Terms and Conditions for the Purchase of Production Materials and Automotive Components - BMW Group International and Navigation Technologies Inc.
BMW GROUP INTERNATIONAL TERMS AND CONDITIONS FOR THE PURCHASE OF
PRODUCTION MATERIALS AND AUTOMOTIVE COMPONENTS
(Status 24.09.2001)
LIST OF DEFINITIONS:
- SELLER
is the party to whom the Purchase Order is addressed.
- BUYER
means the party which issues a Purchase Order or on whose behalf a
Purchase Order is issued.
- CALL FOR DELIVERY
means any instruction issued by Buyer to Seller specifying the required
delivery quantities, place, date and (if relevant) time of delivery of
Goods.
- GOODS
means all production materials and automotive components specified in
the Purchase Order and includes accessories, Tooling and, where
relevant, services.
- TOOLING
means production equipment, including, but not limited to forging dies,
measuring and testing equipment (e.g. gauges), matrices, models,
samples, tools, devices, drawings and similar items required for the
production and examination of Goods.
- SUPPLY CONTRACT
means any contract formed by Seller's acceptance of a Purchase Order.
- INCOTERMS
means those trade terms published by the International Chamber of
Commerce and entitled "Incoterms 2000".
- IN WRITING OR WRITTEN
means in writing signed by the issuing party and served by any means
including fax and EDI.
- INTELLECTUAL PROPERTY RIGHTS
means patents, design rights, copyrights, trademarks and service marks
(whether registered or not and applications for any of the foregoing,
know-how, and rights of a like nature, throughout the world.
- EDI
means Electronic Data Interchange, i.e. the transmission of data via
electronic communication links between the parties or other
machine-readable data media.
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PROVISION 1: GENERAL
1.1 These Terms and Conditions shall apply to the purchase of production
materials, automotive components and accessories by Buyer from Seller.
These Terms and Conditions shall also apply to Tooling. They shall form
part of every Supply Contract.
1.2 Seller has read and understands these Terms and Conditions and agrees
that Seller's written acceptance of or its performance in relation to a
purchase order (as defined in Provision 2.1) shall constitute Seller's
acceptance of these Terms and Conditions.
PROVISION 2: PURCHASE ORDERS AND CALLS FOR DELIVERY
2.1 Buyer shall issue a purchase order (the "Purchase Order") for Goods to
Seller. Acceptance of a Purchase Order by Seller is expressly limited
to the terms of the Purchase Order and to these Terms and Conditions.
Any additional or different terms and conditions are expressly excluded
and shall not form part of any Supply Contract. Each Purchase Order
accepted by Seller pursuant to Provision 2.2 will constitute a separate
and individual Supply Contract.
2.2 Seller will forward a written acceptance of the Purchase Order within
fourteen (14) working days after Seller's receipt of said Purchase
Order. In any event any performance by Seller in relation to a Purchase
Order will constitute acceptance of such Purchase Order. In the event
that Seller does not forward a written acceptance or start performance
in relation to a Purchase Order within fourteen (14) working days after
Seller's receipt of the Purchase Order, Buyer shall be entitled but not
obliged, to revoke such Purchase Order without incurring any liability
to Seller.
2.3 Buyer shall have the right at any time to amend or vary a Supply
Contract or a Purchase Order in any respect including, but not limited
to specifications, drawings, designs, construction, date and place of
delivery, packaging, quality, quantity and means of shipment. Seller
will evaluate the consequences of such change including, but not
limited to, any increase or reduction in the cost to Seller or any
delay of delivery, and shall immediately inform Buyer of such fact.
Seller shall not action any amendment until all consequences shall have
been approved by Buyer in writing.
In the event that any such amendment results in Seller compiling stock
which is no longer suitable for use by Buyer in series production,
Buyer will reimburse the costs actually incurred by Seller in relation
to
- finished Goods, semi-finished Goods and related raw materials, for
which Calls for Delivery have been issued for a delivery date within
one (1) month after receipt of Buyer's request for the amendment,
- finished Goods, semi-finished Goods and raw materials included in a
buffer stock, which has been required by Buyer in writing,
provided in all cases that Seller is unable to find an alternative use
or buyer and save as otherwise agreed by the parties.
2.4 Any modification of the Goods shall require the prior written consent
of Buyer.
2.5 Calls for Delivery will be made in writing.
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2.6 Seller will be bound to comply with a Call for Delivery or an amendment
thereto issued by Buyer, unless the Seller notifies his reasonable
objection thereto in writing within the following periods:
- twenty-four (24) hours after receipt of the Call for Delivery or
amendment thereto, if the requirements or amendments therein are to
come into effect six (6) to ten (10) working days (inclusive) after
the receipt of the Call for Delivery or amendment thereto.
- three (3) working days after receipt of the Call for Delivery or
amendment thereto, if the requirements or amendments therein are to
come into effect eleven (11) working days to three (3) months
(inclusive) after the receipt of the Call for Delivery or amendment
thereto.
- two (2) weeks after receipt of the Call for Delivery or amendment
thereto, if the requirements or amendments therein are to come into
effect more than three (3) months after the receipt of the Call for
Delivery or amendment thereto.
If the Call for Delivery or an amendment thereto specifies requirements
or amendments to have effect less than six (6) working days from the
receipt of the Call for Delivery or amendment thereto, the delivery of
the Goods will be determined by mutual negotiations.
2.7 Unless prevented by the law of the country (and if relevant the state /
province) applicable to the Supply Contract, Buyer may cancel a Supply
Contract at any time for any reason. In such circumstances Buyer will
reimburse the costs actually incurred by Seller in relation to:
- Goods, semi-finished Goods and related raw materials, provided that
the relevant Calls for Delivery have been issued indicating a
delivery date within one (1) month after receipt of Buyer's
notification of cancellation.
- Goods, semi-finished Goods and raw materials included in a buffer
stock, which has been required by Buyer in writing.
In any event, Seller is obliged to take all reasonable steps to
minimise all such costs to the greatest possible extent.
2.8 Unless otherwise provided by the law of the country (and if relevant
the state / province) applicable to the Supply Contract, the Buyer may
terminate a Supply Contract immediately by notice to the Seller, if the
Seller shall:
- commit a breach of the Supply Contract, which is not (in the opinion
of the Buyer) capable of remedy, or
- commit a breach of the Supply Contract, which is capable of remedy
and fail to remedy the same within thirty (30) days of a notice from
the Buyer specifying the breach and requiring it to be remedied.
2.9 In the event that either party becomes insolvent, or bankruptcy or
insolvency proceedings of any nature are commenced in relation to that
party, the other party shall be entitled to terminate the Supply
Contract forthwith by written notice.
2.10. Termination of any Supply Contract under this Provision 2 shall be
without prejudice to the accrued rights and liabilities of the parties
and shall not affect the coming into or continuance in
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force of any provision which is expressly or by implication to come
into or to continue in force after such termination.
PROVISION 3: DELIVERY TIMES, DELAY AND FORCE MAJEURE
3.1 Delivery dates and quantities shall be as set out in the Purchase Order
and/or Calls for Delivery. Seller acknowledges that delivery times and
quantities are of the essence and Buyer may reject and/or return at
Seller's expense any delivery of Goods or part thereof received before
or after the delivery date or in excess of the quantity specified in
the Purchase Order and/or Call for Delivery.
3.2 Upon notice set out in the Purchase Order and/or Calls for Delivery,
Seller shall deliver Goods "just-in-time" that is, at an appointed
time of delivery immediately prior to standard production without
delay, such time and timing to be set out in Calls for Delivery, and in
the correct sequence of delivery, such sequence also to be set out in
Calls for Delivery.
3.3 Seller agrees to take all actions necessary and appropriate to ensure
that Goods are received by Buyer as required under the relevant Supply
Contract. Seller will inform Buyer promptly of any occurrence which
will or may result in any delay of delivery at any time or which will
or may result in Seller's inability to fulfill the quantities specified
in the Purchase Order and/or Calls for Delivery. Seller shall also
advise Buyer in writing of corrective measures which Seller is taking
to minimize the effect of such occurrence.
3.4 Except for excusable delay (hereinafter, "Excusable Delay",) as set
forth in Provision 3.5 below, in the event that Seller fails for any
reason whatsoever to effect delivery consistent with the delivery dates
specified in the Purchase Order and/or Calls for Delivery, Buyer shall
be entitled to recover from Seller all actual, consequential and
incidental losses and damages including, but not limited to, losses and
damages relating to and arising out of incremental cost of labour,
transportation, production changes and storage.
3.5 Either of the parties may suspend performance of a Supply Contract
during the occurrence of an Excusable Delay, which shall mean any delay
not occasioned by the fault or negligence of the delayed party and
which results from (without limitation) acts of God or public enemy,
restrictions, prohibitions, priorities or allocations imposed by
governmental authority, embargoes, fires, floods, typhoons,
earthquakes, epidemics, unusual severe weather, delays of similar
natural or governmental causes, and strikes or labour disputes (of or
involving the delayed party's employees of Seller's suppliers) or any
other circumstances beyond such party's reasonable control. Nothing
contained in this Provision 3.5 shall limit either party's rights under
other Provisions of these Terms and Conditions. Further, Buyer shall be
entitled to obtain the Goods covered by the Supply Contract from other
sources for the duration of Seller's inability to perform due to
Excusable Delay and to reduce without any obligation to Seller, the
quantity of the Goods specified in the Purchase Order and / or Calls
for Delivery.
3.6 In the event that Seller discovers any fact which may, or could with
the passage of time, result in Excusable Delay, Seller will immediately
advise Buyer of such fact and use its best endeavours to take all
measures and precautions to reduce the effect of the Excusable Delay.
In addition, at any time, at Buyer's request, Seller will furnish to
Buyer such information as Buyer may request concerning matters which
could result in delays and assurances or contingency plans with respect
to those matters. Seller will notify Buyer immediately of any actual or
potential labour dispute delaying or threatening to delay timely
performance of a Supply Contract or a Call for Delivery and will
include all relevant information.
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3.7 If the parties agree on a buffer stock to be maintained by the Seller,
Seller is obliged to notify Buyer at monthly intervals of the latest
status of this stock.
PROVISION 4: PACKAGING, SHIPPING
4.1 Goods shall be suitably, carefully and appropriately packed in
accordance with Buyer's "Packaging Manual of the BMW Group", as the
same may be amended or replaced from time to time, ("the Packaging
Manual") and in accordance with the instructions of Buyer's packaging
department.
4.2 If the Incoterm "FCA" or "EXW" has been agreed between Buyer and
Seller in relation to Goods, all consignments will be shipped by the
transport provider and by the mode of transport prescribed by Buyer.
4.3 Seller will provide support to the Buyer to ensure that transportation
of the Goods is undertaken in the most cost-effective way.
4.4 The Seller will give the following data to the transport provider in
writing:
- shipping location and loading depot;
- quantity and type of loading units;
- gross weight and storage area requirements;
- date of delivery;
- delivery depots.
4.5 In case of shipment by road Seller shall notify readiness of the Goods
for dispatch to the transport provider. Such notification must arrive
at the transport provider in due time to ensure compliance with the
agreed delivery date. Seller will notify readiness for dispatch by 12
noon at the latest:
- two (2) days for national deliveries within Germany, United Kingdom
and Austria; or
- four (4) days for cross-border deliveries within Europe destined for
Austria; or
- three (3) days for all other cross-border deliveries within Europe;
before the date of delivery as set out in the Call for Delivery.
4.6 If Seller fails to comply with Provision 4, any losses suffered by
Buyer as a result of such failure shall be reimbursed in full by
Seller. Unless agreed otherwise, Buyer shall bear the costs and the
responsibility of the return of empty containers and pallets.
4.7 Delivery notes must be made in writing. With regard to documents
accompanying Goods (physical or electronic documents), Seller shall
comply with Buyer's "EDI Implementation Guidelines" and the
"Packaging Manual".
PROVISION 5: TRANSFER OF RISK
Save as otherwise agreed between the parties, the time at which the
risk of damage to or loss of the Goods shall pass to Buyer shall be in
accordance with the Incoterm agreed in the Supply Contract. If no
Incoterm is specified in the Supply Contract, the Goods shall be deemed
to be sold "FCA", with named place being the premises of Seller where
the Goods are ready for dispatch.
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PROVISION 6: NOTIFICATION OF DEFICIENCIES
6.1 Buyer shall not be obliged to conduct any inspection of incoming Goods
prior to their use in production.
6.2 Buyer shall notify Seller in writing regarding any deficiency of Goods
delivered once the deficiency has been discovered by the Buyer in the
ordinary course of its business. To this extent Seller hereby waives
any right to reject delayed notification of deficiencies.
PROVISION 7: SETTLEMENT OF ACCOUNTS AND PAYMENT
7.1 The accounts of Seller will be settled via selfbilling invoices by way
of EDI, unless otherwise agreed.
Seller does not need to send additional invoices to Buyer because
payments will be made based on the receipt of Goods and the terms
agreed in the Supply Contract. For customs purposes only a commercial
invoice shall be attached by Seller to the shipping documents of import
deliveries in duplicate. Such invoice shall include the data as set out
in Provision 7.2 and additional data as described in Provision 8.
7.2 If the parties have agreed that Seller's accounts will not be settled
via selfbilling invoices, a commercial invoice shall be submitted by
Seller. The original invoice shall be sent to Buyer's incoming Invoice
Verification Department or (if specified on the relevant Purchase
Order) to its payment address. Such invoice shall include the following
data:
- Buyer's supplier number of the invoicing party (8-digit) and, if
different:
- Buyer's supplier number of the Seller (8-digit) and/or
- Buyer's supplier number of the payee (8-digit);
- Buyer's Purchase Order number / Buyer's Purchase Order modification
number;
- Buyer's item number;
- Specification of delivery or service rendered;
- Delivery note number indicated by Seller, date of shipping;
- In case of re-delivery relating to prior delivery by Buyer: Delivery
note number indicated by Buyer with respect to the said prior
delivery;
- Quantity, unit of scale;
- Value of consignment (price per item and total price);
- Price unit, currency unit;
- Price of packaging (per unit of Goods);
- Number of packages, weight (gross/net);
- Delivery address / point of unloading;
- VAT percentage rate;
- Seller's corporate name, registered office and registered number;
- In the event of cross-border deliveries within the European Union:
- VAT identification number of Buyer;
- VAT identification number of Seller;
- In the event of national deliveries within the United Kingdom: VAT
number of Seller.
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7.3 Unless otherwise agreed, payment for Goods properly and timeously
delivered will be made net by the 25th day of the month following the
month of delivery or, in case of Provision 7.2, by the 25th day of the
month following the month of Buyer's receipt of a verifiable invoice.
7.4 Payment remittances shall either be made by bank transfer or by cheque,
as specified by Buyer.
7.5 Where Goods are not supplied in accordance with the Supply Contract,
Buyer shall be entitled to withhold payment of the respective amount of
the price until Seller has fulfilled its obligations in full.
7.6 Seller may not assign its payment rights hereunder without the prior
written consent of Buyer.
7.7 Payment by Buyer for any Goods does not indicate nor constitute
acceptance of such Goods.
7.8 Should the addresses of the place of shipment, the recipient of payment
or the party making out the invoice deviate from the address of the
party receiving the Purchase Order, such deviation has to be expressly
agreed in writing by Buyer in advance.
PROVISION 8: CUSTOMS AND ORIGIN
8.1 For customs purposes Seller will attach a commercial invoice to the
shipping documents in duplicate. Any simplification of that procedure
is only permitted, if agreed in advance by Buyer.
In the case of customs dutyable deliveries the invoice shall specify as
separate items:
- cost of items not included in the price (such as commissions,
brokerage, cost of licenses, cost of means of production, Buyer's
contributions);
- cost of items included in the price (such as cost of assembly and
freight cost);
- value of repairs carried out, broken down into cost of materials and
wages.
Even if deliveries are made free of charge, an indication of value is
still required with the additional note "Only for customs duty".
Either the invoice or the delivery note must include the reason why the
delivery is made free of charge (e.g. sample deliveries).
Should further official documents be required in the case of imports or
exports for the intended use of the Goods delivered, Seller shall
procure such documents for Buyer without delay and make them available
to Buyer at Seller's cost.
8.2 Seller shall be obliged to provide a declaration of origin for the
Goods being supplied:
- Buyer will provide Seller with a set of preprinted forms
"Jahreslieferanten-erklarung" ("Annual Supplier Declaration") to be
filled in, signed by Seller's authorised representatives and
submitted to Buyer within fourteen (14) days after Seller's receipt
of the forms (or in the case of the first delivery of Goods, no
later than the date of delivery).
- Seller may not submit a declaration of origin on its own business
forms, unless this has been agreed with Buyer.
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- Seller shall inform Buyer immediately in writing of any change of
origin of Goods.
- If Seller supplies Goods which get a preferential treatment in the
import country, Seller must provide a declaration of origin suitable
to that supply (e.g. Form sheet A for GSP Goods, EUR 1). This
certificate is required with every such shipment.
8.3 Seller shall be liable for any losses suffered by Buyer due to Seller's
failure to comply with this Provision 8. Seller shall provide Buyer
with all such support as may be necessary to enable Buyer to reduce or
minimise its liability to customs duties.
If Seller supplies Goods from a country which benefits from a trade
credit scheme, Seller shall transfer that benefit to Buyer in the
country of export.
8.4 For any and all questions and instructions arising out of or required
in connection with customs and declaration of origin, Seller shall
contact Buyer's respective customs department.
Unless otherwise agreed, customs clearance shall be the responsibility
of Buyer. If Seller assumes responsibility for customs clearance
without Buyer's prior written approval, Seller shall bear the costs of
such clearance.
PROVISION 9: QUALITY
9.1 Unless stated otherwise in the Supply Contract, Seller shall comply
with the quality standards set out in the Technical Specifications
ISO/TS 16949 "Quality systems - automotive suppliers - Particular
requirements for the application of ISO 9001: 1994", as the same may
be amended or replaced from time to time (hereinafter called "ISO/TS
16949").
9.2 A series process quality evaluation (as defined in this Provision 9.2)
("Series Process Quality Evaluation") must be successfully completed
by Seller before Goods are supplied:
- for the first time; or
- under a new part number; or
- after any process modification.
For the purposes of this Provision 9 a Series Process Quality
Evaluation is a performance test of Seller's manufacturing process,
including its production plants, equipment and machines and its
production logistics processes, under series conditions and according
to the requirements of Buyer, to prove that Seller is able to produce
the required quantity and quality of Goods with the plant, personal and
machine capacity.
Seller will use the Series Process Quality Evaluation to produce
initial samples of the Goods. Seller will inspect initial samples in
accordance with the VDA (Federation of German Automobile Manufacturers)
publication "Quality Management in the Automotive Industry, Volume 2:
Quality Assurance of Supplies", as the same may be amended or replaced
from time to time.
9.3 In case of a conflict between the Supply Contract and ISO/TS 16949 or
the above mentioned VDA publication the Supply Contract shall prevail.
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9.4 Seller shall permit a designated representative of Buyer to visit
Seller's premises to observe and monitor the development and production
of the Goods to verify compliance with ISO/TS 16949.
9.5 In the event that any authorities responsible for vehicle safety
standards demand inspection of the manufacturing process and disclosure
of the test records of Buyer, Seller shall, upon request of Buyer, give
such authorities access to such records and provide them with such
support as may reasonably be expected.
9.6 Upon Buyer's request Seller shall make available to Buyer all quality
records. Quality records are documents and any other data, which relate
to specified requirements and the effectiveness of Seller's quality
system.
Seller shall retain such quality records for at least ten (10) years
after creation relating to Goods with specially marked drawings ("D"
or "L") or for at least five (5) years in any other case, unless a
longer period is otherwise required by law.
9.7 Seller shall procure that all and any of its sub-contractors are
contractually bound to comply with the terms of this Provision 9.
PROVISION 10: WARRANTY
10.1 Seller warrants that for the period detailed in Provision 10.2 (the
"Warranty Period") Goods shall be free of defects in material and
workmanship, conform to the agreed specifications, drawings, samples or
descriptions, be free from design defects, of satisfactory quality and
fit for the particular purpose intended by Buyer. Seller further
warrants that it shall comply with all laws and regulations in the
relevant sales markets relating to the production and, if applicable,
to the development of the Goods, and to the performance of Seller's
duties and responsibilities.
10.2 For all Goods the Warranty Period begins on the date of delivery and
ends on the sooner of:
(i) the expiry of any warranty provided to end-customers of the Goods,
or products, into which the Goods are incorporated; or
(ii) the fifth (5th) anniversary of the delivery date.
The terms of this Provision 10.2 are subject to any longer warranty
period prescribed by the national law of any sales market, into which
Goods or products into which the Goods have been incorporated are
supplied.
10.3 Where defective Goods are delivered, Seller will be given the
opportunity to sort out, rework or replace such defective Good only if:
- the defect is discovered before Buyer has started to use it for
production (processing or fitting); and
- Seller is able to sort out, rework or replace the defective Good;
and
- such sorting out, rework or replacement does not cause any delay in
Buyer's production process.
10.4 In circumstances other than those specified in Provision 10.3 Buyer is
entitled either to rework the defective Goods itself or have such Goods
reworked by a third party at Seller's cost or return Goods to Seller at
Seller's cost and terminate the Supply Contract. Seller shall indemnify
Buyer
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against all and any costs and expenses incurred by the Buyer in
complying with the terms of this Provision 10.4.
10.5 If the same Goods are repeatedly supplied in a defective condition,
Buyer shall upon notice be entitled to terminate not only the Supply
Contract, but also any other Supply Contract for the same or similar
Goods.
10.6 At Seller's request the defective Goods will be made available to
Seller, at Seller's cost.
PROVISION 11: INDEMNITY
11.1 Seller will indemnify and hold Buyer, its agents, servants, officers,
directors and employees, Buyer's distributors, dealers and all entities
which sell Goods or products into which the Goods are incorporated, and
their respective customers, harmless against liability, costs, damages,
losses, claims and expenses (including legal expenses) occasioned by or
arising out of any claim for death, damage, which results from (a) any
defect or alleged defect in the Goods; (b) the Seller's breach of any
term of the Supply Contract; or (c) the fault or negligence of Seller.
11.2 In connection with the Goods or otherwise, if Seller's employees,
agents, sub-contractors or other representatives (hereinafter
"Seller's Agents") are on or present at any premises of Buyer, Seller
shall be and is responsible for the acts and omissions of Seller's
Agents within or about Buyer's premises and agrees to indemnify and
hold Buyer harmless against liability for damage to property or injury
or death to persons arising out of acts or omissions of Seller's Agents
whether pursuant to a Supply Contract or otherwise. The indemnity in
this Provision 11.2 shall not apply insofar as the claim is caused by
the negligence or fraud of Buyer.
11.3 Seller will hold Buyer, its agents, servants, officers, directors and
employees, Buyer's distributors, dealers and all entities which sell
Goods or products into which the Goods are incorporated, and their
respective customers, harmless against liability, costs, damages,
losses, claims and expenses (including legal expenses) occasioned by or
arising out of any action to recall any vehicle, Goods, or any product
into which Goods have been incorporated.
11.4 In the event of a claim by a third party against Buyer (hereinafter,
"Third Party Claim"), which may be the subject of indemnification
provided for in this Provision 11 the Buyer shall provide written
notification thereof to Seller. Seller shall provide Buyer with such
reasonable assistance in the response and prosecution of any defence as
Buyer may request.
11.5 In the event of any claim against Buyer by a third party for death,
personal injury and/or property damage alleging a defect in Seller's
Goods or any product into which the Goods are incorporated, Seller and
Buyer shall, in good faith, promptly attempt to reach an agreement
(hereinafter, "Defence Agreement") specifying the terms under which
Seller and Buyer would apportion responsibility and liability for the
defence of any such Third Party Claim or suit and the financial burdens
arising therefrom. The purpose of the Defence Agreement is to foster
cooperation between Seller and Buyer in the defence of a Third Party
Claim or suit and thus should, to the greatest extent possible, cover
such matters as:
- the roles, responsibilities, and obligations of Buyer and Seller and
their respective counsel in the defence of the Third Party Claim or
suit;
- the payment of legal and other reasonable defence expenses, and
- the payment of any settlement or judgment amounts.
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Notwithstanding the foregoing, but subject to the provisions of any
applicable Defence Agreement, Seller will, in respect of any Third
Party Claim or suit, reimburse Buyer for the legal and other reasonable
defence expenses paid by Buyer and/or Buyer's insurance carriers, and
for the amount of any reasonable settlement or final judgment award
paid by Buyer and/or Buyer's insurance carriers.
11.6 The provisions of this Provision 11 shall survive the termination or
expiry of any Supply Contract.
PROVISION 12: DESTINATION OF GOODS; ADVERTISING
12.1 Seller shall mark the Goods as required by Buyer. This does not affect
Seller's freedom to place effectively and in an easily visible manner
its trade mark or logo on the Goods.
12.2 Seller shall not sell, transfer, loan to any person except Buyer, or
otherwise make use of Goods identified with Buyer's proprietary names,
logos, tradenames, trademarks or service marks, or of Goods contained
in wrappings or containers so identified. Should Goods marked or
designated in this way be rejected as defective, such Goods shall be
rendered unusable by Seller at Seller's expense.
12.3 Seller shall not use any of Buyer's proprietary names, logos, trade
names, trademarks or service marks without the prior written consent of
Buyer.
12.4 Without Buyer's prior written consent, Seller shall not advertise or
publish in any manner through any medium of marketing or advertising
that Seller has contracted to or has been supplying Goods to Buyer.
12.5 Infringement of any of the obligations set out in this Provision 12
shall entitle Buyer to terminate any Supply Contract and/or demand
surrender of anything which is obtained by way of such infringement
and/or to claim indemnification of such loss as has been suffered by
Buyer.
PROVISION 13: TOOLING
13.1 Once the agreed total costs for an item of Tooling has been paid for by
Buyer in full, title to such Tooling will immediately be transferred to
Buyer. Seller shall mark such Tooling as Buyer's property. In the event
of cancellation or termination for any reason of a Supply Contract for
the supply of Tooling where, at the date of cancellation or
termination, title to the Tooling is not vested in Buyer, Buyer may
obtain title to such Tooling by paying to Seller (i) (in relation to
finished Tooling) the outstanding portion of the agreed total costs; or
(ii) (in relation to unfinished Tooling) such proportion of the
outstanding costs as is represented by the costs actually incurred by
Seller in the supply of the Tooling as at the date of cancellation or
termination.
13.2 Any and all Tooling belonging to Buyer which is in Seller's possession
or possession of Seller's Agents shall remain the property of Buyer.
Seller shall mark such Tooling as the property of Buyer. Such Tooling
shall not be reproduced, sold, assigned by way of security, pawned,
mortgaged, charged or otherwise encumbered or disposed of nor used for
the manufacture of goods for parties other then Buyer without the
express prior written consent of Buyer.
13.3 Tooling owned by Buyer will be insured by Buyer.
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13.4 Within a period of four (4) weeks after delivery of first Goods for
Buyer's series production, Seller shall send Buyer a complete list of
all Tooling items utilized by Seller with respect to the Goods and a
document identifying the exact location of the respective Tooling
items. Seller has to prove and substantiate that there is adequate
insurance cover for the Tooling owned by Seller. Maintenance by Seller
of such insurance coverage shall be without prejudice to Seller's
liability under any Supply Contract.
13.5 Seller shall treat all Tooling, regardless of ownership, with due care
and diligence, constantly keeping it ready for operation and in
compliance with the latest design status. Seller shall be responsible
in particular for the correct and accurate dimensions of the Tooling
especially of gauges. Buyer agrees to help Seller in examining and
correcting the gauges made available to Seller, insofar as such items
are not used as check gauges.
13.6 Unless otherwise agreed in writing, the cost for the continuing repair,
maintenance and readiness of the Tooling in immaculate condition shall
be borne by Seller in all respects.
13.7 Notwithstanding Buyer's right to demand surrender of Tooling, Seller
shall be entitled to retain Tooling owned by Buyer to the extent to
which Seller requires the same for executing a Purchase Order for
Buyer. In all other cases Seller shall be obliged forthwith upon the
request of Buyer to surrender the Tooling owned by Buyer.
13.8 Seller shall maintain Tooling used to manufacture Goods in good working
condition for the continued supply of Goods for a period of fifteen
(15) years after termination of Seller's supply of the Goods for
Buyer's series production and shall ensure that any and all
sub-contractors are contractually bound to adhere to the requirements
under this Provision 13.
PROVISION 14: SPARE PARTS
14.1 Whether or not a Supply Contract remains in effect, Seller will at the
request of Buyer provide Buyer or Buyer's nominee(s) with sufficient
quantities of Goods for use as spare parts for a period of fifteen (15)
years after termination of Seller's supply of the Goods for Buyer's
series production or for such lesser period of time as Buyer shall
require in writing. The Seller shall ensure that its sub-contractors
comply with this Provision 14.l.
14.2 During the term of a Supply Contract, the price of the Goods used as
spare parts shall be as agreed in the Supply Contract. However, during
the extended term as set out in Provision 14.1 above, the price shall
be determined by mutual negotiation.
PROVISION 15: INTELLECTUAL PROPERTY RIGHTS
15.1 Seller shall indemnify Buyer and its sub-contractors from and against
all liabilities, costs, damages, claims and expenses (including legal
expenses) that may be awarded or paid to any third party in respect of
any claim or action that the Goods or their use by Buyer infringe the
Intellectual Property Rights of such third party, save to the extent
that Seller has manufactured the Goods in accordance with instructions
received from Buyer and Seller having taken all reasonable precautions
could not have known that following these instructions would result in
an infringement of a third party's Intellectual Property Right.
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15.2 The Parties will inform each other forthwith of all such infringements
or suspected infringements of which they became aware. Buyer will give
Seller sole conduct of the defence of any such claims or actions.
15.3 Upon Buyer's request, Seller shall specify any and all Intellectual
Property Rights known or becoming known to him, which are used in the
design or manufacture of, or which otherwise affect or relate to the
Goods.
PROVISION 16: ELECTRONIC DATA INTERCHANGE ("EDI")
16.1 Prior to the first delivery of Goods to Buyer, Seller shall ensure full
compliance with Buyer's EDI requirements including (without
limitation):
- EDI standards (e.g. VDA, Odette, EDIFACT, webEDI etc.)
- EDI messages (e.g. Delivery notes, shipping schedules, CA data etc.)
- Infrastructure (transmission, protocol and links - e.g. ISDN, X.26,
Internet)
as set out in a separate EDI agreement as well as in Buyer's "EDI
Implementation Guidelines", as the same may be amended or replaced from
time to time.
16.2 Buyer's EDI requirements may be changed by Buyer due to changing
business conditions or technological advances.
Buyer is entitled to terminate the Supply Contract and the EDI
agreement (in whole or in part), if Seller does not meet Buyer's EDI
requirements.
PROVISION 17: CONFIDENTIALITY
17.1 Seller and Buyer each commit themselves to treat as business secrets
and to keep confidential all commercial and technical information of
the other party which comes to their knowledge during the course of
their business relationship unless such information is or becomes
public knowledge without fault of the party receiving such information.
17.2 Drawings, models, patterns, samples and similar objects shall not be
disclosed or otherwise made available to third parties without the
prior written consent of the party, which owns them. Reproduction of
such items is permitted only if agreed in writing with the party, which
owns them and is in all cases subject to compliance with the applicable
laws of copyright.
17.3 Seller shall include obligations equivalent to Provision 17.1 and 17.2
in all contracts with sub-contractors and will ensure that all
sub-contractors are contractually obliged to comply with the same.
17.4 The terms of this Provision 17 shall survive the expiration or
termination of any Supply Contract.
PROVISION 18: INSURANCE
18.1 Seller shall procure and maintain at its sole expense insurances with
reputable and financially responsible insurance companies, which
adequately cover Seller's liability against Buyer and third parties.
Buyer is entitled to require certain insurance coverages and amounts to
be taken out by Seller.
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Seller shall provide to Buyer certificates or memoranda of such
insurances and renewals thereof signed by the issuing company or agent
or other information respecting such insurance at any time promptly
upon Buyer's request. Such policies shall provide for cancellation only
upon 30 days prior written notice to Buyer.
18.2 Buyer's examination of, or failure to request or demand any evidence of
insurance hereunder, shall not constitute a waiver of any requirement
of this Provision 18 and the existence of any insurance shall not limit
Seller's obligation under any Provision hereof.
18.3 Save to the extent to which the Seller is not obliged to do so pursuant
to any applicable Incoterm under Provision 5, Seller will cause any
carrier engaged by Seller to insure all shipments of Goods.
PROVISION 19: ENVIRONMENT
19.1 The environmental compatibility of a vehicle is its ecological effect
and that of its components on human beings and the environment during
its entire life cycle. The life cycle of a vehicle includes product
development, the production of materials, components and the vehicle
itself and its use and reuse/recycling/disposal. Buyer aims to minimize
the negative effects of products on human beings and the environment
according to ecological criteria, while taking technical and economic
factors into account. During the process of product development, the
overall requirements of environmental compatibility are to be
implemented in a manner appropriate to each specific component. The
main categories for assessing the environmental compatibility of
vehicles are: resources, materials and component substances, recycling
and emissions.
19.2 Energy and raw materials are to be used effectively throughout the
entire life cycle of the Goods, with minimum outlay on logistics and
transport. For the quantitative assessment of resource efficiency using
ecological balance sheets for components the following information is
to be provided by Seller on request of Buyer for each Good during its
manufacturing phase:
- Use of materials (raw materials) in kg
- Water consumption in I
- Total use of energy in MJ
- Transportation distances (raw materials) in km
- Emissions (gaseous, liquid, solid) in g
Based on this information and the ecological balance sheet for
components, a process of overall ecological/economic product
optimization will be implemented by Buyer. The results of the balance
sheet will be used as a decision criterion in the selection of a design
concept. In the process of selecting materials, their potential for
economical recycling is to be considered by Seller (suitability for
recycling, see Provision 19.3). Preference is to be given to the use of
secondary raw materials which are suitable for recycling (approved
recycled materials). Seller shall in addition to the case of Goods
having the same shape or function, aim for the standardization of raw
materials between different manufacturers. Seller shall design Goods
according to weight saving principles with a view to reducing fuel
consumption and emission in the use phase.
19.3 Seller shall provide the most environmentally friendly and most
economical recycling concept in terms of state-of-the-art technology
for each Good and/or component group. This should also
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include the possibility for re-use of materials in vehicles. Seller
shall undertake to assess suitability for technically feasible and
economical recycling according to BMW Standard 113 99.0. Seller's
design must ensure that recyclable components/materials can be
removed/separated joining technology, modular construction). The
assessment is to be carried out by Seller by means of dismantling
analysis on the complete vehicle in accordance with Buyer's method.
Composite structures are to be designed using materials which are
compatible in terms of recycling. The use of non-recyclable materials
irrespective of individual Goods must be reduced. Goods made of
polymeric materials and high-value non-ferrous metals are to be marked
by Seller in accordance with the relevant standards VDA 260 or BMW
Standard 113 10.0. The removal of all service fluids before
disassembly, which is compulsory, must be taken into account at the
design stage by ensuring accessibility and scope for opening all liquid
and gas bearing systems.
19.4 Seller shall comply with the requirements stated in BMW Standard 113
89.0 throughout the Goods' life cycle for material and component
substances. The required information on components and materials is to
be provided in the form of materials data and safety data sheets which
are to be prepared by Buyer.
19.5 Seller shall minimize exhaust, noise and solids emissions (e.g.
fogging) during the production, use and recycling phases according to
state-of-the-art technologies.
19.6 To achieve high process environmental performance, Seller shall
introduce and maintain an effective environmental management system.
PROVISION 20: GENERAL/MISCELLANEOUS
20.1 No amendment, modification, termination or waiver of any provision of
these Terms and Conditions or of any Supply Contract, and no consent to
any departure by either party therefrom, shall under any circumstances
be effective unless the same shall be in writing and signed by both
parties, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No
notice to or demand on Seller in any event, case or occurence, shall of
itself entitle Seller to any other or further notice or demand in any
similar or other circumstances.
20.2 The headings of the various Provisions of these Terms and Conditions
are solely for convenience and shall not be used for the purposes of
interpreting the same.
20.3 If any provision hereof or any part provision is or is held by any
competent court or authority to be invalid or unenforceable, such
provision or part provision will be deemed severed and omitted, the
remaining portions hereof continuing in full force and effect. If
required, Buyer and Seller shall replace such invalid or unenforceable
provision with a valid and enforceable provision having similar
economic consequences, provided that the content of the Terms and
Conditions is not materially altered.
20.4 No course of dealings between Seller and Buyer or any delay or omission
of Buyer to exercise any right or remedy granted under these Terms and
Conditions shall operate as a waiver of such rights, and every right
and remedy of Buyer provided herein shall be cumulative, concurrent and
in addition to any other further rights and remedies available at law
or in equity.
20.5 Seller agrees to permit Buyer or its representatives to inspect all
documents, instruments, books and records relating to any Supply
Contract or the Goods which are the subject of such Supply
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Contracts during regular business hours upon forty-eight (48) hours
notice. Save as provided in Provision 9.6, Seller agrees to maintain
all such records for at least ten (10) years after the last delivery of
the Goods to Buyer, unless otherwise agreed or unless a longer period
is otherwise required by law.
20.6 Seller shall not assign the benefit or the burden of any Supply
Contract, in whole or in part to any third party without the prior
written consent of Buyer.
PROVISION 21: GOVERNING LAW, PLACE OF VENUE AND JURISDICTION
21.1 The terms of any Supply Contract (including these Terms and Conditions)
shall be governed by and construed in accordance with the laws of the
country (and state/province, if applicable) of Buyer's principal place
of business. The terms and conditions set our in the United Nations
Convention for the International Sale of Goods (CISG) and the
Unidroit-Agreement dated May 28th, 1988 are hereby expressly excluded.
21.2 The parties agree that, save as to matters dealt with in Provision 11,
and save in relation to the enforcement of judgements, the prosecution
of insolvency proceedings or the taking of injunctive relief, the
courts having jurisdiction over Buyer's principal place of business
shall have exclusive jurisdiction for any action or proceedings
commenced under any Supply Contract.
For matters dealt with in Provision 11, Buyer may, at its discretion,
choose to bring claims against Seller either at the place of Buyer's
principal place of business or in the venue in which the respective
Third Party Claim is or has been pending.
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