Dominion Technologies Group, Inc.
General Terms & Conditions of Purchase
Effective February 14, 2022
1. Definitions
In these Terms & Conditions the following terms shall have the meanings ascribed to them:
1.1. “Buyer” is Dominion Technologies Group, Inc. a Michigan corporation, including all divisions and businesses thereof and any subsidiary undertaking thereof.
1.2. “Contract” means the contract between the Buyer and the Seller for the purchase of Goods and/or Services, formed in accordance with clause 2 below.
1.3. “Goods” means the products (including any parts or accessories) and/or materials or any of them to be supplied by the Seller in accordance with the Buyer's Order.
1.4. "IPR" means all intellectual and industrial property rights, including without limitation patents, know-how, trademarks (registered or not), registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, copyright and database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United States and all other countries in the world and together with all renewals and extensions thereof.
1.5. “Order” means the purchase order placed by the Buyer to the Seller for the supply of Goods and/or Services.
1.6. “Seller” means the person, firm or company to which the Order is addressed.
1.7. “Services” means the services to be supplied by the Seller in accordance with the Buyer's Order (or any part of them).
2. Formation of Contract
The Order constitutes the Buyer’s offer to the Seller to purchase the Goods and/or Services and, upon acceptance by the Seller, shall become the Contract and (unless otherwise agreed in writing) subject to these Terms & Conditions to the exclusion of all other terms whatsoever. Acceptance by the Seller shall be evidenced either by written acknowledgement, manufacture of the Goods or commencement of performance of the Services. Any of Seller’s or its affiliates or subsidiaries General Terms and Conditions of Purchase or similar document, and any terms and conditions contained on Seller’s or its affiliates or subsidiaries websites, including any links on such websites, shall not apply to and are not incorporated into these Terms & Conditions and these Terms & Conditions shall control. Any terms whatsoever that may be proposed by the Seller in accepting the Buyer's Order (including any terms which the Seller purports to apply in conjunction with an acknowledgement or confirmation of the Order, a quotation, a specification, a delivery note, invoice or similar document) shall be void and of no effect unless expressly agreed by the Buyer in writing.
3. Inspection and Testing
Before dispatching the Goods the Seller shall inspect and test them to ensure that they comply with the requirements of the Buyer and as described in the technical description (if any) of the Goods contained in the Order. The Buyer shall be entitled to attend any such test and the Seller will give the Buyer reasonable notice thereof in order that the Buyer may attend and provide or procure the provision of all reasonable facilities for such purpose. The Buyer shall be entitled to copies of the Seller’s test reports. If as a result of any inspection or test hereunder the Buyer is of the opinion that the Goods do not comply with the Order or are unlikely on completion of manufacture so to comply, the Buyer will notify the Seller who shall take such steps as may be necessary to ensure such compliance. Notwithstanding any such inspection or testing or steps taken by the Seller to ensure compliance upon such notification by the Buyer, the Seller shall remain fully responsible for the Goods and any such inspection, testing or steps taken by the Seller to ensure compliance will not diminish or otherwise affect the Seller’s obligations under these Terms & Conditions.
4. Delivery of Goods
Dispatch and delivery of Goods shall be deemed to occur when the Goods are accepted in accordance with clause 13. The Goods, properly packed and secured in such a manner as to reach their destination in good condition, shall be delivered by the Seller at or dispatched for delivery to the place or places and at the time or times and in the manner specified in the Order. Advice notes (which must show, inter alia, the Order number, the date of the Order, the number of packages and the contents) will be supplied with the Goods. If the Goods or any portion thereof are not delivered or the Services or any portion thereof are not performed within the time or times specified in the Order (or any extension of such time or times agreed to by the Buyer) the Buyer shall, without prejudice to its rights under clause 17, be entitled to terminate the Order so far as it relates to the Goods and/or Services undelivered as aforesaid and, further, so far as it relates to any other Goods already delivered or Services already performed which, in the opinion of the Buyer, cannot be developed for further use by reason of the non-delivery of the Goods and/or non-performance of the Services as aforesaid. On such termination the Buyer shall return to the Seller, at the Seller’s risk and expense, any of the Goods already delivered which cannot be developed for further use as aforesaid, subject to the Seller prior thereto refunding to the Buyer any monies paid by the Buyer in respect of such Goods and/or Services and compensating the Buyer for any additional expenditure incurred by the Buyer in obtaining alternative goods and/or services in replacement of those in respect of which the Order has been terminated, whether delivered or performed or not.
5. Carriage
All Goods shall be delivered to the Buyer carriage paid, unless the Buyer specifically agrees in writing to pay carriage charges at the time when the Order is placed.
6. Quantity
The Seller shall deliver the exact quantity of Goods ordered and not more or less.
7. Packaging
All packaging shall be free and non-returnable, unless specifically agreed in writing with the Buyer.
8. Rejection
The Buyer may by notice in writing to the Seller reject:
a) the Goods if the Seller fails to comply with his obligation under clause 3 hereof; and
b) any Goods and/or Services which are found after delivery or performance not to be in accordance with the Contract. Such rejected Goods and/or Services shall, where possible, be returned to the Seller at the Seller’s risk and expense. In the event of such rejection the Seller shall immediately thereupon pay to the Buyer all costs incurred by the Buyer as a result of such rejection including, without limitation, all costs incurred in obtaining alternative goods and/or services over and above the Order price.
9. Changes
9.1. The Buyer may by written notice change the quantity or extent of the Goods and/or Services covered by the Order, including without limitation the drawing(s), specification(s) or other description(s) therein and the time(s), method(s) or place(s) of delivery. Upon receipt of any such notice the Seller shall proceed promptly to make the required changes, provided that if any such change causes an increase or decrease in the cost of performing the Order or in the time required for performing it the Seller shall continue to perform the Order and an equitable adjustment shall be negotiated promptly and the Order modified in writing accordingly. In order to enable agreement to be reached as to such adjustment, the Seller shall deliver to the Buyer as promptly as possible, and in any event within ten (10) days after receipt of a change notice, a statement showing the effect that such change will or may have on delivery dates and prices, such statement to be supplemented with such further information as the Buyer may subsequently request. Failure by the Seller to submit statements as aforesaid shall constitute its consent to perform the requested change without any increase in price or claim for material rendered obsolete or change in the delivery time(s). Notwithstanding any changes requested by the Buyer, the Seller shall remain fully responsible for the Goods and/or Services and any such changes will not diminish or otherwise affect the Seller’s obligations under the Contract.
9.2. Seller shall notify Buyer no less than sixty (60) days prior to the discontinuation of or change in any Goods. In the event of any such discontinuance or change, Buyer will have the option to terminate the relevant Contract without incurring any liability to Seller as a result of such termination. If any discontinuance or change occurs without prior written notice to the Buyer, Buyer can hold Seller responsible for costs related to such discontinuance or change.
10. Warranty
10.1. The Seller warrants that the Goods to be free from any fault or defect, whether of design, workmanship or materials. The Seller shall be liable for any breach of this warranty if, within twelve (12) months after the date of delivery (as defined in clause 4) or six (6) months from the date of installation, whichever is the later, the Buyer gives notice in writing to the Seller of any defect in the Goods which shall arise from faulty design, materials or workmanship, and the Seller shall immediately replace or repair the Goods at the Buyer’s discretion so as to remedy the reported defect without cost to the Buyer.
10.2. The Seller warrants that it will perform the Services with reasonable skill and care, employing or engaging properly qualified and experienced staff for the purpose and, in the event of any defect in the performance of the Services, it will reperform the same at it sole cost and to the express satisfaction of the Buyer; and that prices to be paid by the Buyer shall not exceed current prices charged to any other customer of the Seller for items which are the same or substantially the same as the Goods and/or Services, taking into account the quantity ordered and the standing of the customer, and the Seller will forthwith refund any amounts paid by the Buyer in excess of the price charged to such other customer. The foregoing warranties shall be without prejudice to any other rights and remedies available to the Buyer.
11. Quality and Inspection
Buyer will measure Seller’s quality based on number of returns/issues per shipment and on time delivery. Seller is expected to stay in good standing of Quality Metrics or will risk a future business hold. Seller will permit Buyer and its representatives and consultants to enter Seller’s facilities at reasonable times to inspect such facilities and any Goods, inventories, work-in-process, materials, machinery, equipment, tooling, fixtures, gauges and other items and processes related to Seller’s performance of this Contract. No such inspection by Buyer will constitute acceptance by Buyer of any raw materials, components, work-in-process or finished Goods.
12. Prices and Payments
12.1. Prices do not include levied taxes to be payable in addition, and on production of a valid invoice, at the rate prevailing at whatever is the legally relevant time in respect of Goods or Services, as the case may be.
12.2. For the purpose of international purchases any Goods will, save as provided in clauses 11.1 and 13, be delivered on a "DDP" basis, as that term is defined in Incoterms 2010.
12.3. The terms of payment of the Goods are specified in our purchase orders, which are considered part of these Terms & Conditions. The complete receipt of all Goods is a prerequisite of payment.
13. Patterns, Dies, Etc.
13.1. All patterns, dies, molds, gauges, custom fabrications and other tooling, and any free materials, supplied by the Buyer or prepared or obtained by the Seller for and at the sole cost of the Buyer shall be and remain the property of the Buyer.
13.2. The Seller shall:
a) maintain all such items in good order and condition, fair wear and tear excepted;
b) use such items exclusively for the manufacturing of the Goods;
c) make good at its own expense any waste of such items arising from bad workmanship or negligence on the part of the Seller;
d) fully insure all such items in their full reinstatement value against the usual risks with an insurance company of recognized financial responsibility and, whenever requested by the Buyer, produce a copy of the policy of insurance;
e) store separately all such items or in some other way ensure that they are readily identifiable as the property of the Buyer and dispose of any surplus items only at the Buyer's direction;
f) keep and retain all such items free from any charge, lien or other encumbrance thereon;
g) irrevocably authorize the representatives of the Buyer at any time, in circumstances where the provisions of clause 17 may apply, to enter the Seller’s premises where all such items are or are thought by the Buyer to be stored and repossess them; and
h) notify any receiver, trustee, liquidation agent, administrator or similar person appointed in the circumstances foreseen by clause 17 of the Buyer's right under the foregoing sub-clause 12.2.g.
13.3. On completion of the Order the Seller shall return all such items to the Buyer in such good order and condition (fair wear and tear excepted) as the Buyer may direct. Should the Seller fail so to return them the Buyer may withhold either any sums due to the Seller until they are so returned or such part of any sums due as may be required to replace them or to restore them to good order and condition, whichever recourse may be the less expensive. The Seller may not use such items, nor may he authorize or knowingly permit items to be used by anyone else, for or in connection with any purpose other than the supply of Goods and/or Services to the Buyer, unless such use has been expressly authorized by the Buyer in writing.
14. Property and Risk in the Goods
The Goods will be deemed to be delivered and will become the property of the Buyer, and the risk of loss, damage or destruction thereof will pass to the Buyer, at such time as the Buyer gives written acceptance of the Goods as being in accordance with the Order.
15. Force Majeure
If a delivery of Goods or performance of Services by the Seller, or the acceptance thereof by the Buyer, is delayed or prevented by an unforeseen and unavoidable event, including without limitation strikes, lock-outs or other industrial disputes (excluding any involving the workforce of the Seller), act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (but only where such default is similarly caused by an unforeseen and unavoidable event), each and all of the foregoing being hereinafter referred to as "Force Majeure", such delivery or performance shall be suspended and the Seller shall give written notice to the Buyer specifying the nature and extent of the Force Majeure and will at all times use its reasonable efforts to bring the Force Majeure to an end. Unless the Buyer terminates the relevant Order in accordance with clause 17, the delivery of Goods and the performance of Services will be resumed as soon as the Force Majeure ceases but, unless the parties otherwise agree, the period provided therefor will not be extended.
16. IPR
The Seller shall fully indemnify and hold harmless the Buyer and its officers, directors, shareholders, employee and agents, from and against any and all actions, claims, demands, damages, injuries, losses, liabilities, obligations, costs, charges and expenses, including reasonable attorney’s fees, arising from, suffered or incurred by Buyer by reason of any infringement or alleged infringement of any IPR by the use or sale of the Goods, save for any infringement which is due to the Seller having followed a design or instruction furnished by the Buyer or to the use of the Goods in a manner or for a purpose not disclosed to the Seller and not reasonably inferable by the Seller. In the event of any claim being made or action brought against the Buyer arising out of the matters referred to in this clause 15 the Seller shall be notified thereof as soon as possible and may at his own expense assume the conduct of all negotiations for the settlement of the same and of any litigation that may arise therefrom, acting in consultation with the Buyer and taking into account all reasonable observations of the Buyer. The Seller shall within 14 days of such notification inform the Buyer in writing if it will conduct such negotiations and/or litigation. The Buyer shall not, unless and until the Seller shall have failed to take over the conduct of such negotiations and/or litigation, make any admission prejudicial thereto and shall at the request of the Seller afford all available assistance for such purpose and be repaid any expenses incurred in so doing. The Buyer warrants that any design or instructions furnished or given to the Seller shall not be such as may cause the Seller to infringe IPR in the performance of the Order.
17. Assignment and Sub-Contracting
Any Order is personal to the Seller and the Seller may not without the prior consent in writing of the Buyer assign, delegate the burden of, sub-contract or transfer or hold on trust the Order or any part thereof, except for materials. This clause 16 shall not apply to companies, firms or persons which are affiliated with the Seller, "affiliated" meaning any company, firm or person which controls or is controlled by (in either case, directly or indirectly) the Seller or is under common control with the Seller.
18. Termination
The performance of work under an Order may, without proof of default, be terminated at any time in whole or in part by the Buyer by notice in writing to the Seller, in which event the Seller shall be entitled to be paid such amount as the parties may agree for the performance of work carried out under the Order up to the time of such termination.
19. Indemnity
The Seller shall fully indemnify and hold harmless the Buyer and its officers, directors, shareholders, employee and agents, from and against any and all actions, claims, demands, damages, injuries, losses (including direct, indirect and consequential losses, all three of which include without limitation pure economic loss, loss of profits, loss of business, depletion of goodwill and the like loss), liabilities, obligations, costs (including costs of enforcement), charges and expenses, including reasonable attorney’s fees, arising from, suffered or incurred by Buyer in any way arising from, relating to or in connection with the negligence, willful misconduct, breach of the Contract, or the acts or omissions of Seller, or its employees, representatives or agents.
20. Compliance with Laws, Executive Orders and Regulations
20.1. Seller warrants that the Goods and Services supplied hereunder will have been produced or provided in compliance with, and Seller will comply with, all applicable laws, orders, rules, regulations, ordinances and conventions, including without limitation, those that relate to equal employment opportunity, wages, hours and conditions of employment, discrimination, occupational health/safety motor vehicle safety, environmental matters, and antibribery. At Buyer’s request, Seller shall certify in writing its compliance with the foregoing. Seller shall fully indemnify and hold harmless the Buyer and its officers, directors, shareholders, employee and agents, from and against any and all actions, claims, demands, damages, injuries, losses, liabilities, obligations, costs, charges and expenses, including reasonable attorney’s fees, arising from, suffered or incurred by Buyer arising from or relating to Seller's violation of this clause.
20.2. No Goods supplied hereunder shall contain any mineral that directly or indirectly finances any armed group that has been identified as a perpetrator of human rights abuses, including without limitation those defined as conflict minerals in the rules issued under Section 13(p) of the US Securities Exchange Act of 1934 (Dodd-Frank Act).
21. Anti-Corruption Compliance
Seller warrants that:
21.1. Seller has not paid, offered, promised to pay, or authorized, and will not pay, offer, promise to pay, or authorize the payment directly or indirectly of any monies or anything of value (services, gifts, gratuities, kickbacks, or otherwise) for the purpose of obtaining or rewarding favorable treatment as a supplier to Buyer.
21.2. Seller has not paid, offered, promised to pay, or authorized and will not pay, offer, promise to pay, or authorize the payment, directly or indirectly of any monies or anything of value to (1) any person or firm employed by or acting for or on behalf of any customer, whether private or governmental, or (2) any government official or employee or any political party or candidate for political office or a political party official, for the purpose of influencing any act or decision or inducing or rewarding any action in order to secure any improper advantage in the conduct of business.
21.3. Seller has not made, and will not make, any improper payments, directly or indirectly, including without limitation facilitation payments, bribes or kickbacks.
21.4. Seller has established and will maintain an effective business ethics and compliance program and procedures to prevent corruption and insure compliance with all applicable laws and regulations pertaining to corruption and bribery.
21.5. Seller will promptly disclose to Buyer in writing all pertinent facts regarding any violation, or alleged violation, of the afore mentioned representatives
21.6. At Buyer’s request, Seller shall certify in writing its compliance with the foregoing. Seller shall indemnify and hold harmless Buyer and its officers, directors, shareholders, employee and agents, from and against any and all actions, claims, demands, damages, injuries, losses, liabilities, obligations, costs, charges and expenses, including reasonable attorney’s fees, arising from, suffered or incurred by Buyer by reason of Seller's violation of this clause.
21.7. The Seller shall include this clause, or provisions of equivalent effect, in any lower tier subcontracts under this Order.
22. Insurance
22.1. Seller represents that it has and will maintain the following types and amounts of insurance coverage and agrees to furnish certificates of insurance showing that Seller has insurance coverage in the following minimum amounts:
a) Workers Compensation or local equivalent - Statutory limits for the country in which the work will be performed;
b) General/Products Liability – not less than the local currency equivalent of USD $7,000,000 per occurrence. This limit requirement can be met through the combination of primary and umbrella liability insurance;
c) Required only when Seller’s vehicle will enter any of Buyer’s premises or if this is a contract for the provision of transportation services: Automobile Liability - not less than the local currency equivalent of USD $1,000,000 (per any one accident);
d) Required only when this is an Order for the provision of Aerospace products: Aircraft Product Liability - not less than the local currency equivalent of USD $10,000,000 aggregate.
22.2. Said certificates of insurance shall set forth the amount of coverage, the number of the policy and the date of expiration. Seller shall name Buyer or its affiliated companies as an additional insured on its policies. If Seller is a self-insurer for workers compensation purposes, Seller shall provide Buyer with a copy of the self-insured certificate issued by the country where work will be performed. Compliance by Seller with the insurance requirements stated in this clause shall not in any way affect Seller's duty to indemnify Buyer.
22.3. If this Order includes a sale of Goods manufactured in whole or in part to Seller's designs or specifications, Seller agrees to provide Buyer, upon request, with a current certificate of product liability insurance and a supplier's endorsement naming Buyer as an additional insured on Seller's policy.
23. Confidentiality
23.1. Any information contained in the Buyer's Order (including without limitation the fact that the Seller supplies the Buyer with Goods or Services or has supplied the Buyer with Goods or Services) shall remain confidential to the Seller and the Seller may not (save as required by law) disclose any of the foregoing without the prior written approval of the Buyer.
23.2. Drawings, specifications, designs, plans and other information supplied by the Buyer to the Seller or obtained by the Seller at the cost of the Buyer are confidential to the Buyer and are for use only in connection with the Order and may not be disclosed to any other party. They must be returned to the Buyer on completion or termination of the Order.
24. Waiver
The failure of the Buyer to take steps to enforce in any circumstances any of the terms of the Contract on the part of the Seller to be observed and performed shall not be construed as or amount to a waiver or dispensation of the liability of the Seller in respect thereof and the same shall continue in full force and effect.
25. Health and Safety
25.1. It is a fundamental condition of the Order, not only that all technical specifications and manufacturing standards made part thereof should be observed but also that any substance, machinery or equipment supplied or installed hereunder shall, so far as is reasonably practicable, be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health when in use.
25.2. If any precautions are necessary to ensure such safety and harmlessness in use, or any such substance, machinery or equipment possesses dangerous properties, whether in use or otherwise, appropriate and conspicuous labels or other warnings will so far as practicable be affixed to or appear on every separate item thereof and on any container in which the same may be supplied.
25.3. If the Seller carries out works or performs any service (including any Services) on the Buyer’s premises the Seller will take all reasonably practicable steps to ensure that those premises (so far as within the Seller's control) and the works are at all times safe and without risks to the health of the Seller's employees and of all other persons (including, for the avoidance of doubt, the Buyer's employees).
26. Notices
Unless otherwise agreed in writing, any written communication or notice to be made or given under the Contract shall be made or given by sending the same by ordinary prepaid first class letter post, in the case of the Buyer to its current address and in the case of the Seller to its last known address, and if so sent such communication or notice shall be deemed to be made or given two days after the date when posted.
27. Law and Interpretation
The Contract shall be construed and interpreted in accordance with Michigan law. The parties expressly and irrevocably submit to the exclusive jurisdiction of any state or federal court serving Macomb County, Michigan over any dispute arising out of or in connection with these Terms & Conditions. If any of these Terms & Conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule of law it shall be void or unenforceable to that extent and no further.