White Drive Motors & Steering’ General Terms and Conditions of Sale
These General Terms and Conditions of Sale (“Terms”) apply to all deliveries of products and services (collectively: “Products”) from White Drive Motors & Steering or its Affiliates (each of which is referred to as “White Drive Motors & Steering”) to any customer (“Customer”). In these Terms “Affiliate” shall mean an entity directly or indirectly controlled by White Drive Motors & Steering whether by shares or voting rights. Sale of any Products is expressly conditioned upon Customer’s acceptance of these Terms. These Terms apply to the agreement to the exclusion of any other terms, and no other terms shall be binding upon White Drive Motors & Steering and Customer unless otherwise expressly agreed in writing by White Drive Motors & Steering and Customer. Authorization by Customer to ship or provide Products, or Customers receipt thereof will constitute acceptance of these Terms.
1. Confirmation of Order / Acceptance of Quotation
A purchase order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. White Drive Motors & Steering shall not be deemed to have accepted a purchase order until Customer has received written, including electronic text form, confirmation from White Drive Motors & Steering of the purchase order, at which point a binding agreement shall be formed (“agreement”). Customer’s acceptance of a quotation or offer for Products given by White Drive Motors & Steering shall constitute an agreement and acceptance of these Terms. White Drive Motors & Steering may refrain from confirming any purchase order or fulfilling any obligation under an agreement in case Customer is delayed with a payment to White Drive Motors & Steering, until the due amount has been paid.
2. Terms of Delivery; Incoming Inspection
Unless otherwise agreed, the Products are delivered EXW from, at White Drive Motors & Steering’ option, any of White Drive Motors & Steering’ factories or places of business. Failing special instructions, White Drive Motors & Steering has the right to dispatch the Products to Customer at the risk and expense of Customer by a transport method chosen by White Drive Motors & Steering. EXW or other agreed delivery term shall be interpreted in accordance with the Incoterms valid at the time a binding agreement is made.
Customer shall within two (2) business days from receipt of Products inform White Drive Motors & Steering of any visual transportation damage as well as any discrepancies in quantity or identity, which can be determined based on comparison between order documentation of Customer (e.g. order-number, product name, ordering text) and the delivery documentation of White Drive Motors & Steering (e.g. delivery note, labelling of packaging units).
If a firm delivery date is agreed, and White Drive Motors & Steering does not deliver at the agreed time, Customer is entitled to request delivery in writing and fix a final, reasonable time limit for delivery. If delivery is not made within this time limit, Customer is entitled to rescind the agreement of sale and, subject to any disclaimers or limitations of liability in these Terms, claim compensation for its documented, direct loss. In no event can the compensation exceed an amount equivalent to the price of the delayed Products. Any claim for compensation must be made within one month from the agreed date of delivery. No further claims can be made by Customer as a result of the delay.
Prices for Products are exclusive of VAT, other taxes, or duties. White Drive Motors & Steering reserves the right to adjust prices for non-delivered Products in the event of alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in custom duties, changes in wages, state requisitions or similar conditions over which White Drive Motors & Steering has no or limited control.
White Drive Motors & Steering may charge Customer separately for surcharges and fees, such as but not limited to: small orders, freight and handling, express delivery, return and cancellation, provided White Drive Motors & Steering has informed Customer of such surcharges and fees, e.g. in White Drive Motors & Steering order confirmation, as part of price lists, or as otherwise made available to Customer.
Disposable packing is included in the Product prices and will not be credited if returned. Returnable packing is not included in the Product price but will be credited if returned without undue delay in undamaged condition at Customer’s expense, and in accordance with White Drive Motors & Steering’ instructions.
6. Terms of Payment
Unless otherwise agreed due date is 30 days from the date of invoice. Any credit shall be subject to White Drive Motors & Steering being satisfied with the Customer’s credit references, and White Drive Motors & Steering may (in its absolute discretion), refrain from delivering the Products until such time as Customer has complied with the payment requirements of White Drive Motors & Steering, such as payment in advance, and/or payment of any outstanding amounts which may be due to White Drive Motors & Steering. All payments shall be made by bank wire transfer or direct debit without deduction of any transfer or debit fees in immediately available funds to the bank account set out in the relevant invoice. From due date an interest rate of: i) 2 % per month or ii) the highest rate allowable under applicable law, whichever the lesser, will be payable.
7. Group Set-off
White Drive Motors & Steering and its Affiliates shall be entitled to set off any liability of White Drive Motors & Steering and/or its Affiliates to Customer against any liability of Customer to White Drive Motors & Steering and/or its Affiliates. “Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by or is under common control with that entity.
8. Product Information
Any information, including, but not limited to information on selection of Product, its application or use, Customer product design, weight, dimensions, capacity or any other technical data in catalogues descriptions, advertisements, etc. and whether made available in writing, orally, electronically, online or via download, shall be considered informative, and is only binding if and to the extent, explicit reference is made in a quotation or order confirmation. Specific demands from the Customer are only binding if and to the extent they have been confirmed by White Drive Motors & Steering in writing. Customer is solely responsible for its products and applications that incorporate or use White Drive Motors & Steering Products. Any Products made available as samples, prototype, or similar type identification (whether charged for or not) may only be used for evaluation purposes, may not be resold or be made part of Customer’s products for resale.
9. Proprietary Information and Confidentiality
Any non-public information, including but not limited to, prices, drawings, descriptions and any technical documents which White Drive Motors & Steering has made or may make available to Customer (“Confidential Information”) shall remain the property of White Drive Motors & Steering and shall be treated as confidential by Customer and its representatives and must not, without the written consent of White Drive Motors & Steering, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned upon White Drive Motors & Steering’ request.
White Drive Motors & Steering reserves the right to make alterations to the Products, which do not materially affect agreed specifications or the Products’ form, fit or function, without notice.
11. Cost-free Repairs or Replacements
White Drive Motors & Steering agrees to repair, replace, or credit at the discretion of White Drive Motors & Steering such Products that are found to be defective at the time of delivery due to faulty manufacture, design and/or defective materials, provided Customer makes a claim to White Drive Motors & Steering within 12 months from the date of delivery, however never exceeding 18 months from the date stamped on the Product, or if no date is stamped, from the date of production (“Claim Period”).
If defects occur within the Claim Period, Customer shall inform White Drive Motors & Steering in writing in accordance with White Drive Motors & Steering’ instructions. If so requested by White Drive Motors & Steering, the Customer shall at its cost and risk forward the Product to White Drive Motors & Steering together with a written notice describing the reason for returning the Product. Products returned or made available for repair shall be free of extraneous equipment, unless otherwise instructed. If White Drive Motors & Steering’ examination shows that the Product is not defective, White Drive Motors & Steering may return the Product to Customer at Customer’s cost and risk, and White Drive Motors & Steering may charge a fee for the time and materials used in investigating the defect. If White Drive Motors & Steering ascertains that the Product is defective, White Drive Motors & Steering shall in its discretion send the repaired or a replacement Product to Customer, repair or replace the Product on location, or credit the original purchase price to Customer. Customer shall grant White Drive Motors & Steering access in case of repair or replacement on location. White Drive Motors & Steering may choose the method of dispatch and pays freight and insurance. Products or Product parts which have been replaced shall be the property of White Drive Motors & Steering. White Drive Motors & Steering shall not be liable for any failure of Products resulting from the use or operation of the Products because of the improper installation, repair, maintenance or operation of the Products by Customer, the failure of Customer to adequately train personnel in the operation of the Products, or Customer’s failure to comply with applicable laws or regulations or otherwise. Services or advice shall be performed with reasonable skill and care, and White Drive Motors & Steering makes no warranties as to the suitability thereof. White Drive Motors & Steering’ liability for faulty services, consulting, advice, application guidance, and other services shall be limited to correction of the fault or re-performance of the service. White Drive Motors & Steering shall correct the fault, provided Customer makes a claim to White Drive Motors & Steering within the Claim Period. White Drive Motors & Steering shall not be liable for any services provided for free.
White Drive Motors & Steering may on a per product or per division basis offer a limited manufacturer’s warranty in addition to White Drive Motors & Steering obligations under this clause 11. In that case, end-user may rely on such general manufacturer’s warranty, unless otherwise agreed.
To the extent permitted by law no claim can be made by Customer in respect of Products after the expiry of the applicable Claim Period, whether based in contract, breach of warranty, tort, statute, or otherwise.
All warranties, conditions and other terms implied by statute or otherwise (including any implied warranty of merchantability or fitness for a particular purpose) shall be excluded from the agreement, other than those that cannot be excluded by applicable law. In addition to the generality of the foregoing, unless otherwise expressly set forth herein in these Terms, the Products are supplied “as is”, “where is” and “with all faults”.
12. Product Liability
White Drive Motors & Steering shall not be liable for any damage to any property (real or movable) caused by the Product after it has been delivered and while it is in the possession of Customer. Nor shall White Drive Motors & Steering be liable for any damage to products manufactured by Customer or to products of which Customer’s products form a part.
If White Drive Motors & Steering incurs liability towards any third party for such damage as described in the preceding paragraph, Customer shall indemnify, defend, and hold White Drive Motors & Steering harmless from and against such liability. Customer shall indemnify, defend and hold White Drive Motors & Steering harmless from and against all claims arising from damage resulting from the use or operation of the Products because of the improper installation, repair, maintenance or operation of the Products by Customer, the failure of Customer to adequately train personnel in the operation of the Products, or Customer’s failure to comply with applicable laws or regulations or otherwise. If a claim for damage as described in this clause is lodged by a third party against either White Drive Motors & Steering or Customer, the respondent party shall immediately inform the other party thereof in writing. Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against White Drive Motors & Steering on the basis of damage allegedly caused by the Product.
13. Limitation of Liability
White Drive Motors & Steering shall not be liable to Customer for any of the following types of loss or damage arising under or in relation to an agreement governed by these Terms: 1) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or 2) any loss or corruption of data; or 3) any indirect, special, punitive, exemplary or consequential loss or damage whatsoever; even if White Drive Motors & Steering was advised in advance of the possibility of such loss or damage, and whether arising out of breach of warranty, tort, statute, delay, faulty Products, product liability, recall or otherwise, and even if any express warranties fails its essential purpose.
White Drive Motors & Steering’ total liability arising under or in relation to an agreement governed by these Terms shall not exceed the amount invoiced by White Drive Motors & Steering to Customer thereunder.
Customer acknowledges and agrees, that White Drive Motors & Steering has set its prices and entered into the transaction in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, and that the same reflect a risk allocation between the parties forming an essential basis for the bargain between them.
14. Mandatory liability
Nothing in these Terms (including but not limited to the exclusions and limitations in clauses 11 to 13) shall operate so as to exclude or limit the liability of either party to the other for death or personal injury arising out of its negligence, fraudulent misrepresentation or for any other liability which cannot be excluded or limited by law.
15. Notice of Claims
Claims or complaints as to defects and/or delay in delivery of the Products or other claims shall be submitted in writing by Customer to White Drive Motors & Steering without undue delay.
16. Intellectual Property Rights and Use of Software
If the Product is delivered with embedded software, Customer obtains a non-exclusive software license in form of a right of use to the software solely for the purposes set out in applicable specification of the Product, and in accordance with any applicable license conditions made available. Aside from this, Customer obtains no rights in form of license, patent, copyright, trademark, or other proprietary right connected to the Products. Customer shall not obtain any rights to source codes to such software. Software provided separately regardless of how it is provided by White Drive Motors & Steering is made available on an “as is”, “where is” and “with all faults” basis, and may be used solely for the purpose for which it is intended, and subject to any applicable license conditions. White Drive Motors & Steering shall not be liable in any way for errors or for any loss or damage arising out of or as a result of use of such separate software, or any third-party software relating thereto.
White Drive Motors & Steering, at its election, may defend any suit or proceeding brought against Customer as far as the same is based on a claim that any Product or part thereof delivered by White Drive Motors & Steering, constitutes an infringement of any third party intellectual property rights in the country of delivery, if notified promptly in writing and given authority, information and assistance for the defense of the same and provided such alleged infringement is not the result of the design or other special requirements specified by Customer or the application or use to which such Product is put to use by Customer or others. If White Drive Motors & Steering elects to defend such suit or proceeding, White Drive Motors & Steering will pay all damages and costs awarded under such suit or proceeding against Customer. If such Product or part thereof is held to infringe any such third party intellectual property rights and use thereof is enjoined, White Drive Motors & Steering will, at its option, (a) procure Customer with the right to continue use of such Product, (b) replace same with non-infringing Product(s) or parts thereof, (c) modify the same so that it becomes non- infringing, or (d) remove said Product or part thereof and refund the purchase price. The foregoing states the entire liability of White Drive Motors & Steering to Customer for infringement of intellectual property rights.
17. Restraint on Resale and Use for Certain Purposes
White Drive Motors & Steering products are produced for civilian use. Customer shall not use or resell the Products for purposes which have any connection to chemical, biological, or nuclear weapons or for missiles which are capable of delivering such weapons. Customer is not allowed to sell the Products to persons, companies, or any other kind of organization if Customer has knowledge of or suspects that said persons or entities are related to any kind of terrorist or narcotics activities. The Products may be subject to export control regulations, and may therefore, without limitation be subject to restrictions in case of sale to countries/customers covered by export and import ban. These
restrictions shall be observed in case of resale of the Products.
Customer is not allowed to resell the Products if there is doubt or suspicion that the Products can be used for purposes in violation of the preceding paragraph. If Customer receives knowledge of or suspects that the conditions in this clause have been violated, Customer shall immediately inform White Drive Motors & Steering.
White Drive Motors & Steering shall not be obligated to fulfil any obligation under any agreement if such fulfilment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.
18. Force Majeure; Allocation
White Drive Motors & Steering is entitled to cancel orders or suspend delivery of Products and shall not be liable for any non-delivery, faulty or delayed delivery, which partly or wholly is caused by circumstances beyond White Drive Motors & Steering’ reasonable control, including, but not limited to, riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo or defects or delays in deliveries by sub-suppliers, strikes, lockouts, slowdowns, lack of transportation, scarcity of materials, and insufficient supplies of energy. Any of Customer’s contractual rights are suspended or become void in any such circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances.
Further, if White Drive Motors & Steering at any time is unable to fulfill Customer’s orders for Products due to an event of force majeure or any other cause beyond White Drive Motors & Steering’s control, such as lack or shortage of components or raw materials, White Drive Motors & Steering may reasonably allocate its available supply of Products among all of its customers in any fair and reasonable manner determined by White Drive Motors & Steering without such allocation constituting a default event.
19. Global Compact and Anti-Corruption
White Drive Motors & Steering has joined the United Nations’ Global Compact initiative which means that White Drive Motors & Steering has undertaken to live up to 10 principles on human rights, employees’ rights, the environment, and corruption. These principles and further information are set out at Global Compact: http://www.unglobalcompact.org. Therefore, White Drive Motors & Steering encourages Customer to comply with these fundamental principles. White Drive Motors & Steering shall be entitled to cancel any delivery, purchase order or terminate an agreement without incurring any liability if White Drive Motors & Steering has reason to believe that Customer acts in a manner contrary to applicable laws and regulations regarding bribery and corruption.
20. Data Privacy
Personal data of individual contacts of the Customer such as name and business contact details may be processed and stored globally outside of the Customer’s country by White Drive Motors & Steering, its affiliates or authorized third party providers. White Drive Motors & Steering will use personal data to perform its contractual obligations (such as administration of customer relations and of payment transactions), to analyze and improve its products and services, and/or to send information on products, services and events of White Drive Motors & Steering to contact persons of Customer. Where consent is required by law, the Customer hereby agrees to the personal data being used and transferred as described above, and acknowledges that personal data will be subject to the foreign law of the country where it is being held/server is located. White Drive Motors & Steering will use adequate contractual and technical mechanisms to protect personal data. White Drive Motors & Steering will keep personal data for the duration of the contractual relationship. Where required by mandatory law and provided that the necessary conditions are satisfied, the Customer may as a natural person have the right to access, rectify, inquire about or, object to the processing of his personal data. For further details contact your local White Drive Motors & Steering contact person or visit www.whitedriveproducts.com
21. Partial Invalidity
If one or more of the terms and conditions in these Terms or any part of a term is deemed invalid, unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby.
White Drive Motors & Steering and Customer may at any time assign or transfer all or any of its rights under these Terms. Neither Party may assign or transfer any of its obligations under these Terms without the prior written consent of the other Party.
23. Governing law and Disputes
Any dispute between the parties arising from or in connection with an agreement governed by these Terms shall be governed by the substantive law at White Drive Motors & Steering’ selling entity’s place of business. Any dispute arising from or in connection with an agreement governed by these Terms and which the parties themselves are unable to resolve shall be referred to and finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce, (“Rules”) by one or more arbitrators appointed in accordance with said Rules. Either Party shall be entitled to seek injunctive or interim relief or any other temporary measures. The Parties may refer the enforcement of any arbitral award to any competent court. The seat of arbitration shall be the capital city of the country of the White Drive Motors & Steering’ selling entity. English shall be the language to be used in the arbitration proceedings unless otherwise agreed between the parties. The arbitration proceedings and the arbitral award shall be confidential and involved persons on both sides are pledged to secrecy.