ONNERA GROUP

Advance Purchasing

SUPPLY AGREEMENT TERMS AND CONDITIONS                                                  Direct material

Worldwide - Terms and Conditions

 

 

1.     ACCEPTANCE AND TERM OF AGREEMENT

 Any expression of acceptance of this Supply Agreement by Seller, including Seller’s commencement of work on the goods subject to the Supply Agreement or shipment of the Goods, whichever occurs first, or performance of all or any portion of the services subject to the purchase order shall constitute an acceptance of Buyer’s offer to purchase contained in the Supply Agreement, upon Planner/Buyer becoming aware of such acceptance.

Any acceptance of the Supply Agreement is limited to and conditional upon Seller’s acceptance of the express terms contained on the face of the Supply Agreement, in these Supply Agreement terms and conditions, and in any addendum, supplement, supplier manual and/or other document attached to, forming part of, or incorporated by reference in, the Supply Agreement, in each case as expressly stipulated by Buyer

In the event of any conflict between the face of the Supply Agreement and these Supply Agreement terms and conditions, the face of the Supply Agreement shall govern by quotation authorized by main office (Onnera Mexico).

 Any proposal for additional or different terms or any attempt by Seller to vary any of the terms of this Order, whether in Seller’s quotation form, acknowledgement form, invoice, correspondence or otherwise, shall be deemed material and is hereby objected to and rejected by Buyer, but any such proposal or attempted variance shall not operate as a rejection of this Order if Seller accepts Buyer’s offer by commencement of work, shipment of the Goods or performance of the Services, or by other means acceptable to Buyer, in which case this Order shall be deemed accepted by

Seller without any additional or different terms or variations whatsoever.

Seller shall be limited to the express terms contained in this Order.

Buyer may cancel all or any part of this Order at any time prior to Buyer’s actual knowledge of acceptance by Seller

Subject to Buyer’s termination rights, this Order is binding on Buyer and Seller for one year from the date the Supply Agreement is transmitted to Seller or, if an expiration date or time period is specified in this Order, until such expiration date or end of such time period.

Subject to Buyer’s termination rights, this Order will automatically renew for successive one-year periods after the initial term, unless Seller provides written notice to Buyer, no less than one hundred and eighty (120) days prior to the end of the current term, of Seller’s desire that this Order not be renewed, provided that, Buyer may extend the term of this Order for such period of time beyond the initial or current term as Buyer determines is necessary, acting reasonably and in good faith, to procure an alternate source of supply for the Goods or the Services that is acceptable to Buyer and to ensure an

orderly transition of supply.

2.     LABELING, PACKING AND SHIPMENT

The Goods are to be suitably prepared for shipment and must be labeled, packed and shipped in accordance with Onnera Mexico SA de CV specifications, as specified in this Order and/or in any written directions and/or instructions as may be provided by Onnera Mexico SA de CV to Seller from time to time. If the Goods are not shipped in accordance with Onnera Mexico SA de CV specifications, Seller shall pay or reimburse Buyer for any excess costs occasioned thereby.

Unless otherwise expressly stated in this Order, Seller shall not charge Buyer for labeling, packing, boxing or crating.

3.     DELIVERY AND PRODUCTION VOLUMES

 Time is of the essence of this Agreement. The Seller shall deliver the Goods in the quantities and on the delivery dates and times specified in this Order. Seller shall immediately notify Buyer in writing if Seller is unable to deliver the Goods in the quantities and on the delivery dates and times specified in this Order. Goods delivered in excess of the quantities or in advance of delivery dates or times specified in this Order shall be at Seller’s risk and may be returned to Seller by Buyer, and all transportation charges both to and from the original destination shall be paid by Seller.

Buyer shall not be required to make payment for any Goods delivered to Buyer that are in excess of the quantities specified in this Agreement. Unless otherwise expressly stated in this Agreement or authorized in writing by Materials Manager, Seller shall not make any commitments for raw materials or other inventory or manufacture any Goods in advance of the time necessary to permit shipments on the delivery dates.

The Buyer may on notice to Seller 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 of the Goods or the Services covered by this Agreement.

Seller warrants that any representation made in a quote or otherwise regarding its production capacity shall be considered a warranty that Seller can manufacture or produce the stated quantity of the Goods or the Services without the imposition of overtime charges or other surcharges. Seller acknowledges that any estimates or forecasts of production volumes, are subject to change from time to time, with or without notice to Seller, and shall not be binding upon Buyer. Unless otherwise expressly stated in this Agreement, Buyer makes no representation, warranty, guarantee or commitment of any kind or nature, whether express or implied to Seller in respect of Buyer’s quantitative requirements for the Goods or the Services or the term of supply of the Goods or the Services.

Unless otherwise expressly stated in this Agreement, Buyer shall not be required to purchase the Goods or the Services exclusively from Seller.

DELAYS IN DELIVERY OR ACCEPTANCE

If Seller fails or refuses to proceed with this Order or fails to deliver the Goods or perform the Services within the delivery dates and times specified in this Agreement, Buyer may, without limiting or affecting its other rights or remedies available hereunder or at law, cancel the then remaining balance of this Agreement, unless the delay is an excusable delay in addition, if Seller fails to meet the delivery dates or times of the Goods, other than by reason of an excusable delay, Buyer may, without limiting or affecting its other rights or remedies available hereunder or at law, direct expedited shipment and/or incur premium freight or transportation costs, and Seller shall pay upon demand all excess costs incurred thereby, including additional handling charges and other expenses (whether related or not) resulting . Seller shall be responsible for all other direct, consequential, and incidental damages incurred by Buyer as a result of Seller’s failure to meet the delivery dates or times, other than by reason of an excusable delay, including the cost of any line shutdown and the cost of obtaining goods from an alternate source. Buyer’s actions in obtaining substitute or replacement products shall not limit the rights and remedies available hereunder or at law.

The term “excusable delay” means any delay in making or accepting deliveries or performance which results without fault or negligence on the part of the party involved and which is due to causes beyond its reasonable control, such as acts of government or, fires, floods, epidemics, quarantine restrictions, freight, embargoes, unusually severe weather, explosions, riots, war, terrorism and delays of a supplier due to such causes.

 The term “excusable delay” shall not, however, mean or include any delay arising from or as a result of:

a) Seller’s financial difficulties

b) A change in cost or availability of materials or components based on market conditions or supplier actions affecting Seller

c) Any labor strike or other labor disruption applicable to Seller or to any of its subcontractors or suppliers that are engaged in manufacturing or providing goods or services to Seller in connection with Seller’s obligations under this Agreement

An excusable delay shall not constitute a default hereunder, provided that if Seller is subject to one or more excusable delays that persist for more than 10 days in the aggregate, Buyer may cancel the then remaining balance of this Agreement, without limiting or otherwise affecting its other rights or remedies available hereunder or at law

Seller, at its expense, shall use its best efforts to mitigate any adverse effects or costs to Buyer due to any actual or potential delay, including:

a)  The implementation of a production contingency plan

b) Upon Materials Manager’s express written authorization, increasing Seller’s inventory of finished Goods to a level sufficient to sustain deliveries during such delay.

Whenever any actual or potential delay threatens to delay deliveries or Seller’s performance under this Order, Seller shall immediately give written notice thereof to Buyer.

Such notice shall include all relevant information with respect to such delay, including the anticipated duration and impact of such delay. In addition, Seller will notify Buyer in writing: (i) at least sixty (30) days prior to the expiration of any labor agreement.

Buyer may delay acceptance of delivery of the Goods or performance of the Services by reason of an excusable delay, in which case Seller shall hold the Goods and/or delay performance of the Services, until the cause of the excusable delay has been removed.

TRANSPORTATION CHARGES, CUSTOMS DUTIES AND TAXES

Unless otherwise expressly stated in this Agreement, all Goods shall be delivered by Seller “DDP - Buyer’s plant”( as defined in Incoterms 2010), in which case:

a)     all transportation charges (including terminal switching charges) shall be at Seller’s expense;

b)    Buyer shall not be liable for any insurance, storage, parking or detention charges. Unless otherwise expressly stated in this Agreement, prices include customs duties and expenses, tariffs and all federal, provincial, state and local taxes (including all import taxes, excise taxes and sales taxes) applicable to the manufacture, sale or provision of the Goods or the Services.

c)     Any reduction in Seller’s cost resulting from a reduction in transportation charges, customs duties, import taxes, excise taxes and/or sales taxes from those in effect on the date of this Agreement shall be paid to Buyer by Seller as a reduction of the price.

CUSTOMS DRAWBACK DOCUMENTS AND EXPORT CONTROLS

Upon request, Seller shall promptly furnish to Buyer all documents and other information required for customs drawback purposes, properly completed in accordance with applicable governmental regulations, all customs drawback shall be reserved and retained.

CERTIFICATES OF ORIGIN

Upon request, Seller shall promptly furnish to Buyer all certificates of origin or domestic value-added and all other information relating to the costs and places of origin of the Goods or the Services and the materials contained therein or used in the performance thereof, as may be required by Buyer to comply fully with all customs, tariffs and other applicable governmental regulations. Seller shall comply with all such regulations.

PAYMENT

Unless otherwise expressly stated in this Agreement, Buyer shall pay net invoices.

CHANGES

Buyer reserves the right to make changes in the drawings, specifications and other provisions of this Agreement. If any such change results in an increase or a decrease in the cost of, or the time required for, manufacturing or delivering the Goods or performing the Services, an equitable adjustment may be made in the price or delivery schedule, or both and this Agreement shall, subject to the agreement of Buyer and Seller, be modified in writing accordingly.

No claim under this paragraph 11 shall be asserted by Seller after fourteen (10) days following the notification of the change by Buyer.

Seller shall not, without Buyer’s prior written authorization, make any changes to specifications, designs, materials or part numbers (or other types of identification), any major changes in processes or procedures, or any changes in the location of the facilities used by Seller for the performance of its obligations under this Agreement.

PRICE WARRANTIES

Seller warrants that the prices for the Goods and the Services are and shall remain not less favorable to Buyer than the prices currently extended to any other customer of Seller for the same or substantially similar goods or services in the same or substantially similar quantities and delivery requirements. If Seller reduces the prices of such same or substantially similar goods or services during the term of this Agreement, Seller shall reduce the prices of the Goods and the Services correspondingly.

Seller warrants that the prices in this Agreement shall be complete, and no surcharges, premiums or other additional charges of any type shall be added, without Buyer’s prior written consent.

Seller expressly assumes the risk of any event or cause (whether or not foreseen) affecting such prices, including any foreign exchange rate changes, increases in raw materials costs, inflation, increases in labor and other manufacturing costs.

DEFECTIVE OR NON-CONFORMING GOODS OR SERVICES

If any of the Goods or the Services fail to meet the Seller’s Warranties, Seller shall, upon notice thereof from Buyer at any time, promptly repair, replace or otherwise satisfactorily deal with the same in a manner acceptable to Buyer, all at Seller’s expense and without limiting or affecting Buyer’s other rights or remedies available hereunder or at law. The Seller’s Warranties shall also apply to such repaired, replaced or otherwise satisfactorily dealt with the Goods or the Services.

If Seller fails to repair, replace or otherwise deal with any defective or non-conforming Goods or Services in a manner acceptable to Buyer, Buyer may, without limiting or affecting Buyer’s other rights or remedies available hereunder or at law, cancel this Agreement as to the particular Goods or Services and/or cancel the then remaining balance of this Agreement.

After notice to Seller, all defective or non-conforming Goods shall be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such defective or non-conforming Goods to Seller at Seller’s risk, and Seller shall promptly pay, upon Buyer’s demand, all transportation and other applicable charges, both to and from the original destination.

Any payment made by Buyer for defective or non-conforming Goods or Services shall be refunded by Seller, except to the extent that Seller promptly replaces or corrects the same at Seller’s expense.

INSPECTION AND QUALITY CONTROL

Buyer has the right to inspect any and all of the Goods, both prior to and after making payment therefore. Seller acknowledges and agrees that Buyer may choose not to perform incoming inspections with respect to the Goods, without prejudice to any rights or remedies available to Buyer hereunder or at law, and Seller waives any rights to require Buyer to conduct such inspections.

Buyer also has the right to inspect or test all materials and workmanship utilized by Seller in the performance of this Agreement, and Seller shall permit such inspection or testing by Buyer and/or the Customer to the extent practicable at all times and places, including during the period of manufacture. If any such inspection or testing is made on Seller’s premises, Seller shall provide, without additional charge, all reasonable facilities

and assistance. Inspection and approval at Seller’s premises does not preclude rejection or other relief for any defects subsequently discovered. Seller shall provide and maintain, without additional charge, a testing and inspection system (which shall include documented quality control and reliability procedures) acceptable to Buyer covering the materials and workmanship utilized in the performance of this Agreement.

 

MODIFICATIONS

No modification of this Agreement, including any waiver of or addition to any of these terms and conditions, shall be binding upon Buyer, unless made in writing and signed by Buyer’s authorized representative.

Buyer may modify these Supply Agreement terms and conditions with respect to future Supply Agreements, at anytime and from time to time, by posting revised terms and conditions to its internet website, as specified on the face of the Supply Agreement, and such revised Supply Agreement terms and conditions shall apply to all Supply Agreements issued thereafter.

RIGHT TO AUDIT

Seller grants to Buyer and to Buyer’s authorized agents and representatives access to all pertinent information, including books, records, payroll data, receipts, correspondence and other documents, for the purpose of auditing Seller’s charges under this Agreement. Seller will preserve such information for a period of two (1) years after the final payment under this Agreement. In addition, all work, materials, inventories and other items provided for under this Agreement must at all times be accessible to Buyer and to Buyer’s authorized agents and representatives, including parts, tools, fixtures, gauges and models. Seller will segregate its records and otherwise co-operate with Buyer so as to facilitate any audit pursuant to this paragraph

TERMINATION UPON SELLER’S DEFAULT OR CHANGE OF CONTROL

Buyer may terminate this Agreement, in whole or in part, for default occasioned by Seller’s:

a) Breach of any terms of this Agreement;

b) Failure to perform in accordance with the requirements of this Agreement

c) Failure to make progress so as to endanger timely and proper delivery of the Goods or completion of the Services

In each such case, Seller does not correct such breach or failure within (15) days (or such shorter period of time as Buyer may determine, if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such breach or failure. Seller shall be liable for all costs, damages and expenses caused by or resulting from its default under this Agreement.

 

ENTIRE AGREEMENT

This Agreement contains the entire agreement between Buyer and Seller and, except as otherwise expressly stated in this Agreement or in any prior written agreement, supersedes all prior agreements, orders, quotations, proposals and other communications relating to the subject matter hereof. There are no understandings or agreements, verbal or otherwise, in relation hereto that exist between Buyer and Seller, except as otherwise expressly stated in this Agreement