1.     DEFINITIONS

“Company”:      WARNER ELECTRICE EUROPE SAS (the “Company”)

“Conditions”:     The Terms and Conditions of Purchase set out in this document and any special terms and conditions expressly agreed to in writing by the Company.

“Contract”:         The contract between the Company and the Seller arising on submission of the Order by the Company subject to theConditions.

“Goods”:           All or any part of the products, goods, work, equipment and services to be provided by the Seller under the Contract.

“Order”:             The Company’s Purchase Order to which these Conditions are annexed.

“Seller”:             The party contracting with the Company for the purchase of the Goods.

2.     CONTRACT TERMS

These Conditions shall apply to all Contracts for the purchase of Goods by the Company from the Seller to the exclusion of all other terms and conditions, including any terms or conditions which the Seller may purport to apply under any sales offer, quotation, invoice or similar document, and any terms and conditions subject to which the Order is accepted or purported to be accepted by the Seller. All prior, contemporaneous and subsequent representations, negotiations, and agreements, whether written or oral, including, but not limited to, terms and conditions submitted by the Seller, shall have no legal effect and shall not become part of the Contract unless expressly agreed to in writing by the Company and made a part hereof.

3.     ORDER

Orders will be issued by the Company in writing, by fax or electronically, and will be binding on the parties upon the Seller’s acceptance in writing, by fax or electronically, or by the Seller’s commencement of any work or performance (including, without limitation, dispatch or delivery of the Goods) pursuant to the Order. Seller’s acceptance of the Order by any means shall constitute acceptance of these Conditions. The Conditions are an integral part of the Order and any business shall be conducted solely on the basis of these Conditions, to the exclusion of and notwithstanding any contrary terms, whether on quotations, acknowledgments, catalogues, invoices, or any other correspondence from the Seller, including correspondence both pre- and post-dated from placement of the Order.

4.     PRICE

All prices shall be set forth on the face of the Order or an attachment thereto. Unless otherwise expressly stipulated on the Order, stated prices are firm and final. The Seller warrants that the prices for the Goods or services sold to the Company under this order are not less favorable than those currently extended to any other customer for the same or like goods or services in equal or less quantities. In the event the Seller reduces its price for such goods or services during the term of the Order, the Seller agrees to reduce the prices hereof correspondingly. Unless otherwise agreed by the parties in writing, prices shall include merchandise packaging and insurance necessary for proper preservation of the Goods during storage, and packaging suitable for transport in compliance with Section 6 below. No extra charges of any kind including interest charges, service charges or carrying charges will be allowed unless specifically agreed to in writing by the Company.

Unless otherwise agreed by the parties in writing, prices shall be quoted net, and include all duties and taxes except Value Added Tax (“VAT”), which shall be due at the rate ruling on the date of the Seller’s invoice. If the Seller is registered for VAT, it shall issue a proper tax invoice in accordance with the relevant legislation before the Company shall be required to make payment for Goods or services supplied in accordance with the Order. 

5.     TERMS OF PAYMENT

All invoices for Goods delivered or services performed must be rendered after delivery in accordance with Section 6 hereof,delivered to the Company’s head office, and bear the Company’s Order number. Unless otherwise specified in the Order, no down payment shall be issued before delivery. Unless otherwise agreed by the parties in writing, each of Seller’s invoices shall be paid by bank draft, ninety (90) days from the end of the month, on the 10^th day of the month (or next succeeding business day). This deadline is calculated form the actual date of delivery. Time for payment shall not be of the essence of the Contract. Where Goods are subject to VAT or any similar impost, the amount legally demanded shall be shown as a separate item on the invoice and the Seller shall, if required by the Company, produce evidence of the amount paid or to be paid by the Seller in respect thereof. The Company may set off against the price (including any applicable VAT payable) amounts due from the Seller, whether under the applicable Contract of sale or otherwise.No payment of or on account of the Contract price shall constitute an admission by the Company as to the proper performance by the Seller of its obligations. No payment will be made for containers, crates or packing materials of any description except by special arrangement and agreed by the Company in writing. No payment will be made for Goods not delivered in compliance with these Conditions. The Seller is not entitled to delay or suspend delivery of the Goods under the Order or any other order or Contract between the parties as a result of sums being outstanding. 

6.     SHIPMENT AND DELIVERY

Seller grants the Company the right at any time to specify the carrier and/or method of transportation to be employed in conveying any part or all of the Goods covered herein. In the event that Seller uses an unauthorized carrier and/or method of transportation, then all shipping expenses shall be assumed by Seller. Unless otherwise stated in the Order, all Goods will be shipped DDP Company’s facility. DDP shall be interpreted in accordance with the version of Incoterms valid at the time of the Seller’s acceptance of the Order. Both title and risk of loss (including transportation delays and losses) shall pass to the Company upon delivery to the agreed delivery destination (including off-loading and stacking), whether the Seller prepays freight or not. The Seller shall be responsible for all costs and liabilities for transporting and insuring the Goods, and for preparing and filing all export documentation for all shipments. The Company shall not be obligated to accept early deliveries, partial deliveries or excess deliveries. If Goods are incorrectly delivered, the Seller shall be responsible for any additional expense incurred in delivering the Goods to the correct destination.

All shipments must be accompanied by a packing list including all necessary information to identify the Goods (including order reference, Company name, and type and quantity of goods). The packing list shall be attached to the package. Certificates and inspection reports carried out by Seller shall also be enclosed in the packages. Any delivery not accompanied by the documents specified in the Order and the corresponding delivery slip may be refused by the Company and subject to the Goods being returned at the expense and liability of Seller. In the event that Goods are returned as a result of such non-compliance, the Company reserves the right to request replacement or restoring said Goods under the initial Order terms, or to deduct from any payments due to Seller all charges incurred by the Company to reach compliance including, without limitation, costs for identification, marking, transportation and repair in the Company’s factory. Should the Company be forced to obtain Goods from another source for all or part of the Order, the Seller shall bear fully the difference in cost between the new Order and the initial Order.

The delivery date set forth on the Order is of the essence of the Contract. If the Seller anticipates that it will not be able to deliver the Goods upon the agreed delivery date, then the Seller shall immediately notify the Company thereof in writing; provided, however, that such notice shall not relieve the Seller of its responsibilities and liabilities with respect to on-time delivery hereunder. In such event, the Company may request that the Seller expedite delivery to the maximum extent possible at the Seller’s sole expense. If the Seller does not deliver the Goods by the agreed delivery date, then the Company shall be entitled to liquidated damages as agreed between the parties, up to and including the total Order value. Such liquidated damages shall be paid at the Company’s written demand. Partial deliveries shall not relieve the Seller from liability for any late delivery hereunder.

Any delay beyond 14 days from the agreed delivery date shall be considered a material delay, entitling the Company to terminate the Contract and cancel the Order without liability. The Seller’s payment of liquidated damage due to delay shall not exclude the right of the Company to claim compensation for any direct loss in excess of the liquidated damages amount. The Seller’s obligation to compensate the Company for such loss shall exist irrespective of whether or not the Company chooses to terminate the Contract.

7.     INSPECTION

Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or test, all Goods or services delivered shall at all times be subject to the Company’s final acceptance, inspection and testing, but neither the Company’s acceptance, inspection or testing nor failure to inspect or test shall relieve the Seller from full responsibility for furnishing Goods and services conforming to the requirements of the Order, nor prejudice any claim, right or privilege the Company may have because of defective or unsatisfactory Goods or services. The Company reserves the right to reject and return at the risk and expense of the Seller such portion of any shipment which may be defective or fails to comply with specifications without invalidating the remainder of the Order. Any Goods or services rejected or otherwise not meeting the standards set forth above may be held for disposition at the expense and risk of the Seller or, at the Company’s sole discretion, be returned for credit or promptly replaced or re-performed by the Seller at the Seller's sole expense. At all reasonable times during the period of the Seller’s performance hereunder, including the period of manufacture, the Companymay inspect and/or test the Goods and services to be furnished hereunder at any location where the work associated with the Goods and services are being performed, including those of the Seller’s suppliers, and the Seller shall provide, without additional charge, reasonable facilities and assistance for safe and convenient inspection and testing. The Seller shall provide and maintain an inspection and process control system acceptable to the Company covering the Goods and services hereunder. Records of all inspection services by the Seller shall be kept complete and available to the Company during the performance of this Order and for such longer periods as may be specified in this Order or as otherwise required by the Company. The Company or its customers may furnish to the Seller a list of noncompliant items following inspection, and such list shall constitute the Company’s or its customers’ non-acceptance of the noncompliant items listed.

8.     WARRANTY

The Seller warrants that, upon delivery and for a period of 24 months from the date of delivery, or such other period as shall be agreed upon in writing by the parties, the Goods (i) are designed and manufactured in a professional and workmanlike manner, (ii) will be of satisfactory quality and fit for any purpose for which the Company intends to use such Goods, (iii) are free from defects in design, materials and workmanship, (iv) strictly comply with specifications and requirements agreed upon with the Company and, in the absence of such agreement, with industry standards, (v) comply with all applicable laws, regulations, orders, acts and statutory requirements relating to the manufacture and sale of such Goods, (vi) are free of any claim of any nature by any third person, and (vii) are designed, manufactured, processed, stored, tested and packed in accordance with all standardsdictated by applicable law. The Seller further warrants that (i) in designing, manufacturing, supplying and installing the Goods (including all work on site) and the provision of information relating thereto, that it will comply with the duties imposed on it by statutory provisions, by-laws, rules and regulations applicable to the site or the Goods, (ii) it will perform the Contract such that no liability is incurred by the Company under such statutory provisions, by-laws, rules and regulations, and (iii) the Goods will be supplied with all necessary safety guards and devices sufficient to comply with current statutory requirements. The acceptance of Goods by the Company shall not waive or adversely affect any claim or cause of action arising out of breach of any of the foregoing warranties or any other warranty expressed by the Seller or implied in fact or in law. The Company’s rights under this Section 8 are in addition to any rights and remedies in favor of the Company implied by law.

Without prejudice to any other right or remedy which the Company may have, for any breach of the foregoing warranties, the Seller shall at the Company’s direction, do any of the following (i) take all necessary action, at the Seller’s full cost and expense, to correct such breach in the most expeditious manner possible; (ii) refund to the Company an equitable portion of the Contract price; (iii) furnish replacement Goods, as necessary, at the original shipping point; or (iv) in the case of services, re-perform the services. All costs incurred in the expedient correction of breach (including premium time, de-installation, installation, re-commissioning and freight if required by the Company's operating needs), shall be borne by the Seller. In the event of failure by the Seller to expeditiously correct defects in or replace nonconforming Goods or services, the Company, after reasonable notice to the Seller, may (i) make such corrections or replace such Goods and services and charge the Seller for all costs and expenses incurred by the Company thereby or (ii) rescind the Order and terminate the Contract, in which case the Company shall be entitled to recover from the Seller any deposits, advances or pre-payments made, together with damages as may have been sustained by reason of the Seller’s breach.

The warranties of the Seller set forth herein shall inure to the benefit of the Company and its successors, assigns, customers, and other users of the Goods or services.

9.     INDEMNIFICATION

To the fullest extent permitted by law, the Seller shall indemnify, defend and hold harmless the Company, its directors, officers, employees, agents, affiliates, representatives, and any of the Company’s customers buying or using the Goods or services specified herein (collectively, the “Indemnified Parties”), from and against any and all suits , actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorneys’ fees, costs and expenses of any nature, whether arising before or after completion and installation of the Goods and/or services,for which the Indemnified Parties might become liable as a result of any act, omission, fault, or negligence, whether active or passive, of the Seller or of anyone acting under the Seller’s direction or control or on its behalf, in connection with or incident to the Seller’s performance of the Contract, including, without limitation, (i) any third party product liability claims for death, personal injury, property damage and any other losses caused by defective Goods,(ii) any third party claims arising out of any misrepresentation, breach or default by the Seller with respect to ownership, possession, use, operation, condition, sale, purchase, lease, maintenance, selection, manufacture, or delivery of any item or items of Goods or services (including, without limitation, latent and other defects, whether or not discoverable by the Company), and (iii) any other third party claims arising out of the Seller’s breach of any representation, warranty or obligation set forth herein.

The Seller’s employees, representatives or other parties under its control entering onto the Company’s premises for purposes connected with this Contract shall (i) make themselves familiar with and comply with the rules and procedures on health and safety, environment and security applicable to the relevant Company site and (ii) not commit any act which will render the Company liable to third parties at common law or by virtue of any statute. Seller shall compensate the Company for any loss resulting from negligent or willful behavior by Seller’s employees, representatives or other parties under its control on Company sites.

The Seller shall maintain and keep in force comprehensive general liability insurance, including public and products liability, property damage, employers’ liability and workers’ compensation insurance, all at minimum limits reasonably acceptable to the Company. As proof of such insurance, Seller shall, at any time upon the Company’s reasonable request, provide the Company with any applicable insurance certificates naming the Company as additional insured. The Seller shall be responsible for any new works it installs or erects at the Company’s facility and shall maintain insurance to cover loss or damage to such works until completion of the Contract.

All plans, specifications, patterns, drawings, designs, blueprints, models, tools, molds, jigs, dies, patterns, samples and other technical documents and information furnished by the Company to the Seller, or specifically paid for by the Company for the manufacture of the Goods, and any replacements thereof and changes thereto and any materials affixed or attached thereto, shall at all times be and remain the exclusive property of the Company. Such materials (i) shall be plainly marked by the Seller as property of the Company, (ii) shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and (iii) shall not, without the prior written consent of the Company, be used by the Seller or any of its authorized subcontractors or representatives in any manner except for the purpose of fulfilling this Order. The Seller assumes all risk and liability for loss of or damage to the Company’s property in its custody or control, except for normal wear and tear, and shall insure such property at its own expense for an amount at least equal to the replacement cost thereof, with loss payable to the Company and such property shall be subject to removal at the Company’s written request, in which event the Seller shall prepare such property for shipment and shall redeliver to the Company in the same condition as originally received by the Seller, reasonable wear and tear expected, all at the Seller’s expense. 

Unless previously known to the Seller free of any obligation to keep it confidential, all information of the Company shall be kept confidential by the Seller and such information and other property of the Company shall be used only in performing this Order and may not be used for any other purposes. This Order is confidential between the Company and the Seller, and it is agreed by the Seller that none of the details connected herewith shall be published or disclosed to any third party without the Company’s prior written consent.

The Seller hereby grants to the Company a non-exclusive, assignable, transferable, sublicensable, royalty-free, worldwide license to any of the Seller’s or its supplier’s intellectual property to the extent same is required for use of the Goods sold and services performed under this Order. The Seller warrants that the Goods sold and services performed under this Order do not, and will not, infringe any valid patent, copyright, trademark, trade secret, industrial design or any other intellectual property interest owned or controlled by any other person, and the Seller agrees to indemnify, defend and hold harmless the Company, its officers, employees, agents, representatives, successors, assigns and any of the Company’s customers buying or using the Goods or services specified herein, from any all losses, liabilities, damages, penalties, injuries, claims, demands, actions, suits, costs and expenses (including, without limitation, reasonable attorney and other professional fees and disbursements) arising out of a claim or suit at law or equity for actual or alleged infringement of such intellectual property interests, by reason of the buying, selling or using the Goods or services supplied under this order, and the Seller will assume the defense of any and all suits and will pay all costs and expenses incidental thereto. If buying, selling or use of said Goods or services is enjoined, then the Seller shall, at its own expense and at the Company’s option, either procure for the Company the right to continue buying, selling and using said Goods or services or replace the same with a non-infringing equivalent; or remove said Goods or services from commerce and refund to the Company the purchase price and the related transportation and handling costs thereof. Unless otherwise agreed to in writing by the Seller and the Company, all right, title and interest in any inventions, developments, improvements or modifications of or for goods and services delivered hereunder shall exclusively belong to the Company as part of this work for hire.

The Company shall have the right, at any time, to make changes to any Order, including, without limitation, quantities, specifications, delivery schedules, method of shipment and packaging, but no additional charges will be allowed for such changes unless authorized in writing by the Company. If such changes affect delivery or the amount to be paid by the Company, the Seller shall notify the Company within ten (10) days following a change requested by the Company with the Seller’s proposal for adjustments to price or schedule along with sufficient supporting data to justify such adjustments for the Company’s consideration and discussion with the Company. Any request from the Seller for a price increase or extension of time for delivery shall not be binding upon the Company unless evidenced in the Company’s change order. If the Seller and the Company fail to agree upon any adjustments to the price or time to perform, then the Seller agrees to proceed promptly and diligently with the prosecution of the requested changes as set forth in the applicable change order and any disputes that remain unresolved between the Seller and the Company after thirty (30) days with respect to any change order shall be subject to the dispute resolution process as provided for in these Conditions.

The Company may cancel this Order at any time for its convenience, in whole or in part, by giving written notice to the Seller. Upon receipt of such cancellation notice, the Seller shall immediately act so that no further costs are incurred, and shall thereafter do only such work as may be necessary to preserve and protect work already in progress and to protect material and goods at the work site or in transit thereto. All cancellation claims must be submitted by the Seller in writing to the Company within fifteen (15) days of the order cancellation date. The Company’s sole obligation for cancellation under this section shall be to reimburse the Seller for (a) those services actually performed and for those Goods actually shipped and accepted by the Company up to the date of cancellation, and (b) reasonable and documented costs incurred by the Seller for unfinished goods, which are specifically manufactured for the Company and which are not standard goods of the Seller, as of the date of cancellation. In no event shall the Company be responsible for loss of anticipated profit nor shall reimbursement exceed the Order value.

In the event of war, declared or undeclared, acts of terrorism, fire, flood, strike, riot, act of governmental authority, acts of God or other similar contingencies beyond the reasonable control of the Seller, the Seller shall notify the Company of such delaying event or occurrence and take all steps necessary to end such delay, including procurement of materials from alternate sources and acceleration of activities to meet the Company’s schedule. If, in the Company’s discretion, the delay is not capable of prompt remedy, the Company may terminate this Order for its own convenience pursuant to the terms of these Conditions. Neither partyshall be liable for damages resulting from delays arising out of causes beyond its control, including but not limited to, acts of God, acts of any government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and severe weather, nor shall such delay affect the remainder of this Order.

The Seller warrants that, in the performance of this order, the Seller and all Goods and services provided hereunder will comply with all applicable (local and foreign) statutes, laws, ordinances, codes, rules, regulations and orders (including by any governmental, regulatory, or administrative agency or authority or court or other tribunal to which the Seller is subject) now in effect or which may become effective and which may apply to the Goods or services provided hereunder. If requested by the Company, the Seller shall supply data safety sheets (SDS) to the Company and the receiving facility at the time of making its first delivery pursuant to this Order, and shall revise or amend such SDS as necessary during the course of fulfilling this Order. Failure of the Seller to supply such SDS shall be conclusively presumed to mean that such data is not required for the Goods supplied.

The Seller will comply with all applicable export and re-export control laws including, without limitation, laws related to export licensing, clearances and consents, in connection with performing its obligations hereunder. The Seller shall inform the Company of any applicable (re-) export license, clearance or consent requirements for the Goods under local (the country from which the Seller will export the Goods) export control and customs laws and regulations, as well as such laws and regulations of the country of origin of the Goods, and provide any other related information or documentation that the Company may reasonably request.

The Seller agrees that it and its employees and representatives will comply with anyand all anti-bribery and anti-corruption laws having jurisdiction over the Seller, and will in all cases comply with the anti-bribery laws of the Criminal Code of France and the United States Foreign Corrupt Practices Act. If the Seller fails to meet its obligations in this paragraph, Seller shall defend, indemnify and hold the Company harmless from and against any fines, penalties and/or damages resulting there from. In addition, the Company may, at its discretion, terminate this Contract without any further liability or obligation.

The Seller will maintain complete and accurate records regarding production and manufacture of Goods for a minimum period of seven (7) years following expiration of the Contract. Upon reasonable advance notice, the Company may inspect and make copies of such books and records during normal business hours to verify compliance with these Conditions.

In no event shall either party be liable hereunder for any claims for indirect, incidental, special, consequential or punitive damages or losses, loss of production and loss of profit, all of which are expressly excluded. 

Any term found to be illegal or unenforceable shall be severed and shall not, in any way, affect the validity of the Contract. The Company’s failure to enforce any rights or remedies available in the event of the Seller’s default shall not constitute a waiver and shall not bar the enforcement of such rights should the default continue as in the event of future defaults. The Contract is entered into in France, and shall be construed in accordance with the laws of France, and shall exclude the United Nations’ Convention for the International Sale of Goods. The parties will use reasonable efforts to amicably settle any dispute arising under the Contract. If no amicable settlement can be reached, then all disputes arising under the Contract shall be settled by the Commercial Court with jurisdiction in in the area where the Company’s head office is located, unless the Company agrees to submit to another competent jurisdiction. If the Seller is domiciled outside of France, then unresolved disputes arising under the Contract shall be settled by binding arbitration in accordance with the rules, then pertaining, of the International Chamber of Commerce, by one or more arbitrators appointed in compliance with this regulation.Unless otherwise mutually agreed, the site of arbitration shall be in Paris, France and French law shall be applicable to the proceedings. To the extent that either party hereto prevails in any such dispute, said prevailing party shall be entitled to be awarded that proportion of its reasonable costs and expenses (including attorney’s fees) that it actually incurred in the matter. The Seller shall not assign the Contract or any order, or any interest therein, or any rights hereunder, without the prior written consent of the Company. The Seller shall not be entitled to perform any of its obligations under the Contract by use of sub-contractors without the prior written consent of the Company. The Company shall be entitled to assign or sub-contract the whole or part of its obligations under the Contract. The obligations of the parties under this Order which by their nature would continue beyond termination, cancellation or expiration of this Order, including, but not limited to those in Sections 7, 8, 9, 11, 12, 16, 17, 18, 19 and 20, shall survive termination, cancellation or expiration of this Order.

As to any of the Goods contained in an Order, which are for delivery under any government contract, all terms and conditions contained in the Company’s form entitled “Additional Terms and Conditions Applicable to Government Contracts” shall apply to the Contract as if contained herein whether attached to the Order or not. If not attached, copies will be furnished to the Seller upon request.