For Use by U.S. Plants for Orders for Production and Non-Production Materials  Printable Version

1.  CONTRACT.  This Purchase Order (together with any releases issued hereunder, the "Order") is the entire contract between the Dana plant, division or entity ("Dana") and the Seller named on the face of the Order with respect to the goods or materials ordered and any related services (collectively, the "Goods") and it supersedes any prior communications or agreements between the parties about the Goods.  This Order includes any documents incorporated by reference on the face hereof, but Dana hereby rejects all terms and conditions therein which are contrary to, inconsistent with, or in conflict with these Terms and Conditions (“Terms”).  These Terms will apply to all purchases made by Dana under this Order, except to the extent modified or waived by specific different terms stated on the face of the Order, regardless of any different terms contained in Dana’s or Seller’s documents or on their Internet web sites and regardless of course of dealing or industry practice to the contrary.  Captions in these Terms are for convenience only.

2.  ACCEPTANCE. Seller's written acknowledgment of this Order, commencement of work on the Goods, or delivery of any Goods hereunder will constitute its acceptance of these Terms.  Without Dana's written consent, no additional or different terms proposed by Seller in its acknowledgment or otherwise will be effective to modify this Order and Seller will be deemed to have accepted the Order without such modifications.

3. SELLER'S STATUS. Seller is an independent contractor and not an employee, agent or partner of or joint venturer with Dana.

4.  ASSIGNMENT.  Seller may not assign or subcontract this Order or any of its rights or obligations hereunder without Dana's prior written consent and any purported assignment in violation of this provision will be void. 

5.  COMMUNICATIONS AND CHANGES.  Releases, changes, notices, consents, and other communications relating to the Goods may be in written form (including facsimile) or electronic form, and the parties agree to be bound by such communications as if they were written and signed by the parties.  If there is any dispute between the parties as to the authenticity of any record relating to this Order, Dana’s records will control and govern, notwithstanding any of terms to the contrary proposed by Seller (whether in print, handwritten, facsimile or electronic form).  Dana may change this Order in any respect at any time by notice to Seller. Seller will promptly notify Dana if any such change materially affects Seller's costs of producing the Goods or delivery schedule for them.  On receipt of such notice and such supporting documentation as Dana may reasonably require, Dana will adjust the price and/or schedule equitably, at its discretion, and this Order will be deemed amended accordingly. 

6.  PACKING AND SHIPMENT.  Seller will pack and ship the Goods in accordance with Dana's instructions, furnish all shipping documents required by Dana, and plainly mark Dana's name (and, where applicable, the quantity and part numbers) and the Order number on all packages and documents. Dana's count or weight will be final and conclusive for all shipments.

7.  DELIVERY. Unless otherwise stated on the face of the Order, Goods originating in the U.S. are sold "F.O.B." (as defined in Ohio Revised Code Section 1302.32 or any successor statute) Dana's designated facility and Goods originating outside the U.S. are sold "Delivered Duty Paid" (as defined in Incoterms 2000) to Dana's designated facility, and Seller will bear all risks and costs of delivering the Goods, including shipping and insurance charges, duties, taxes and other charges.  Seller will deliver all Goods in accordance with Dana's instructions about volume, mix and delivery dates and times.  Title to and risk of loss for the Goods will pass to Dana upon delivery.  If any Goods are delivered in excess of volumes ordered or in advance of schedule, Dana may return them at Seller's expense or retain them and invoice Seller for any resulting handling and storage costs.  Dana will not process invoices for Goods shipped in advance of schedule until the scheduled delivery date. Dana may change scheduled deliveries at any time by written notice to Seller and will reimburse Seller for reasonable, documented, unavoidable incremental costs incurred by Seller due to such changes. Time is of the essence in Seller's performance of this Order.  100% on-time delivery is required.  If Seller fails to deliver any shipment of Goods in accordance with Dana's instructions, Dana may, at its option, cancel the shipment, accept partial or delayed delivery, and/or purchase substitute goods, and Seller will reimburse Dana for its incremental costs in procuring any substitute goods and for any costs or losses Dana incurs due to such delivery failure.

8.  INSPECTIONS.  Dana may inspect and/or test the Goods at any time, at its own expense, and Seller will make its premises available for this purpose and provide any necessary assistance at no charge.  However, no inspections or tests by Dana will relieve Seller of any of its obligations hereunder relating to the Goods.  If Dana finds any Goods to be defective or not in conformity with its specifications or requirements, it may return them for a refund of the purchase price, require Seller to repair or replace them, or rework or repair them (itself or through third parties), and Seller will reimburse Dana for the resulting costs.

9.  QUALITY.  Seller will comply with the ISO-9000 Quality System Requirements and any other quality standards and procedures furnished by Dana.

10.  COMPETITIVENESS, PRICE WARRANTY.  At all times while performing this Order, Seller will be competitive in price, quality, delivery, technology and service with respect to the Goods.  Seller warrants that its prices to Dana for the Goods are and will remain no less favorable than its prices to other customers for the same or comparable goods in comparable quantities.  Seller agrees to reduce its prices under this Order if necessary at any time to maintain this warranty. 

11.  INVOICES, PAYMENT.  Seller will invoice Dana for the Goods (in a form acceptable to Dana) when the Goods are shipped.  Dana may withhold or set off from any invoice payment any amount as to which a bona fide dispute exists under any Order or arising out of any other transaction with Seller.  Payment will not constitute acceptance of any defective or non-conforming Products.

12.  CONFIDENTIAL INFORMATION.  Except as necessary to perform this Order, as required by law and with prior written notice to Dana, or with Dana's prior written consent, Seller will, at all times, keep confidential all information, drawings, specifications and data of any kind or nature furnished by Dana (whether in writing, electronically, orally, or visually) or derived or developed by Seller therefrom in the course of performing this Order.  Seller will not divulge such confidential information, use it for its own benefit or for the benefit of any other party, or copy it or permit copies to be made. These confidentiality obligations will not apply to information lawfully known by Seller at the time of disclosure by Dana or obtained by Seller from a third party lawfully entitled to disclose it, or to information that is or becomes public knowledge other than through disclosure by Seller.  Seller will not publish or advertise the existence or nature of this Order without Dana's prior written consent. These obligations will survive the expiration or cancellation of this Order.

13.  INTELLECTUAL PROPERTY RIGHTS, PATENT WARRANTY.  If Dana furnishes the design for the Goods or reimburses Seller in whole or part for designing them, then Dana will own all intellectual property rights relating to the design.  If Seller furnishes the design for the Goods or bears the full cost of designing them, then Seller will own all intellectual property rights relating to the design.  In the latter event, Seller hereby grants Dana a royalty-free license to use such intellectual property to rework, repair or replace any defective or non-conforming Goods. Each party warrants to the other that any designs which it furnishes hereunder will not infringe or contribute to the infringement of any U.S. or foreign patent or patent right or other third party intellectual property right.

14.  PRODUCT WARRANTY.  Seller warrants to Dana and Dana's customers and end users that the Goods will be new and that Seller will have good title to them and will deliver them to Dana free and clear of all liens and encumbrances.  Seller further warrants that the Goods will be free from defects in material and workmanship; merchantable; in conformity with all specifications, drawings and/or samples furnished by Dana or furnished by Seller and accepted by Dana; fit and sufficient for their intended uses; and, if applicable, in conformity with the Federal Motor Vehicle Safety Standards issued pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, as amended.

15.  LEGAL COMPLIANCE.  Seller warrants that it will comply with all applicable laws, regulations, ordinances and orders in performing this Order and will furnish Dana and its designees with such certificates or reports of legal compliance as Dana may request from time to time. If Seller is a U.S. entity, it warrants further, by way of example and not limitation, that it will comply with all provisions of Executive Order 11246 of September, 24, 1965, and of the rules, regulations and relevant orders of the U.S. Secretary of Labor pertaining to Equal Employment Opportunity.

16.  HAZARDOUS MATERIALS.  Seller warrants that it will properly classify, describe, package, mark, label and provide any necessary Material Safety Data Sheets for the Goods and will pack and ship them in compliance with all applicable hazardous materials laws, regulations, ordinances and orders.

17.  SPECIAL TOOLING.  All dies, jigs, fixtures, drawings, molds, patterns, templates, gages and the like that Dana provides to Seller or pays Seller to make or buy for use in performing this Order (collectively, "Tooling") are at all times the personal property of Dana or Dana's customer, as the case may be.  Dana will not be obligated to pay for such Tooling, if applicable, until Seller has provided Dana with an itemized list and adequate cost records for the same and Dana has accepted the Tooling or the first run of Goods manufactured or assembled therewith.  If Seller fails to provide adequate cost records, Dana will be not be obligated to pay more than the fair market value of the Tooling, regardless of the Tooling purchase price set out in the Order.  While the Tooling is in its possession or custody, Seller will be responsible for any loss or damage to the Tooling and for all taxes, assessments, and similar charges levied with respect to or on it.  Seller will label the Tooling in accordance with Dana's instructions to permit accurate identification and will segregate it from other tooling in Seller's possession to the extent practicable. At its own expense, Seller will repair and maintain the Tooling, keep it in good working condition, and replace it when necessary for any reason, including normal wear and tear.  Seller will use the Tooling exclusively to produce Goods for Dana hereunder and for no other purpose.  Upon expiration, cancellation, or termination of this Order, Seller will hold the Tooling and any operation sheets, process data, or other information necessary to show its use, at no charge, pending receipt of Dana's instructions about its removal or disposition, which will be at Dana's expense. Seller acknowledges that Dana or Dana's customer, as the case may be, has title to and all rights in the Tooling, all accessories and attachments thereto, all substitutes and replacements therefor and all proceeds therefrom.  Seller authorizes Dana or Dana’s customer, as applicable, or their agents, on Seller's behalf and as its attorney-in-fact, to prepare, sign and file such Uniform Commercial Code financing statements and amendments thereto and similar documents as they deem necessary to evidence their ownership of the Tooling.

18.  TRADE CREDITS, COUNTRY OF ORIGIN.  All trade credits, export credits, customs drawbacks, tax and fee rebates and the like relating to this Order will belong to Dana. Seller will cooperate with Dana in obtaining these benefits and credits.  Seller will furnish Dana and its designees with such documentation establishing the country of origin and value of the Goods as Dana may request, including, as applicable, affidavits of manufacture and NAFTA certificates of origin.

19.  INDEMNIFICATION.  Seller will defend and indemnify Dana and its directors, employees, agents, customers, end users, successors and assigns from and against all actual and alleged claims, liabilities, suits, damages, losses and expenses (including attorneys' fees and legal costs) arising from or caused, in whole or part, by Seller's breach of any provision, term or condition of this Order (including, without limitation, Seller's warranties hereunder); Seller's negligent or willful acts or omissions in performing this Order; and/or any event leading to Dana's cancellation of this Order under Paragraph 23. These obligations will survive the expiration or cancellation of this Order.

20.  INSURANCE.  Seller will maintain, at its own expense, the following minimum insurance coverages with insurers satisfactory to Dana: (i) statutory workers' compensation; (ii) employer's liability in the amount of U.S. $5 million; (iii) commercial general liability (including products/completed operations and contractual liability coverage) in the amount of $5 million bodily injury or property damage per occurrence; and (iv) automotive liability (covering owned, non-owned, and hired vehicles) in the amount of $5 million bodily injury or property damage per accident. Such coverages can be provided under primary and/or excess policies.  In addition, where applicable, Seller will maintain all risk property coverage (including transit) and theft coverage for Goods, whether or not owned by Dana, which have been ordered hereunder and which are in the care, custody, or control of Seller, its agents, or contractors, and any other insurance coverages that Dana deems appropriate.  On the acceptance of this Order and each subsequent renewal of its insurance coverages, Seller will furnish Dana with certificates of insurance evidencing such coverages, naming Dana as an additional insured where deemed appropriate by Dana, and requiring written notice to Dana at least 15 days prior to the cancellation, reduction or non-renewal of coverage.  Compliance with these provisions will not relieve Seller of its defense and indemnity obligations under Paragraph 19.  These obligations will survive the expiration or cancellation of this Order to the extent necessary to cover acts or events arising in connection with the performance of the Order.

21.  ALLOCATION.  If Seller is unable, at any time, to supply the entire quantity of Goods ordered by Dana, Seller will meet all of Dana's requirements before making any allocation among its other customers under Section 2-615 of the Uniform Commercial Code or the equivalent.

22.  TERMINATION.  Dana may terminate this Order for convenience at any time by written notice to Seller.  On termination, Dana will be liable to Seller solely for unpaid invoices for conforming Goods previously shipped and for Seller's reasonable, documented costs of raw materials, work‑in‑process and finished Goods that cannot be canceled without penalty or sold in the general trade, not to exceed the volumes specified in this Order (if a spot Order) or in any open releases hereunder (if a blanket Order) and payable only after Dana's receipt of the same.

23.  CANCELLATION.  Dana may cancel this Order without liability or further obligation hereunder by 15 days' written notice to Seller if Seller breaches any provision, term or condition of the Order (or Dana anticipates such breach); provided, that the cancellation will be void if Seller cures the breach (or provides assurances of performance acceptable to Dana) within the 15-day notice period.  Dana may cancel this Order immediately by written notice to Seller without liability or further obligation hereunder (i) if Seller fails or refuses to furnish Dana promptly with such information and assurances as Dana may request, from time to time, about Seller's financial and operating conditions and ability to supply Goods under this Order, and (ii) to the extent permitted by law, in the event of Seller's insolvency, the filing of a voluntary or involuntary petition in bankruptcy by or against Seller, the appointment of a receiver or trustee for Seller, Seller's execution of an assignment for the benefit of creditors, or a comparable event.

24.  FORCE MAJEURE.  Neither party will be liable for delays in its performance of this Order due to events beyond its reasonable control (including, without limitation, acts of God, fire, flood, acts of war, and acts of sovereign governments), provided that such party notifies the other promptly of the nature and expected duration of the delay and uses all reasonable commercial efforts to mitigate any resulting losses or damages to the other party.  If Seller experiences any delay that continues for more than 15 days, Dana may, without liability, cancel this Order or any open releases hereunder, in whole or part, by written notice to Seller.

25.  BINDING EFFECT.  This Order will be binding on the parties and their respective agents, subcontractors, successors and permitted assigns.

26.  CUMULATIVE REMEDIES. Dana's remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity.

27.  WAIVER:  Dana's failure to enforce any right provided herein or to which it is entitled at law or equity will not constitute a waiver of that right or of any other rights to which it is entitled.

28.  GOVERNING LAW.  This Order will be interpreted and enforced under the laws of the State of Ohio, U.S. (including, without limitation, the provisions of the Uniform Commercial Code as adopted by Ohio), without recourse to the conflict of laws provisions thereof, and the parties agree that any action or proceeding arising out of or in connection with this Order will be brought exclusively in a state or federal court in the State of Ohio.  In no event will the provisions of the U.N. Convention on the International Sale of Goods apply to this Order.

29.  DISPUTE RESOLUTION.  The parties will attempt to resolve any dispute involving the interpretation, performance or non-performance, or enforceability of the Order by prompt good faith negotiations and, if such negotiations fail, will consider alternate dispute resolution procedures before resorting to litigation.