Terms and Conditions

Introduction 

At MSXI, we strive for an open and long-term relationship with each of our Suppliers.  In order to achieve this, it is important that we both know exactly where we stand with regard to our legal relationship – that is, what the “terms of business” are that underpin our relationship.

For your guidance, we have set out in this document our basic terms and conditions of business (the “Terms”). These terms will apply exclusively to all purchase orders that we issue to you – unless, of course, we agree in writing to modification of these Terms or agree in writing that they will not apply.

These Terms should be read in conjunction with the relevant PO that will be issued in connection herewith (the “PO”).  The PO will set out the details of our arrangement.  The PO will take precedence over these Terms in the event of any inconsistency.  Pre-printed terms and conditions, which appear on any acceptance or any other document that you may issue to MSXI, will be of no force or effect unless we agree otherwise in writing.
      
You acknowledge that our relationship and ability to do business in accordance with the PO is predicated on the enforceability of these Terms, and that we would consider another supplier if these Terms did not apply and you accept these provisions in exchange for the consideration we will pay to you for your Goods and/or Services.

1. Definitions 

The term “Goods and/or Services” means those Goods and/or Services which Seller shall provide to MSXI as such goods and services are more particularly described in the PO. The term, “Seller”, means the person, firm or corporation who is to provide and/or perform the Goods and/or Services under this Contract.  The term, “MSXI”, means MSX International, Inc.  The term, “Contract”, means this document, pursuant to which Seller is to provide the Goods and/or perform the Services for MSXI along with the PO.   All other terms shall have the meanings defined in the Uniform Commercial Code as adopted by the State of Michigan at the date of this Contract.

2. Offer, Acceptance & Modification 

a) A Purchase Order or release against a blanket Purchase Order is an offer to Seller by MSXI to enter into the purchase and supply agreement it describes.  Seller’s commencement of providing Goods and/or Services thereunder will constitute acceptance of the offer.

b) Once accepted, such Purchase Order together with these Terms will be the complete and exclusive statement of the purchase agreement.  Any modifications proposed by the Seller are not part of the agreement in the absence of MSXI’s written acceptance.

c) MSXI, at any time, by way of written notice to Seller, may change the quantity, design (including drawings, materials and specifications), processing, method of packing and shipping, and the date or place of delivery of the Goods and/or Services.

d) If any such change affects cost or timing, Seller promptly shall provide MSXI with a written quote detailing the cost and expense of the potential change.  An equitable adjustment shall be made to the Contract price, the delivery schedule hereunder or both.  Any claim by Seller for adjustment under this Section 2 shall be deemed waived unless asserted in writing within ten (10) calendar days from receipt by Seller of the applicable change.

3. FORCE MAJEURE

Any delay or failure of either party to perform its obligations shall be excused if caused by an extraordinary event or occurrence beyond the control of the nonperforming party and without the nonperforming party's fault or negligence, such as acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars and sabotage.  Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within ten (10) days of the event.  During the period of any delay or failure to perform by Seller, MSXI, at its option, may obtain the Goods and/or Services from other sources and reduce its schedules to Seller by such quantities, without liability to MSXI, or cause Seller to provide the Goods and/or Services from other sources in quantities and at times requested by MSXI and at the price set forth in this Contract.  If requested by MSXI, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as MSXI deems appropriate.  If the delay lasts more than the time period specified by MSXI, or Seller does not provide adequate assurance that the delay will cease within such time period, MSXI may, among its other remedies, immediately cancel this Contract without liability.

4. Price, Freight and Shipment

In the event that price is not stipulated on the face of the PO, then without written consent of MSXI the price hereunder shall not be any higher price than last quoted or charged by Seller to MSXI for goods and services the same as or similar to the Goods and/or Services and of comparable or inferior quality to the Goods and/or Services.  In such event Seller shall pass on to MSXI, or credit MSXI with, any price decrease applicable at time of shipment. If any Goods sold under this Contract are comprised of more than one part, at all times after the date of this Contract Seller shall sell to MSXI at a reasonable price such quantities of any part comprising such Goods as MSXI hereafter may order.  If delivery terms are F.O. B. destination, then Seller shall prepare and pay all transportation charges.  Unless specific applicable delivery dates are provided in this document, Seller shall not provide and/or perform any of the Goods and/or Services, or procure any of the materials required for the Goods and/or Services, or ship any of the Goods and/or Services to MSXI, except to the extent authorized in written instructions furnished to Seller by MSXI.  MSXI shall have no responsibility for Goods and/or Services for which such delivery dates or such written instructions have not been provided.  Any Goods and/or Services delivered to MSXI substantially in advance of the applicable delivery date may, at MSXI’s option, be returned to Seller at Seller’s cost and expense for future delivery in accordance with the applicable delivery date.  Any advance delivery, if retained, shall be subject to payment as if delivered on the originally scheduled delivery date.  Any Goods and/or Services delivered in excess of quantity ordered, if returned, shall be returned at Seller’s cost and expense.

5. Quantity

The quantity of the Goods and/or Services as indicated in the face of the PO shall not be exceeded without the prior written authorization of MSXI.

6. EXPRESS WARRANTIES 

With respect to any Service provided by Seller to MSXI, Seller warrants for the Warranty Period that:

(1) the Services shall be provided in an efficient, competent and workmanlike manner and in accordance with industry standards;

(2) the employees or agents appointed by Seller to perform the Services shall be competent, experienced and otherwise familiar with all technical aspects of the Services to be rendered; and

(3) the Services shall be fit and suitable for the requirements and needs of MSXI. With respect to the Goods purchased under this Contract and all other goods purchased from Seller, Seller expressly warrants for the Warranty Period as follows:

(a) the Goods shall strictly conform to all specifications, drawings, instructions, advertisements, statements on containers or labels, descriptions and samples;

(b) the Goods shall be free from defects in workmanship and material and shall be new and of the highest quality;

(c) MSXI shall receive title to the Goods that is free and clear of any liens, encumbrances and any actual or claimed patent, copyright or trademark infringement;

(d) the Goods shall be merchantable, safe and fit for the MSXI's intended purposes, which purposes have been communicated to Seller;

(e) the Goods shall be adequately contained, packaged, marked and labeled;

(f) the Goods shall be manufactured in compliance with all applicable federal, state and local laws, regulations or orders, and agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval or certification.  These warranties shall be in addition to all other warranties, express, implied or statutory.  These warranties shall survive inspection, test, delivery, acceptance, use and payment by MSXI and shall inure to the benefit of MSXI, its successors, assigns, customers and the users of MSXI's products.  These warranties may not be limited or disclaimed by Seller.  MSXI’s approval of Seller’s design, material, process, drawing, specifications or the like shall not be construed to relieve Seller of the warranties set forth herein, nor shall a waiver by MSXI of any drawing or specification request for one or more articles constitute a waiver of any such requirements for the remaining articles to be delivered hereunder unless so stated by MSXI in writing.

If MSXI experiences any defect, failure or non‑conformity during the Warranty Period, MSXI shall have the right to take the following actions, at MSXI's option:

(1) retain the defective Goods in whole or in part with an appropriate adjustment in the price for the Goods;

(2) require Seller to repair or replace the defective Goods in whole or in part at Seller's sole expense, including all shipping, transportation and installation costs;

(3) correct or replace the defective items with similar items and recover the total cost from Seller, including the cost of product recalls; or (4) exercise all other rights under the Uniform Commercial Code and any other applicable statutes.

For purposes of this Contract, "Warranty Period" shall mean the longer of the following time periods:

(a) 18 months from the day of first use of the Goods by MSXI or acceptance by MSXI, whichever occurs later;

(b) if the Goods are incorporated, in whole or in part, into goods sold by MSXI to third parties, 18 months after acceptance by such third parties or the time period of warranty the MSXI gives to such third parties, whichever occurs later.  Notwithstanding the foregoing, Seller agrees to waive the expiration of the Warranty Period in the event there are failures or defects discovered after the Warranty Period of a significant nature or in a significant portion of the Goods, or a defect is discovered which, in MSXI's opinion, constitutes a threat of damage to property or to the health and safety of any person.

7. Attachments

If applicable, Seller shall submit drawings and specifications to MSXI for approval in accordance with a schedule approved by MSXI. Such approval by MSXI shall not relieve Seller of, nor lessen, any of Seller’s obligations or liabilities, and any specifications or drawings, which are attached or are approved by MSXI pursuant to this Section 7, are hereby incorporated into and made a part of this Contract.

8.Payments

The Contract price shall include all charges, such as packing, loading, shipping and insurance. Unless otherwise expressly stated herein, the payment date shall be calculated from the date upon which the applicable invoice is received or the Goods and/or Services are delivered, whichever is later. Unless expressly provided to the contrary on the face of the PO, terms of payment shall be net sixty (60) days. MSXI shall not be obligated or liable for payment of any interest or late charge of any kind whatsoever.

9. Taxes

Unless otherwise expressly stated herein, the Contract price herein stated includes all taxes and duties that may be levied upon the production, sale, packaging or delivery of the Goods and/or Services, except those sales and use taxes of the state wherein the Goods and/or Services are actually delivered.

10. TOOLS, BAILED PROPERTY

All supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, ancillary products and other items furnished by MSXI ("Tools"), to Seller to perform this Contract, or for which Seller has been reimbursed by MSXI, shall be and remain the property of MSXI. Seller shall bear the risk of loss of and damage to MSXI's property. MSXI's property

(a) shall at all times be properly housed and maintained by Seller,

(b) shall not be used by Seller for any purpose other than the performance of this Contract,

(c) shall be deemed to be personal property, not a fixture,

(d) shall be conspicuously identified as property of MSXI,

(e) shall not be commingled with the property of Seller or with that of a third party, and

(f) shall not be moved from Seller's premises without MSXI's prior written approval. 

Upon the request of MSXI, such property immediately shall be released to MSXI or delivered to MSXI by Seller, either

(a) F.O.B. transport equipment at Seller's plant, properly packed and marked in accordance with the requirements of the carrier selected by MSXI to transport such property, or

(b) to any location designated by MSXI, in which event MSXI shall pay Seller the reasonable cost of delivering such property to such location. 

MSXI shall have the right to enter onto Seller's premises at all reasonable times to inspect such property and Seller's records with respect to the property.  Unless otherwise agreed by MSXI, Seller at its own expense shall furnish, keep in good condition, and replace when necessary all Tools. Seller shall insure the Tools with full fire and extended coverage insurance for replacement value.  MSXI does not guarantee the accuracy of any tooling or dies or the availability or suitability of any supplies or material furnished by it. Seller agrees carefully to check and approve all tooling, dies or materials supplied by MSXI prior to using it.  Seller shall assume all risk of death or injury to persons or damage to property arising from use of tools, dies or materials supplied by MSXI.

11. MSXI’s Confidential Information

During and subsequent to the term of this Contract, Seller shall treat as confidential, all of MSXI’s information and not use or disclose to others (except as is necessary in the performance of this contract) any information regarding MSXI’s plans, programs, processes, products, costs, equipment, operations, finances, customers, or other information relating to MSXI’s business which may come within the knowledge of Seller or any of its employees, agents or subcontractors, or which may be developed by Seller or any of its employees, agents or subcontractors in Seller’s performance hereunder.

This Section 11 shall not prevent Seller from using or disclosing to others information which Seller can show

(a) has become part of the public domain other than by breach of this Section 11;

(b) has been furnished to Seller by any third person, firm or corporation as a matter of right and without restriction on disclosure or use, or

(c) was in Seller’s possession at the time it entered into this Contract.  

Seller shall restrict the knowledge of all such information to as few as possible of its employees, agents and subcontractors.  All specifications, drawings, data, memoranda, calculations, notes and other material furnished by MSXI, and any copies or excerpts thereof, are the property of MSXI and shall be delivered to MSXI at the completion or termination of the P.O. or, upon request of MSXI, at any other time. Seller shall not publish, publicize or advertise the existence of this Contract or the subject matter hereof or in any way associate MSXI therewith. 

 

INFORMATION AND DATA

A. Seller will furnish to MSXI, or another party designated by MSXI, without restrictions on use or disclosure, all information and data Seller acquires or develops in the course of Seller’s activities under this Contract.  At MSXI’s request, Seller also will discuss with MSXI or another party designated by MSXI, without restrictions on use or disclosure, any potential design, quality or manufacturing problems with Seller’s Goods and/or Services or provided pursuant to this Contract.

B. At MSXI’s request, Seller will furnish to MSXI all other information and data of Seller which MSXI deems necessary to understand the operation and to maintain the Goods delivered under this Contract, and to understand and apply the information and data of Section 11A hereof, with no restrictions on use other than Seller’s patent rights.

C. With respect to inventions which Seller conceives or first reduces to practice in the course of Seller’s activities under this Contract, Seller grants to MSXI a permanent, paid-up, nonexclusive, worldwide license, with a right to sublicense others, to make, have made, use, have used said inventions and patents on such inventions.

D. Seller grants to MSXI a permanent, paid-up, nonexclusive, worldwide license, including a license to any operating software incorporated into the Goods sold hereunder with a right to grant a sublicense to any of its affiliated companies, to make, have made, use, have used and sell the Goods sold hereunder or derivatives thereof under any other patents now or hereafter owned or controlled by Seller which are deemed necessary by MSXI to exercise the license of Section 11C in the manufacture, use or sale of products manufactured by or for MSXI or any of its affiliated companies.  

E. Seller grants to MSXI, and agrees to grant to any affiliated company designated by MSXI, a nonexclusive license, on reasonable terms and conditions, to make, have made, use, have used and sell under any other patents now or hereafter owned or controlled by Seller which cover any application of the technology embodied in the information or data Seller acquires or develops in the course of Seller’s activities under this Contract.

F. Unless otherwise indicated in writing by MSXI, Seller will use reasonable care to prevent disclosing to others and will use only for the benefit of MSXI, (i) the technical information and data furnished by MSXI or developed or acquired by Seller in its Goods and/or Services under this Contract, prior development agreement or early sourcing agreement for goods related to or using such technical information or data, and (ii) information relating to any portion of MSXI’s business that Seller may acquire in the course of Seller’s activities under this Contract, prior development agreement or early sourcing agreement.  This obligation shall continue so long as any agreement related to or using such technical information or data is in effect and for a period of two years thereafter.  This obligation will not apply to information that is or becomes publicly known through no fault of Seller.  Nevertheless, Seller may disclose the information and data of subsections (F)(i) and (F)(ii) hereof to third parties if this is required for Seller to fulfill its duties under this Contract and such third parties have agreed to conditions at least as stringent as those contained herein.

G. All technical information and data disclosed heretofore and hereafter by Seller to MSXI in connection with this Contract are disclosed on a nonconfidential basis.

12. Patents

Seller warrants that MSXI’s use or sale of the Goods and/or Services, in the form in which delivered to MSXI, shall not infringe any valid patent of the United States or any other country.  This Section 12 shall not apply to designs, processes, equipment or combinations thereof provided by MSXI.

13. Indemnification and Insurance

A. To the fullest extent permitted by law, Seller agrees to indemnify, defend and hold harmless MSXI and its affiliated companies, their directors, officers, employees, agents and customers ("Indemnitees") from and against any loss, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings, including without limitation all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all attorney's fees and any other cost of litigation ("Liabilities") arising out of injuries to persons, including death, or damage to property caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of Seller, the Goods or the Services, including without limitation, breach of contract, breach of warranty or product liability; provided, however, that Seller's obligation to indemnify MSXI shall not apply to any liabilities arising solely from MSXI's negligence.  Seller agrees to indemnify, defend and hold harmless Indemnitees from and against all Liabilities arising out of actual or alleged infringement, including infringement of any patent, trademark or copyright relative to the Goods and/or Services.

B. Seller shall maintain insurance coverage in amounts not less than the following:

(a) Worker’s Compensation – Statutory Limits for the state or states in which this Contract is to be performed (or evidence of authority to self‑insure);
(b) Employer's Liability – $250,000;
(c) Comprehensive General Liability (including Products/Completed Operations and Blanket Contractual Liability) – $1,000,000 per person, $1,000,000 per occurrence (personal injury) and $1,000,000 per occurrence (property damage), and
(d) Automobile Liability (including owned, non‑owned and hired vehicles) – $1,000,000 per person, $1,000,000 per occurrence (personal injury) and $1,000,000 per occurrence (property damage). 
At MSXI's request, Seller shall furnish certificates of insurance setting forth the amounts of coverage, policy numbers and dates of expiration for insurance maintained by Seller. Such certificates shall provide that MSXI will receive 30 days prior written notification from the insurer of any termination or reduction in the amount or scope of coverages.  Seller's purchase of insurance coverage and the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under this Contract. In the event of Seller's breach of this provision, MSXI shall have the right to cancel the undelivered portion of any Goods or/or Services covered by this Contract and shall not be required to make further payments except for conforming goods delivered or services rendered prior to cancellation.

C. If Seller is to perform Services at any of MSXI’s locations, Seller shall take out and maintain the following minimum insurance, at its cost and expense, for the duration of this Contract for each such location:

(a) Worker’s Compensation Statutory
(b) Employer’s Liability -$250,000 each occurrence
(c) Comprehensive General Liability (Personal Injury) -$1,000,000 per person,
-$1,000,000 each occurrence (Property Damage) -$1,000,000 each occurrence
(d) Comprehensive Automobile Liability (Personal Injury) -$1,000,000 per person, -$1,000,000 per occurrence (Property Damage) -$1,000,000 per occurrence

The public liability insurance specified in clauses (B) and (C) of this Section 13 shall include coverage for Seller’s contractual liability with limits not less than those set forth in such clauses.  Every contract of insurance providing the coverage required herein shall contain the following clause: “No reduction, cancellation or expiration of this policy shall become effective until ten (10) days from the date written notice is actually received by MSX International.”  Seller shall not undertake any Goods and/or Services on MSXI’s premises until all required insurance has been obtained and, upon request, certificates confirming such coverage have been furnished to and approved by MSXI.

14. Laws and Regulations 

Seller warrants that it has complied, and shall comply, with all governmental laws, rules, regulations and orders covering the production, sale, packaging or delivery of the Goods and/or Services, from which, because of noncompliance by Seller, obligation or liability may accrue to MSXI.  Seller recognizes that the Goods and/or Services may constitute all or part of performance under a U.S. government contract.  If the Goods and/or Services should be all or part of performance under a U.S. government contract, Seller shall include in all subcontracts and purchase orders issued by Seller with or to suppliers in the U.S. all terms and conditions, and shall take such other actions required for MSXI’s meeting of its obligations and responsibilities imposed by governmental laws, rules, regulations or orders with respect to small businesses, women-owned businesses, small disadvantaged businesses, the U.S. military, equal employment opportunity, affirmative action, Vietnam era veterans readjustment assistance, discrimination because of physical or mental handicap or otherwise.  Except with respect to fixed price, non-government contracts, Seller shall permit MSXI and its representatives to audit Seller’s books, records and other documents, make copies thereof and (if applicable) provide such copies to the U.S. government, all as reasonably requested by MSXI.  Upon MSXI’s request, promptly Seller shall sign and deliver to MSXI such certificates, affidavits and other documents, and shall provide to MSXI such information, relating to this Section 13 and in form and substance as MSXI may reasonably request.

15. Termination and Suspension

MSXI reserves the right to terminate this Contract or any order under this Contract with or without cause or for its sole convenience.  In the event of MSXI chooses to exercise such right to terminate, MSXI shall deliver written notice of termination to Seller, at which time Seller shall immediately stop work relating to the supply of all Goods and/or Services to MSXI, and shall forthwith cause all of its suppliers and subcontractors to cease work related to the supply of Goods and/or Services to MSXI.  Following such termination, except in the event that MSXI is claiming a default by Seller under the Contract, Seller shall be paid a reasonable termination charge consisting solely of a percentage of the order price reflecting the percentage of the Goods and/or Services performed prior to the notice of termination.  Seller shall submit its claim within 30 days after receipt of MSXI’s termination notice.  MSXI reserves the right to verify the claim by auditing all relevant records.  Seller shall not be paid for any Goods and/or Services performed after receipt of the notice of termination, nor for any costs incurred by Seller's suppliers or subcontractors that Seller could reasonably have avoided.  IN NO EVENT SHALL MSXI BE LIABLE FOR LOSS OF PROFITS, CAPITAL COSTS, TOOLING COSTS OR OTHER CANCELLATION CHARGES. In addition to its rights as stated in this Section 15, in the event of a termination by MSXI for cause, MSXI may simultaneously pursue any other remedy permitted by law or in equity.

16. Governing Law

The validity, interpretation and performance of this Contract shall be governed and construed in accordance with the laws of the State of Michigan.  All disputes involving this Contract shall be adjudicated exclusively in the Circuit Court for the County of Oakland, State of Michigan, or the U.S. District Court for the Eastern District of Michigan.

17. REMEDIES

MSXI's rights and remedies shall be cumulative and in addition to any other rights or remedies provided by law or equity.  A waiver by MSXI of any right or remedy shall not affect any rights or remedies subsequently arising under the same or similar clause.  Any attempt by Seller to limit MSXI's warranties, remedies or the amount and types of damages that MSXI may seek shall be null and void.

18. LABOR DISPUTES

Seller shall notify MSXI of any actual or potential labor dispute delaying or threatening to delay timely performance of this Contract.  Seller shall notify MSXI in writing six months in advance of the expiration of any current labor contracts.  At MSXI's request, Seller shall deliver a supply of finished goods at least 30 days prior to the expiration of any such labor contract, in quantities and for storage at sites designated by MSXI.

19. INGREDIENTS DISCLOSURE

If any of the Goods ordered constitute or contain "hazardous or toxic chemicals" or "hazardous substances" or flammable or hazardous "petroleum products" as defined by any applicable Federal, State or local law, rule or regulation, Seller shall provide at the time of delivery all required notices and information, including without limitation, all Material Safety Data Sheets in approved form.  Seller agrees to maintain such information current and shall provide MSXI with any amended, altered or revised information on a timely basis.  Seller warrants that the Goods supplied under this Contract do not contain any substance whose use is prohibited under Federal, State, or local law and that any applicable requirements under such laws have been satisfied by Seller.

If requested by MSXI, Seller shall promptly furnish to MSXI in such form and detail as MSXI may direct:

(a) a list of all ingredients in the Goods purchased;

(b) the amount of one or more ingredients; and

(c) information concerning any changes in or additions to such ingredients. 

Prior to and with the shipment of the Goods purchased, Seller agrees to furnish to MSXI sufficient warning and notice in writing (including appropriate placarding and labels on goods, containers, packing and vehicles used for shipment) of any "hazardous substance" which is an ingredient or a part of any of the Goods, together with such special handling instructions as may be necessary to advise MSXI and third parties, including transportation carriers and MSXI's employees, as to the degree of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use, recycling or disposal of the Goods.

20. ASSIGNMENTS

This Contract is entered into in reliance upon the Seller's personal performance of the duties imposed.  The Seller agrees not to, in whole or in part, assign this Contract or delegate the performance of its duties without the written consent of MSXI.  Any such assignment or delegation without the previous written consent of MSXI, at the option of MSXI, shall effect a cancellation of this Contract.  Any consent by MSXI to an assignment shall not be deemed to waive MSXI's right to recoupment from Seller and/or its assigns for any claim arising out of this transaction.

21. DUTY DRAWBACK RIGHTS

This Contract includes all related customs duty and import drawback rights, if any, which Seller can transfer to MSXI, including rights developed by substitution and rights that may be acquired from Seller's supplies.  Seller agrees to inform MSXI of the existence of any such rights and upon request shall supply such documents as may be required to obtain such drawback.

22. SET-OFF 

In addition to any right of set-off provided by law, all amounts due Seller shall be considered net of indebtedness of Seller to MSXI and its affiliated or related companies.  MSXI shall have the right to reduce and set-off against amounts payable hereunder any indebtedness or other claim which MSXI, or its affiliated or related companies, may have against Seller, or its affiliated or related companies, under this purchase order or any other agreement between the referenced parties.

23. WAIVER

The failure of MSXI to insist upon the performance of any term or condition of this Contract, or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such term or condition or the future exercise of such right.

24. LIMITATION ON MSXI'S LIABILITY

IN NO EVENT SHALL MSXI BE LIABLE TO SELLER FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  MSXI'S LIABILITY FOR A CLAIM OF ANY KIND OR FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS CONTRACT, OR FROM ANY PERFORMANCE OR BREACH, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES WHICH DIRECTLY GIVE RISE TO THE CLAIM.

25. INVENTIONS 

If this P.O. involves development or research activities, including engineering or design services, all information developed in the course thereof shall be owned by MSXI and be deemed confidential and proprietary property of MSXI whether patented or not and Seller shall cooperate (and cause its employees to cooperate) in executing any documents and taking any other actions necessary or convenient to patent or otherwise perfect or protect for the benefit of MSXI any inventions conceived, developed or reduced to practice in performance of this Contract.  If the order does not involve developmental or research activities, but the goods covered by it are to be produced in accordance with drawings or specifications furnished by MSXI, Seller hereby grants to MSXI an irrevocable, non‑exclusive and royalty‑free license to make, have made, use and sell any improvement in the Goods which is conceived, developed or reduced to practice by Seller in the production of the Goods under this PO.

26. SEVERABILITY

If any term of this Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Contract shall remain in full force and effect.

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