General terms of purchase
The present General Terms of Purchase do not apply for purchases of equipment, molds and/or tooling (for that, see the General Terms of Purchase for Equipment).
The Buyer is defined as the EFI AUTOMOTIVE group’s affiliate identified in any Contract. “Contract” means all of the documents that are issued or otherwise agreed to in writing by the Buyer relating to the Supplies, including, but not limited to any purchase order, purchase contract, nomination letter. « Supplier » shall mean and refer to the individual or entity which agrees to supply the Supplies identified in the Contract. The Contract is exclusively governed by these General Terms of Purchase, hereinafter defined as “Terms”. Deviations to the Terms shall require a written consent by the Buyer and/or shall appear in the Contract. Unless new, additional or different terms from those found in the Terms (whether contained in Supplier’s acceptance documents or otherwise proposed by Supplier) be signed by the Buyer, such new, additional or different terms are expressly rejected by the Buyer and shall not become a part of the Contract. The term « Supplies » covers all goods, materials, components, parts, material works, etc., and provision of services provided by the Supplier to the Buyer.
2. VALIDITY OF THE PURCHASE ORDER
2.1. Any verbal purchase order must be confirmed in writing.
2.2. The acceptance of the purchase order occurs as soon as the Supplier starts to perform this purchase order.
3. CONFORMITY – QUALITY
3.1. The Supplier shall supply the Supplies in conformity with the terms of the Contract, the drawings, the specifications and any other contractual standards, and the initial samples accepted by the Buyer. The Supplies shall comply with all the relevant applicable legal regulations (such as REACH regulation for instance in the UE).
3.2. Any technical changes and/or delivery dates changes must be approved in advance by the Buyer in writing.
3.3. The Supplier agrees to comply with the Supplier Quality Assurance Manual of the Buyer, with any logistics agreement, and with any amendments or modifications as may be implemented by the Buyer from time to time. The Supplier shall also provide Safety Data Sheets (SDS) with each concerned delivery of Supplies.
3.4. At the Buyer’s first request, the Supplier shall supply all information relating to the Supplies in order to certificate their origin and composition.
4. PACKAGING – SHIPPING
4.1. In the absence of specification related to packaging in the Contract, the Supplier is responsible for the choice of packaging. The Supplier shall deliver the Supplies packed in compliance with the standards in force in the European Union, in the United States of America and/or in any other relevant country where the Supplies have to be delivered. The Supplier is liable for any damage and/or deterioration of the Supplies due to an inappropriate packing.
4.2. The Supplier shall also attach a delivery slip to each delivery, containing all information relating to the packaging list, the type of packing and the references listed on the Contract, and for a provision of service a slip which details the service performed.
5.1. The Supplier shall comply with the delivery date, the place and the conditions stipulated on the Contract. It is forbidden to perform a delivery before the forecasted date.
5.2. The Buyer unilaterally reserves the right to change the forecasted quantities and/or the delivery date.
5.3. The Supplier shall immediately warn the Buyer about any event likely to cause a delay in delivery. In the event of a delay in delivery, the Buyer shall be entitled to:
– demand an express delivery of the Supplies at the expense of the Supplier;
– terminate, without compensation to the Supplier, all or part of the purchase order not executed;
– purchase the Supplies from another supplier, in which event any extra costs incurred by the Buyer for such Supplies shall be paid by the Supplier;
– apply late delivery fees from the Supplier in an amount corresponding to one percent (1%) of the total amount of the purchase order, per day of delay, in the limit of ten percent (10%). These fees can be deducted from any amounts still due to the Supplier.
Notwithstanding the payment of late delivery fees, the Supplier will compensate the Buyer for all costs, claims and/or damages incurred due notably to customer claims, line stoppage, or any other damages caused by any delay in delivery. Payment by the Supplier shall not prejudice or limit in any manner the Buyer’s right to seek damages in any subsequent legal action.
6. CONTROL – RECEIPT
6.1. The Buyer, possibly accompanied by its customer, reserves the right to check at any time the manufacturing quality of the Supplies at the Supplier’s premises or at those of its subcontractors in accordance with the provisions mentioned under article 16 of the present Terms.
6.2. The participation of the Buyer in the receipt of the Supplies does not release the Supplier from any liability.
6.3. At the time of the receipt of the Supplies, the Buyer will check the packing, the identity and the quantity of the Supplies.
The Supplier waives any right to oppose a late claim of the Buyer.
Any payment by the Buyer for the Supplies and/or any absence of claim by the Buyer and/or lack of reservation of rights by the Buyer upon delivery of the Supplies shall not be a tacit assent to the conformity of the Supplies delivered.
7. PRICE – INVOICING – TERMS OF PAYMENT – SET OFF PROCEDURE
7.1. The prices are firm and definitive. They are delivered with all charges and duties paid, DDP – Final INCOTERMS CCI Edition 2010, to the place of delivery indicated on the Contract (packing, transport and insurances included), unless otherwise specified within said Contract.
7.2. The spare part unit price shall be identical to the price of the Supplies in the serial life, except in case of extra costs justified by any differences in the packing and/or logistical conditions.
7.3. Invoices shall include all details shown on the Contract, to enable identification and control of the Supplies and shall comply with the relevant legal regulations (accurate supplies’ denomination, quantity, unit price, modes of transport).
7.4. Invoices shall be paid sixty (60) days from the date of issue of the invoice, unless otherwise specified in the Contract.
7.5 The Buyer may, without limiting any other rights or remedies legally permitted, set off any amounts owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract to the extent permitted by the applicable law.
8. PRODUCTIVITY AND PRICE COMPETITIVENESS
8.1 Base Price.
Unless otherwise stated, the purchase price: (i) is a firm fixed price for the duration of the Contract and not subject to increase for any reason, including increased raw material costs, increased labor or other manufacturing costs, increased development costs, or changes in volumes or program length from those estimated or expected; (ii) is inclusive of all federal, state, provincial, and local taxes and any duties applicable to provision of the Supplies; and (iii) is inclusive of all storage, handling, packaging and all other expenses and charges of Supplier.
8.2 Maintaining Price Competitiveness.
The Supplier shall be, at all times, competitive in price, quality, performance and fulfillment of obligations. If the Supplier is determined by the Buyer not to be competitive, especially on pricing, the Buyer shall be entitled to re-source any or all parts to a more competitive source without breaching any Contract or otherwise incurring any liability.
9. WARRANTY – LIABILITY
9.1. The Supplier is wholly responsible for designing and manufacturing the Supplies in accordance with the documents, relevant legal regulations and samples mentioned in here above Article 3.1 of these Terms. The Supplier is responsible for the technical choices regardless of any assistance provided by the Buyer during the development process, even if the Supplies were accepted when initial samples were examined.
9.2. The Supplier warrants the Supplies for three (3) years from the date of their delivery, against any defect or operating problem, apparent or hidden, due to any defects in design, materials and/or manufacture.
9.3. The Buyer may refuse the Supplies if they are not compliant in any manner. The Supplies may be returned by the Buyer to the Supplier at Supplier’s own expenses and risks.
9.4. Once this contractual warranty expires, the Supplier shall remain liable for any direct or indirect consequences of hidden defects of the Supplies when applicable. Any exclusion of this warranty shall be deemed null and void.
9.5. If the customer of the Buyer decides to recall a product incorporating the Supplies, the Supplier shall compensate the Buyer to the extent of its liability for all direct and indirect damage caused to the Buyer.
9.6. In any case, the Supplier shall compensate the Buyer for all direct and indirect damage suffered by the Buyer due to the non-compliance of the Supplies.
10. AFTER-MARKET PART
Regarding after-market obligations existing in the automotive market, and independently of the end of the Contract binding the Buyer and the Supplier, the latter shall maintain the supply of the Supplies for ten (10) years after the end of the serial life of the Buyer’s products in which the Supplies are incorporated.
11. TRANSFER OF OWNERSHIP – TRANSFER OF RISKS
11.1. The Buyer becomes owner of the Supplies ordered as soon as they are manufactured, unless otherwise specified in the Contract.
The Buyer does not recognize any ownership restrictions and any such restrictions are hereby rejected.
11.2. The transfer of risks is made upon the delivery of the Supplies according to the applicable Incoterm.
12. TOOLS DEDICATED TO SUPPLIES’ MANUFACTURE
12.1. The tools and specific equipment supplied by the Buyer and/or especially manufactured for the execution of the Contract for the manufacture of the Supplies are exclusively owned by the Buyer.
The tools and specific equipment can neither be the object of any right of retention of the Supplier, nor of any attachment of the Supplier’s creditors.
At first request, the tools and specific equipment must be returned to the Buyer at the Supplier’s expenses.
12.2. A contract on loan for the use of the tools and specific equipment may be signed between the Buyer and the Supplier. Even in the absence of such contract, the tools and specific equipment are considered to be put on deposit at the Supplier’s plant, for accessory to the Contract.
12.3. The tools and specific equipment shall solely be used by the Supplier for the fulfilment of the Contract.
12.4. The Supplier shall take all necessary measures to ensure the individualization of the tools and specific equipment, in particular by affixing metal identification plates or cold stamped with a label indicating that they are the Buyer’s property and that they are not transferable or distrainable.
The Supplier assumes the custody and the risks of the tools and specific equipment and guarantees their maintenance and their functioning.
13. INTELLECTUAL & INDUSTRIAL PROPERTY
13.1. The Supplier grants the Buyer a non-exclusive and royalty-free license of use of any intellectual and/or industrial property rights for the duration of validity of said rights and for any countries, aiming at a direct and/or indirect use by the Buyer.
13.2. The Supplier hereby warrants and agrees to hold harmless and indemnify the Buyer and its customers, against any legal action brought by any third party and based on property claim, infringement or unfair competition concerning the Supplies. The Supplier will be solely liable for all detrimental consequences resulting from such legal action toward the Buyer and its customers.
14.1. All documents, information, research, drawings, samples, of any kind (technical, business, etc.) and under whatever form (email, oral and written disclosure, etc.) made available to the Supplier before or during the execution of the Contract, remain the Buyer’s property. They must be kept strictly confidential, and must not be disclosed to any third party and/or be used by the Supplier for its own needs without the prior written agreement of the Buyer. The Buyer reserves the right to require their restitution at any time.
14.2. Confidentiality obligations will remain valid until five (5) years after the termination of the execution of the Contract.
14.3. The Supplier will not, without first obtaining the written consent of the Buyer, in any manner (a) advertise or publish the fact that the Supplier has contracted to supply the Supplies to the Buyer; (b) use the Buyer’s trademarks, trade names or confidential information in the Supplier’s advertising or promotional materials; or (c) use the Buyer’s trademarks, trade names or confidential information in any form of electronic communication such as web sites, blogs or other types of postings.
15.1. The Supplier shall take out an insurance policy for all the risks related to the Supplies, and particularly a product liability insurance, for an amount at least equal to five (5) million Euros, per year and per damage, regarding the costs of disassembly and assembly operations as well as the costs linked to a recall engaged by the Buyer or by third parties. In the absence of here above-mentioned insurance coverage, the Supplier shall take out a complementary insurance which may be proposed by the Buyer.
15.2. The Supplier shall take out an insurance guaranteeing the replacement value as new of the tools and specific equipment; covering the risks of loss, theft, destruction and all damages they could undergo and/or cause. The insurance will contain a renunciation for any claim against the Buyer and its insurance company.
15.3. At Buyer’s first request, the Supplier will provide it with all the necessary certificates of insurance and relevant documents. The subscribed insurance policies by the Supplier will not change the nature, the content or the scope of its obligations and liabilities towards the Buyer.
16. AUDIT RIGHTS AND INSPECTION OF SUPPLIER’S PREMISES
16.1 The Supplier grants the Buyer access to Supplier’s premises, books and records at any time solely for the purpose of auditing the Supplier’s compliance with the terms of the Contract, or inspecting or conducting an inventory of work-in-process and finished Supplies, raw materials necessary for their manufacture, any of Buyer’s tools and specific equipment supplied by the Buyer and located at the Supplier’s premises.
16.2 The Supplier will cooperate with the Buyer so as to facilitate the Buyer’s audit, including, without limitation, by segregating and promptly producing such records as the Buyer may reasonably request, and otherwise making records and other materials accessible to the Buyer.
16.3 The Supplier will preserve all records pertinent to the Contract, and to the Supplier’s performance under the Contract.
16.4 Any such audit or inspection conducted by the Buyer or its representative will not constitute acceptance of any Supplies (whether in progress or finished), relieve the Supplier of any liability under the Contract or prejudice any rights or remedies available to the Buyer.
17.1 In the event that the Supplier fails to fulfill any of its contractual obligations, states its intention not to perform or otherwise rejects and/or fails to perform its obligations under the Contract, or fails to make progress in performance so as to endanger timely and proper completion of delivery of Supplies under the Contract, the Buyer may terminate all or any part of the Contract by a notification of termination effective thirty (30) days following the date on which such notice was sent by recorded delivery letter. Termination by the Buyer shall not prejudice any other rights or claims to damages which the Buyer could claim.
17.2 On termination of the Contract, regardless of reason, the Buyer shall be entitled in its sole discretion to require a phase out period of up to 18 months after such a termination has become effective. This option must be asserted by written declaration to the Supplier within three (3) months after receipt of the termination notice.
17.3 During the phase out period, the Supplier shall supply the Supplies in accordance with the Terms and the provisions mentioned within the Contract. At the start of the phase out period, the Buyer shall declare the length of the phase out time unless the Buyer and the Supplier agree otherwise.
18. EXPORT CONTROLS AND SANCTIONS COMPLIANCE
The Supplier agrees to comply with all applicable export control and sanctions laws and regulations of the member States of the European Union, of the United States of America, and of any other relevant country (hereinafter referred to as the “Export Control Laws”). The Supplier will not violate, and will not cause the Buyer to violate any Export Control Laws (e.g. by transhipping Supplies through, or supplying Supplies from, sanctioned countries). Licenses or other authorizations required for the export of Supplies will be the responsibility of the Supplier unless otherwise indicated in the Contract, in which event the Supplier will provide such information as may be requested by the Buyer to enable the Buyer to obtain such licenses or authorizations.
19. GENERAL PROVISIONS
19.1. FORCE MAJEURE
The events of force majeure or unforeseen circumstances cases as defined into the force majeure clause (exemption) of the International Chamber of Commerce (Publication No. 421), which is an integral part of these Terms, shall suspend the obligations to be due by the Buyer within the framework of the Contract.
At the time the relevant event occurs, the Supplier undertakes to inform the Buyer immediately and shall endeavour to take any reasonable possible measures in a view to pursue the execution of said Contract. The Supplier shall make a report of the situation in which shall be notably explained the actions taken to contain the consequences of the force majeure event.
However, if the force majeure event or unforeseen circumstances case continues during more than one (1) month, the Buyer reserves the right to terminate the Contract as of right and without compensation.
19.2 ENTIRE AGREEMENT & NON WAIVER
Voidance of one of the clause of these Terms shall not void the remaining clauses. The void clause shall be replaced by a clause designed to produce an equivalent financial and legal effect as the original clause.
The failure by one of the parties to assert any right available under the Terms, will not be construed, whatever is the duration, the importance or the frequency of such situation, as a waiver of such right or the right to later enforce each and every clause of the Terms.
19.3 SIGNIFICANT CHANGE OF ECONOMIC CIRCUMSTANCES
Within the framework of the contractual relations between the Supplier and the Buyer, any legal or conventional mechanism of revision of the contract in case of significant change of the economic circumstances is hereby expressly excluded. No clause of hardship is applicable.
19.4. CHANGE OF SUPPLIER’S SITUATION/NON-ASSIGNMENT
19.4.1. The Supplier shall immediately inform the Buyer of any change of the management body, transfer of control (or sale of majority stakes), merger or takeover of the Supplier. The Buyer may terminate the Contract without notice.
19.4.2. Moreover, under no circumstances may the Supplier transfer, assign or delegate, in whole or in part, any of its rights or obligations under the Contract (including without limitation any right of payment), whether directly or indirectly, by merger, acquisition or contribution to a joint venture, without the Buyer’s prior written consent.
19.5. LEGAL NATURE OF THE RELATIONSHIP
The Buyer and the Supplier are independent contracting parties and nothing in the Contract will make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
19.6. APPLICABLE LAW & SETTLEMENT OF DISPUTES
19.6.1. Any dispute arising out of or related to the business relationship with the Supplier concerning ELECTRICFIL AUTOMOTIVE (BEYNOST – FRANCE), ELECTRICFIL SERVICE (JOINVILLE – FRANCE) or EFI LIGHTING (BEYNOST – FRANCE) shall be settled by the Commercial Court in LYONS (FRANCE), unless the Supplier and the Buyer decide to try to resolve the litigation through an amicable settlement. The applicable laws shall be the French law as well as all the international standards, regulations and/or publications specifically mentioned within the Contract, to the exclusion of its conflict rules laws and of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG).
19.6.2. Any dispute arising out of or related to the business relationship with the Supplier concerning ELECTRICFIL ENGINE COMPONENTS (Wuhan) Co. Ltd (HUBEI – CHINA) shall be submitted to the Shanghai International Economic and Trade Arbitration Commission (SHIAC) for arbitration which shall be conducted in accordance with its Arbitration rules in effect at the time of applying for arbitration, unless the Supplier and the Buyer decide to try to resolve the litigation through an amicable settlement. The arbitration place will be SHANGHAI (CHINA). The arbitration proceedings will be led by one arbitrator. The law governing arbitration will be the laws of P.R China as well as all the international standards, regulations and/or publications specifically mentioned within the Contract, to the exclusion of its conflict rules laws and of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The language of the arbitration proceedings will be English and/or Chinese. The arbitral award will be final and binding.
19.6.3. Any dispute arising out of or related to the business relationship with the Supplier concerning ELECTRICFIL UNIFIL OTOMOTIV (ISTANBUL – TURKEY) shall be submitted to the International Chamber of Commerce (ICC) for arbitration which shall be conducted in accordance with its Arbitration rules in effect at the time of applying for arbitration, unless the Supplier and the Buyer decide to try to resolve the litigation through an amicable settlement. The arbitration place will be LYONS (FRANCE). The arbitration proceedings will be led by one arbitrator. The law governing arbitration will be the French law as well as all the international standards, regulations and/or publications specifically mentioned within the Contract, to the exclusion of its conflict rules laws and of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The language of the arbitration proceedings will be English. The arbitral award will be final and binding.
19.6.4. Any dispute arising out of or related to the business relationship with the Supplier concerning ELECTRICFIL CORPORATION (Production facility: ELKMONT – ALABAMA) shall be submitted to the American Arbitration Association (AAA) for arbitration which shall be conducted in accordance with its Commercial Arbitration Rules and Mediation Procedures in effect at the time of applying for arbitration, unless the Supplier and the Buyer decide to try to resolve the litigation through an amicable settlement. The arbitration place will be ELKMONT (ALABAMA). The arbitration proceedings will be led by one arbitrator. The law governing arbitration will be the laws of the State of Alabama as well as all the international standards, regulations and/or publications specifically mentioned within the Contract, to the exclusion of its conflict rules laws and of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The language of the arbitration proceedings will be English. The arbitral award will be final and binding.
19.6.5. Any dispute arising out of or related to the business relationship with the Supplier concerning ELECTRICFIL DE MÉXICO, S.A. DE C.V. (GUADALAJARA – JALISCO – MEXICO) shall be submitted to the Arbitration Center of Mexico (CAM) for arbitration which shall be conducted in accordance with its Arbitration Rules in effect at the time of applying for arbitration, unless the Supplier and the Buyer decide to try to resolve the litigation through an amicable settlement. The arbitration place will be GUADALAJARA (JALISCO – MEXICO). The arbitration proceedings will be led by one arbitrator. The law governing arbitration will be the laws of Jalisco as well as all the international standards, regulations and/or publications specifically mentioned within the Contract, to the exclusion of its conflict rules laws and of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The language of the arbitration proceedings will be English and/or Spanish. The arbitral award will be final and binding.
19.6.6. The provisions mentioned within this article shall apply even in the event of incidental request, plurality of defendants or appeal with guarantees, and whatever the means of payment may be.
Spec 13058 Indice 11.2