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© 2021 IHS Markit. All Rights Reserved. Automotive Industry Outlook: Staying Ahead of the Curve in a Rapidly Changing Landscape Mike Wall Executive Director, Automotive Analysis +1 248 728 8400 Direct +1 616 446 6885 Mobile [email protected] March 2021

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Page 1: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

Automotive Industry

Outlook:Staying Ahead of the Curve in a Rapidly

Changing Landscape

Mike Wall

Executive Director, Automotive Analysis

+1 248 728 8400 Direct

+1 616 446 6885 Mobile

[email protected]

March 2021

Page 2: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

2

Addressing Strategic Challenges with Interconnected Capabilities

A World Leader in Critical Information, Analytics and Solutions

Energy

Financial

Services

Economics &

Country Risk

Engineering &

Product Design

Telecoms &

Technology

Maritime &

Trade

Automotive

Chemical

Agribusiness

Life Sciences

Climate &

Sustainability

50,000+ customers in over

140 countries

80%of the Fortune

Global 500

94/100largest US corporates

$4Bannual revenue

NYSE: INFO

Page 3: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

World Economic Growth

3

Source: IHS Markit Data Insight

An

nu

al

Rea

l G

DP

Gro

wth

(in

pe

rce

nt)

-10.0

-8.0

-6.0

-4.0

-2.0

0.0

2.0

4.0

6.0

8.0

10.0

World UnitedStates

Japan Eurozone Brazil Russia India China(mainland)

2018 2019 2020 2021 2022 2023-2028World Average

2021 = +5.1%

Global Growth Improved in February; World Real GDP is Projected to Increase 5.1% in 2021

Page 4: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

4

Introduction to Automotive Semiconductor: From Silicon to Cars

Foundries (front end):

TSMC, Samsung,

GlobalFoundries, UMC,

Tower, DB Hitek, SMIC

Material suppliers:

Shin-Etsu, Siltronics,

Soitec

Packaging & Test

(back-end)

Amkor, ASE, UTAC

Tier 1:

Bosch, Continental, Aptiv, Valeo,

Harman, BorgWarner, Denso…

OEMs:

VW, Toyota, Toyota,

GM, RNM…

Semiconductor Suppliers

NXP, Infineon, Renesas, Texas Instruments,

STMicroelectronics, ON Semi, Micron, Samsung...

Silicon Ingots and

Raw silicon wafersProcessed wafers

Packaged and

tested chipsElectronics Control Units*

(ECU)

Car

Service providers

* Picture from IHS Markit Teardown of

Harman – Mercedes TTG9 Head-Unit

• 1,000 – 1,400

chips / car

• $427 chip value

/ car in 2020

DaysManufacturing cycle time: Months Hours

Page 5: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

Global Light Vehicle Sales

5

COVID-19 Impacts the Near-Term Outlook; Aftermath Resets Expectations Longer-Term

9294 94

-16.0%

-12.0%

-8.0%

-4.0%

0.0%

4.0%

8.0%

12.0%

50

55

60

65

70

75

80

85

90

95

100

20

02

20

04

20

06

20

08

20

10

20

12

20

14

20

16

20

18

20

20

20

22

2024

20

26

20

28

Source: IHS Markit Light Vehicle Sales Forecasts

An

nu

al

lig

ht

ve

hic

le s

ale

s (

milli

on

s)

An

nu

al g

row

th (%

)

Average growth 3.6%

100

90

77

88

MaaS: Mobility as a Service

84

Page 6: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

6

First Quarter 2021 Outlook Dominated by Semiconductor Shortages; Lost Volume Increases Over Prior

Outlook as Severe Weather Effects and Japanese Earthquake Compound Challenges

Global Light Vehicle Production Overview

Source: IHS Markit

▲ South Asia raised largely on improved Indian outlook;

possibly reflecting links to Japanese and South Korea

supply chains – strong local sales are supportive

▲ MEA is boosted again on stronger Iranian outlook

▲ Current disruption does nothing to alleviate upside

pressure from inventory requirements in H2

▼ March update takes 500,000 units from 2021 outlook as

disruption intensifies in Europe, China, Americas and

Japan/Korea

▼ Challenges beyond semiconductors, plastics shortages an

emerging short-term factor, following bad sever weather

impacts in North America

▼ Many regions experiencing secondary waves of COVID-

19 infections and disruptive effects could emerge quickly,

lockdown measures tightening again in many markets,

▼ Downside risk remains in the near-term given volatility of

the situation and potential for shortages to extend deeper

into the second quarter. Expect OEMs will continue to

prioritize production of higher margin vehicles at the

expense of less important offerings

94.289.0

74.6

84.189.6 91.7 93.7

-1%

-6%

-16%

13%

7%

2% 2%

-20%

-15%

-10%

-5%

0%

5%

10%

15%

20%

25%

0

10

20

30

40

50

60

70

80

90

100

2018 2019 2020 2021 2022 2023 2024

Mill

ions

Global Production

Global Production Year over Year Change

Page 7: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

7

Global Light Vehicle ProductionSemiconductor and Other Supply Chain Pressures Present Near-Term Production Challenges

• Globally nearly 1.2M units estimated to be lost

from 1Q due to semiconductor shortages

• Biggest disruptions:

• Mainland China: 350,000 units

• Europe: 282,000 units

• North America: 264,000 units

• Semiconductor shortages are not the only

influence on Q1 developments:

• Upside in China from Lunar New Year

• North America and Europe compounded by

weather and ongoing public health and lockdown

measures

• Port congestion/disruptions impacting product flow

• Extent of disruption and long lead for

semiconductors pointing to more protracted

vehicle production constraints

• Recovery opportunities dissipating

• Risk in North America for trucks and utility

vehicles amid low inventory levels

-600

-500

-400

-300

-200

-100

0

NorthAmerica

Europe MainlandChina

Japan SouthAmerica

SouthKorea

Th

ou

sa

nd

s

Net change Semiconductor impact

Source: IHS Markit

Global Light Vehicle Production: 1Q 2021 – Mar 2021 vs. Dec 2020

© 2021 IHS Markit

Page 8: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

8

Source: IHS Markit

Despite Strong Q1, Full-year Outlook is Reduced on Payback Particularly with Light Commercial

Vehicles and Semiconductor Concerns

Mainland China Production Overview

▲ The economic development has been upgraded again by increasing GDP

growth prediction to 7.8% in 2021.

▲ Strong demand in Q1 2021 ahead of Lunar New Year holiday.

▲ Additional incentives have been released during National Congresses in

March, further motivating the output and sales in following months.

▲ Commercial vehicle sector responds to infrastructure investment

▼ The semiconductor shortage brings risks of plant shutdowns could further

deteriorate in Q2 2021. The impact started to expand from JV brands to

Chinese domestic brands.

▼ The polyamide (PA66) shortage owing to the snowstorm in US, would be

another interruption in H1 2021.

▼ Some fluctuations in the stock market could bring uncertainties to

potential demand.

26.6124.42 23.35

24.6626.01 26.98

28.23

-4.0%

-8.2%

-4.4%

5.6% 5.5%

3.7%

4.7%

-10.0%

-8.0%

-6.0%

-4.0%

-2.0%

0.0%

2.0%

4.0%

6.0%

8.0%

0

5

10

15

20

25

30

2018 2019 2020 2021 2022 2023 2024

Mill

ions

Yearly Production

Mainland China Production Year over Year Change

31%

407%

58%

4%

-1% -7%-10% - -5% -5% -9%-4%

-100%

0%

100%

200%

300%

400%

500%

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0

500

1,000

1,500

2,000

2,500

3,000

Thousands

Monthly Production Evolution

YoY Evolution 2020 2021 Estimates

2021 Forecast 2022 Forecast

Page 9: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

9

Lockdowns Still Hammering Demand, Semiconductor Shortage Limiting Inventory Rebuild

Europe* (excluding CIS) Production Overview

Source: IHS Markit

▲ CY 2022 production revised up, catching-up for 2021 production losses

▲ Inventories remain at very low level as we enter Q2 2021.

▲ Government incentives support LEV sales in Western Europe

▲ Ongoing demand recovery in Turkey and in key export markets

▼ 1H 2021 production revised down over 140,000 units, with marginal

recovery through 2H 2021.

▼ Semiconductor shortage impacting virtually all operations while

lockdown measures still impact vehicle retail in parts of Europe

▼ Other supply shortages potentially disrupting production (plastics, steel)

▼ CAFE compliance remains an important challenge with risks of OEM

forcing overall volume reductions

Note: *Europe = EU27 + UK, Turkey and Serbia. Not including Commonwealth of Independent States

20.08 19.20

14.8517.00

18.23 18.53 18.55

-2.5%-4.3%

-22.7%

14.5%

7.3%

1.7% 0.1%

-25.0%

-20.0%

-15.0%

-10.0%

-5.0%

0.0%

5.0%

10.0%

15.0%

20.0%

0

5

10

15

20

25

2018 2019 2020 2021 2022 2023 2024

Mill

ions

Yearly Production

EU (excluding CIS) Year over Year Change

-18%-18%

42%

2022%

108%

26%

3%

-2%

-2%

-1%-6%

4%

-500%

0%

500%

1000%

1500%

2000%

2500%

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0

500

1,000

1,500

2,000

Thousands

Monthly Production Evolution

YoY Evolution 2020 2021 Estimates

2021 Forecast 2022 Forecast

Page 10: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

10

US: Light Vehicle Sales OutlookShifting from a COVID Contraction to a Post-COVID Recovery

Economic issues

• US consumer outlook to improve, though

recovery skewed

• Risk for additional COVID-19 related

lockdowns diminishing

• Longer term pressure on OEM profitability

• Opportunities to find right customer based

on vehicle age and scrappage

• Launches to accelerate, mix increasingly

attractive

• Vehicle development costs rising

• Regulatory compliance

• Consumer contenting

• Market attractive from consumer

perspective, risk shifting to lenders

• Low interest rate environment

-25%

-20%

-15%

-10%

-5%

0%

5%

10%

15%

20%

0.0

2.0

4.0

6.0

8.0

10.0

12.0

14.0

16.0

18.0

20.0

2000 2005 2010 2015 2020 2025

Milli

on

s

%∆ Y/Y Base (50%) Optimistic (25%) Pessimistic (25%)

Source: IHS Markit

US Light Vehicle Sales

© 2021 IHS Markit

Page 11: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

11

Semiconductor ShortagesShort-Term Issue with Lasting Implications

Impact and issues:

• Short lead time notice

• Who and when remains a question

• Downtime

• Reduced work schedules

• Cancelled overtime

• Production rationalization efforts

• First-half 2021:

• Semiconductor shortage impact

• End of legacy models

• Slower ramp-ups

• Annual comparisons masks issue

• Second-half 2021:

• Volume recovery beginning to look grim

bolstering outlook for 2022

• Summer shutdowns are a wild card

-300

-250

-200

-150

-100

-50

0

50

100

150

200

0.0

0.2

0.4

0.6

0.8

1.0

1.2

1.4

1.6

1.8

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Th

ou

sa

nd

s

Mil

lio

ns

Y/Y ∆ Mar-21 Dec-20

Source: IHS Markit

North America Light Vehicle Production: 2021

© 2021 IHS Markit

1H: -754K

2H: +349K

-400K

15.8M

Page 12: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

17.817.1 17.0

16.3

13.0

15.8

16.8 16.6 16.5 16.5 16.5 16.6 16.8

0.0

2.0

4.0

6.0

8.0

10.0

12.0

14.0

16.0

18.0

20.0

2016 2018 2020 2022 2024 2026 2028

Mill

ions

12

North American Light Vehicle Production

Source: IHS Markit

North American Light Vehicle Production

© 2021 IHS Markit

Deep COVID-Related Cut for 2020 but a Quicker Snapback than the Great Recession*

Short-term

▪ COVID-19 implications

▪ -3.3M units or -20% in 2020

▪ Program delays or timing slippage

▪ Component shortages, labor availability,

raw material pricing, etc. result in near-

term downside risk

▪ Inventory depletion and restocking

Long-term

▪ Capacity: How to get to 17M units?

▪ Expansion and maximization

▪ BEV implications; demand, redundancy, policy

actions

▪ Growth in regionalization

▪ Phase two Mexico developments

▪ Life-cycle pressures

▪ USMCA and trade implications

*

Page 13: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

13

North America Light Vehicle Production2021 vs. 2020

• Production growth as demand

recovers from COVID-19 impact

and inventories are restocked

• GM – Hummer EV, Bolt EUV,

BrightDrop EV600

• Ford – Bronco and Maverick

• Stellantis – Grand Cherokee and

Wagoneer/Grand Wagoneer

• Key New Domestic launches

include BMW 2-Series, Honda

Civic; Hyundai Tucson; Lordstown

Endurance; Lucid Air; Nissan

Frontier & Pathfinder; Rivian R1S

& R1T; Tesla Cybertruck, Model S

& X; Toyota Corolla Cross &

Tundra; Audi Q5 Sportback, etc.Source: IHS Markit Light Vehicle Production Forecast

OEM2021F

(000s)

2020F

(000s)% ∆

∆ Units

(000s)

GM 2,764 2,388 15.7% 376

Ford 2,562 1.985 29.1% 577

Stellantis 2,232 1,808 23.5% 424

Detroit 3 7,558 6,181 22.3% 1,377

Toyota 1,968 1,600 23.0% 368

Honda 1,582 1,451 9.0% 131

Renault/Nissan 1,238 953 29.9% 285

Hyundai 878 698 25.8% 180

Asian 4 5,666 4,702 20.5% 964

VW 680 551 23.4% 129

BMW 476 417 14.1% 59

Daimler 352 334 5.4% 18

German 3 1,508 1,302 15.8% 206

Others 1,030 839 22.8% 191

Total 15,762 13,024 21.0% 2,738

Page 14: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

Production Outlook

14

North American Light Vehicle Production by Country

8.5 7.6

10.1

2.02.1

2.42.1

2.2

2.9

-40%

-30%

-20%

-10%

0%

10%

20%

30%

40%

50%

0

2

4

6

8

10

12

14

16

18

20

Y-O

-Y %

Ch

an

geO

utp

ut

(mil

lio

ns)

Mexico Canada US Change 2019 – 2028

-449,000

CAGR = -3.0%

76,000

CAGR = 0.2%

16.2

13.0

16.5

12.611.9

15.4

10.9

2.4

2.9

16.8

11.4

1.5

3.9

Source: IHS Markit Light Vehicle Production Forecast

11.3

3.9

1.3

17.0

11.1

3.9

2.0

+851,000

CAGR = 0.9%

16.3

10.6

3.8

1.9

8.6

3.0

1.4

15.8

10.8

3.5

1.5

16.8

11.6

3.6

1.6

Page 15: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

15

North American Light Vehicle ProductionCOVID-19 Impacts Everyone, yet Customer Mix Continues to Shift

Source: IHS Markit

North America Light Vehicle Production

© 2021 IHS Markit

9.28.6 8.6

8.0

6.27.6 8.0 7.9 7.7 7.7 7.6 7.8 7.9

8.58.4 8.1

8.0

6.5

7.78.1 7.9 8.1 8.1 8.2 8.2 8.3

0.0

2.0

4.0

6.0

8.0

10.0

12.0

14.0

16.0

18.0

20.0

2016 2018 2020 2022 2024 2026 2028

Mil

lio

ns

Detroit 3 Start-ups Transplants

Divergent trajectories – 2019 to 2028

▪ Domestics

▪ -107K units or -2.7%

▪ Offshoring to China

▪ Increasing shift to trucks

▪ More closely tied to US sales

▪ Build where you sell

▪ Transplants

▪ +300K units or +3.1%

▪ Localization

▪ Capacity expansion

▪ Global sourcing and increasing exports

▪ Start-ups

▪ +286K units or +73.6%

▪ Tesla largest component, although

offshoring is slowing growth

▪ Monitoring other start-ups

Page 16: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

16

Start-upsRisk vs. Reward from A to Z Amid Speculative Investment

Source: IHS Markit

North America Production

© 2021 IHS Markit

0

20

40

60

80

100

120

140

2016 2018 2020 2022 2024 2026 2028

Th

ou

sa

nd

s

Rivian Lucid Canoo Lordstown Arrival Zoox

• Arrival

• Bus and van markets

• Low volume micro-factories

• Canoo

• Subscription based business model

• MPV, sedan, pickup, van

• Lordstown Motors

• Pickup and van with commercial focus

• Lucid Motors

• Luxury, performance focus

• Expansive product plans to 2020

• Rivian

• Premium, off-road focus

• Partnerships: Amazon, Ford

• Zoox

• Company ecosystem with L5 EV/AV

Page 17: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

7 96 4 5 6 7

12

3 3 5

54

1 7 6 34

3

4 2

6

1415

15

18 20 2525

14

1818

12

2628

22

2931

3436

29

2523 23

0

5

10

15

20

25

30

35

40

45

2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028

Car Pickup Utility

17

North America Light Vehicle Production Launches by Vehicle Type

Source: IHS Markit

North America Light Vehicle Production Launches

© 2021 IHS Markit

Capital Needs Intensify with New Launch Activity; Timing Delays Due to COVID-19

Watch for delays,

restructuring or cancellation

of future programs

Volatility Extends to Launch Timings

▪ Launches in late 2021, 2022 and 2023 can be

subject to further delay, reprioritization, rescoping

or even cancellation

▪ If possible, OEMs will review portfolios to extend

current vehicles – potentially integrating new

minor/moderate facelifts to extend the lifecycles

▪ Utility vehicle expansion continues

▪ Competition weighs on leaders

▪ Splintering segmentation with pricing/margin/

volume pressure

▪ BEV activity

▪ 55 all-new nameplates

▪ 13% or 2.2 million units of North American

production by 2028

▪ Product redundancy: ICE to BEV

▪ Over 100 more BEVs as import or part of

multi-energy nameplates

▪ Legacy programs as a hedge

Page 18: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

18

North American ProductionTail Wagging the Dog, More BEVs than Consumers to Start

7 9 18 32 49 61 70 76 80 810

10

20

30

40

50

60

70

80

90

0

500

1,000

1,500

2,000

2,500

2019 2021 2023 2025 2027

Thousands

# of BEV models BEV volume

Source: IHS Markit

Battery Electric Vehicle Production and Model Count

© 2021 IHS Markit Source: IHS Markit

BEV Share of Production and Volume per Nameplate

© 2021 IHS Markit

0%

2%

4%

6%

8%

10%

12%

14%

0

10

20

30

40

50

60

70

2019 2021 2023 2025 2027

Thousands

% BEV production in NA Vol. per BEV nameplate

BE

V M

odel C

ount

Page 19: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

28%

14%36%

11%

11%

CY30

19

Greater ChinaEuropeNorth America

Powertrain Technology OutlookRegional Preferences and Incentives Result in a Varied Propulsion Mix; Watch the Model Count!

• SAFE rule = 1.5% stringency rate increase/yr

vs. ~5%/yr for CAFE; Biden changes coming.

• PHEV and HEV production mix reduced post

2022, improved outlook for BEV.

• Propulsion forecast largely unchanged as little

relief expected for CO2 compliance.

• Target reduction of 15%/37.5% in 2025/2030

from 2021 level, potential for tougher targets.

• Extended NEV subsidies/exemptions weaken

pre-buy in 2020 & boost demand in 2021-22.

• NEV subsidies will come under increasing

pressure; China to focus on tightening regs.

9%8%

9%

12%62%CY25

3% 3%3%

41%50%

CY20

18%

14%

29%4%

35%

CY25

4% 7%

8%

11%

70%

CY20

31%

16%36%

3%14%

CY30

19%

11%

22%

16%

32%

CY25

5% 3%4%

39%49%

CY20

17%

12%

12%6%

53% CY30

Page 20: Automotive Industry Outlook - Butzel Long

© 2021 IHS Markit. All Rights Reserved.

Thank You!

Mike Wall

Executive Director, Automotive Analysis

[email protected]

+1 248 728 8400 Direct

+1 616 446 6885 Mobile

20

IHS Markit Customer Care

[email protected]

Americas: +1 800 IHS CARE (+1 800 447 2273)

Europe, Middle East, and Africa: +44 (0) 1344 328 300

Asia and the Pacific Rim: +604 291 3600

Disclaimer

The information contained in this presentation is confidential. Any unauthorized use, disclosure, reproduction, or dissemination, in full or in part, in any media or by any means, without the prior written permission

of IHS Markit Ltd. or any of its affiliates ("IHS Markit") is strictly prohibited. IHS Markit owns all IHS Markit logos and trade names contained in this presentation that are subject to license. Opinions, statements,

estimates, and projections in this presentation (including other media) are solely those of the individual author(s) at the time of writing and do not necessarily reflect the opinions of IHS Markit. Neither IHS Markit

nor the author(s) has any obligation to update this presentation in the event that any content, opinion, statement, estimate, or projection (collectively, "information") changes or subsequently becomes inaccurate.

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Page 21: Automotive Industry Outlook - Butzel Long

Seeing through the Fog of the Battle of the Forms

Sheldon Klein | Butzel Long | [email protected]

Page 22: Automotive Industry Outlook - Butzel Long

The Battle of the Forms

[a/k/a, I Agreed to What???]

© Butzel Long 2021

Page 23: Automotive Industry Outlook - Butzel Long

• Understand the basics of contract formation.

• Understand what is the “Battle of the Forms”.

• Learn the basics of how to engage in the “Battle of the

Forms”

• Understand the contract terms that are not in either side’s

form

© Butzel Long 2021

Goals for the Presentation

Page 24: Automotive Industry Outlook - Butzel Long

Contract Formation

© Butzel Long 2021

•“Offer” → “I Accept Your Offer.” → CONTRACT

•If Acceptance ≠ Offer, no Contract (Counter-offer).

Law School, Contracts, Day 1: “Mirror Image Rule”

•Form language exchanged without ever resolving, or even paying attention to, the differences

•Ignores reality to say “no contract” when parties are doing business and think there is a contract.

Real World

Legal rules for (trying to) sorting out the mess

“Battle of the Forms”

Page 25: Automotive Industry Outlook - Butzel Long

Do I have a Contract?

§ 2-204. Formation in General.

• (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

• (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.

• (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

© Butzel Long 2020

Page 26: Automotive Industry Outlook - Butzel Long

Rule 1: Lawyers are Good.An Actual Agreement is Better.

© Butzel Long 2021

“There is no language that a lawyer can put on

a form that will always assure his client of

forming a contract on his client's own terms. . . .

If one must have a term, that party should

bargain with the other party for that term; a

client should not get it by his lawyer's sleight of

hand. If a seller must have the term to reduce

liability but cannot strike a bargain for it, his

only answer may be to raise his price, buy

insurance, or—as a last resort—have an extra

martini every evening and do not capitalize

the corporation too heavily.”

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In a Nutshell

© Butzel Long 2021

“Everything in war is very simple. But the simplest thing is difficult.”

Carl von Clausewitz

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Goods or Services?

© Butzel Long 2021

• Battle of the Form rules are different for Goods and Services.

• Goods if you are buying raw parts and then selling the finished parts

• Services if you are paid a fee for finishing your customer’s parts

• If mix, “predominant purpose” of the transaction.

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Offer or Acceptance?

© Butzel Long 2021

• Fundamental to contract formation and battle of the forms analysis, but application is slippery

• “An offer is the manifestation of willingness to enter into a bargain, so made as to justify

another person in understanding that his assent to that bargain is invited and will conclude it.”

[R2k 24]

• “Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree

in a manner invited or required by the offer.” [R2k 50]

• Is an RFP or ITB an offer or nothing?

Is Bid or Proposal an offer, an acceptance, a counter-offer or nothing?

Is PO issued after Bid or Proposal an offer, an acceptance, a counter-offer or nothing?

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If You Sell Services

© Butzel Long 2021

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If You Sell Goods

© Butzel Long 2021

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Seller’s Quotation Best Practices

© Butzel Long 2021

• Designate it as an “offer.”

• Have Terms and Conditions of Sale

• Incorporate them in your Offer, your Acceptances and your Invoices.

• Always use clear and precise language.

• Do not refer to a RFQ or other external documents in general but only to the

necessary specific provisions (e.g., Buyer’s technical specifications).

• Object to any additional or different terms in prior or subsequent documents.

• Get in the last word.

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Sample Quotation

© Butzel Long 2021

Possible Language for Quotation forms

This is an offer. This quotation and any resulting contract are subject

to the Seller’s General Terms and Conditions of Sale placed on the

reverse side, elsewhere in this quotation or Seller’s website, and

available by written request. Notice is hereby given of objection to

any additional or different terms in any acceptance or other

response.

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What Documents Count?

© Butzel Long 2021

• Some of the documents that could constitute the “Theatre of the Battle” are:

• RFQs and Quotations

• Sourcing Letter

• Purchase Order

• Buyer’s and Seller’s Standard Terms and Conditions

• Documents incorporated in the contract by reference

(e.g., drawings, specifications, standards, and quality manuals.)

• Invoice

• Correspondence and E-mails

Page 35: Automotive Industry Outlook - Butzel Long

Beyond the Four Corners

© Butzel Long 2021

• The law can supply “gap fillers” for missing terms (especially for Goods):

• Price (reasonable);

• Number of Deliveries (one delivery);

• Place of Delivery (Seller’s place of business);

• Time of Delivery (reasonable);

• Length of Contract (reasonable);

• Time of Payment (due at the time and place of the Buyer’s receipt of the goods); and

• Risk of Loss (passes on the Buyer’s receipt of the goods).

• Warranties (implied good title, non-infringement, marketability, and possibly fitness for

particular purpose).

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Other Sources of Contract Terms

© Butzel Long 2021

• The course of dealing between the parties in other contracts.

• The course of performance by the parties in the same contract.

• Industry Standards (“Usage of Trade”).

• Documents referenced in the contract (e.g., quality manuals).

• So where do we look for contract terms:

• Mutually agreed.

• GAP fillers.

• Four sources above.

• Winners in the Battle of the Forms.

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Take Aways

© Butzel Long 2021

• The Battle of the Forms is a last resort. Whenever possible, negotiate a written agreement that includes your “must haves.”

• However, this is not always possible. Therefore, it is important for you, and your people in the trenches, to understand the “rules of engagement.”

• Well written agreements are a cost-effective risk management tool.

• You cannot control the terms if you don’t have them. Have and use well-written Terms of Sale

• Do not blame the law. You volunteer for battle by beginning performance without a clear, acceptable agreement.

“The events which can not be prevented, must be directed.”

Klemens von Metternich

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QUESTIONS?

Beth GotthelfButzel [email protected]

© Butzel Long 2020

Sheldon KleinButzel [email protected]

Mike WallIHS [email protected]

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DISCLAIMER

These materials and presentations are intended and

designed for informational purposes only – they do not

provide legal advice and no attorney-client

relationship is created. No liability is assumed in

connection with the use of these materials. Legal

counsel should be consulted regarding how

applicable law impacts specific situations.

© Butzel Long 2021