General Terms and Conditions of Sale, ElringKlinger Automotive Manufacturing, Inc.
1. General Application, Formation.
(a) General Application.
These General Terms and Conditions of Sale (“General Terms”) apply to all proposals and quotations submitted by Seller, to all purchase orders received by Seller, and to all sales of goods and services sold by Seller, except as otherwise specifically provided in a document specifically issued by Seller as an exception. Any services to be provided by Seller, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units or included as part of an installation), shall be considered ancillary to a sale of goods and the law adopted by these General Terms shall apply to all goods and services to be provided by Seller (collectively “Goods”). All references to “Seller” include the Seller identified above and any affiliate of such entity that receives a purchase order referencing or otherwise subject to these General Terms.
A written quotation issued by Seller is an offer to sell. A contract shall be formed and Buyer shall be deemed to have accepted the provisions of these General Terms by any of the following: (a) signing and returning to Seller a copy of any quotation within the time provided therein; (b) sending to Seller a written acknowledgment or acceptance of the quotation within the time provided therein; (c) placing a purchase order or giving instructions to Seller respecting manufacture, assembly, or delivery of the Goods (including instructions to build and hold) following receipt of any quotation or these General Terms; (d) failing to cancel a pending purchase order which is not deemed to be an acceptance of an offer by Seller within ten days after receiving these General Terms; (e) accepting delivery of all or any part of the Goods; (f) paying for all or any part of the Goods; or (g) indicating in some other manner Buyer’s acceptance of these General Terms. All sales by Seller consist, in the following descending order of priority, only of these General Terms, terms in other documents which are referred to herein or are attached hereto or in a document provided, signed, or issued by Seller which reference the transaction, and Buyer’s purchase order (excluding Buyer’s standard terms and conditions of purchase and other terms inconsistent with Seller’s quotation and these General Terms) (all of which constitute the “Agreement”).
2. Integration, Modification, and Status of Parties.
(a) Complete Integration.
The Agreement is a final, complete and exclusive statement of the Agreement of the parties related to the Goods. A purchase order or an amendment submitted by Buyer orally or in writing (whether or not it contains terms or conditions modifying, adding to, repugnant to or inconsistent with these General Terms), may be accepted, approved, performed or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement without such terms and notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other document or communication, unless Seller otherwise advises Buyer in writing. Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by performing such purchase order or by failing to further object to Buyer’s terms or conditions.
SELLER IS WILLING TO NEGOTIATE CHANGES TO THESE GENERAL TERMS IN A WRITING SIGNED BY SELLER, BUT SELLER RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS TO COVER SELLER’S ESTIMATED COST RELATED TO SUCH CHANGES. No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Seller unless in a writing signed by Seller’s authorized employee.
The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be also for the benefit of Seller’s affiliates, agents, employees, contractors, and other suppliers. Customers of Buyer and end users are not intended third party beneficiaries of the Agreement. If any other provisions of the Agreement are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers shall also apply.
Goods quoted to Buyer are subject to prior sale or other commitment. Unless otherwise stated therein, prices and delivery schedules in quotations are valid for 60 days from date of issue and subject to modification by Seller thereafter.
Buyer may not resell the Goods under any brand name other than that of Seller. Unless Buyer is an authorized distributor of Seller, Buyer shall limit its distribution of the Goods purchased under the Agreement to the incorporation of the Goods into Buyer’s value added product which Buyer shall market under Buyer’s name for sale, lease or rent to third parties in the regular course of Buyer’s business. Buyer shall not remove any markings on Goods as received from Seller. Buyer is responsible for the selection of Goods, Buyer’s ability to achieve the results it intends with other Goods, software and/or peripherals of Buyer’s design, assembly, manufacture or purchase, and for the system performance of Buyer’s value added product. Any technical support by Seller for Buyer’s value added product shall be as is without warranty or liability and entirely Buyer’s responsibility.
Buyer and Seller acknowledge that: (i) they are merchants in respect to the Goods produced by Seller; (ii) they have had an opportunity to review the Agreement; and (iii) the provisions of the Agreement are reasonable when considered as a whole.
3. Prices and Payment.
Prices quoted are for the Product only, and do not include any amount for freight, insurance, fees, custom duties or Federal, State or Local excise, sales, use, service, occupation, gross income, property or similar taxes, all of which are the responsibility of Buyer. Shipping and handling charges shall be paid by Seller and invoiced separately to Buyer. Seller shall have the right to include taxes which may be applicable to the prices set forth herein in the event that Buyer does not supply to Seller, prior to sale, appropriate sales, use and Federal excise exemption certificates. Prices contained in Seller’s published price lists, if any, are subject to change without notice. Seller reserves the right to change quoted prices and warranty if the quoted business assumptions change.
(b) Payment Terms.
Buyer shall pay for all deliveries of Goods net 30 days after delivery. Buyer may change payment terms without cause on 30 days notice to Seller.
(c) Credit Limit.
Seller’s offer is subject to Seller’s current credit policies and practices. Seller reserves the right, in its sole discretion, to approve, disapprove, or change Buyer’s credit limit or to impose credit terms, including without limitation the requirement that Buyer make full or partial advance payment. In the event of a complete or partial failure to pay, Seller may, at its option, revoke any credit extended to Buyer, suspend all subsequent shipments under open purchase orders until Buyer’s account is current, or offset such amount against any payments due or that become due from Seller or its affiliates to Buyer including without limitation payment due Buyer.
(d) Carrying Charge.
All amounts not paid to Seller when due shall incur a carrying charge of 1.0% per month above the current LIBOR one month rate to the extent allowed by law and otherwise at the highest written contract rate allowed by law. Buyer shall reimburse Seller for all costs of collection, including reasonable attorney fees, of amounts not paid when due.
(e) Security Interest.
Buyer grants to Seller a security interest and right of possession in the Goods until Buyer makes full payment. Buyer will cooperate in whatever manner necessary to assist Seller in perfecting and recording such security interest
(f) Right of Offset.
Seller may offset or recoup any amounts owed by Seller or an affiliate of Seller to Buyer or an affiliate of Buyer against any amounts owed by Buyer or an affiliate of Buyer to Seller or an affiliate of Seller. Buyer waives any right of offset or recoupment and shall pay all amounts owed to Seller when due regardless of any claim of Buyer regarding warranties or other issues arising under contract, tort, statute or otherwise. Payment of such amounts by Buyer under written protest shall not constitute a waiver by Buyer of its claims.
All shipments are made Ex-works, Incoterms 2010, Seller’s manufacturing location, freight collect. Title and risk of loss or damage to Goods shall pass to Buyer at the place of delivery.
Delivery dates are best estimates only. Seller reserves the right to make deliveries in installments and the contract shall be severable as to such installments. Delivery delay or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries.
Unless otherwise instructed, Seller will ship via industry standard means for the applicable Goods. Seller will not be liable for any delays, breakage, loss or damage after having made delivery in good order to the first transportation carrier. All claims for loss or damage in transit are to be made by Buyer directly to the transportation carrier and the appropriate insurance carrier retained by Buyer. No deductions of any kind from the invoice amount shall be made. Unless otherwise specified in Seller’s quotation, standard packing for domestic shipment is included in the quoted price. When special domestic or export packing is requested, Buyer will be charged for any additional expenses. Shipments shall be deemed accepted by Buyer unless written notice of rejection is received by Seller within 10 days after receipt of the Goods by Buyer.
5. Changes; Cancellation.
No cancellations of or changes to the Goods ordered by Buyer shall be effective without Seller's written consent. Without such consent, a cancellation of or change to the Goods ordered by Buyer shall entitle Seller to all remedies available by law or equity including, but not limited to, cancellation costs or increased prices.
Seller warrants to Buyer only, subject to the disclaimers and limitations of the Agreement, that Goods shall conform in all material specifications in the Agreement, shall be in material conformance with the specifications in the Agreement, and shall be free from defects in materials and workmanship, which are discovered and reported to Seller within the period of 12 months from the delivery date to the original retail purchaser or 30,000 miles if installed in a vehicle. Under no circumstances shall the warranty period extend beyond 18 months from the date of delivery of the alleged non-conforming or defective Goods to Buyer. This is not a warranty of performance, but a limited warranty as to the condition of the Goods at delivery. Because the Goods may be subject to a wide variety of use, installation, maintenance, cleaning, and other factors, the warranty is only against the named defects and not against any other defects or failures such as, but not limited to, those due to normal wear and tear, normal maintenance and unknown causes. Perishable items are excluded from warranty against defects. Notwithstanding anything to the contrary, there is no warranty as to prototype Goods.
If Goods sold hereunder are not as warranted, Seller shall, at its option and as Buyer’s exclusive remedy, either refund the purchase price, or repair or replace the Product, provided that Seller receives written notice of the defect during the period of warranty and the defective Product is returned with Seller’s written authorization prepaid in protected shipping containers to Seller at a location designated by Seller. If Seller determines that the Product conforms to this warranty, the Product will be returned at Buyer’s expense. Seller disclaims any and all liability for equipment not furnished by Seller, which is attached to, or used in conjunction with, the Product and Seller, disclaims all liability for operation of the system of which such Product is a part. Seller extends this warranty to Buyer only, and it is the complete warranty for Goods manufactured by Seller.
(c) Warranty Scope.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF WARRANTY. This warranty shall not be enlarged and no obligation or liability shall arise out of Seller’s rendering of technical advice and/or assistance.
(d) Exclusive Remedy
This Section sets forth Seller’s entire obligation and Buyer’s exclusive remedy for any action that is brought against Seller.
7. Patents; Trademarks.
Seller shall defend and indemnify Buyer from any claim which asserts that the Goods or their inherent methods of operation, intrinsically, infringe any United States patent or trademark, except as to a claim based on Buyer’s modifications and use of the Goods as a step in an overall process or as an element in an overall combination. Seller’s obligation shall not apply to a claim based on the Goods or portions thereof specified, designed, or manufactured by Buyer. Buyer shall notify Seller promptly of any assertions of infringement and provide Seller with assistance and information requested by Seller for its defense, or Seller shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller’s exclusive obligation to indemnify as to the Goods declared to infringe is limited to the acquisition of a License, the replacement of the Goods with non-infringing Goods, the modification of the Goods so that they are non-infringing, or the return of the purchase price and shipping costs in exchange for the Goods, as Seller may elect. This Section states Seller’s entire and exclusive obligation regarding patent or trademark infringement and the exclusive remedies therefor, and Buyer waives all other rights. Seller disclaims any implied warranty of non-infringement. Buyer shall defend and indemnify Seller for all infringement claims (including direct, contributory and inducement) based on Goods or portions thereof specified, designed or manufactured by Buyer.
IN NO EVENT SHALL BUYER OR SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM INFRINGEMENT OF PATENTS OR COPYRIGHTS.
8. Limitation of Seller’s Liability.
(a) Limitation of Actions.
No action shall be brought for any breach of this Agreement more than one year after the accrual of such cause of action.
(b) Limitation of Liability.
Seller’s total liability arising out of or related to this Agreement whether for breach of contract, warranty, Seller’s negligence, strict liability in tort or otherwise, is limited to the price of the particular Goods sold hereunder with respect to which losses or damages are claimed. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES whatsoever arising out of, caused by or related in any way to the breach of any of its obligations under this Agreement, even if the party has been advised of the possibility of such damages. The parties expressly agree that the above limitation on damages is an allocation of risk constituting in part the consideration for this Agreement.
9. Design, Parts, Service and Training Provided by Seller.
All design, application engineering, parts, labor, service, software and training, if any, provided by Seller or its agents and contractors (including those provided under purchase orders subsequent to the Agreement) related to the Goods (whether or not covered by warranty) are subject to all limitations and disclaimers of warranties and remedies provided in the Agreement.
10. Responsibility for Safety.
Goods designed and manufactured by Seller are capable of being used in a safe manner, but Seller cannot guarantee their safe use and condition under all circumstances. IT IS BUYER’S OBLIGATION TO INSTALL AND USE THE GOODS IN A SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS AND LAWS, INFORMATION PROVIDED BY SELLER, AND GENERAL INDUSTRY STANDARDS OF REASONABLE CARE. If Seller provides installation or assistance in installation it is without warranty as to compliance with safety laws. It is Buyer’s or other user’s responsibility to provide all proper dies, devices, tools, training, and means that may be necessary to effectively protect all personnel from serious bodily injury which otherwise may result from the method of particular installation, use, operation, setup, or service of the Goods. Buyer shall comply with manuals furnished by Seller, ANSI Safety Standards, OSHA and similar state regulations, and other sources to insure the safe use of the Goods.
11. Proprietary Information.
Any and all information concerning the Goods or the transaction covered hereunder which Seller discloses to Buyer, or which Buyer otherwise obtains knowledge of hereunder, remains the exclusive property of Seller and shall not be disclosed by Buyer to third parties without Seller's express written consent. Buyer shall have no right whatsoever to such information other than to use it for evaluation for the purpose of the transaction covered hereunder. Seller will not disclose information submitted to it by Buyer which is confidential and proprietary to Buyer and clearly designated as such without Buyer's consent.
12. United States Government Regulations
. Buyer shall not engage in any transaction with respect to the Goods, by way of resale, lease, shipment or otherwise, which violates any statute or regulation of the United States of America or other governmental body. Buyer shall comply with all applicable export control laws and shall not, directly or indirectly, export, re-export, resell, ship, or divert any service, technical data, or software furnished hereunder to any person, entity, project, use, or country in violation of the laws or licensing requirements of the United States. Buyer warrants that Seller is not and shall not become a government subcontractor to Buyer and shall not be required to comply to the government acquisition regulations of any governmental body because of the Agreement or performance of the Agreement. If Buyer elects to sell Goods to the U.S. government or any state, local or non-U.S. government entity, or to a prime contractor or other subcontractor selling to such purchasers, Buyer does so solely at its own option and risk. Buyer remains exclusively responsible for compliance with all laws governing such sales and shall not obligate Seller as a subcontractor or otherwise to such entities. Seller makes no representations, certifications or warranties whatsoever with respect to the ability of its Goods or prices to satisfy any such statutes or regulations.
13. Termination; Cancellation.
(a) A party may terminate or cancel the Agreement immediately by written notice to the other party if: (i) The other party breaches any of its material obligations under the Agreement and that breach is not capable of remedy; (ii) A party becomes insolvent; (iii) It becomes unlawful for the party to perform its obligations under the Agreement.
(b) Seller may terminate or cancel the Agreement immediately by written notice to Buyer if Buyer fails to: (i) Pay money owing under the Agreement for more than seven days; (ii) Accept delivery at the delivery point within seven days from the date the Goods are first available for delivery as advised to Buyer by Seller, unless agreed otherwise in writing; (iii) Carry out any other provision of the Agreement or breaches any of its material obligations under the Agreement and does not remedy that failure or breach within the remedy period set out in a written notice from Buyer giving full particulars of the breach and requiring it to be remedied. Any breach which is not so described is waived.
(c) The rights of termination or cancellation under the Agreement are in addition to any right of action or remedy which the parties have in respect of any breach of the terms and conditions of the Agreement.
(d) The termination or cancellation of the Agreement does not affect the right of action or other remedy by the parties before termination in respect of any prior breach of the terms and conditions of the Agreement, including any breach which is the grounds of termination.
(e) All rights and obligations of each party to the Agreement which are expressed to survive termination, cancellation, or expiry of the Agreement, or which by their nature or context must survive termination, cancellation, or expiry of the Agreement, will survive the termination, cancellation, or expiry of the Agreement.
14. Force Majeure.
All inspection, delivery and other dates for Seller’s performance are estimates only. In addition, Seller shall not be in default because of its delay or failure to deliver or perform under the Agreement resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or purchase order; (ii) shortages of raw materials or labor; (iii) the lack of usual means of transportation, fires, floods, explosions, strikes or other work actions, or any other accidents, contingencies, or events, at Seller’s or its supplier’s plant or elsewhere (whether or not beyond Seller’s control) which directly or indirectly interfere with, or render substantially more burdensome, Seller’s production, delivery, or other performance; (iv) delays by Buyer in inspecting and acceptance, in furnishing requested specifications, materials, tooling or information, in making payments, or otherwise; or (v) failure of Seller’s suppliers to perform. If one or more deliveries hereunder is delayed by reason of any one or more of such occurrences for a period of 30 days, Seller may, at its option, terminate the Agreement as to the undelivered Goods or waive such delay and establish a new delivery schedule. Neither party shall be responsible for any delay or any failure of or defect in any performance (other than payment), due in whole or in part to fire, explosion, lack of or reduction in the anticipated usual utilities, transportation, loading facilities or other means of supply generally available to Seller and its suppliers, or labor disputes, acts of God, war, warlike conditions, blockade, embargoes, riots, governmental restriction, labor disturbances, epidemics, quarantine, flood, tornadoes, earthquake, explosion, or any other causes beyond the reasonable control of the party providing notice.
Any provision found to be unenforceable by a final unappealed order entered by the court or tribunal shall be severed from the Agreement. Such severance shall be as narrow as possible and shall not affect the remainder of the Agreement in such action and other actions, unless the court or tribunal shall also find, on the request of Seller that without such provision as originally written, the Agreement is not likely to meet the reasonably commercial expectations of the parties and in such case, the court or tribunal shall enter an equitable judgment of rescission, termination or reformation of the Agreement as necessary to reach an equitable result.
No right or interest in the Agreement may be assigned by Buyer without the prior written consent of the Seller. Any assignment attempted by Buyer shall be void and ineffective for all purposes unless made in conformity with this Section.
17. Choice of Law and Jurisdiction; Arbitration
(a) Choice of Law and Jurisdiction.
THE AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE OF MICHIGAN INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (“UCC”), EXCEPT AS PROVIDED HEREIN. THE U.N. CONVENTION ON THE INTERNATIONAL SALES OF GOODS SHALL NOT APPLY. THE COURTS OF MICHIGAN SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT, UNLESS WAIVED IN A WRITING SIGNED BY SELLER AND SUBJECT TO ANY RIGHT OF ARBITRATION WHICH MAY BE PROVIDED BY THE AGREEMENT.
(b) Arbitration. At Seller’s election, all controversies and claims arising out of or relating to the Agreement, or the breach thereof, shall be settled solely by arbitration held in Detroit, Michigan, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, provided Seller may also elect to institute, prior to formation of the arbitration panel, an action for a claim and delivery or replevin action to enforce its security or other interests in the Goods. The arbitrator(s) may enter an interim award that the Goods be returned to Seller for appropriate disposition and the application of any proceeds to amounts owed to Seller. Judgment upon any arbitration award may be entered in any court of record having jurisdiction thereon. No demand for arbitration hereunder may be filed by Buyer as a claim or counterclaim if Buyer has not given timely written notice of its claim to Seller or if more than one year has expired from the date the cause of action accrued, as provided in the Agreement. Upon the filing of a demand for arbitration by Seller or Buyer, Buyer shall deposit with the arbitration body or the arbitrator(s) the unpaid balance of the purchase price to be held in an interest bearing account. If such deposit is not made, the arbitrator(s) shall enter a final award against Buyer in the amount of the unpaid purchase price and other amounts owed by Buyer to Seller under the Agreement. The arbitrator(s) shall be bound by the terms of the Agreement and shall not apply any principles of ex aequo et bono nor allow any claims not specifically permitted by the Agreement. The arbitrator(s) may include the fees of the arbitration tribunal and arbitrators in an award. The arbitration proceedings and the award shall be confidential.