or to whom any obligations are delegated must first agree in writing to be bound by the terms of the Agreement; and (b) Buyer shall remain at all times responsible for the performance of all obligations under the Agreement notwithstanding such assignment or delegation. Any attempted assignment or delegation by Buyer in contravention of this paragraph shall be null and void. A sale of a substantial portion of Buyer’s assets or a material change in the direct or indirect ownership or control of Buyer (including control of more than twenty-five percent (25%) of Buyer’s equity interests), any merger or consolidation directly or indirectly involving Buyer, or any other substantial change in Buyer’s organization shall be deemed an assignment by Buyer (“Change of Control”). If Buyer requires MMC to subcontract all or a portion of its duties or obligations under the Agreement to a designated subcontractor (including any directed supplier arrangement, whether or not memorialized in a tri-party agreement or other formal arrangement), MMC will not be responsible for a breach of the Agreement caused by that subcontractor’s failure to meet its warranty, delivery, or other contractual obligations. The Agreement shall inure to the benefit of the parties’ permitted successors and assigns.
28. NOTICES. Any notice, communication or statement required or permitted to be given under the Agreement shall be in writing and deemed to have been sufficiently given when delivered in person or by registered or certified mail, postage prepaid, return receipt requested, by overnight courier service, or by email (with delivery receipt requested), addressed to the address of the party specified on the face of the quotation; provided, however, that either party can change its notice address by written notice from time to time.
29. GENERAL. The Agreement (including these Terms) contains the entire understanding of the parties relating to the subject matter thereof and is intended as a final expression of the parties’ agreement and a complete statement of the terms thereof, and all prior negotiations and proposals between the parties regarding the sale and purchase of Products are superseded. The Agreement (including these Terms) may only be amended or modified in writing signed by an authorized representative of MMC; provided, however, that notwithstanding the foregoing, the parties hereby acknowledge and agree that MMC may modify these Terms from time to time by posting revisions to MMC’s website at www.mennies.com (or any successor thereto) prior to the date when any such modification shall become effective, and such revised Terms shall apply to all new or revised orders or releases issued on or after the effective date thereof, and Buyer further acknowledges and agrees it is responsible to review such MMC website periodically. For purposes of the Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”, the word “or” is not exclusive, the words “herein,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole, the words “applicable law” shall be deemed to include any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, standard, other requirement or rule of law of any governmental authority, and any action or deliverable required to be taken or delivered “promptly” shall be so taken or delivered within five (5) business days unless a shorter period is provided. Headings are solely for the purpose of reference, are not part of the agreement of the parties, and shall not in any way affect the meaning or interpretation of the Agreement. Buyer and MMC are independent contractors, and nothing contained herein makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party. In the event of a conflict between the Terms and any other Sales Document made part of the Agreement, the applicable Sales Document shall control. MMC’s waiver of any breach by Buyer shall not be construed as a waiver of any other breach, and no waiver by MMC shall be effective unless it is in writing. The failure of MMC to require performance under any provision of the Agreement shall in no way affect MMC’s right to require full performance at any subsequent time. The validity, interpretation, and enforcement of the Agreement shall be governed by the law of the state of Illinois, without regard to conflicts of law provisions, and the U.N. Convention on Contracts for the International Sales of Products shall not apply. Buyer irrevocably submits and agrees to the exclusive jurisdiction of the state and federal courts sitting in the Federal District Court for the Northern District of Illinois. Buyer shall pay MMC’s reasonable attorneys’ fees, costs, and expenses incurred in enforcing any provision of the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, or otherwise invalid or unenforceable, the remaining provisions will remain in full force and effect, and the parties shall substitute the invalid or unenforceable provision with a valid provision that, as closely as possible, achieves the same business purpose as the invalid or unenforceable provision. These Terms shall survive and continue in full force and effect following the expiration, cancellation or termination of the Agreement.