Dejana Truck & utility Equipment Company, LLC
TERMS AND CONDITIONS OF SALE
Offer; Governing Provisions; Venue; Jury Trial Waiver; Cancellation
This document is an offer or counter-offer by Dejana Truck & Utility Equipment Company, LLC (“Dejana”) to sell the products and/or services (collectively, the “Products”) described in the accompanying quote, proposal, order acknowledgment, invoice or other document provided by Dejana to the customer (“Customer”) herewith (the “Seller Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by the Customer, and is expressly conditioned upon Customer’s assent to these Terms. Dejana objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement, or other communication previously or hereafter provided by Customer to Dejana. No such additional or different terms or conditions will be of any force or effect. These Terms, together with the consistent terms provided by Dejana in the Seller Document, is the “Agreement” and will be the entire agreement between Dejana and Customer on the subject of the transaction described in the Agreement; there are no conditions to the Agreement that are not so contained or incorporated. THE AGREEMENT AND ANY DISPUTE ARISING FROM THE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS AND excluding Chapter 135 of the Wisconsin Statutes). THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE AGREEMENT WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Any dispute or issue between the parties arising as aforesaid shall be commenced and prosecuted in its entirety in any state or federal court in Delaware, and each party consents to personal and subject matter jurisdiction and venue in such courts and waives and relinquishes all right to attack the suitability or convenience of such venue or forum by reason of their present or future domiciles, or by any other reason. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR FORUM TO WHICH THEY MAY BOTH BE PARTIES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE AGREEMENT, THE BREACH OF THE AGREEMENT, OR WITH RESPECT TO ANY MATTER OR DISPUTE BETWEEN THEM. Customer agrees to pay or reimburse Dejana on demand all costs, including attorneys’ fees and legal costs, incurred by Dejana in connection with the enforcement of Dejana’s rights in connection with the Products or the Agreement, including, without limitation, lien rights. No accepted offer may be cancelled or altered by Customer except upon terms and conditions accepted by Dejana in writing, and no changes to the Agreement by Customer will be binding unless set forth in writing and manually signed by Dejana. This offer may be revoked by Dejana at any time before it is accepted by Customer and will automatically expire 30 calendar days after its date if Customer has not accepted it before then. Neither Customer’s acceptance of this offer nor any conduct by Dejana (including but not limited to shipment of Products) will oblige Dejana to sell to Customer any quantity of Products in excess of the quantity that Customer has committed to purchase from Dejana at the time of such acceptance or conduct.
Credit Approval; Payment Terms; Storage
All payment terms set forth in these Terms are subject to Dejana’s approval of Customer’s credit at Dejana’s discretion; if such approval is withheld, payment will be due in advance of Dejana’s performance. Except as otherwise provided in the Seller Document or in the preceding sentence, payment is due upon Customer’s receipt of Dejana’s invoice following shipment. Interest will be charged at the lesser of (i) 18% per year or (ii) the highest rate permitted by applicable law, on accounts more than 30 calendar days past due. If production or shipment of completed Products, or other Dejana performance, is delayed by Customer, Dejana may immediately invoice, and Customer will pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, Customer will compensate Dejana for storage of completed Products or work in process during any such delay, whether stored at Dejana’s facility or an independent storage company’s facilities.
Prices, Taxes and Other Charges
Unless otherwise provided in the Agreement, prices quoted are subject to change by Dejana without notice. All prices listed in Dejana’s publications (including but not limited to Dejana’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Dejana. No order will be binding upon Dejana until received and accepted by Dejana in its sole discretion. All prices and amounts payable under the Agreement are in U.S. Dollars. E-store items are available to Customers in the United States with funds payable in U.S. Dollars. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, surcharge caused by tariff, inspection or testing fee, or any other tax, fee, interest, or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Dejana and Customer will be paid by Customer in addition to the prices quoted or invoiced. If Dejana is required to pay any such taxes or other charges, Customer will reimburse Dejana therefor on demand. Any prices quoted from Dejana to Customer may be subject to increases as a result of supplier surcharges caused by tariffs and other increased costs of doing business. Custom Products may require at least 180 days of floor plan interest expense (such expense, “Floor Plan Expense”) due to unforeseen increases in lead times by suppliers, and any Floor Plan Expenses incurred by Dejana shall be invoiced to Customer and paid by Customer in addition to the price of such custom Products quoted or invoiced. Customer will be responsible for any Floor Plan Expense it incurs in connection with any order.
Delivery, Claims and Force Majeure
Unless otherwise provided in the Seller Document, Products will be delivered to Customer EXW Dejana’s loading dock (as the latter shipping term is defined in Incoterms 2010). Delivery of Products to the carrier will constitute delivery to Customer, and regardless of shipping terms or freight payment, Customer will bear all risk of loss or damage in transit. Dejana reserves the right to make delivery in installments, unless otherwise expressly stipulated in the Agreement; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Customer of its obligations to accept remaining deliveries.
Claims for shortages or other errors in delivery must be made in writing to Dejana within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Customer. Claims for loss of or damage to Products in transit must be made to the carrier.
All delivery dates are approximate and lead times for the Products are 180 days or more from the date of Dejana’s acceptance of the purchase order. Dejana will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Dejana’s reasonable control, including but not limited to any act of God, act of Customer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay.
If the occurrence of a contingency, the non-occurrence of which was a basic assumption on which Dejana’s agreement to sell under the Agreement was predicated, affects only a part of Dejana’s capacity to perform Dejana’s contracts with Customer and others, and to provide for Dejana’s internal use, for similar products or services, Dejana will allocate its available capacity first to the satisfaction of its internal needs and then in any manner that Dejana determines in good faith.
Dejana may make such changes in design and construction of Products, components, or parts as Dejana deems appropriate at any time, without notice to Customer. Dejana may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers. Dejana reserves the right at any time in its sole discretion to deliver to Customer a model of the Products, or component of the Products, that is upgraded or updated from the model set forth in any accepted purchase order and such upgrade or update shall be deemed to be in conformity with the specifications set forth in the purchase order.
All intellectual property rights (including but not limited to patents, trademarks, registered designs and rights to apply for the same, copyright, design rights, database rights, and rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products or the provision of services will belong to and remain vested in Dejana. Nothing in the Agreement grants to Customer any right, title, or interest in or to Dejana’s intellectual property.
Return and Cancellation Policy
Except as otherwise agreed in writing by Dejana, no Products will be accepted for return. If accepted for return by Dejana, Products are returnable only in accordance with the Return Policy & Procedure guidelines set forth below.
- All returns for non-custom Products will follow these guidelines:
- All returns must have prior authorization by Dejana in writing.
- No returns will be accepted for discounted Products.
- An RMA (“Return Merchandise Authorization”) must be completed prior to returning any Product.
- Products will must returned to original shipping point and specified with an RMA #.
- All returned Products must be in original condition and in the original packaging.
- Return shipping cost will be Customer’s responsibility.
- A 15% restocking fee will apply to all returned Products.
- All returns must be received by Dejana within 30 days of Customer’s receipt of delivery.
- No refunds are accepted for custom Products.
- Customer will report any damage upon delivery to Dejana customer service within 48 hours of delivery.
- Customer will provide photos and delivery receipt information in connection with any report of damage.
- Products damaged prior to delivery to Customer pursuant to these Terms will be replaced at no cost to Customer.
Orders may not be cancelled unless agreed by Dejana in writing.
- Policy for cancelling orders for non-custom Products:
- Any order for non-custom Products can be cancelled free of charge within 24 hours of ordering.
- If a cancellation is approved in writing by Dejana, a 15% cancellation fee will be charged to Customer and payable by Customer on all orders for non-custom Products cancelled after 24 hours after Customer places such order.
- Policy for cancelling orders for custom Products:
- If a cancellation is approved in writing by Dejana, an order for custom Products can be cancelled free of charge within 24 hours of ordering.
- No orders for custom Products can be cancelled after 24 hours of ordering.
For Products manufactured by Dejana, such Products are warranted to the end user in accordance with the Published Warranty Document.
FOR ALL PRODUCTS NOT MANUFACTURED BY DEJANA, DEJANA MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, AND SUCH PRODUCTS ARE BEING PURCHASED FROM DEJANA “AS IS”.
Dejana agrees, however, to assign to Customer any warranties that Dejana receives from the manufacturers of components of the Products (the “Manufacturer”), to the extent any such warranties are assignable (the “Assigned Warranties”).
- Warranties from Manufacturers
- All available, assignable Assigned Warranties will be provided by the Manufacturer.
- Customer shall seek to obtain an RMA directly from the Manufacturer to have the Product sent back.
- Once the Product is returned to the Manufacturer, the Manufacturer will determine if the item will be covered under the Assigned Warranty program and provide any applicable remedy. If the Manufacturer determines that Customer damaged the Product, Customer may not be entitled to the remedy under the warranty.
OTHER THAN THE PUBLISHED WARRANTY, DEJANA MAKES NO WARRANTIES AS TO THE PRODUCTS, EXPRESS OR IMPLIED. DEJANA EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability
DEJANA WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT DEJANA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Dejana specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital and cost of substitute Products, for any other types of economic loss, and for claims of Customer’s buyers, clients, or customers, or any third party, for any such damages, costs or losses. Dejana will not be liable to Customer for any amount with respect to any order of Products that, in combination with all claims by Customer against Dejana related to such order of Products, exceeds the total price paid by Customer to Dejana for such order of Products. DEJANA WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS SOLD BY DEJANA, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Dejana to Customer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity.
Customer will indemnify and hold harmless Dejana and its affiliates, and its and their directors, officers, employees and agents, from and against all losses, damages, liabilities, costs, and expenses (including damages arising from personal injury or death) that may arise out of Customer’s acts or omissions, including but not limited to: (a) any breach by Customer of the Agreement; (b) any violation by Customer of any law, rule or regulation; (c) any use or resale of the Products by Customer; (d) any negligence or willful misconduct of Customer; (e) any claim of patent, trademark, copyright, or trade secret infringement, or infringement or any other proprietary rights of third parties, to the extent that any Products are manufactured in accordance with drawings, designs, or specifications proposed or furnished by Customer, and/or (f) any specifications provided by Customer, including, without limitation, any inadequacy or inaccuracy of such specifications.
At its expense, Customer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts that Dejana reasonably requests from time to time. Customer will ensure that Dejana is named as an additional insured on such insurance policies, and Customer will provide Dejana with certificates of such insurance upon request.
Designs and Tools
Any design work performed by Dejana, and any dies, molds, jigs, or other tools that Dejana manufactures or acquires, in connection with its performance under the Agreement will be and remain the sole property of Dejana, notwithstanding any charges to Customer for the same. Any such charges convey to Customer the right to have the designs, dies, molds, jigs, and/or other tools used by Dejana for performance under the Agreement, but do not convey title or right of possession or any other right.
If the provision of Products by Dejana under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Customer will so notify Dejana in advance of order acceptance specifying the mandatory provisions of U.S. or state law that apply.
If the Products are sold on credit terms, Customer acknowledges that Dejana retains a purchase money security interest in the Products. To secure Customer’s obligations to Dejana under the Agreement or any other agreement, Customer hereby grants to Dejana a security interest in all of the Products sold under the Agreement, whether now owned or hereafter acquired, and all products and proceeds thereof. Dejana may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest.
Dejana’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Dejana at law or in equity.
Customer will not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation will be null and void.
Any and all designs, sketches, models, samples, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Dejana or its affiliates to Customer or its affiliates, or otherwise acquired, obtained, or developed by Customer, under or in connection with the Agreement (collectively, the “Confidential Information”) are and at all times will remain the exclusive property of Dejana. For this purpose, however, Confidential Information will not include any item of information that Customer can demonstrate by documentary evidence (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Customer or any of its affiliates or any of its or their directors, officers, employees, or agents or (b) is disclosed to Customer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality or other restrictions.
During the Confidentiality Period, Customer will not make any use of the Confidential Information, except for the purpose(s) specified in these Terms, or disclose the Confidential Information to any third party. For this purpose, “Confidentiality Period” means:
- For all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Customer and ending on the later of (i) the date such Confidential Information is no longer a trade secret under applicable law and (ii) the date that is three years after the date that Dejana accepts the last purchase order submitted by Customer.
- For all other Confidential Information, the period beginning on the date of disclosure to Customer and ending three years after the date that Dejana accepts the last purchase order submitted by Customer.
Customer agrees that money damages for breach of Customer’s obligations under this Confidential Information section are both incalculable and insufficient and that any such breach would irreparably harm Dejana. Therefore, in the event of an actual or prospective breach of any such obligation, Dejana will be entitled to a permanent and/or preliminary injunction to prevent or remedy such breach and will have the right to specific enforcement of this Confidential Information section against Customer in addition to any other remedies to which Dejana may be entitled at law or in equity.
Relationship of Parties
Customer and Dejana are independent contractors, and nothing in the Agreement will be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
THESE TERMS MAY BE MODIFIED, AMENDED, AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF DEJANA UPON WRITTEN NOTICE TO CUSTOMER.
Updated November 2019