Purchasing Terms and Conditions - NAVTECH Technologies Corp. and BMW of North America Inc.
[BMW LETTERHEAD]
PURCHASING TERMS AND CONDITIONS
REVISED VERSION FOR NAVIGATION TECHNOLOGIES
1. ACCEPTANCE OF ORDER BY SUPPLIER - Acceptance of this order by
Supplier is expressly limited to the terms and conditions
contained in this order. Any typewritten or handwritten portions
of this order shall supersede and cancel any contrary or
inconsistent printed portions of this order. ANY ADDITIONAL OR
DIFFERENT TERMS IN SUPPLIER'S INVOICES, BILLING STATEMENTS,
ACKNOWLEDGEMENT FORMS OR OTHER DOCUMENTS ARE DEEMED TO BE MATERIAL
AND ARE OBJECTED TO WITHOUT FURTHER NOTICIFICATION BY BUYER, and
shall be of no force or effect unless specifically agreed to in
writing. Any of the following acts by Supplier shall constitute
acceptance of this order and all of its terms and conditions:
Signing and returning a copy of this order; delivery of any of the
goods ordered; informing Buyer in any manner of commencement of
performance; or returning Supplier's own form of acknowledgment.
Except as otherwise agreed in writing, all tangible property
(excluding the NavTech Database and related software) created or
generated specifically for Buyer in the course of Supplier's
performance under this order, including without limitation printed
materials, artwork, designs, concepts, plates, audiovisual
materials, negatives, drawings, mechanicals and photographs, are
the property of Buyer and should be so marked. Supplier
acknowledges that Buyer is to be considered the author of such
works, and hereby irrevocably grants to Buyer, its successors and
assigns all rights, title and interest in such works worldwide.
Supplier and its licensers are, and shall remain, the owners of
the NavTech Database and any software contained in the goods
delivered by Supplier hereunder, including any and all
intellectual property rights with respect thereto. Except as
expressly set forth in the End-User License Agreements provided by
Supplier with the goods delivered hereunder, nothing stated in
these Terms and Conditions shall be deemed to grant, assign or
otherwise transfer any rights, title or interest in the NavTech
Database or related software to Buyer or any third party.
2. PRICE AND DELIVERY - (A) Supplier shall furnish the items called
for by this order in accordance with the prices and delivery
schedule specified on the face of this order. If prices and/or
delivery dates are not so stated, Supplier shall offer its lowest
prices or best delivery dates then prevailing for the same goods
containing the same database content, scope and coverage and, upon
written acceptance by Buyer such prices and delivery dates shall
be deemed to have the same force and effect as if initially
specified on this order. All prices shall include all applicable
taxes, except sales and use taxes which are separately shown where
applicable. (B) Time is of the essence to the Buyer and the
delivery schedule specified on this order must be strictly
observed by Supplier both as to time and quantities. Buyer is not
obligated to accept partial deliveries or excess deliveries. In
addition to its right to terminate pursuant to Subparagraph (B) of
Paragraph 11 (Termination), Buyer may require Supplier, at
Supplier's sole cost and expense, to ship any of the items covered
by this order by air or railway express or by such other means as
may be designated by Buyer if Supplier fails to meet the specified
delivery schedule. Acceptance by Buyer of all or part of the items
shall not constitute a waiver by Buyer of its claims arising from
delays in delivery.
3. PACKING, MARKING AND RISK OR LOSS - All items shall be
appropriately packaged, marked and otherwise prepared in a manner
to obtain the lowest reasonable shipping rates unless contrary
instructions are received in writing from Buyer. Buyer's count
will be accepted as final on all
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shipments not accompanied by a packing slip. Supplier shall bear
all risks of loss or damage to items covered by this order until
delivery of items to the carrier, if transportation is F.O.B.
Supplier, or until acceptance by Buyer, if transportation is
F.O.B. Buyer. Supplier will hold in strict confidence during and
after the term of this purchase order the following information,
materials, and data that have been disclosed by Buyer to Supplier
that are not publicly available at the time they are disclosed to
the Supplier or are not later disclosed by the Buyer or an
authorized third party: Any and all technical and commercial
information, market plans, strategy, customer lists, marketing,
surveys and pricing data relating in any way to the materials or
services to be furnished by the Supplier. Supplier will not use
any such confidential information for any purpose, nor disclose it
to anyone other than Supplier personnel, without prior written
approval from Buyer, except as is necessary to fulfill its
obligations or perform services as provided in this purchase
order. In addition to the foregoing, Supplier shall take such
reasonable further steps as Buyer may direct to insure the
protection of confidential information.
4. INVOICING AND PAYMENT - Invoices, together with copies of packing
slips, must be mailed promptly in accordance with the instructions
on the face of this order. Invoices shall be accompanied by a bill
of lading or express receipt when appropriate. Payment of invoice
shall not constitute acceptance of the items ordered, and shall be
subject to appropriate adjustment for failure of Supplier to meet
the requirements of this order.
5. MARKING OF GOODS - All items will be marked by Supplier in such
manner as Buyer may specify. Any items, which for any reason, are
not accepted by Buyer and which are marked with any trademark
(including, without limitation any logo), both registered and
common law, of Buyer or Beyerische Motoren Werke AG, will be
destroyed by Supplier. In no event will Supplier deliver or sell
any such items so marked to any third party.
6. INSPECTION - All items shall be subject to Buyer's final
inspection and testing on Buyer's premises. In the event Buyer
wishes to inspect or test any items covered by this order on
Supplier's premises, Buyer shall give Supplier reasonable notice
and Supplier shall provide, without additional charge, reasonable
facilities and assistance for such inspections and tests. If the
parties mutually and reasonably determine that any items covered
by this order are defective or otherwise not in conformity with
the requirements of this order, Buyer, by written notice to
Supplier, may (a) rescind this order as to such items, (b) accept
such items at an agreed reduction in price, (c) retain and correct
the defects or non-conforming aspects of such items or (d) reject
such items and require the delivery of replacements. [redacted]
Rejected items will be returned to Supplier at Supplier's request
and risk of loss, [redacted]. Delivery of replacements shall be
accompanied by written notice specifying that items are
replacements. If Supplier fails to deliver required replacements
in accordance with a reasonable delivery date specified by Buyer,
Buyer may terminate this order. No inspection, tests, approval or
acceptance of items ordered shall relieve Supplier from liability
for (1) defects or other failure to meet the requirements of this
order, (ii) latent defects, (iii) fraud, (iv) such gross mistakes
as may amount to fraud, or (v) failure by Supplier to meet its
warranty obligations hereunder. The rights granted to Buyer under
this paragraph are in addition to any other rights or remedies
provided elsewhere in this order or by law.
7. CHANGES - Buyer may at any time, by written order, make changes in
any of the following: (a) the drawings, designs and/or the
specifications applicable to the items covered by this order, (b)
the method of shipment and/or packing and (c) the place of
delivery. Supplier shall be deemed to have accepted Buyer's
proposed changes without additional costs to Buyer and without
extension of Supplier's time for performance unless Supplier,
within ten (10) days following receipt of Buyer's notice of
change, notifies Buyer in writing of the need for any equitable
adjustment in the price of the items and/or the time for
performance.
8. WARRANTIES - [Redacted]
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[redacted]
9. COPYRIGHTS - Supplier warrants that the NavTech Database does not
infringe the copyrights of any third parties.
10. INDEMNIFICATION - Supplier and Buyer shall indemnify and hold each
other from and against all liabilities arising out of the
indemnifying party's negligence or failure to perform or comply
with any of the terms and conditions of this Agreement, including
liability for personal injury or product liability. In the event a
claim is instituted by a third party, the indemnifying party
agrees to undertake, at its expense, the defense of both parties.
Each party agrees to cooperate fully with the other in defending
against such claims.
11. TERMINATION - If Supplier or Buyer materially breaches any of the
terms or conditions set forth herein and fails to cure such a
breach within thirty (30) days after receiving written
notification of such breach from the non-breaching party, the
non-breaching party may immediately terminate this agreement upon
further written notification to the breaching party and may
protect its interest by any means available to it.
12. FORCE MAJEURE - Neither Buyer or Supplier shall be liable for any
failure to perform in accordance with the terms of this order due
to act of war, sabotage, strikes, fires, freight embargoes,
floods, explosions, epidemics or other causes or events beyond the
control and without the fault or negligence of Buyer or Supplier.
In the event Supplier is unable to perform due to any of the
foregoing events, Buyer shall be entitled, in addition to its
right to, terminate pursuant to paragraph 11 (Termination), to (a)
obtain the items covered by this order from such other sources as
Buyer may determine for the duration of Supplier's inability to
perform and (b) reduce pro tanto, and without any obligation to
Supplier, the quantity of the items specified by this order.
13. LIABILITY RESTRICTION - NEITHER SUPPLIER NOR BUYER SHALL BE LIABLE
OR OBLIGATED TO EACH OTHER UNDER ANY SECTION OF THESE TERMS AND
CONDITIONS OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, LOST PROFITS, CONSEQUENTIAL OR PUNITIVE DAMAGES.
THIS LIMITATION SHALL NOT IN ANY WAY LIMIT THE OBLIGATION OF
EITHER SUPPLIER OR BUYER TO FULLY INDEMNIFY THE OTHER WITH RESPECT
TO THIRD PARTY CLAIMS AS PROVIDED FOR IN PARAGRAPH 10.
[redacted]
14. RESTRICTIONS ON USE - The use of the copies of the NavTech
Database delivered by Supplier hereunder shall be restricted to
in-vehicle navigation systems manufactured by or for VDO Car
Communication (formerly Philips Car Systems). All copies of the
NavTech Database distributed by Buyer or its centers and
sub-distributors shall include the End-User License Agreement
provided by NavTech.
15. MISCELLANEOUS - (A) No course of dealing of Buyer nor any delay or
omission of Buyer to exercise any right or remedy granted under
this order shall operate as a waiver of any right of Buyer, and
every right and remedy of Buyer provided herein shall be
cumulative and concurrent, unless otherwise expressly provided
herein, and shall be in addition to every other right or remedy
provided for herein or now or hereafter existing in law or in
equity or by statute or otherwise. (B) If any provision of this
order is found to be illegal or otherwise unenforceable by any
court or other judicial
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or administrative body, such provision shall be limited to the
extent necessary so that it will not render this order unlawful or
otherwise unenforceable and the remaining provisions of this order
shall remain in full force and effect. (c) This order shall be
governed by the laws of the State of New Jersey. (d) This order
contains the entire agreement of the parties. No claimed change,
modification, rescission or waiver shall be binding on Buyer
unless in writing and signed by a duly authorized representative
of Buyer.
NAVTECH Technologies Corporation BMW of North America, Inc.
By: /s/ Judson Green By: /s/ Hans Duenzl
------------------------- -----------------------------
Its Duly Authorized Agent Its Duly Authorized Agent
Name: Judson Green Name: Hans Duenzl
Title: President & CEO Title: Vice President
Aftersales & Engineering
Date: 8/1/00 Date: 7/20/00
By: /s/ Laszlo Levay
-----------------------------
Name: Laszlo Levay
Title: Manager, Purchasing
Domestic and International
Date: 7/20/2000
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