EXHIBIT 10.1
IMPCO AND GM TEAMING AGREEMENT
THIS AGREEMENT is entered as of the 30th day of July, 1997, by and between
IMPCO, Inc. ("IMPCO"), a Delaware corporation with offices at 00000 Xxxxxxx
Xxxxx, Xxxxxxxx, XX 00000, and General Motors Corporation, VDTO - Research &
Development ("GM"), a Delaware corporation with offices at 00000 Xxxxx Xxxx,
Xxxxxx, Xxxxxxxx, XXX 00000-0000.
PURPOSE
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The Purpose of this Teaming Agreement is to set forth the terms and
conditions under which the Parties agree to work together in a strategic
alliance, leveraging complementary background, experience and technology, in
order to enhance their respective core competencies and jointly speed further
development of car and truck gaseous fuel propulsion systems for internal
combustion engines ("gaseous fuel propulsion systems") and related components.
The agreed relationship includes (i) business processes for identification of
gaseous fuel propulsion systems and related components on which cooperative
effort, possibly including sharing of staff and resources, is to be directed,
(ii) relative roles and responsibilities, (iii) business terms of general
applicability to purchase and sale between the Parties of gaseous fuel
propulsion systems and related components, and (iv) arrangements for aftersale
support of GM production vehicles utilizing gaseous fuel propulsion systems and
related components by GM independent authorized dealers. This Teaming Agreement
further sets forth alternatives for production and application of components
developed hereunder.
With this Agreement, the Parties seek to share a process for successful
development and implementation of gaseous fuel propulsion systems and related
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components which are state-of-the-art technology; satisfactory to customers and
regulators; able to meet world class quality, reliability, maintainability and
durability; and cost efficient and commercially viable throughout their life
cycle, including after-sale support.
NOW, THEREFOR, for and in consideration of the promises and the mutual
covenant herein contained, IMPCO and GM hereby set forth their agreement as
follows:
I. DEFINITIONS
The following terms, as used herein, shall have the following meanings,
whether used in the singular or plural (some terms are defined within a section
in which they are used):
"Affiliate" means another company, corporation, or partnership in which a
Party directly or indirectly owns at least 50 percent of the outstanding capital
stock or other equity interest, and, in the case of IMPCO, another corporation
which owns more than 50 percent of the capital stock of that Party.
"Agreement" means this Teaming Agreement, including all Exhibits identified
herein.
"Background Patents" means all patents, regardless of country or origin or
issue, which are owned or controlled by a Party, that cover an invention
directly related to the Purpose of this Teaming Agreement and which were not
conceived or first reduced to practice in the course of the work performed
pursuant to this Teaming Agreement; provided, however, that in the case of GM
any such patents of its Delphi and Delco Electronics organizations are excluded
for purposes of this Agreement.
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"Background Technology" means technical information owned or controlled by
a Party and directly related to the Purpose of this Teaming Agreement and which
was not conceived or first reduced to practice in the course of the work
performed pursuant to this Teaming Agreement; provided, however, that in the
case of GM any such technology of its Delphi and Delco Electronics organizations
are excluded for purposes of this Agreement.
"Gaseous Fuel" means CNG, LNG and LPG suitable for vehicular applications
contemplated by this Agreement.
"Gaseous Fuel Propulsion System" means a car or truck gaseous fuel
propulsion system for internal combustion engines.
"Including" means including but not limited to.
"Management Committee" means the committee of IMPCO and GM employees
described in Section 2.1.
"Party" when used in the singular means IMPCO or GM, and when used in the
plural means IMPCO and GM.
"Program Manager" means the individual(s) identified in Section 2.2.
"Proprietary Information" means documents and other tangible items
disclosed by a Party which are directly related to the Purpose of this Teaming
Agreement.
"Program Technology" means technical information conceived or first reduced
to practice in the course of the work performed pursuant to this Teaming
Agreement by employees or agents of the Parties which directly relates to its
Purpose.
"Program Patent" refers to all patents, regardless of country of origin or
issue, that cover an invention directly related to the Purpose of this Teaming
Agreement and which
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were conceived or first reduced to practice in the course of the work performed
pursuant to this Teaming Agreement by employees or agents of the Parties.
II. FORMATION OF TEAMING ARRANGEMENT
2.1 Agreement To Team; Management Committee
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Work under this Agreement shall be coordinated between IMPCO and GM by a
Management Committee, made up of three representatives from each Party. Initial
members of the Management Committee are identified in Exhibit 1. Either Party
may change its members assigned to the Management Committee by providing written
notice to the other, provided that (i) no person shall be a member of the
Management Committee who is not an employee of the Party appointing such person
unless the other Party consents thereto, and (ii) each Party shall exercise
reasonable effort to maintain continuity in its assignments. Unless otherwise
agreed by the Parties, the Management Committee shall include at lease one
engineering representative and one procurement representative from each Party.
Responsibilities of the Management Committee includes identifying projects
appropriate for this Teaming Agreement, and reviewing the progress of ongoing
projects compared to each respective project business plan. The Management
Committee shall approve a business plan and statement of work for each project
hereunder, including identification of which Party is to initiate and carry out
the project, budget and cash needs responsibilities, and allocation of plant,
personnel and other non-cash resources. The Management Committee shall also be
responsible for resolution of any conflicts between the Parties relative to
projects hereunder, and shall follow and benchmark field performance of gaseous
fuel propulsion systems and related components thereof.
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The Management Committee shall meet periodically, but at least once every
three months. Meetings shall be called and coordinated by the respective Program
Managers, who shall jointly prepare an agenda in advance of each meeting. A
quorum for a Management Committee meeting shall consist of two members from each
Party; decisions of the Management Committee shall be by unanimous consent of
members present.
The Management Committee shall keep minutes of its meetings and the actions
taken by it; such minutes shall be prepared by the Secretary and reviewed by the
Counterpart Secretary of the other Party before distribution. In the initial
year, GM shall appoint the Secretary from its employees on the Management
Committee, and IMPCO shall appoint the Counterpart Secretary from its employees
on the Management Committee. Thereafter, the positions of Secretary and
Counterpart Secretary shall switch to the other Party annually, unless otherwise
agreed by the Management Committee. Members of the Management Committee may
conduct meetings by telephone if both Parties consent; in person meetings shall
rotate through different sites the Management Committee deems relevant to its
business.
2.2 Program Managers
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Each Party shall appoint a Program Manager, who may or may not be a member
of the Management Committee. Such Program Managers shall be the primary
interface on a day to day basis between the Parties. The Program Managers shall
report on their activities to the Management Committee at its meetings, and
prepare the agenda for Management Committee meetings.
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Initial Program Managers are identified in Exhibit 1; either Party may
change its person assigned as Program Manager by providing written notice to the
other, provided that no person shall be a Program Manager who is not an employee
of the Party appointing such person unless the other Party consents thereto.
Separate program managers may be identified for selected projects, as directed
by the Management Committee or provided in contracts for such projects.
2.3 Limitations of Authority
------------------------
Nothing contained in this Agreement, and no action taken or recommended by
the Management committee or the Program Managers, shall be deemed to (I) make
any Party hereto (or any of such Party's employees, agents or representatives)
an employee, agent or representative of the other Party, (ii) confer on any
Party any expressed or implied right, power or authority to enter into any
contract, express or implied, or to incur any obligation or liability on behalf
of the other Party, or (iv) require any Party to take any action which is
contrary to any contract, regulatory or other applicable legal requirement or
standard.
III.
3.1 Supplier Right of First Refusal
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IMPCO and GM each agrees to buy from the other any production quantities of
gaseous fuel propulsion systems or related components developed hereunder which
the buyer may require, provided (I) such components are not to be produced by
the buyer, an Affiliate of the buyer, or under any contract commitment which
predates this Agreement, (ii) the seller has demonstrated ability to supply such
components, and (iii) the seller is competitive as to price (including contract
terms), quality and service. If, in the
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reasonable opinion of the buyer, one or more such components otherwise meeting
requirements of the immediately preceding sentence is found to not be
competitive in price, quality or service, the buyer, to the extent it is free to
do so, will advise the seller in writing of the area(s) in which another
supplier is more competitive. If, within 5 business days of such notice, the
seller does not agree to sell such component(s) with comparable price, quality
and service, then the buyer may purchase such component(s) from such other
supplier.
In any instance in which GM contracts with IMPCO to supply any gaseous fuel
propulsion system or related component developed under this Agreement, IMPCO
will not, for a period of two years from the date of GM's commercial
introduction, solicit sales thereof to third parties. If a potential third party
buyer should approach a Party hereto for supply of gaseous fuel propulsion
systems or components utilizing technology developed hereunder during such two
year period, the Party approached shall bring the inquiry to the Management
Committee for review and consideration as appropriate. Among the alternatives
which could be considered in appropriate circumstances is formation of a joint
venture between the Parties to meet third party customer requirements, or
payment of a reasonable royalty by one Party to the other.
3.2 Purchase Orders; Shared Resources
---------------------------------
Any Agreement by one Party to buy, and the other to produce and sell to
such buyer, one or more gaseous fuel propulsion systems or related components
developed hereunder, shall be concluded by way of a purchase order based on such
buyer's then current terms and conditions applicable generally to supply of
goods used in its core businesses, unless otherwise agreed to in a written
amendment to such purchase order or
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other written contract document. A copy of those terms and conditions, including
both the pre-printed terms and additional terms applicable to long term purchase
arrangements, appear in Exhibit 2.
In the event GM should place a vehicle program with IMPCO for installation
of a gaseous fuel propulsion system or related components, such placement shall
fall under applicable provisions of GM's second stage manufacturing policy and
the contract provisions consistent with that policy.
Consistent with this Agreement and Management Committee direction, the
Parties will work together to develop and share sourcing strategy and
procurement for any joint programs. Pricing for gaseous fuel propulsion systems
and related components between the Parties shall reflect an appropriate
differential from that to third parties reasonably reflective of the joint
efforts hereunder.
3.3 Development Programs
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The Parties will work together to facilitate pre-production consideration
of design for manufacturability and other considerations for efficiency. Each of
the Parties will use its best efforts to work together to develop and improve
car and truck gaseous fuel propulsion systems and related components hereunder.
Except as specifically agreed in advance in writing, each Party shall be
responsible for its own costs associated with such cooperation.
IV. INTELLECTUAL PROPERTY; RECORDS
4.1 Obligations; Procedures
-----------------------
(A) Document Control Coordinators
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(1) Each Party shall designate an individual who shall constitute the
sole person authorized to receive Proprietary Information for that Party.
(2) A Party may replace its Document Control Coordinator at any time,
without limitation or restriction, by giving written notice to the other
Party. The initial Document Control Coordinators are identified in
Exhibit A.
(B) Handling of Proprietary Information
(1) During the term of and pursuant to this Agreement, the Parties, to
the extent of their right and willingness to do so in specific cases, may
exchange Proprietary Information relating to the Purpose of the Agreement.
(2) A Party receiving such Proprietary Information agrees to take
reasonable efforts to avoid disclosure thereof to third parties for the
term of this Agreement plus two years thereafter. Reasonable efforts shall
mean efforts which are equivalent to those which the receiving Party uses
to protect its own Proprietary Information of a similar nature, related to
the Program.
(3) In order to be deemed Proprietary Information subject to the
requirements of the above paragraph 4.1(B)(2) the information must:
(i) be identified as such with a conspicuous marking which
identifies the owning Party and refers to this Teaming Agreement by title
and Effective Date; and
(ii) be transferred to the receiving Party exclusively through
its Document Control Coordinator.
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(4) The obligations with respect to Proprietary Information as set
forth in this Agreement are not applicable to any such disclosed
information if the content:
(i) was in, or thereafter becomes available to, the public domain
without breach of this Agreement by the receiving Party;
(ii) was known to the receiving Party at the time of disclosure;
(iii) is independently developed by the receiving Party without
the use of the Proprietary Information;
(iv) becomes known to the receiving Party from a source other
than the disclosing Party without breach of this Agreement by the receiving
Party, provided that to the best of the receiving Party's knowledge such
source is not in breach of a confidentiality agreement with, or in breach
of another legal obligation of confidentiality to, the disclosing Party or
another party with respect to such Proprietary Information;
(v) was, or thereafter is, disclosed by the disclosing Party to a
third party without similar restrictions on disclosure;
(vi) is disclosed with the written approval of the disclosing
Party;
(vii) is disclosed inadvertently or without authorization despite
the exercise of reasonable care, as defined herein, provided that upon
discovery of such disclosure, the receiving Party shall notify the
disclosing Party and endeavor to prevent further such disclosures; or
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(viii) is required to be disclosed pursuant to governmental or
judicial process. In such a case, the receiving Party shall provide prompt
written notice, to the extent legally permissible, to the disclosing Party
so that the disclosing Party may seek a protective order or take other
appropriate action, and the receiving Party shall furnish only that portion
of Proprietary Information which is required.
4.2 Nothing in this Agreement shall be interpreted as precluding an employee of
one of the Parties to this Agreement from making use of his or her general
knowledge in conjunction with other projects being performed on behalf of his or
her employer, even if such knowledge has been furthered by him or her having had
access to the Proprietary Information exchanged under this Agreement.
4.3 Proprietary Information disclosed by a Party shall remain the property of
that Party and shall be returned, at the request of that Party, upon completion
of the activity in furtherance of the Purpose of this Agreement or, upon earlier
request of the disclosing Party.
4.4 Other than the restrictions set forth herein relating to Proprietary
Information, all other information transmitted between the Parties shall be free
of any restrictions other than patent rights of the Parties.
4.5 Intellectual Property Rights
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(A) Inventions
(1) All Program Inventions made solely by employees of one Party in
the performance of this Teaming Agreement shall be the sole property of
that Party. The Party shall disclose such Program Inventions to the other
Party.
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(2) All Program Inventions made jointly by employees of both Parties
in the performance of this Teaming Agreement shall be jointly owned by the
Parties.
(B) License Grant - Program Patents and Program Technology
(1) IMPCO grants to GM and its Affiliates, a paid-up, non-exclusive,
non-transferable, world-wide, royalty-free license to make, have made, use,
sell, offer to sell and import under all Program Patents and Program
Technology owned by IMPCO.
(2) GM grants to IMPCO and its Affiliates, a paid-up, non-exclusive,
non-transferable, world-wide, royalty-free license to make, have made, use,
sell, offer to sell and import under all Program Patents and Program
Technology owned by GM.
(C) License Grant - Background Patents and Background Technology
(1) IMPCO grants to GM and its Affiliates, a paid-up, non-exclusive,
non-transferable, royalty-free license under its Background Patents and
Background Technology required for GM to use any Program Patents or Program
Technology to the extent licensed.
(2) GM grants to IMPCO and its Affiliates a paid-up, non-exclusive,
non-transferable, royalty-free license under its Background Patents and
Background Technology required for IMPCO to use any Program Patents or
Program Technology to the extent licensed.
4.6 Each Party shall retain the right to engage in independent research and
development, alone or with others, on any matter, including any aspect of car
and truck
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gaseous fuel propulsion systems and related components. A Party which has
undertaken or desires to undertake an independent research and development
project shall not be obligated by reason of this Teaming Agreement to (i)
disclose to the other Party the fact that such independent research and
development has been or is being undertaken, the nature of the project or the
results thereof, or (ii) permit the other Party to participate in such project.
However, IMPCO agrees to bring to the Management committee any new technology
relative to gaseous fuel propulsion systems or related components it may
independently develop or obtain and to give GM a reasonable opportunity to
implement such technology on a non-exclusive or temporary exclusive basis, at
GM's choice recognizing reasonable terms may vary between an exclusive and non-
exclusive contract.
4.7 Except to license rights under the Background Patents and Background
Technology to the extent necessary for a Party to fully use and exploit Program
Patents and Program Technology as provided for above, nothing in this Agreement
shall be deemed to constitute a waiver of existing or future proprietary rights
that a Party may otherwise possess.
4.8 Records
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(A) Each Party shall maintain complete and detailed records, developed by
or for work under this Teaming Agreement, together with findings and conclusions
relating thereto, which records and findings shall be open to the inspection of
the other Party. Such records shall be maintained by each Party, in the
ordinary course of its business for a period of not less than two years.
(B) During maintenance of any such records the Party in possession of such
records shall permit access to the information by the other Party, when
necessary, for
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(i) compliance matters, (ii) litigation matters, (iii) service matters, or (iv)
other similar matters. If requested, the Parties shall make personnel available
at requested locations to consult or testify regarding such records. The Party
requesting such assistance shall reimburse the other Party for reasonable travel
and other expenses (excluding wages and benefits except to the extent that in
any one matter the total time of the personnel exceeds five days) incurred by a
Party in furnishing its personnel at any location requested, other than such
personnel's normal work locations.
V.
5.1 Term
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This Teaming Agreement shall remain in effect for five years from the date
first written above. It may be terminated any time earlier, or extended longer,
by mutual written consent of the Parties. Termination of this Agreement for any
reason shall not in and of itself terminate any purchase order or other contract
then outstanding for gaseous fuel propulsion systems or related components, the
terms of which are independent of this Agreement.
5.2 Termination
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This Agreement may, upon 30 days written notice, be terminated unilaterally
by either Party in the event that (i) no purchase order or other contract for
gaseous fuel propulsion systems or related components is issued by one Party to
the other by December 31, 1999, (ii) the Management Committee does not meet for
18 consecutive months, (iii) the other Party materially breaches this Agreement
and fails to correct such breach during the first 20 days of such 30 day notice
period, or (iv) the other Party becomes insolvent, files a voluntary petition in
bankruptcy, suffers appointment of a
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receiver or trustee, or executes an assignment for the benefit of creditors,
provided that any such petition, appointment, or assignment is not vacated or
nullified within 15 days of such event. Moreover, this Agreement may be
terminated unilaterally by GM in the event management or ownership control of
IMPCO shall change.
5.3 Survival
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Upon expiration or termination of this Agreement, provisions reasonably
expected to continue in place shall survive, including the provisions of Article
IV.
VI.
6.1 Notices
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All notices hereunder shall be in writing and shall be personally
delivered, or sent by postage prepaid registered mail, or transmitted by
facsimile and immediately confirmed by postage prepaid first class mail and
addressed as follows:
If GM: General Motors Corporation
VDTO-Research & Development
00000 Xxxxx Xxxx
Mail Stop 000-000-000
Xxxxxx, XX 00000-0000
Attention: Program Manager - Alternative Fuels
Fax No.: (000) 000-0000
If IMPCO: IMPCO, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Vice-President, TD & NV
Fax No: (000) 000-0000
or to such other address as the Party may hereafter designate by like notice.
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6.2 Assignment
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Neither Party may assign or delegate this Agreement or any of its
obligations under this Agreement, or subcontract any of its obligations under
this Agreement, without prior written consent of the other, which consent shall
not be unreasonably withheld.
6.3 Waiver
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Any delay, failure, or omission of either Party at any time to perform as
hereunder required shall in no way affect the other Party's right to require
such performance at any time thereafter. The failure of either Party to
exercise any of its rights provided under this Agreement shall not constitute a
waiver of such rights. Any waiver by either Party of any breach of any term,
provision, or covenant of this Agreement shall not constitute a waiver of any
subsequent breach of the same or other term of this Agreement.
6.4 Independent Contractors
-----------------------
IMPCO and GM are independent contracting Parties and nothing in this
Agreement shall make either Party the agent or legal representative of the other
for any purpose whatsoever, nor does this Agreement grant either Party any
authority to assume or create any obligation on behalf of or in the name of the
other.
6.5. Applicable Law
--------------
This Agreement is to be construed according to the laws of Michigan, USA.
6.6 Amendment
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This Agreement may not be amended, changed, or modified in any manner other
than by an instrument in writing signed by duly authorized representatives of
the Parties hereto.
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6.7 Audit
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With respect to any work under this Agreement for which one Party agrees in
advance to pay the other, but which is not included in a firm fixed price, the
Party performing such work shall provide the other, upon reasonable request and
during normal business hours, access to all relevant records for the purpose of
auditing charges and/or allocations related to this Agreement. The Party
performing such work shall segregate its records in such manner as to facilitate
a complete audit, and agrees that such audit may be used as the basis for
settlement of such charges under this Agreement. The Party performing such work
shall preserve its records for at least two years after final payment by the
other for the work under audit.
VII. PRODUCT LIABILITY; THIRD-PARTY CLAIMS
-------------------------------------
7.1 Prompt Notice
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Should any claim be made against either GM or IMPCO alleging that personal
injury or property damage to a nonparty to this Agreement was caused by an
alleged defect in a car or truck gaseous fuel propulsion system or related
assemblies developed hereunder, regardless of whether such claim is based upon
strict liability, negligence or warranty, IMPCO and GM will provide to the other
Party prompt notice of such claims and every formal claim document received by
either of them relating to such claim.
7.2 Cooperation
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With respect to any such claim which may relate to the car or truck gaseous
fuel propulsion system or related assemblies hereunder, IMPCO and GM agree to
communicate and cooperate with each other and, if necessary, any appropriate
insurance carrier, to the extent possible in the defense of the claim. IMPCO
and GM will make
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available to each other the services of knowledgeable personnel and information
necessary to the defense of the claim. During the pendency of any lawsuit
involving such a claim, IMPCO and GM will not take any adverse action, including
third-party claims, or cross-claims against each other.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed,
in duplicate, by their duly authorized representatives.
GENERAL MOTORS CORPORATION IMPCO INDUSTRIES, INC.
By: By:
---------------------------------- ---------------------------------
Title: Title:
------------------------------- ------------------------------
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EXHIBIT 1
Management Committee, Program Manager and Document Control Coordinator
From GM: Management Committee
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Initial Secretary:
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Program Manager:
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Document Control:
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From IMPCO: Management Committee:
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Initial Secretary:
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Program Manager:
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Document Control:
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Exhibit 2
Standard Purchasing Terms
GM: Attach here May 1986 Terms and Conditions, plus Additional Purchase
Order Provisions -- Lifetime Contracts.
IMPCO: Attach here: any standard product terms for similar goods in
similar quantities.
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PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE: Seller has read and understands this order and agrees that
Seller's written acceptance or commencement of any work or service under this
order shall constitutes Seller's acceptance of these terms and conditions only.
All terms and conditions proposed by Seller which are different from or in
addition to this order are unacceptable to Buyer, are expressly rejected by
Buyer, and shall not become a part of this order. Any modifications to this
order shall be made in accordance with Paragraph 31.
2. SHIPPING, BILLING AND FLSA CERTIFICATION: Seller agrees: (a) to properly
xxxx, xxxx and ship goods in accordance with the requirements of Buyer and
involved carriers in a manner to secure lowest transportation cost; (b) to route
shipments in accordance with instructions from Buyer's Traffic Department; (c)
to make no charge for handling, packaging, storage, transportation or drayage of
goods unless otherwise stated in this order; (d) to provide with each shipment
packing slips with Buyer's order number marked thereon; (e) to properly xxxx
each package with this order number, the factory, plant and dock number, and
where multiple packages comprise a single shipment, to consecutively number
each package; and (f) to promptly forward the original xxxx of lading or other
shipping receipt for each shipment in accordance with Buyer's instructions.
Seller will include on bills of lading or other shipping receipts correct
classification identification of the goods shipped in accordance with Buyer's
instructions and carrier's requirements. The marks on each package and
identification of the goods on packing slips, bills of lading and invoices
shall be sufficient to enable Buyer to easily identify the goods purchased.
Seller further agrees: (a) to promptly render after delivery of goods or
performance of services, correct and complete invoices to Buyer; and (b) to
accept payment by check or, at Buyer's discretion, other cash equivalent
(including electronic transfer of funds). Seller's invoices must include a
certification that all goods were produced in compliance with the applicable
requirements of sections 6, 7, and 12 of the Fair Labor Standards Act, as
amended, and of regulations and orders of the United States Department of Labor
issued in connection therewith. The payment date is set forth on the face side
of this order, or if not stated, shall be on the 25th day of the month following
Buyer's receipt of a proper invoice (except as may otherwise be agreed upon by
Buyer and Seller in connection with a program providing for electronic funds
transfer). Time for payment shall not begin until correct and complete invoices
are received, and Seller's cash discount privileges to buyer shall be extended
until such time as payment is due. Buyer may withhold payment pending receipt of
evidence, in such form and detail as Buyer may direct, of the absence of the
absence of any liens, encumbrances and claims on the goods or services under
this order.
3. DELIVERY SCHEDULES: Deliveries shall be made both in quantities and at
times specified in Buyer's schedules. Buyer shall not be required to make
payment for goods delivered to Buyer which are in excess of quantities specified
in Buyer's delivery schedules. Buyer may change the rate of scheduled shipments
or direct temporary suspension of scheduled shipments, neither of which shall
entitle Seller to a modification of the price for goods or services covered by
this order. For orders of goods where quantities and/or delivery schedules are
not specified. Seller shall deliver goods in such quantities and times as Buyer
may direct in subsequent releases.
4. PREMIUM SHIPMENTS: If Seller's acts or omissions result in Seller's failure
to meet Buyer's delivery requirements and Buyer requires a more expeditious
method of transportation for the goods than the transportation method originally
specified by Buyer, Seller shall, at Buyer's option, (i) promptly reimburse
Buyer the difference in cost between the more expeditious method and the
original method, (ii) allow Buyer to reduce its payment of Seller's invoices by
such difference, or (iii) ship the goods as expeditiously as possible at
Seller's expense and invoice Buyer for the amount which Buyer would have paid
for normal shipment.
5. CHANGES: Buyer reserves the right at any time to direct changes, or cause
Seller to make changes, to drawings and specification of the goods or to
otherwise change the scope of the work covered by this order, including work
with respect to such matters as inspection, testing or quality control, and
Seller agrees to promptly make such changes; any difference in price or time for
performance resulting from such changes shall be equitably adjusted by Buyer
after receipt of documentation in such form and detail as Buyer may direct. Any
changes to this order shall be made in accordance with Paragraph 31.
6 INSPECTION: Seller agrees that Buyer shall have the right to enter Seller's
facility at reasonable times to inspect the facility, goods, materials and any
property of Buyer covered by this order. Buyer's inspection of the goods,
whether during manufacture, prior to delivery or within a reasonable time after
delivery, shall not constitute acceptance of any work-in-process or finished
goods.
7. NONCONFORMING GOODS: To the extent Buyer rejects goods as nonconforming, the
quantities under this order will automatically be reduced unless Buyer otherwise
notifies Seller. Seller will not replace quantities so reduced without a new
order or schedule from Buyer. Nonconforming goods will be held by Buyer for
disposition in accordance with Seller's instructions at Seller's risk. Seller's
failure to provide written instructions within ten (10) days, or such shorter
period as may be commercially reasonable under the circumstances, after notice
of nonconformity shall entitle Buyer, at Buyer's option, to charge Seller for
storage and handling, or to dispose of the goods, without liability to Seller.
Payment for nonconforming goods shall not constitute an acceptance thereof,
limit or impair Buyer's right to assert any legal or equitable remedy, or
relieve Seller's responsibility for latent defects.
8. FORCE MAJEURE: Any delay or failure of either party to perform its
obligations hereunder 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, actions by any governmental authority (whether valid or
invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars,
sabotage, labor problems (including lockouts, strikes and slowdowns), inability
to obtain power, material, labor, equipment or transportation, or court
injunction or order; 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 ten (10) days. During the period of such delay or failure to
perform by Seller. Buyer, at its option, may purchase goods from other sources
and reduce its schedules to Seller by such quantities, without liability to
Seller, or have Seller provide the goods from other sources in quantities and at
times requested by Buyer and at the price set forth in this order. If requested
by the Buyer, Seller shall, within, ten (10) days of such request, provide
adequate assurances that the delay shall not exceed thirty (30) days. If the
delay lasts more than thirty (30) days or Seller does not provide adequate
assurance that the delay will cease within thirty (30) days, Buyer may
immediately cancel the order without liability.
9. WARRANTY: Seller expressly warrants that all goods or services covered by
this order will conform to the specifications, drawings, samples, or
descriptions furnished to or by Buyer, and will be merchantable, of good
material and workmanship and free from defect. In addition, Seller acknowledges
that Seller knows of Buyer's intended use and expressly warrants that all goods
covered by this order which have been selected, designed, manufactured, or
assembled by Seller, based upon Buyer's stated use, will be fit and sufficient
for the particular purposes intended by Buyer.
10. INGREDIENTS DISCLOSURE AND SPECIAL WARNINGS AND INSTRUCTIONS: If requested
by Buyer, Seller shall promptly furnish to Buyer in such form and detail as
Buyer may direct: (a) a list of all ingredients in the goods purchased
hereunder: (b) the amount of one or more ingredients; and (c) information
concerning any changes in or additions to such ingredients. Prior to and with
the shipment of the goods purchased hereunder, Seller agrees to furnish to Buyer
sufficient warning and notice in writing (including appropriate labels on goods,
containers and packing) of any hazardous material which is an ingredient or a
part of any of the goods, together with such special handling instructions as
may be necessary to advise carriers. Buyer and their respective employees of how
to exercise that measure of care and precaution which will best prevent bodily
injury or property damage in the handling, transportation, processing, use, or
disposal of the goods, containers and packing shipped to Buyer.
11. INSOLVENCY: Buyer may immediately cancel this order without liability to
Seller in the event of the happening of any of the following or any other
comparable event: (a) insolvency of the Seller; (b) filing of a voluntary
petition in bankruptcy by Seller; (c) filing of any involuntary petition in
bankruptcy against Seller; (d) appointment of a receiver or trustee for Seller;
(e) or execution of an assignment for the benefit of creditors by Seller,
provided that such petition, appointment, or assignment is not vacated or
nullified within fifteen (15) days of such event.
12. CANCELLATION FOR BREACH: Buyer reserves the right to cancel all or any part
of this order, without liability to Seller, if Seller: (a) repudiates or
breaches any of the terms of this order, including Seller's warranties;
(b) fails to perform services or deliver goods as specified by Buyer; or
(c) fails to make progress so as to endanger timely and proper completion of
services or delivery of goods; and does not correct such failure or breach
within ten (10) days (or such shorter period of time if commercially reasonable
under the circumstances) after receipt of written notice from Buyer specifying
such failure or breach.
13. TERMINATION: In addition to any other rights of Buyer to cancel or
terminate this order, Buyer may at its option immediately terminate all or any
part of this order, at any time and for any reason, by giving written notice to
Seller. Upon such termination, Buyer shall pay to Seller the following amounts
without duplication: (a) the order price for all goods or services which have
been completed in accordance with this order and not previously paid for; and
(b) the actual costs of work-in-process and raw materials incurred by Seller in
furnishing the goods or services under this order to the extent such costs are
reasonable in amount and are properly allocable or apportionable under generally
accepted accounting principles to the terminated portion of this order; less,
however, the reasonable value or cost (whichever is higher) of any goods or
materials used or sold by Seller with Buyer's written consent, and the cost of
any damaged or destroyed goods or material. Buyer will make no payments for
finished goods, work-in-process or raw materials fabricated or procured by
Seller in amounts in excess of those authorized in delivery releases nor for any
undelivered goods which are in Seller's standard stock or which are readily
marketable. Payments made under this Paragraph shall not exceed the aggregate
price payable by Buyer for finished goods which would be produced by Seller
under delivery or release schedules outstanding at the date of termination.
Except as provided in this Paragraph, Buyer shall not be liable for and shall
not be required to make payments to Seller, directly or on account of claims by
Seller's subcontractors, for loss of anticipated profit, unabsorbed overhead,
interest on claims, product development and engineering costs, facilities and
equipment rearrangement costs or rental, unamortized depreciation costs, and
general and administrative burden charges from termination of this order. Within
sixty (60) days from the effective date of termination, Seller shall submit a
comprehensive termination claim to Buyer, with sufficient supporting data to
permit Buyer's audit, and shall thereafter promptly furnish such supplemental
and supporting information as Buyer shall request. Buyer, or its agents, shall
have the right to audit and examine all books, records, facilities, work,
material, inventories, and other items relating to any termination claim of
Seller.
14. INTELLECTUAL PROPERTY. Seller agrees: (a) to defend, hold harmless and
indemnify Buyer, its successors and customers against all claims, demands,
losses, suits, damages, liability and expenses (including reasonable attorney
fees) arising out of any suit, claim or action for actual or alleged direct or
contributory infringement of, or inducement to infringe, any United States or
foreign patent, trademark, copyright or mask work right by reason of the
manufacture, use or sale of the goods or services ordered, including
infringement arising out of compliance with specifications furnished by Buyer,
or for actual or alleged misuse or misappropriation of a trade secret resulting
directly or indirectly from Seller's actions; (b) to waive any claim against
Buyer under the Uniform Commercial Code or otherwise, including any hold
harmless or similar claim, in any way related to a claim asserted against Seller
or Buyer for patent, trademark, copyright or mask work right infringement or the
like, including claims arising out of compliance with specifications furnished
by Buyer; and (c) to grant to Buyer a worldwide, nonexclusive, royalty-free,
irrevocable license to repair and have repaired, to reconstruct and have
reconstructed the goods ordered hereunder. Seller assigns to Buyer all right,
title and interest in and to all trademarks, copyrights and mask work rights in
any material created for Buyer under this order.
15. TECHNICAL INFORMATION DISCLOSED TO BUYER: Seller agrees not to assert any
claim (other than a claim for patent infringement) with respect to any technical
information which Seller shall have disclosed or may hereafter disclose to Buyer
in connection with the goods or services covered by this order.
16. INDEMNIFICATION: If Seller performs any work on Buyer's premises or
utilizes the property of Buyer, whether on or off Buyer's premises. Seller shall
indemnify and hold Buyer harmless from and against any liability, claims,
demands or expenses (including reasonable attorney fees) for damages to the
property of or injuries (including death) to Buyer, its employes or any other
person arising from or in connection with Seller's performance of work or use of
Buyer's property, except for such liability, claim, or demand arising out of the
sole negligence of Buyer.
17. INSURANCE: Seller shall maintain insurance coverage in amounts not less
than the following: (a) Workers' Compensation - Statutory Limits for the state
or states in which this order is to be performed (or evidence of authority to
self-insure); (b) Employer's Liability - $250,000; (c) Comprehensive General
Liability (including Products/Completed Operations and Blanket Contractual
Liability) - $1,000,000 per person. $1,000,000 per occurrence Personal Injury,
and $1,000,000 per occurrence Property Damage, or $1,000,000 per occurrence
Personal Injury and Property Damage combined single limit; and (d) Automobile
Liability (including owned, non-owned and hired vehicles)-$1,000,000 per person,
$1,000,0000 per occurrence Personal Injury and $1,000,000 per occurrence
Property Damage, or $1,000,000 per occurrence Personal Injury and Property
Damage combined single limit. At Buyer's request, Seller shall furnish to Buyer
certificates of insurance setting forth the amount(s) of coverage, policy
number(s) and date(s) of expiration for insurance maintained by Seller and, if
further requested 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 coverage or the furnishing of certificates of insurance
shall not release Seller of its obligations or liabilities under this order. In
the event of Seller's breech of this provision, Buyer shall have the right to
cancel the undelivered portion of any goods or services covered by this order
and shall not be required to make further payments except for conforming goods
delivered or services rendered prior to cancellation.
18. TOOLS: Unless otherwise agreed to by Buyer, Seller at its own expense shall
furnish, keep in good condition, and replace when necessary all tools, jigs,
dies, gauges, fixtures, molds and patterns ("Tools") necessary for the
production of the goods. The cost of changes to the Tools necessary to make
design and specification changes authorized by Buyer shall be paid for by Buyer.
Seller shall insure the Tools with full fire and extended coverage insurance for
the replacement value thereof. Seller grants Buyer an irrevocable option to take
possession of and title to the Tools that are special for the production of the
goods upon payment to Seller of the book value thereof less any amounts which
Buyer has previously paid to Seller for the cost of such Tools; provided;
however, that this option shall not apply if such Tools are used to produce
goods that are the standard stock of Seller or if a substantial quantity of like
goods are being sold by Seller to others.
19. BAILED PROPERTY: All supplies, materials, tools, jigs, dies, gauges,
fixtures, molds, patterns, equipment and other items furnished by Buyer, either
directly or indirectly, to Seller to perform this order, or for which Seller has
been reimbursed by Buyer, shall be and remain the property of Buyer. Seller
shall bear the risk of loss of and damage to Buyer's property. Buyer's property
shall at all times be properly housed and maintained by Seller; shall not be
used by Seller for any purpose other than the performance of this order; shall
be deemed to be personality; shall be conspicuously marked "Property of General
Motors Corporation" by Seller; shall not be commingled with the property of
Seller or with that of a third person; and shall not be moved from Seller's
premises without Buyer's prior written approval. Upon the request of Buyer, such
property shall be immediately released to Buyer or delivered to Buyer by Seller,
either (i) F.O.B. transport equipment at Seller's plant, properly packed and
marked in accordance with the requirements of the carrier selected by Buyer to
transport such property, or (ii) to any location designated by Buyer, in which
event Buyer shall pay to Seller the reasonable cost of delivering such property
to such location. Buyer shall have the right to enter onto Seller's premises at
all reasonable times to inspect such property and Seller's records with respect
thereto.
20. REMEDIES. The rights and remedies reserved to Buyer in this order shall be
cumulative, and additional to all other or further remedies provided in law or
equity.
21. DUTY DRAWBACK RIGHTS: This order includes all related customs duty and
import drawback rights, if any, (including rights developed by substitution and
rights which may be acquired from Seller's suppliers) which Seller can transfer
to Buyer. Seller agrees to inform Buyer of the existence of any such rights and
upon request to supply such documents as may be required to obtain such
drawback.
22. SETOFF: In addition to any right of setoff provided by law, all amounts due
Seller shall be considered net of indebtedness of Seller to General Motors
Corporation and its subsidiaries; and General Motors Corporation may deduct any
amounts due or to become due from Seller to General Motors Corporation and its
subsidiaries from any sums due or to become due from General Motors Corporation
to Seller.
23. ADVERTISING: Seller shall not, without first obtaining the written consent
of Buyer, in any manner advertise or publish the fact that Seller has contracted
to furnish Buyer the goods or services herein ordered, or use any trademarks or
tradenames of Buyer in Seller's advertising or promotional materials. In the
event of Seller's breach of this provision, Buyer shall have the right to cancel
the undelivered portion of any goods or services covered by this order and shall
not be required to make further payments except for conforming goods delivered
or services rendered prior to cancellation.
24. GOVERNMENT COMPLIANCE: Seller agrees to comply with all federal, state and
local laws, Executive Orders, rules, regulations and ordinances which may be
applicable to Seller's performance of its obligations under this order.
25. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION: This order incorporates by
reference: (a) all provisions of 41 C.F.R. 60-1.4, as amended, pertaining to the
equal opportunity clause in government contracts; (b) all provisions of 41
C.F.R. 60-250, as amended, pertaining to affirmative action for disabled
veterans of the Vietnam Era; and (c) all provisions of 41 C.F.R. 60-741, as
amended, pertaining to affirmative action for handicapped workers. Seller
certifies that it is in compliance with all applicable provisions of 41 C.F.R.
60-1, including but not limited to: (a) developing and presently having in full
force and effect a written affirmative action compliance program for each of its
establishments as required by 41 C.F.R. 60-1.40, as amended; (b) filing EEO-1
Reports as required by 41 C.F.R. 60-1.7, as amended; and (c) neither maintaining
segregated facilities nor permitting its employes to perform services at
segmented facilities as prohibited by 41 C.F.R. 60-1.8, as amended. Buyer
requests that Seller adopt and implement a policy to extend employment
opportunities to qualified applicants and employes on an equal basis regardless
of an individual's age, race, color, sex, religion or national origin.
26. NO IMPLIED WAIVER: The failure of either party at any time to require
performance by the other party of any provision of this order shall in no way
affect the right to require such performance at any time thereafter, nor shall
the waiver of either party of a breach of any provision of this order constitute
a waiver of any succeeding breach of the same or any other provision.
27. NON-ASSIGNMENT: Seller may not assign or delegate its obligations under
this order without Buyer's prior written consent.
28. RELATIONSHIP OF PARTIES: Seller and Buyer are independent contracting
parties and nothing in this order shall 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.
29. GOVERNING LAW: This order is to be construed according to the laws of the
state from which this order issues as shown by the address of Buyer on the face
side of this order.
30. SEVERABILITY: If any term of this order is invalid or unenforceable under
any statute, regulations, 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, order or rule, and the
remaining provisions of this order shall remain in full force and effect.
31. ENTIRE AGREEMENT: This order, together with the attachments, exhibits, or
supplements, specifically referenced in this order, constitutes the entire
agreement between Seller and Buyer with respect to the matter contained herein
and supersedes all prior oral or written representations and agreements. This
order may only be modified by a purchase order amendment/alteration issued by
Buyer.
MAY, 1986
ADDITIONAL PURCHASE ORDER PROVISIONS
LIFETIME CONTRACTS
1. Purchase of Product
-------------------
Seller agrees to sell, and Buyer agrees to purchase, approximately ___ percent
(___%) of Buyer's production and service requirements for the following product
(the "Product" or "Goods"):
Part Number Description Per Unit Price Annual Daily Tool Capacity
----------- ----------- -------------- --------------------------
2. Term
----
The term of this Purchase Order is for the "Life of the Product," which is
defined as the duration of the __ Car/Truck style presently projected to run
from 19__ through 19__ [or complete other appropriate definition - use of part
numbers is generally not recommended since they are not always consistent with
vehicle models and can differ in service application.] Paragraph 13
("Termination") on the reverse side of this Purchase Order is deleted.
3. Prices; Price Reduction
-----------------------
The per unit of this Product is for [calendar/model] year 19__, is $__, F.O.B.
[Seller's/Buyer's] Plant. This price is subject to the following minimum annual
percentage reduction from the prior year's price:
[Calendar/Model] Year 19__ five percent (5%)
[Calendar/Model] Year 19__ five percent (5%)
[Calendar/Model] Year 19__ four percent (4%)
[Calendar/Model] Year 19__ four percent (4%)
Succeeding years three percent (3%)
No adjustments will be made for cost increases, including increases in Seller's
costs for labor, material or overhead.
In addition, Buyer and Seller will use their best efforts to implement cost
savings and productivity improvements in order to reduce Seller's costs, with
the understanding that ___ percent (__%) of the net savings (after deduction of
expenditures for development, applications, engineering, tools, prototypes and
financing) will be applied to reduce the price of the Product to Buyer and the
balance will be for the benefit of Seller.
4. Supplier Quality and Development
--------------------------------
Seller agrees to participate in Buyer's supplier quality and development
program(s). In addition, Seller shall comply with all quality requirements and
procedures specified by Buyer, as the same may be revised from time to time,
including those applicable to Seller as set forth in Quality System Requirements
QS-9000.
5. Right to Purchase from Others
-----------------------------
Seller will assure that the Product remains competitive in terms of technology,
design, and quality with similar goods available to Buyer during the term of
this Purchase Order. If, in the reasonable opinion of Buyer, the Product does
not remain competitive, Buyer, to the extent it is free to do so, will advise
Seller in writing of the area(s) in which another product is more competitive
with respect to technology, design or quality. If, within (thirty to ninety)
days, Seller does not agree to immediately sell the Product with comparable
technology, design or quality, Buyer may terminate this Purchase Order and
purchase from another supplier without liability to Seller.
6. Technical Information; Waiver of Claims
---------------------------------------
6.1 Buyer and Seller will cooperate to create, maintain, update, and share
technical information about the Product and its manufacture, as needed,
without restriction and in compliance with buyer's drafting and math data
standards.
6.2 In the event Buyer exercises its right to terminate or cancel this Purchase
Order and then makes the Product or purchases the Product from another
supplier, Seller agrees not to bring any action or claim against Buyer, its
suppliers, dealers, or customers for any reason, including any claim for
infringement of patents or other proprietary rights, arising from the
manufacture, use and sale of the Product or use of the information
furnished by Seller to Buyer under this Purchase Order. Seller will secure
the necessary agreements with its employees and sub-contractors to assure
compliance with this Section 6.
7. Service Parts
Seller will sell to Buyer the product necessary to fulfill Buyer's current
model service and replacement requirements for such items at production
part pricing plus any actual cost differential for packaging. After Buyer
completes current model purchases, Seller will sell product to buyer to
fulfill Buyer's past model service and replacement requirements. The prices
for product during the first three (3) years of this period shall be those
in effect at the conclusion of current model purchases plus any actual cost
differentials for packaging. Thereafter, the prices for product shall be as
agreed upon by the parties. When requested by Buyer, Seller shall make
service literature and other materials available to support Buyer's service
part sales activities. (Revised: October, 1997)
7. Note: Date to be used is either (1) last day of first model year or (2) 12
months after start of production date - whichever is shorter. This pricing
exemption period may be extended for up to two additional model years (for a
total of three (3) years). However, exemptions with durations of more than
one (1) year must be approved in advance by your purchasing management.
Lifetime Contract
(Revised: October, 1997)
