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10.3 BEG does not warrant that modified Serial Production Products or Buyer
specified Products will display the features or operational performance requested or
expected by Buyer.
10.4 BEG will provide free of charge to Buyer, replacement Products or, at BEG's
option, credit in a fair amount not to exceed the purchase price for Products which
prove to be defective under the limited warranty set forth above, provided, however,
that Buyer has returned to BEG 100% or a statistically relevant share, as mutually
agreed upon, of any Products claimed to be defective. BEG shall have the right to
request reasonable evidence of, and impose reasonable requirements for,
submission of a warranty claim including, by way of example and not limitation,
printouts of diagnostic test results performed at the Buyer's dealer level or by Buyer.
10.5 In the event of (a) improper installation or misuse of the Products, (b) use of
Products outside of BEG approved applications, specified environments or
installation conditions, (c) use of Products for racing or testing applications, (d)
failure to maintain Products in accordance with applicable maintenance instructions,
or (e) alteration or damage caused to the Product, or similar circumstances, no
warranty shall apply and BEG shall not be liable for such Products or any damage
caused by such products.
10.6 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. THE FOREGOING WARRANTY DOES NOT APPLY
TO ANY ISSUES STEMMING FROM BUYER'S USE OF THE PRODUCT IN ANY
APPLICATION. THE REMEDIES SET FORTH IN THIS SECTION REPRESENT
BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BEG BREACH OF
WARRANTY.
11.
Prototype and Sample Parts Warranty.
sample parts are for use only in Product testing/evaluation by qualified Buyer
representatives in an appropriate test environment. Prototype components and
sample parts are provided "AS IS" and all warranties are expressly excluded. BEG
shall have no liability for claims related to the prototype components or sample parts.
Buyer shall indemnify and hold BEG harmless from claims related to the prototype
components and sample parts.
12.
Indemnity. In the event of any third party claim for property damage,
personal injury or death, resulting from the use of a Product, Buyer shall defend,
indemnify and hold BEG harmless from and against any such claims, irrespective of
the legal grounds for such claims, including any costs necessary for legal defense.
13.
Limitation of Liability.
13.1 The liability of BEG, and its respective affiliates, officers, directors,
employees, shareholders, agents, licensors, or representatives (collectively the
"BEG Parties") for any claim, regardless of the form of action, whether in contract,
tort or negligence, for any damages resulting from or in any manner connected with
this Agreement and any Products, shall be limited to the lesser of (i) Buyer's actual
direct damages related thereto, or (ii) the amount of the fees paid by Buyer for the
portion of the Products which are in error. In no event shall the liability of the BEG
Parties exceed the fees paid by Buyer during the period such damages were
incurred, such period not to exceed three (3) months, for the specific Products that
allegedly give rise to the damages.
13.2 In no event shall any of the BEG Parties be liable for any indirect, incidental,
special or consequential damages including, but not limited to, loss of data, lost
business, lost profits and other economic damages, whether foreseeable or not,
even if advised of the possibility of such damages. Without limiting the generality of
the foregoing, the BEG Parties shall not be liable to Buyer with respect to the quality
or sufficiency of any business results or motorsport racing results to be achieved
with the use of the Products.
13.3 Buyer agrees, acknowledges and confirms that the limitations of liability set
out in this Section are fair and reasonable in the commercial circumstances of this
Agreement and that BEG would not have entered into this Agreement but for
Buyer's agreement to limit the liability of the BEG Parties in the manner, and to the
extent, provided herein. The limitations of liability set out in this Section shall apply
even in the event of a breach of condition, a breach of an essential or fundamental
term, or a fundamental breach of this Agreement.
14.
Patents; Trademarks.
14.1 BEG warrants that the Products shall be delivered free of rightful claims for
infringement of any United States patent, provided, however, that this warranty shall
not apply to claims for patent infringement to the extent that any Products are
(a) manufactured and/or modified to Buyer's specifications, or (b) used in
combination with Products not purchased from BEG in a manner which infringes a
Robert Bosch LLC – BEG – MOTORSPORT – Sales Ts&Cs \\ Rv: 2009.04.01
Prototype components and
patent covering the combination. BEG's obligation hereunder is conditioned upon
Buyer: (i) giving BEG prompt written notice of any infringement claim;
(ii) cooperating fully with respect to the defense of such claim; and (iii) upon BEG's
request, providing BEG full control of the defense including settlement and/or
litigation of such claim.
14.2 BEG shall be entitled, at its option, to obtain a license on Buyer's behalf for
the Product which (allegedly) infringes an intellectual property right or to modify the
Product in such a way that it does not infringe the intellectual property right, or
replace the Product by a similar product which does not infringe the intellectual
property right.
15.
Confidential Information. Any and all information concerning the Products
or the transactions covered hereunder which BEG discloses to Buyer, or which
Buyer otherwise obtains knowledge of hereunder, remains the exclusive property of
BEG and shall not be disclosed by Buyer to third parties without BEG's prior written
consent. Buyer shall have no right whatsoever to such information other than to
use it for purposes of the transactions covered hereunder. BEG will not disclose,
without Buyer's prior written consent, information submitted to it by Buyer which is
confidential and proprietary to Buyer and clearly designated as such.
16.
Force Majeure. In the event either party is unable to fully perform its
obligations hereunder (except for Buyer's obligation to pay for Products ordered)
due to events beyond its reasonable control including but not limited to acts of God,
action by any governmental authority (whether valid or invalid), fires, floods,
windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems
(including lockouts, strikes, slowdowns), inability to obtain power, material, labor,
equipment or transportation, or court injunction or order, that party shall be relieved
of its obligations to the extent it is unable to perform. Timely notice of such inability
to perform shall be given to the other party. In the event of BEG's inability to
perform due to force majeure, Buyer shall be entitled to reduce its purchase
obligations towards BEG by the quantities purchased from other sources, but shall
not have the right to terminate this Agreement.
17.
Waiver. Any delay by a party in exercising its rights hereunder will not
constitute a waiver of its rights or its ability to enforce any such rights.
18.
Set-off. Buyer is not entitled to set-off any amounts due or allegedly due
from BEG to Buyer from the amounts owed by Buyer to BEG.
19.
Assignment. Neither party shall assign its rights or obligations hereunder
without the other party's prior written consent. A corporate reorganization, which
does not result in a change of control or beneficial owner, shall not be deemed an
assignment.
20.
Relationship of the Parties. Buyer and BEG are independent contracting
parties. Nothing hereunder or in the course of performance of this Agreement shall
grant either party the authority to create or assume any obligation on behalf, or in
the name, of the other party, or shall be deemed to create the relationship of joint
venture, partnership, association or employment between the parties.
21.
Severability. In the event that any provision of this Agreement shall by a
court be declared void or unenforceable, the validity of any other provisions and of
the entire Agreement shall not be affected thereby.
22.
Applicable Law; Arbitration. This Agreement and all disputes between the
parties arising out of or related to this Agreement shall be governed by the laws of
the State of Michigan except for its choice of law rules; the United Nations
Convention on the International Sale of Goods shall not apply. The parties agree to
submit all such disputes to binding arbitration which shall be held in the metropolitan
area of Detroit, Michigan, in accordance with the rules of the American Arbitration
Association ("AAA") pertaining to commercial arbitration. Within thirty (30) days
after either party has notified the other in writing that it is submitting a dispute to
arbitration, three (3) arbitrators shall be appointed in accordance with said rules.
Neither party shall be allowed to object to an arbitrator appointed by the other party.
The arbitrators shall have no authority to award punitive damages or any other
damages excluded herein. The arbitration award shall be final and binding, and it
may be entered in and enforced by any court of competent jurisdiction. The party
prevailing in the arbitration or any other legal proceedings shall be entitled to
recover its costs including reasonable attorney's fees incurred due to the arbitration
or other legal proceedings.
23.
Validity of Quotation. Each quotation issued by BEG shall be valid for
thirty (30) days from the date of issuance unless otherwise stated therein, and such
quotation is deemed revoked if not accepted by Buyer prior to the end of the
defined period.
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