The following Terms and Conditions of Sale – Electric Vehicle Test Systems Products (the “Terms”) shall apply to all proposals made, and purchase orders accepted, by Webasto Thermo & Comfort North America, Inc. (“Webasto”) for sales of Electric Vehicle Test Systems product systems and related products (the “Products”) by Webasto to the Customer identified in the accompanying Proposal, except to the extent the Terms conflict with an Agreement signed by both Webasto and Customer. These Terms and the Proposal together form the agreement between Webasto and Customer (“Agreement”). These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms shall govern when in conflict with any of the terms and conditions contained in Customer’s purchase order or other procurement document, and Webasto’s acceptance of Customer’s order is conditioned upon Customer’s acceptance of these Terms, irrespective of whether Customer accepts by a written acknowledgement, implication, or acceptance of and payment for Products ordered hereunder. Webasto’s failure to object to provisions contained in any communication from Customer, or failure to enforce these Terms, shall not be deemed a waiver of these Terms or any provisions thereof. Any changes in these Terms must be specifically agreed to in writing by both parties before becoming binding on either party.
Webasto proposals constitute an offer to sell Products upon these Terms (the “Proposal”). Unless otherwise stated on the Proposal, the prices included in any Proposal: (i) shall be valid for a period of thirty (30) days from its date; (ii) are in U.S. Dollars payable by check or wire transfer; and (iii) do not include shipping, transportation or installation charges, or sales, use, personal property or other taxes, including state and local privilege or excise taxes. All applicable charges will be included in Webasto’s invoice as separate items, which Customer agrees to pay or, in the case of taxes, to supply appropriate tax exemption certificates in a form satisfactory to Webasto.
3. TERMS OF PAYMENT
Unless otherwise stated on the Proposal, (a) If Customer’s creditworthiness has been established in advance, Customer shall pay all invoices by check or wire transfer in U.S. Dollars, net 30 days from invoice date; (b) If Customer’s creditworthiness has not been established, or Customer is located outside the United States, payment terms will be cash, letter of credit or wire transfer in advance prior to Products being shipped (based on Webasto’s Proposal), the final balance due to be reconciled within 15 days of Product delivery; and (c) Webasto reserves the right to require Customers located outside of the United States in situations where the Proposal includes installation, to pay Eighty Five Percent (85%) of the total Proposal price via cash, letter of credit or wire transfer prior to the Products being shipped, and the remaining Fifteen Per Cent (15%) upon completion of installation. Invoices not paid when due shall be subject to an interest rate of the lesser of 1.5%, or the maximum legal rate, of the invoiced amount for each month they remain unpaid. If a Proposal provides that any portion of the purchase price is not payable until completion of installation, the final payment shall be due net 30 days from the date title and ownership interest is transferred to Customer as defined in Section 6 herein. If Customer is delinquent in payment to Webasto, Webasto may immediately stop shipment of Products and future shipping of Products until all delinquent amounts and late interest are paid. If Customer cancels any purchase order after the third (3rd) business day that such purchase order was issued by Customer, Customer shall be responsible to pay to Webasto a Cancellation Fee of 50% of the purchase order price, within 30 days of such cancellation. Additionally, Webasto may at its option recover all costs incurred by Webasto or its agent, including without limitation reasonable attorneys’ fees, costs and expenses, in a collection action or any other legal action resulting from Customer’s breach of this Agreement. Webasto may re-evaluate Customer’s creditworthiness at any time, and modify or withdraw credit accordingly. Customer may not set off or recoup invoiced amounts or any portion thereof against sums that are due, may become due, or Customer claims to be due from Webasto.
4. PURCHASE MONEY SECURITY INTEREST; CONSTRUCTION, MATERIALS, AND MECHANICS LIENS
Customer’s order pursuant to this Agreement constitutes a security agreement, granting to Webasto a purchase money security interest in Product for the full amount of the purchase price. In order to perfect Webasto's security interest, Customer agrees to execute all instruments that Webasto, as the secured party, elects to file, or in its sole discretion determines to be necessary to perfect or protect its security interest, in compliance with the Uniform Commercial Code (“UCC”) or any state or federal law. Payment in full of the purchase price will release the security interest on that Product.
5. PARTS AND DELIVERY
Unless otherwise stated on the Proposal, (a) Products shall be shipped FOB Webasto’s business location in Ontario, California, using Webasto’s standard commercial packaging and surface freight relationships; (b) Delivery time is not of the essence; and (c) Webasto is not liable for any loss arising from delay in delivery of Products. All title and ownership interest is transferred to Customer upon shipment FOB Webasto’s busienss location in Ontario, California. Customer is solely responsible for, and shall bear all expense, risk and direction obligation relating to any applicable (i) Special Product packaging and/or freight handling requests from Customer; and (ii) Products customs, duties and import/export compliance.
If a proposal includes installation services by Webasto at one or more of Customer’s facilities or a third party location designated by Customer, Customer acknowledges and agrees that Webasto’s representatives shall have free, immediate, safe and secure access to facilities where the Services are to be performed, during normal business hours and/or when the facility is actually in operation, for purposes of performing the installation. Customer agrees to provide Webasto’s representatives with all safety and other protections required by law for Customer’s own employees, including, without limitation, all U.S. Occupational Safety and Health Administration (“OSHA”) rules and regulations. Customer shall not attempt to condition the right of Webasto’s representatives to obtain free access to a facility upon the signing of any agreement, waiver or release which in any way purports to affect the legal rights or obligations of Webasto or its representative. Any such agreement, waiver or release, if signed by an Webasto representative, shall be considered void ab initio and shall be of no force and effect. Webasto shall, however, direct its representatives to exercise reasonable care to comply with any plant safety regulations generally applicable to personnel at any such Customer facility.
The “Acceptance Date” shall be three days after the date of actual delivery of the Products to Customer’s facility.
8. INTELLECTUAL PROPERTY
(a) Ownership. All right title and interest in and to intellectual property of any kind associated with the Products and Software is reserved to, and belongs to, Webasto. (b) No Reverse Engineering. Customer agrees not to directly or indirectly disassemble, decode, peel components, decompile, modify, append, translate, copy, distribute, publicly display, disclose, sell, lease, loan, rent, transfer, assign, sub-license or otherwise reverse engineer or attempt to reverse engineer or derive source code from, or provide to third parties, the Products or Software or any portion thereof, or permit or encourage any third party to do so, or use or acquire any materials from any third party who does so. (c) Software License. Subject to these Terms, Webasto grants Customer a non-exclusive license, without right of sub-license, to use the software embedded in the Products, and any upgrades thereto (the “Software”) solely (i) with the Products, (ii) for Customer’s own use, (iii) as instructed in Webasto’s printed installation and operation instructions. The aforementioned license mentioned in section (c) shall exist concurrently with this Agreement and shall terminate immediately upon the termination of this Agreement. The Software is the property of Webasto, contains confidential and proprietary information of Webasto, and is protected by applicable patent and copyright laws and international treaties. Customer receives no other express or implied license or right to the Software under any patent, copyright, trademark, trade secret or other proprietary or intellectual property right.
Customer shall receive and maintain the Software and other Webasto confidential information in confidence and agrees to use at least the degree of care that it uses to protect its own proprietary information, but no less than reasonable care, to prevent the unauthorized use of the Software outside of this Agreement. Customer’s obligations under this Section shall continue indefinitely for as long as the Software continues to be confidential or proprietary to Webasto.
9. LIMITED WARRANTY
Products manufactured by Webasto are warranted to the original Customer to be free of defects in material and workmanship for a period of twelve (12) months from the date of Acceptance Date (pursuant to Section 8 above), but not more than eighteen (18) months from the date of shipment FOB Webasto’s facility. If a Proposal includes installation services by Webasto, Webasto warrants that the installation of the Products shall be free of defects in workmanship for a period of twelve (12) months from the date of installation. Notwithstanding anything to the contrary herein, this warranty does not cover replacement of expendable items, such as fuses, switches and connectors shipped with or integrated into the Products. Extended warranties, if purchased at the time of sale, shall extend the warranty by the amount of time correlated with the extended warranty purchased. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY WEBASTO WITH RESPECT TO THE PRODUCTS AND INSTALLATION THEREOF, AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO WEBASTO IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT WEBASTO’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED FOR CUSTOMER’S USE OR PURPOSE.
Webasto’s liability under this warranty shall be limited to repairing or replacing at Webasto's option, without charge, FOB Webasto's factory, any Product of Webasto’s manufacture. Unless the Proposal includes installation services, Webasto will not be liable for any costs of removal, disposal, installation, transportation, or any other charges which may arise in connection with a warranty claim. Webasto will not be liable for damage or wear to products caused by abnormal operating conditions (including, but not limited to, exposure to acid, chemical fumes, metallic dust or extreme temperatures), accident, abuse, misuse, unauthorized alteration or repair, or if the product was not installed, operated or maintained in strict compliance with Webasto’s printed installation and operating instructions. Any evidence of an attempt to disassemble or reverse engineer the Products will void the warranty. For business-to-business warranty disputes, Webasto, acting in good faith, is the final arbiter of the presence of facts that support a conclusion that the warranty is voided.
To obtain service under this warranty, and prior to any Product return to Webasto by Customer, the defective Product must have: 1) been installed by Webasto or in strict compliance with Webasto's printed installation and operating instructions, and 2) proof of purchase (including installation date), failure date, supporting installation and operation data.
10. FORCE MAJEURE
Webasto shall not be liable for any loss or damage resulting from failure or delay of performance due to unforeseen circumstances or causes beyond their control, including without limitation; strikes; riots; war; fire; flood; sabotage; acts of God; weather-related transit or shipping delays; inability to obtain materials or manufacturing facilities or compliance with any law, regulation or order; and any governmental limigations on operations, labor, and materials‘ availabily, whether valid or invalid, and as set forth by any cognizant government body whether domestic or foreign.
11. LIMITATION OF LIABILITY
WEBASTO WILL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES OF ANY NATURE ARISING FROM INSTALLATION, USE OR ANY OTHER CAUSES WHATSOEVER. WEBASTO WILL NOT BE LIABLE FOR THE ACTS, WORKMANSHIP OR NEGLIGENCE OF CUSTOMER’S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, SUPPLIERS OR AGENTS. WEBASTO WILL NOT BE LIABLE UNDER CONTRACT, TORT OR OTHERWISE, FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF ANTICIPATED PROFITS OR REVENUE, LOSS BY REASON OF PLANT SHUTDOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION, RESULTING FROM THE PRODUCT’S INSTALLATION OR USE, EVEN IF WEBASTO OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE HANDLING, POSSESSION OR USE OF THE PRODUCT.
12. GOVERNING LAW
The purchase of Products pursuant to this Agreement shall be governed by the laws of the State of Michigan without regard for its conflict of laws provisions. Venue for any dispute regarding this Agreement or any resulting order shall be Oakland County, Michigan, and Customer expressly consents to the jurisdiction of its state and federal courts in connection with this Agreement. Customer waives any other venue to which either party might be entitled by domicile or otherwise. If Customer is located outside of the United States, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or to any transaction made pursuant to this Agreement.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire, complete and fully integrated agreement between Webasto and Customer with respect to the subject matter hereof, and supersedes all prior oral or written agreements, course of dealing or understandings relating to that subject matter. There are no other statements, representations, terms, covenants, warranties, guarantees, conditions, agreements or obligations in any way relating to Webasto’s sale of Products to Customer, and Customer expressly disclaims any purported reliance on any prior oral and/or written representations. If any provision of these Terms is held invalid, void or unenforceable for any reason, that provision shall be severed and all other provisions of these Terms shall remain valid to the extent permissible by law. These Terms shall only be modified by a document signed by both Customer and Webasto. Under no circumstances shall any preprinted additional or different terms or conditions on Customer’s purchase orders or invoices, Webasto’s sales or marketing materials, or other business documents apply to Products purchased under this Agreement.
Webasto Thermo & Comfort North America, Inc