RECARO Automotive GmbH – General Terms and Conditions (May 2019)
1. SCOPE OF APPLICATION
a) These general terms and conditions (the "Terms") are applicable to the sale of aftermarket products or services (the "Products") by Recaro North America Inc. and its divisions and affiliates ("We" or "RECARO" or "Seller") to any purchaser thereof ("You" or "Buyer"). These Terms together with any agreement, attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference constitutes the entire and exclusive agreement between Seller and Buyer. By placing an order with Seller for Products, Buyer’s acceptance of an order is an agreement to accept and to be bound by these Terms to the exclusion of any other terms or conditions not accepted by Seller in writing. This includes but is not limited to any pre-printed terms or conditions on Buyer’s purchase order or any purported nullification of these Terms by way of any purchase order, order communication, in any form. Buyer acknowledges that it has been advised that no agent, employee, representative or dealer of Seller has any authority to bind Seller to any affirmation, promise, representation, or warranty concerning any of the Products and, unless such affirmation, promise, representation, or warranty is specifically set forth in the agreement, it does not form a basis of this bargain and shall not be enforceable against Seller. These Terms may only be modified by the express written consent of Seller.
2. INTELLECTUAL PROPERTY
We retain the title and copyright to designs, drawings and other documents; these may not be made accessible to any third party. The sale of Products by Seller does not convey to Buyer or any other third party any license, implied or otherwise, or any other rights to or under any Intellectual Property.
3. DELIVERY; ACCEPTANCE
Minor deviations in form, material, color, dimensions, weight and function are possible and shall not affect the Terms. Descriptions and illustrations are only approximate. Upon Delivery by Seller, all Products are deemed accepted by Buyer five (5) days after receipt of delivery.
4. PRICES
The purchase price includes the costs of standard packaging (special packaging shall, however, be charged at cost) of the Products; but excludes: (a) transportation, customs duties, insurance or any other costs or fees that may apply to sale and delivery of the Products; and (b) any federal, state, municipal or other governmental tax applicable to the sale of Products to Buyer, if any. All such taxes shall be in addition to the purchase price and be paid by Buyer unless otherwise agreed to or required by law. In the event of material prices, wages or other costs beyond our control rising between the time of the conclusion of the agreement and the delivery, then we shall be entitled to amend the agreed prices.
5. TERMS OF PAYMENT
Unless otherwise agreed, invoices are due for payment immediately upon their receipt. First-time Buyers must make advance payment (i.e. cash or credit card). All past due payments bear interest at one and one half percent (1.5%) per month on the unpaid balance or the maximum allowed by law whichever is greater.
6. DELIVERY DEADLINE
a) Our delivery obligation will be suspended for as long as the Buyer is in arrears with the performance of an obligation arising out of this or another agreement. b) Force majeure, official measures, civil commotions, strikes, lock-outs, lack of workers, energy, raw materials or auxiliary materials, transport disruptions, difficulties relating to the procurement of means of transport, the failure of upstream suppliers to adhere to delivery deadlines, or other circumstances for which we are not responsible but which hinder punctual or proper manufacture or delivery shall entitle us to extend delivery periods by the duration of such events, or to withdraw from the part of the Agreement which has not yet been performed.
7. TRANSFER OF RISK AND SHIPMENT
All Products are shipped Ex-Works (INCOTERMS 2010) Seller’s plant. Delivery shall occur and risk of loss shall pass to Buyer upon delivery of Products to Ex-Works point. All shipping dates are reasonable commercial estimates and Seller has no liability for any delay in shipment.
8. CANCELLATION, TERMINATION AND SURVIVABILITY
Seller reserves the right, in its sole discretion, to decline or to cancel any order for any reason. Following Seller’s acknowledgement of an order, the order may only be cancelled by Buyer with the express written consent of Seller and may be subject to a restocking fee and any applicable material, labor, service, or other costs and fees, at Seller’s sole discretion.
9. WARRANTY
SELLER WARRANTS THAT FROM THE DATE OF DELIVERY THROUGH THE END OF THE APPLICABLE WARRANTY PERIOD, THE PRODUCTS WILL CONFORM TO SELLER’S PUBLISHED SPECIFICATIONS AT TIME OF SALE AND BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP, UNDER PROPER USE AND SERVICE, IN ACCORDANCE WITH THE WARRANTY STATEMENT PUBLISHED BY SELLER IN EFFECT AT THE TIME OF DELIVERY OF THE PRODUCT. SELLER’S SOLE LIABILITY SHALL BE DISCHARGED BY REPLACING OR REPAIRING ANY PART OR PARTS WHICH MAY PROVE DEFECTIVE UNDER NORMAL AND PROPER USE. IN THE EVENT THAT A PRODUCT IS ALTERED OR MODIFIED BY BUYER WITHOUT SELLER'S WRITTEN CONSENT ALL WARRANTIES TERMINATE IMMEDIATELY. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF BUYER HAS NOTIFIED SELLER OF ITS INTENDED USE FOR THE PRODUCTS). SELLER FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OF THE PRODUCTS WHERE THE ALLEGED NONCONFORMITY IS DUE TO NORMAL WEAR AND TEAR, ALTERATION, MODIFICATION, REPAIR, ATTEMPTED REPAIR, IMPROPER USE, IMPROPER MAINTENANCE, NEGLECT, ABUSE, IMPROPER STORAGE, FAILURE TO FOLLOW ANY PRODUCT INSTRUCTIONS, DAMAGE (WHETHER CAUSED BY ACCIDENT OR OTHERWISE), OR ANY OTHER IMPROPER CARE OR HANDING OF THE PRODUCTS CAUSED BY ANYONE OTHER THAN SELLER OR SELLER’S EXPRESSLY AUTHORIZED DESIGNEE.
10. PRODUCT RETURNS
Products shall not be returned to Seller without its written consent. Return instructions will be provided by Seller upon written request. Seller shall pay the cost of returning to Buyer Products that are repaired or replaced under Warranty.
11. LIABILITY
NOTWITHSTANDING WARRANTY REPAIR OR REPLACEMENT, SELLER ACCEPTS NO LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE PRODUCTS, OR THE CONTRACT EXCEEDING THE AMOUNT OF THE INVOICE FOR THE PRODUCTS UPON WHICH SUCH CLAIMS ARE BASED, INCLUDING BUT NOT LIMITED TO CLAIMS FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, OR DAMAGES CLAIMS BY ANY THIRD PARTY, WHETHER OR NOT THE CLAIMS ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITED LIABILITY AVAILABLE UNDER THIS SECTION SHALL TERMINATE ONE YEAR FROM DELIVERY, IF NOT SOONER TERMINATED.
12. GOVERNING LAW
ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN BUYER AND SELLER ARISING FROM OR RELATING TO THESE TERMS SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF MICHIGAN WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW AND SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE COURTS IN THE STATE OF MICHIGAN, COUNTY OF WAYNE, AND IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THE INTERPRETATION OR ENFORCEMENT TO THESE TERMS. IN THE EVENT THERE IS ANY DISPUTE CONCERNING THE TERMS OF THE AGREEMENT OR THE PERFORMANCE OF ANY PARTY, THE PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE ATTORNEY’S FEES AND COSTS.
13. SEVERABILITY
If any of these Terms or part thereof is held to be invalid, illegal, or unenforceable by law, all other Terms and the parts of any Term not held to be invalid, illegal, or unenforceable, shall remain in full force and effect.
14. COMPLIANCE WITH EXPORT LAWS.
EACH PARTY SHALL COMPLY WITH EXPORT LAWS THAT ARE APPLICABLE TO THE PRODUCTS.
15. ASSIGNMENT.
Buyer may not assign any right or delegate any duty under the agreement without the express written consent of Seller, which shall not be unreasonably withheld.
16. TRADEMARKS.
Buyer agrees that it will not use in any manner unrelated to the agreement any name or trademark of Seller without the express written consent of Seller.
17. CONFIDENTIALITY.
Each party shall treat all information received from the other party marked “Confidential” or reasonably obvious as to be confidential as it would treat its own confidential information.
18. ENTIRE AGREEMENT.
The parties expressly acknowledge that these Terms are complete, are an essential part of the agreement, and supersede all prior negotiations, agreements and understandings of the parties regarding the subject matter of these Terms. These Terms may only be modified by the express written consent of Seller. Incorporated by reference herein you can find any and all current RECARO Polices, Products, Warranties, and Notices provided via RECARO's website or otherwise. The Terms in place at the time of this agreement govern this agreement.
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