Sales Term and Conditions

WESTPORT Terms And Conditions Of Sale

THESE WESTPORT TERMS AND CONDITIONS OF SALE (“TERMS AND CONDITIONS”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN Westport International Co., Ltd.. a company organized and existing under the laws of Taiwan, with its registered address at No.113, Dazhu Road, Luzhu Township, Taoyuan County, Taiwan 33857 (hereinafter called “Westport”) AND THE CUSTOMER INDICATED ON THE FACE HEREOF (“CUSTOMER”) WITH RESPECT TO THE SALE OR DISTRIBUTION OF ANY PRODUCT BY WESTPORT TO CUSTOMER (EACH AN “ORDER”). WESTPORT WILL NOT BE BOUND BY ANY TERMS OF CUSTOMER’S ORDER THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS AND CONDITIONS. ACCEPTANCE BY CUSTOMER OF THESE TERMS WILL BE DEEMED MADE AT THE EARLIER OF CUSTOMER’S (1) ACCEPTANCE OR ACKNOWLEDGMENT OF RECEIPT OF THESE TERMS AND CONDITIONS WITHOUT WRITTEN OBJECTION THERETO, (2) PLACEMENT OF A PURCHASE ORDER WITH WESTPORT THAT REFERS TO A VALID WESTPORT QUOTATION OR THESE TERMS AND CONDITIONS, OR (3) FAILURE TO DELIVER TO WESTPORT WRITTEN NOTICE OF ITS REJECTION OF THIS AGREEMENT WITHIN FIVE DAYS FOLLOWING DELIVERY OF WESTPORT PRODUCTS

1. DEFINITIONS

  1. “Delivery” means shipment by Westport to the receiving area designated as the “Ship To” address in the country where Customer’s order is placed, unless otherwise indicated on the Order.
  2. “Specifications” means the specific technical information about a given Product which is published in the applicable user manuals and technical data sheets distributed together with such and which are in effect on the date Westport ships Customer’s order.
  3. “Product” means any good sold or distributed by Westport

2. PRICE

  1. Prices are based on F.O.B Keelung Taiwan unless otherwise indicated on the applicable quotation delivered to Customer by Westport, (each, a “Quote”), and are valid for the period indicated on such Quote.
  2. Prices are exclusive of all applicable withholding, sales, use, excise, sales, use, service, value added or like taxes in each case imposed now or in the future by any governmental authority in connection with the transactions or amounts payable by Customer (collectively, “Taxes”). Customer shall pay all Taxes, unless Customer has provided Westport with an appropriate exemption certificate for such Taxes for the delivery jurisdiction.

3.ORDERS

  1. All Orders are subject to acceptance by Westport. Customer will specify the address for Delivery to take place in the country where the Order is placed, unless otherwise agreed by Westport in writing. Each Order must specify a delivery date that is within three (3) months from the applicable Order date, including possible rescheduling, unless otherwise agreed or indicated on the applicable Quote.
  2. Westport shall have the right to invoice Customer for charges if Customer requests to cancel an Order or modify an existing delivery schedule for any Product. Westport cannot accept and Customer has no rights to cancel any Order after the applicable Product has been shipped to Customer. Westport may cancel any Order or portion thereof without liability on its part in the event of Customer’s default of any terms herein or upon material adverse change in Customer’s financial condition. Except as provided in these Terms and Conditions, Orders accepted by Westport are firm and non-cancelable.

4. DELIVERY AND ACCEPTANCE

  1. Westport will make reasonable efforts to ship Products on Customer’s requested delivery dates. If Westport is unable to meet Customer’s delivery requirements, alternative arrangements may be agreed. In the absence of such agreement and Westport’s failure to ship Products on the requested delivery date, Customer’s sole remedy and Westport’s exclusive liability shall be to cancel the applicable Order.
  2. The parties may agree to reschedule the delivery dates for the Products; however, any Order for which Customer requests that delivery be delayed more than sixty (60) days beyond the original scheduled delivery date will be considered cancelled and shall be subject to the cancellation provisions of Section 3.2
  3. Customer shall inspect the Products immediately upon its receipt thereof, and shall give written notice to Westport of any claim that the products do not conform with the terms hereof within fifteen (15) days after delivery of the products to the customer or the destination designated by the Customer.

5. SHIPMENT AND RISK OF LOSS

Westport will ship Products according to Westport’s standard commercial practice, unless otherwise indicated on the applicable Quote. All shipments of Product will be made F.O.B Keelung Taiwan (Incoterms 2000), unless otherwise specified on the quotation. If special packing or shipping instructions are agreed by Westport, charges for such packing and/or shipping will be billed separately to Customer. Unless otherwise specified on a given Order, title (subject to any software license agreement) and risk of loss shall pass to Customer at the time the Products are delivered to the carrier, and Customer shall be responsible to provide insurance against loss or damage.

6. PAYMENT;TERMINATION

  1. Payment terms are subject to Westport credit approval. Payment shall be made in United States or New Taiwan dollars, unless otherwise indicated on the applicable Quote.
  2. Westport may change credit or payment terms at any time if Westport determines, in its sole discretion, that Customer’s financial condition, previous payment record, or the nature of Customer’s relationship with Westport so warrants.
  3. Westport may discontinue performance and/or terminate these Terms and Conditions if Customer fails to pay any sum when due, or fails to perform under these Terms and Conditions or any other agreement with Westport if, after ten (10) days written notice, the failure has not been cured.

7. WARRANTIES;DISCLAIMER

  1. Warranty
    A.     Westport warrants solely to Customer that any Product shall be (a) free of material defects in materials and workmanship and (b) conform to the applicable Specifications (or Customer’s specifications to the extent expressly accepted in writing by Westport) for a period of one (1) year from the date of Delivery of the applicable Product.
    B.     These warranties extend only to Customer and not to indirect purchasers or users. If during the One-Year Warranty Period for the product, Westport receives Customer’s notice that a given Product fails to conform to the foregoing warranties, as Customer’s sole and exclusive remedy and Westport’s sole liability, Westport will, at its option, use commercially reasonable efforts to repair or replace the affected Products. If Westport is unable, within a reasonable time, to repair, replace or correct such defect or nonconformance in the applicable Product to a condition as warranted, Customer will be entitled to a refund of the purchase price for the Product that was actually paid by Customer to Westport; provided that in each case Customer returns the applicable Products to Westport within the One Year Warranty Period and in accordance with Westport’s standard RMA process and provides a detailed description of the nature of the defect or nonconformity. Any such repair or replacement will not extend the original One Year Warranty Period.
    C.    Westport has no obligation for any claim of defeats from:
            (a)    Westport’s compliance with Customer’s designs, specifications or instructions;
            (b)    Westport’s use of technical information or technology provided by Customer or a third party
            (c)    Product modifications by Customer or a third party;
            (d)    Product use not in accordance with these Terms and Conditions or in a manner prohibited by Specifications or related application notes; or
            (e)    Use of the Product with products not supplied by Westport unless such defeats results solely from the use of the Product without such combination.
  2. Customer will prepay shipping charges (and will pay all duties and taxes) for Products returned to Westport for warranty service. For valid warranty claims, Westport will reimburse Customer for prepaid freight charges and return Products to Customer at Westport’s expense.
  3. Unless Westport agrees in writing that Customer has configuration control, Westport may make process or materials changes affecting the performance or other characteristics of Products. Products supplied after such a change will continue to meet Westport’s published Specifications, but may not be identical to Products supplied as samples or under prior Orders.
  4. Customer acknowledges and agrees that Westport may include in certain sub-assembly Products remanufactured parts that are equivalent to new in performance.
  5. Notwithstanding anything herein to the contrary, Westport shall have no liability or obligation for any Product rendered defective or non-conforming, in whole or in part, due to improper or inadequate maintenance; improper or unsuccessful assembly with other non-Westport products; Customer or third party supplied software, interfacing or supplies; unauthorized modification; improper use or operation outside of the Specifications for the Product; misuse or abuse, negligence, accident, loss or damage in transit, improper site preparation; unauthorized maintenance or repair; failure to continually provide a suitable installation or operation environment; or any other cause beyond the range of normal use of the Products.
  6. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 7, ALL PRODUCTS AND ANY OTHER MATERIALS PROVIDED BY WESTPORT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND WESTPORT AND ITS SUPPLIERS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES NOT EXPRESSLY SET FORTH IN THIS SECTION

8. LIMITATION OF LIABILITY

WESTPORT SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE PRODUCTS, SOFTWARE, OR THESE TERMS AND CONDITIONS, EVEN IF WESTPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WESTPORT’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER FOR THE PRODUCTS TO WHICH THE APPLICABLE CLAIM RELATES

9. GENERAL

  1. Westport will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.
  2. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
  3. Customer may not assign any rights or obligations under these Terms and Conditions without Westport’s prior written consent.
  4. Under no circumstances will Westport be obligated to provide any cost data for the Products to Customer or any third party.
  5. These Terms and Conditions of Sale will be governed by the laws of Taiwan, Republic of China excluding its choice of law rules. Any dispute arising out of this Agreement shall be instituted in Taoyuan District Court, Taiwan.
  6. The failure by Westport to enforce at any time any of the provisions in these Terms and Conditions will in no way be construed as a waiver of such provisions. If any provision of these Terms and Conditions is unenforceable as written, the remainder of these Terms and Conditions will remain in effect and the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms and Conditions.
  7. These Terms and Conditions constitute the entire agreement between Westport and Customer, and supersede any previous communications, representations or agreements between the parties whether oral or written, and apply to all quotations, purchase orders, and acknowledgements relating to the Products. Acceptance of any Order by Westport is made only on the express condition that these Terms and Conditions shall govern. Westport’s failure to object to provisions contained in any communication from Customer will not be deemed a waiver of any provision herein. Any additional or different term proposed by Customer shall be deemed material, is objected to, and is hereby rejected unless specifically accepted in writing by Westport. Any changes in these Terms and Conditions must be agreed in writing by an officer of Westport before becoming binding. These Terms and Conditions shall be applicable whether or not they are enclosed with the Products sold hereunder.
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