EXHIBIT 10.2
SUPPLY CONTRACT
This Supply Contract (this "Supply Contract") is made as of January 1,
2003 between Viasystems, Inc., a Delaware corporation with an office and place
of business at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000
(hereinafter, together with its subsidiaries, "Buyer") and International Wire
Group, Inc., a Delaware corporation with an office and place of business at 000
Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000 (hereinafter, "IWG" or
"Seller").
WITNESSETH:
WHEREAS, the Seller is engaged in the business of manufacturing,
distributing and selling wire for use in the appliance and other industries
(hereinafter, the "Business");
WHEREAS, the Seller and Wire Harness Industries, Inc. ("Wire Harness")
entered into a Supply Contract (the "Original Supply Contract") dated as of
March 29, 2000 pursuant to which Seller agreed to sell and Wire Harness agreed
to purchase insulated wire products for use in the business conducted by Wire
Harness and any affiliate of Wire Harness; and
WHEREAS, the Seller and the Buyer desire to extend the Original Supply
Contract in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, the representations
and agreements hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Seller and the
Buyer hereby mutually agree as follows:
ARTICLE I - TERM
1.1 The initial term of this Supply Contract (the "Initial Term") shall be
from the date hereof (the "Effective Date") and shall continue in
effect until December 31, 2005 (the "Initial Termination Date").
1.2 This Supply Contract shall be automatically renewed for additional one
year periods (each an "Option Term" and, the end of each such Option
Term, an "Optional Termination Date"), unless Buyer gives notice to IWG
or IWG gives notice of its intention not to renew the Supply Contract
at least six (6) months prior to the Initial Termination Date or any
Option Termination Date. The terms and conditions of this Supply
Contract in any Option Term shall be the same as in the Initial Term.
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ARTICLE II - PRODUCT/SPECIFICATIONS
2.1 The terms and conditions of this Supply Contract shall govern the
purchase by Buyer from Seller of Wire, including the part numbers and
specifications of which are listed on Exhibit A hereto which is, by
this reference, incorporated herein, as amended from time to time
(hereinafter "Existing Product(s)"), together with all Wire that is not
an Existing Product, including Wire which results from a redesign,
modification or enhancement of an Existing Product (the "Developed
Product(s)" and, together with the Existing Products, the
"Product(s)"). In the event that there are Developed Products which
Buyer desires to purchase for the present business conducted by Buyer
(the "Present Business"), Buyer shall give reasonably sufficient
advance notice of its requirements for such Developed Products to
Seller so that Seller can produce in a commercially reasonable time
period a written production plan to demonstrate Seller's ability to
supply such Developed Products for the Present Business. In the event
that Seller can reasonably demonstrate to Buyer its ability to supply
such Developed Products for the Present Business, the Developed
Products will be included in this Supply Contract as Products and an
initial price shall be established for such Developed Product, in
writing, by the parties hereto. The parties shall establish such price
based on a comparative analysis for such Developed Products, including
without limitation, reference to the current prices charged hereunder
for an Existing Product similar in design or application to the
Developed Product with due consideration to any change in cost
associated with the materials used in the Developed Product in relation
to the Existing Product and any development cost associated with such
Developed Product; provided however such prices shall not exceed prices
based on competitive quotes.
ARTICLE III - QUANTITY
3.1 Except as otherwise provided herein, during the Initial Term and any
Option Term of this Supply Contract, Buyer agrees to purchase from
Seller, and Seller agrees to supply to Buyer, one hundred percent
(100%) of Buyer's requirements of Products in North America and Mexico.
3.2 Buyer reserves the right, but shall not be obligated, to purchase
Products under this Supply Contract to supply all or part of the
Product requirements outside the Present Business.
3.3 Buyer reserves the right to purchase Products from an alternate
manufacturer for any of its locations for development and testing
purposes only, provided that such Products are not used in Buyer's
business for commercial resale.
3.4 Buyer shall not be required to purchase from Seller its requirements of
Product in respect of any customer of Buyer which Seller's Products are
not approved. Buyer and Supplier will work together and use their
respective best efforts to ensure that the use of Supplier's wire is
approved by Buyer's customers.
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3.5 Seller's obligation to supply products under this Supply Contract is
limited to Buyer's locations specified in Exhibit B -- Authorized
Locations. Formal written request from Buyer to Supplier is required to
add or delete authorized locations. Supplier agrees that it will not
unreasonably withhold consent to add new authorized locations.
ARTICLE IV - PRICE
4.1 Unless otherwise agreed to by the parties in writing, all amounts
invoiced and payable under this Supply Contract shall be paid in U.S.
dollars and all amounts shall be due and payable by wire transfer of
immediately available funds in 75 days from the date of invoice.
4.2 During the Initial Term and any Option Term of this Supply Contract,
the price of Existing Products shall be as set forth on Exhibit A
(subject to the adjustments described in Sections 4.2.1, 4.2.2, and
4.2.3, 4.3 and 4.4 hereof).
4.2.1 Raw Material Price Adjustment. During the term of the Supply
Contract, the price of Products shall be increased or
decreased, as the case may be and from time to time, to
reflect changes in the cost to Seller of each raw material (as
hereinafter defined) to the extent, but only to the extent,
that such change exceeds 5% of the cost of such raw material
as of January 1, 2003.
For the purposes of this Supply Contract, the cost or price of
"raw materials" shall include (i) the cost of any materials
(other than copper) that are used to manufacture Wire, (ii)
freight charges related to the transportation of such raw
material, and (iii) any premium paid in connection with the
acquisition of any raw material, including copper.
4.2.2 Tax or Tariff Changes. In the event of any changes in the tax,
tariff, surcharge or other similar charges (collectively,
"Taxes") that are added by any governmental entity as of the
date hereof in connection with the importation of raw material
that increase or decrease the cost of such raw materials, then
the price of Products shall be automatically increased or
decreased, as the case may be, to reflect any such increase or
decrease in Taxes incurred by Seller in connection with the
importation of raw materials.
4.2.3 Copper Price Adjustments. During the term of this Supply
Contract, the price of Wire will be adjusted on the 1st of
each month to reflect the prior month's spot COMEX average
cost per pound of High Grade Copper
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Cathode. The monthly adjustment will be based on the copper
weight per pound for each number.
4.4 If at any time during the Initial Term or any Option Term of this
Supply Contract, Seller provides more favorable terms for the Products
to a customer other than Buyer, than those terms, including prices,
which Buyer is receiving for the same Product pursuant to this Supply
Contract, then (a) Seller will promptly notify Buyer and (b) so long as
Buyer is in compliance with its obligations under this Supply Contract,
Seller shall grant equally favorable terms, including prices, to Buyer
as those granted to such other customer.
4.5 In the event that Buyer receives an offer from a viable source to
supply similar Products of all types provided hereunder in similar
quantities and at a lower total cost than that offered by Seller and
under substantially similar terms as those offered by Seller in this
Supply Contract, Buyer shall have the obligation to give Seller the
option of meeting such lower total cost. In the event Seller does not
meet such lower total cost, Buyer shall be allowed to terminate this
Supply Contract or terminate its obligation to buy particular Products
hereunder, with sixty (60) days written notification, without further
obligation to Seller.
4.6 Supplier and Buyer agree to identify and implement projects that may
deliver cost savings to the Buyer. These projects may be in the form of
productivity and material enhancements, engineering changes,
technology, and other value added elements.
The parties' target for the annual productivity identification goal
will be reviewed at each of Buyer's locations based on the Products
purchased under this Supply Contract and new product opportunities.
Supplier will track projects through a productivity improvement program
to be developed by Buyer and Supplier. Buyer and Supplier will present
a plan each year of this Supply Contract. The plan will consist of
proposals for achieving the minimum goal for the forthcoming calendar
year. The parties agree that all proposals will be credited to a
targeted cost improvement goal.
ARTICLE V - DELIVERY
5.1. The parties agree to incorporate into this Supply Contract the
provisions in Exhibit C -- Material Supply / Inventory Agreement.
5.2 If, at any time, Seller is unable to meet Buyer's acknowledged
scheduled delivery date, Buyer can elect to purchase the Products
affected thereby from an alternate source. Seller should not reject a
scheduled delivery date which is requested by Buyer at in or after the
Lead Time. If Seller is unable to meet Buyer's scheduled delivery date
which is requested by Buyer at or greater than
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the Lead Time, Buyer shall recover from the Seller any excess costs,
expenses, or penalties incurred by Buyer, due to the failure by Seller
to supply the Product by the scheduled delivery date.
5.3 If Seller's acts or omissions result in Seller's failure to meet
Buyer's scheduled delivery date and Buyer requires a more expeditious
method of transportation for the Products than the transportation
method originally specified, then Seller shall ship the Products as
expeditiously as possible at Seller's sole expense.
ARTICLE VI - TECHNICAL ASSISTANCE
6.1 Upon request of Buyer, Seller agrees to provide reasonable technical
assistance in reviewing the cause of any performance problems
experienced by Buyer in any component, sub-assembly and final assembly
that contains components produced using Seller's Products supplied
pursuant to this Supply Contract; provided, however, that such
performance problem is reasonably believed by Buyer to be caused by
Seller's Products.
6.2 Seller agrees to use best efforts to provide resources to engineer,
manufacture and provide to Buyer the most technically advanced, highest
quality, and commercially competitive Product available in the wire
industry.
6.3 Seller shall assist Buyer's product engineering department with
technical issues regarding Seller's current Products and shall provide
any reasonable resources necessary to Buyer to resolve these issues.
ARTICLE VII - NOTICES
7.1 All notices required or permitted hereunder shall be in writing and
shall be deemed to be properly given when personally delivered to an
officer or designated representative of the party entitled to receive
the notice or when sent by certified or registered first class mail,
postage prepaid, or by telecopy, hand delivery, or overnight courier,
properly addressed to the party entitled to receive such notice at the
address stated below:
If to Seller:
International Wire Group, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
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If to Buyer:
Viasystems, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxx
ARTICLE VIII - QUALITY
8.1 Seller expressly warrants to Buyer and to purchasers of Buyer's
Products that at the time of delivery the Products called for by this
Supply Contract (including tooling, if any), or any Purchase Order
pursuant hereto, will conform to the applicable specifications, and the
drawings, samples and/or descriptions relating thereto, furnished to
Seller from Buyer
8.2 At all times, Seller expressly warrants that the Products called for by
this Supply Contract, or any Purchase Order issued pursuant hereto,
will be free from material defects in materials and workmanship.
8.3 Seller warrants that it will use its best efforts to ensure that all
Products and/or services provided herein shall conform in all material
respects to the Buyer's furnished specifications. Upon written request,
Seller shall provide to Buyer copies of such documents and records
reasonably requested by Buyer in order to verify compliance with this
Supply Contract including this Section 8.3, provided, however, that
Seller shall not be required to provide Buyer with any documents or
records that it determines in good faith to be confidential and
competitively sensitive or which would violate applicable Law.
8.4 If Seller provides Products to Buyer that do not conform to the Buyer's
furnished specifications or are otherwise defective or do not conform
to a Purchase Order issued pursuant to this Supply Contract, Buyer
shall handle and be responsible for every claim of damage or injury
that is based upon a breach of the foregoing warranty.
8.5 The parties agree to incorporate into this Supply Contract the
provisions set forth in Exhibit D -- Quality Program attached hereto.
8.6 The parties agree to incorporate into this Supply Contract the
provisions set forth in Exhibit E - Financial Xxxx Backs attached
hereto.
ARTICLE IX - CONFIDENTIALITY
9.1 "Propriety Information" shall for the purpose of this Supply Contract,
mean information disclosed by Buyer or Seller (the "Disclosing Party")
to the other party (the "Receiving Party") and identified in writing or
other tangible form at the time of disclosure or, within thirty (30)
days of oral disclosure, as "Proprietary."
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9.2 Except as required by law, judicial or governmental order, discovery
request, other legal process or pronouncement or the rules of any
national stock exchange or the Nasdaq Stock Market (collectively,
"Law"), the Receiving Party shall protect as proprietary and keep
confidential all Proprietary Information in accordance with the terms
of this Article 9 including, but not limited to, designs, processes,
drawings, specifications, reports, data, terms and conditions and other
technical or business information and the features of all parts,
equipment, tools, gauges, patterns, and other items furnished or
disclosed to the Receiving Party by the Disclosing Party (hereinafter
referred to as "Proprietary Goods"). Unless otherwise provided herein
or authorized by the Disclosing Party in writing, the Receiving Party
shall use such Proprietary Information or Proprietary Goods, and the
features thereof, only in the performance of its obligations under this
Supply Contract. Upon completion or termination of this Supply
Contract, or any Purchase Order pursuant hereto, the Receiving Party
shall, at the Disclosing Party's expense, make such disposition of all
such Proprietary Information or Proprietary Goods as herein required or
as may be subsequently requested by the Receiving Party, including, but
not limited to, any studies, analyses, compilations, or other materials
prepared in whole or in party based on said Proprietary Information or
Proprietary Goods.
9.3 In protecting the Disclosing Party's Proprietary Information in
accordance with Article 9.2 above, the Receiving Party agrees to
exercise reasonable steps at the Disclosing Party's expense to
safeguard the confidentiality of the Proprietary Information consistent
with the steps the Receiving Party uses to safeguard its own
information of like kind and, except as required by Law, not to
disclose any part of it to any third person except to such of the
Receiving Party's employees, advisors, counsel and other
representatives as need to know such information for the purposes of
performing obligations under this Supply Contract and whom such party
has directed to preserve the confidentiality of the Proprietary
Information.
9.4 No right or license, either express or implied, under any patent,
copyright, trade secret, for Proprietary Information, Proprietary Goods
or other information is granted hereunder.
9.5 The obligations of this Article 9 shall survive the termination of this
Supply Contract for a period of two (2) years following such
termination.
9.6 This Article 9 shall not affect the Receiving Party's rights to use or
disclose information:
(a) which is or may hereafter be in the public domain; or
(b) which the Receiving Party can show was known to it prior to
the disclosure by the Disclosing Party pursuant to the terms
of this Supply Contract; or
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(c) which is disclosed to the Receiving Party by a third party
and, to the knowledge of the Receiving party, was not
disclosed by such third party in violation of any agreement
between the Disclosing Party and such third party; or
(d) which is or may hereafter be disclosed by the Disclosing Party
to a third party without similar restrictions on disclosure or
use; or
(e) which is independently developed by the Receiving Party
without the use of the Proprietary Information or Proprietary
Goods; or
(f) which is required to be disclosed by Law, provided that notice
of such disclosure is promptly provided to the Disclosing
Party in order that it may have every reasonable opportunity
to intercede in such process to contest such disclosure.
ARTICLE X - TERMINATION
10.1 In the event of a material breach of the terms of this Supply Contract
by either party hereto, the non-defaulting party may notify the
defaulting party of such default, specifying in reasonable detail the
nature of such default. Upon receipt of such notice, the parties shall
promptly meet and jointly develop, in good faith, a plan setting forth
the steps to be implemented to enable the defaulting party to cure the
default and prospectively comply with the terms and conditions of this
Supply Contract, which plan shall include the time period for
implementing such plan which shall in no event exceed 30 days (the
"Action Plan"). If the defaulting party does not comply with the terms
of the Action Plan within the time period(s) specified therein, the
non-defaulting party may, in addition to any other rights and remedies
it may have at law or in equity, unless such default is cured within
thirty (30) days of such party's failure to comply with the Action
Plan, either (a) terminate this Supply Contract, or (b) if the material
breach of this Supply Contract is due to Seller's failure to deliver
certain Products in accordance herewith, cancel any Purchase Order or
portion thereof relating to those Products and/or eliminate such
Products from Buyer's purchase requirements pursuant to this Supply
Contract.
10.2 Either party shall also have the right to immediately terminate this
Supply Contract or any Purchase Order issued pursuant hereto without
further cost or liability to such party in the event of (i) the
appointment of a receiver or trustee for the other party, or (ii) the
execution by the other party of an assignment for the benefit of
creditors; provided, that the petition, appointment or assignment
referenced in sub-paragraphs (i) through (ii) above is not vacated or
nullified within fifteen (15) days of such event.
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ARTICLE XI - CANCELLATION OF PURCHASE ORDER
11.1 Without limiting the generality of the foregoing, the Buyer may, by
giving written notice to Seller, terminate any Purchase Order issued
pursuant hereto, in whole or in part, if at any time Buyer's customers
terminate a related agreement, Purchase Order with Buyer for any
reason.
11.2 After Seller's receipt of such notice of termination, Seller shall
immediately terminate all work under Buyer's Purchase Order. Buyer's
liability to Seller with respect to such termination shall be limited
to (x) (i) The purchase price set forth in this Supply Contract for
Products not salable to Seller's other customers or useable in Seller's
other operations in the ordinary course of business over a reasonable
period of time, (ii) Seller's verifiable incurred manufacturing costs
for work in process at the date of notice of termination (not to exceed
the number of Products ordered and reflected in the Forecast through
the manufacturing interval) and (iii) Seller's purchase price of raw
material and components necessary through forecasted lead time,
including finished goods inventory not returnable or useable in
Seller's other operations in the ordinary course of business over a
reasonable period of time, minus (y) any salvage value thereof.
11.3 Buyer shall have no obligation to Seller if Buyer terminates its
purchase se of Seller's default in accordance with the provisions of
Article 11 hereof.
ARTICLE XII - INSPECTION
12.1 Buyer and, if the face of any order issued pursuant hereto bears United
States federal government prime contract number or the Buyer otherwise
advises Seller of the existence of such contract, representatives of
the United States federal government, shall have the right to inspect
and test Seller's Manufacturing Facility, goods, materials and
workmanship at reasonable times and places, and upon reasonable prior
notice, including, when practicable, during manufacture; and if any
such inspection or test is made on the premises of Seller, Seller shall
furnish without cost to Seller all reasonable existing facilities and
assistance for a safe and convenient inspection or test. Buyer's
inspection of the Products, whether during manufacture, prior to
delivery or within a reasonable time after delivery, shall not
constitute acceptance of any work-in-process or finished Products.
12.2 Notwithstanding prior inspection, payment for, or use of the Products,
Buyer shall have the right to reject any of such Products which do not
conform to the requirements of this Supply Contract within thirty (30)
days from the date of delivery of the Products. All such rejected items
shall be returned to seller. In the event that Buyer shall improperly
return Products that conform in all material respects with the terms of
this Supply contract, then Buyer shall pay all reasonable costs and
expenses incurred by Seller in connection with such improper return by
Buyer. Should Buyer in such case repair the Products, all
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terms and conditions set forth herein shall remain in full force and
effect as to the Products furnished by Seller.
ARTICLE XIII - PACKAGING; SHIPPING
13.1 Seller agrees to (a) pack, label and ship Products in accordance with
Buyer's standards, (b) make no charge for handling, packaging, storage,
transportation or drayage of Products except as otherwise provided
herein; and (c) provide with each shipment packing slips with Buyer's
Purchase Order number marked thereon. Seller shall reimburse Buyer for
all reasonable and foreseeable out-of-pocket expenses incurred by Buyer
as a result of Seller's improper packing, labeling, routing or
shipping.
13.2 The labels on each package and identification of the Products on
packing slips, bills of lading and invoices shall be sufficient to
enable Buyer to easily identify the Products purchased. Seller further
agrees to promptly render, after delivery of Products or performance of
services, correct and complete invoices to Buyer.
ARTICLE XIV - INFRINGEMENT INDEMNITY
14.1 As to any of the Products manufactured or supplied to a design or
specification furnished by Buyer, Buyer shall indemnity and save
harmless Seller, its subsidiaries, affiliates, controlling persons and
successors from any claim, suit, demand, loss, damage, liability and
expense (including reasonable attorneys fees) alleging that the same in
and of itself infringes any United States or foreign patent, copyright,
trademark, product mask work right or any other proprietary right,
except that the design or specification shall be deemed to be not
furnished by Buyer if the subject matter giving rise to the claim of
infringement either (a) was derived from, or selected by, the Seller,
or (b) relates to materials, compositions, alloys or processes relating
thereto. As to any of the Products manufactured or supplied other than
to a design or specification furnished by Buyer, Seller shall indemnify
and save harmless Buyer and its successors from any claim, suit, cause
of action, demand, loss, damage, liability and expense (including
reasonable attorneys' fees) alleging that any use or resale of the same
in and of itself infringes, or constitutes inducement to infringe, any
United States or foreign patent, copyright, trademark, product mask
work right or any other proprietary right, except that the design or
specification shall be deemed to be not furnished by Buyer if the
subject matter giving rise to the claim of infringement either (a) was
derived from, or selected by, the Seller, or (b) relates to materials,
compositions, alloys or processes relating thereto.
14.2 Upon the making of any claim indemnified hereunder, the commencement of
any suit or action having basis in such claim, or a belief that such a
claim is likely or imminent, the party against whom such claim is made,
or suit or action commenced, shall promptly notify the other in
writing, and the party required to assume liability therefor under the
foregoing provisions shall promptly assume and diligently conduct the
entire defense thereof, at its own cost and expense;
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provided, that the party not required to assume liability shall have
the right, insofar as its interests are affected, at its sole election
and at its own cost and expense, to request the court to permit it to
intervene in any such suit or action or to cooperate in the defense
thereof with the party required to assume liability, without releasing
any obligation, liability or undertaking of the latter party.
ARTICLE XV - AMENDMENT
15.1 Except as otherwise provided herein, no modification of this Supply
Contract or any Purchase Order issued pursuant hereto shall be binding
on Seller or Buyer unless made by a formal written document (either a
Change Notice, Supplement, or Purchase Order Amendment) signed by Buyer
and Seller. The only representatives of Buyer empowered to direct
changes or to agree to modifications of this Supply Contract are the
respective President's of the Buyer and Seller. No recommendations or
suggestions by Buyer or others to Seller shall be binding on Buyer
unless made in accordance with this Article 15.
ARTICLE XVI - ASSIGNMENT
16.1 Except as otherwise provided herein, performance of this Supply
Contract, or any Purchase Order issued pursuant hereto, and all
obligations relating thereto, shall not be assigned or delegated by
either party without the prior written consent of the other party, such
consent not to be unreasonably withheld.
16.2 Claims for money due or to become due to Seller from Buyer arising out
of this Supply Contract, or any Purchase Order issued pursuant hereto,
may be assigned, but Buyer shall be under no obligation to pay the
assignee unless and until Buyer shall have received, written notice of
the assignment, a true copy of the instrument of assignment, suitable
documentary evidence of Seller's authority so to assign, and a release
from the Seller.
16.3 Except as required by applicable Law, in no event shall copies of this
Supply Contract, any Purchase Order issued pursuant hereto, or of any
plans, specifications, or other similar documents relating to work
under this Supply Contract be disclosed or furnished to any assignee or
to any other person without the prior written consent of the Buyer.
Notwithstanding any such assignment, Seller shall continue to be bound
by the obligations of Article 9 hereof.
ARTICLE XVII - FORCE MAJEURE
17.1 Any delay or failure of either party to perform its obligations
hereunder or under any Purchase Order issued pursuant hereto shall be
excused if, and to the extent that it is caused by an event or
occurrence beyond the reasonable control of the party and without its
fault or negligence, such as, by way of example and not by way of
limitation, acts of God, action by any governmental authority (whether
valid or invalid), fires, floods, windstorms, explosions, urban
disturbance and
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riots, natural disasters, wars, sabotage, or court injunction or order
(a "Force Majeure Condition"); provided that written notice of such
delay (including the anticipated duration of the delay) shall be given
by the affected party to the other party within twenty-four (24) hours
or as early as practicable taking into account the Force Majeure
Condition. During the period of such delay or failure to perform by
Seller, Buyer, at its option, may suspend this Supply Contract,
purchase Products from other sources during such period, without any
liability to Seller, or have Seller provide the Products from other
sources in quantities and at times requested by Buyer and at the price
set forth in this Supply Contract, plus any additional costs and
expenses incurred by Seller in connection therewith as a result of the
Force Majeure Condition. If requested by the Buyer, Seller shall,
within twenty-four (24) hours of such request, provide reasonable
assurance that the delay will cease within six (6) months. If Buyer
cannot provide the Seller a reasonable assurance then the Buyer may
immediately cancel the Supply Contract or any Purchase Order issued
pursuant hereto without any further liability to Seller. In the event
of any period that Seller is not supplying Buyer with Products due to a
Force Majeure Condition, the Initial Term or any Option Term then in
effect shall automatically be extended by such period.
ARTICLE XVIII - COMPLIANCE WITH LAWS;
COUNTRY OF ORIGIN INFORMATION; CERTIFICATION
18.1 In the performance of this Supply Contract, Seller shall comply in all
material respects with all federal, state and local laws, ordinances,
rules and regulations which may be applicable to Seller's performance
of its obligations hereunder in the country to which Seller's Products
are delivered to Buyer hereunder. Seller hereby certifies that the
goods called for by this Supply Contract, or any Purchase Order issued
pursuant hereto have been or will be produced in compliance in all
material respects with such applicable laws or ordinances.
18.2 Seller, upon written request, shall furnish any and all documents
necessary for Buyer to obtain export credits and customs drawbacks and
in Seller's possession and control. Seller also shall provide
information and, if necessary, certify such information, as to the
country of origin of the goods provided hereunder and the value added
thereto in each country. Seller will provide such information with
respect to the origin of the raw materials, place of processing, and
assembly of any goods delivered hereunder so as to enable Buyer to
certify such information under the law of the United States.
ARTICLE XVIII - GOVERNMENT CONTRACT REQUIREMENTS
19.1 If this Supply Contract or any Purchase Order issued pursuant hereto is
a subcontract, or a supply contract comprised solely of commercial
items under a United States federal government prime contract as may,
in some cases, be evidenced by the inclusion of a United States federal
government prime contract, to be included in subcontracts or in supply
contracts of this nature, are hereby incorporated in and made a part of
this Supply Contract. The classification of a
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contract arising out of these terms and conditions, or the related
Purchase Order, as one comprising commercial item(s) and the decision
as to whether Seller is a subcontractor or supplier, for purposes of
determining which U.S. Government Regulations apply, shall be that of
the Buyer. Seller agrees to accept the inclusion of all applicable U.S.
Government FAR and FAR's Supplemental Clauses.
19.2 Since the phraseology of the clauses incorporated above has been
primarily designed for government prime contracts, words and phrases in
the foregoing regulations importing the United States federal
government or the prime contractor or their representatives shall, when
a fair and reasonable interpretation of the context of this Supply
Contract so requires in order to express properly the subcontract
relationship, be deemed to refer to Buyer or Seller or their respective
representatives; provided, however, that all references to "Government"
in the patent clauses incorporated herein above shall refer only to the
United States Government and all references to "Contacting Officer" in
the clauses incorporated herein above shall refer to the Government
Contacting Officer for the prime contact; provided, further that all
references to the clause entitled "Disputes" shall be deemed deleted.
Copies of such FAR clauses and information as to the Cognizant
Contracting Officer shall be furnished by Buyer to Seller upon request.
ARTICLE XX - INSURANCE
20.1 Seller shall maintain insurance coverage in amounts not less than the
following:
20.1.1 Worker's Compensation - Statutory Limits for the state or
states in which the work ordered under these terms and
conditions is performed (or evidence of authority and
financial ability to self-insure);
20.1.2 Comprehensive General Liability Insurance (including
Products/Completed Operations and Blanket Contractual
Liability) in which the limit of liability for personal
injury or for property damage shall be $1,000,000 per
occurrence, or a combined single limit of $1,000,000 per
occurrence for Personal Injury and Property Damage; and
20.1.3 Automobile Liability Insurance (including owned, non-owned
and hired vehicles) in which the limit of liability for
personal injury or for property damage shall be $1,000,000
per occurrence, or combined single limits of $1,000,000 per
occurrence for Personal Injury and Property Damage.
20.2 At Buyer's request in writing, Seller shall furnish to Buyer
certificates of insurance setting forth the amount(s) of coverage,
policy number(s) and detail(s) of expiration for insurance maintained
by Seller and, if further requested in writing by Buyer, such
certificates will provide that Buyer shall receive thirty (30) days
prior written notification from the insurer of any termination or
reduction in the amount or scope of coverages. Seller's purchase of
appropriate insurance
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coverage or the furnishing of certificates of insurance shall not
release Seller of its obligations or liabilities under any Purchaser
Order issued hereunder.
ARTICLE XXI - MISCELLANEOUS
21.1 Seller shall not, without first obtaining the written consent of Buyer,
in any manner use any trademarks or trade names of Buyer in Seller's
advertising or promotional materials.
21.2 In the event of any conflict between this Supply Contract and the
provisions of any Purchase Order issued pursuant hereto, the terms of
this Supply Contract shall govern.
21.3 Captions, as used herein, are for convenience or reference only and
shall not be construed to limit or extend the language of the
provisions to which such captions may refer.
21.4 The provisions of this Supply Contract, together with all exhibits,
schedules and appendices hereto, constitute the complete and exclusive
agreement between the parties hereto and supersede any and all previous
communications, representations or agreements, whether oral or written,
between the parties with respect to the subject matter hereof.
21.5 These terms and conditions hereof shall be governed by and construed in
accordance with the laws of the State of Missouri. Buyer may, but is
not obligated to, bring any action or claim relating to or arising out
of this Supply Contract or any Purchase Order issued pursuant hereto in
the appropriate state or federal court in Missouri, and the Seller
hereby irrevocably consents to personal jurisdiction in any such court,
hereby appointing the Secretary of State of the State of Missouri as
its agent for receiving service of process.
21.6 The failure of either party at any time to require performance by the
other party of any provision of this Supply Contract or any Purchase
Order placed by Buyer from time to time shall in no way affect the
right of such party to require such performance at any time thereafter.
Similarly, the waiver by either party of a breach of any provision of
these terms and conditions or of any order placed by Buyer from time to
time pursuant hereto shall not constitute a waiver of any succeeding
breach of the same or any other provision.
21.7 Seller and Buyer are independent contracting parties and nothing in
this Supply Contract or any Purchase Order issued pursuant hereto shall
make either party the agent or legal representative of the other party
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 party.
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21.8 If any term of this Supply Contract or any Purchase Order issued
pursuant hereto is invalid or unenforceable under any statute,
regulation, ordinance, executive order, or other rule of law, such term
shall be deemed reformed or deleted, but only to the extent necessary
to comply with such statute, regulation, ordinance, executive order or
other rule of law, and the remaining provisions of this Supply
Contract, or any Purchase Order issued pursuant hereto, shall remain in
full force and effect.
21.9 The Seller agrees that all chemical substances, as more fully defined
in the Toxic Substances Control Act ("TSCA"), comprising or used in the
manufacture of the Products ordered by Buyer are, to the best of
Seller's knowledge, listed in the inventory compiled under Section 8(b)
of TSCA and are not banned from commercial use under TSCA.
Buyer shall have the right to visit and inspect Seller's Facility
employed in the manufacture of Products to be delivered to Buyer's
facility(s) during normal business hours and upon reasonable prior
written notice to Seller.
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IN WITNESS WHEREOF, the parties hereto have made and executed this
Supply Contract as of the day and year first above written.
VIASYSYTEMS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
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INTERNATIONAL WIRE GROUP, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
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