General Purchasing Agreement For New Store Europe Deutschland GmbH,
General Purchasing Agreement For New Store Europe Deutschland GmbH, 37213 Witzenhausen, HRB Nr. 2532, AG Eschwege, Stand August 2010 Table of content I. II. III. IV. V. VI. VII. VIII. Objectives of the agreement ..............................................................................................................................3 Orders and deliveries .........................................................................................................................................3 Quality ................................................................................................................................................................4 Prices and payment terms..................................................................................................................................4 Confidentiality and Exclusivity ............................................................................................................................5 Premature termination ........................................................................................................................................5 Duration of agreement........................................................................................................................................5 Closing provision ................................................................................................................................................6 Appendix 1: Contact information in NSE Companies .....................................................................................................8 Appendix 2: Sign Off Document ......................................................................................................................................9 Appendix 3: General Terms for orders and deliveries ..................................................................................................10 Appendix 4: Responsibility for quality, product liability and tools..................................................................................12 Appendix 5: Code of Conduct New Store Europe.........................................................................................................14 General Purchasing Conditions for New Store Europe page 2 (15) I. Objectives of the agreement This agreement is entered into between New Store Europe Deutschland GmbH (NSE) and The SUPPLIER. Any orders between the SUPPLIER and any of the members of New Store Europe shall be comprised by this agreement, unless explicitly agreed in writing. All companies partly or fully owned by NSE is considered as members and included in this agreement. The member-companies in NSE can be drawn from Appendix 1. The SUPPLIER is responsible for securing that all deliveries of goods and services, including those from subcontractors are made fully in accordance with this agreement. All price offering, ordering, deliveries, responsibilities and invoicing shall be done according to this agreement. II. Orders and deliveries All inquiries shall be given in writing, and shall be given a response within 3 working days, unless other instructions are given. Prior to production start the product drawings and description shall be approved by both parties, with date and signature on the drawings and a Sign Off document (as set in Appendix 2). The production of prototypes (if any) shall be approved by NSE prior to production, and any cost for prototypes to be charged to NSE shall be agreed upon in writing. All ordering and confirmations shall be done by e-mail, with a reference number that shall be used in all documents. First time ordering of products shall be confirmed by the SUPPLIER within 3 working days, and repetitive orders to be confirmed within 1 working day.. The SUPPLIER is responsible for, and shall control that drawings are correct according to the purchase order. NSE has the right at any time to improve or otherwise alter product drawings and descriptions (“specifications”). Altered and/or revised specifications shall replace any previous Sign Off document or specification upon the SUPPLIER’s confirmation of drawings and specifications, and NSE’s accept of consequences (price and delivery date). All orders shall be delivered according to the date confirmed in the order confirmation given by the SUPPLIER. All orders and deliveries shall be made according to Appendix 3; General terms for orders and deliveries. In the event of a late delivery of a product caused by the SUPPLIER, NSE is entitled to: a. completely or partly terminate the purchase of the total order, and i. make substitute purchases from other suppliers. The SUPPLIER shall compensate NSE’s direct and indirect losses and damages arising out of or relating to the late delivery, or ii. invoice 10 % of the total order value for delays exceeding 48 hours. In addition the SUPPLIER shall cover any extra transport cost accrued due to the delayed deliveries. b. Which alternative to be used will be decided by NSE, at its sole discretion.. If there is a need for prioritizing deliveries due to delay or lack of capacity with the Supplier, the responsibility for the deciding any prioritizing is NSE’s. Should NSE cancel, wholly or partly, or fail to call off a quantity of a product for which NSE ordered, NSE shall compensate the SUPPLIER for reasonable costs relating to a cancelled or non-called quantity. In calculating such costs the SUPPLIER shall not receive compensation to the extent that the product - or components, semi-manufactured items or raw materials intended for it - can be used for other deliveries to NSE or another party. No claim can be made based on prognosis. General Purchasing Conditions for New Store Europe page 3 (15) III. Quality The SUPPLIER shall provide and maintain a Quality Assurance System (QAS) approved by NSE. NSE shall be entitled to, after notification, to inspect the SUPPLIER’s QAS, the production of products, perform tests and make other necessary examinations at the SUPPLIER’s premises. The SUPPLIER shall strive to agree with their subcontractors that NSE shall be granted the same right at their premises. All production for NSE shall be in accordance with the aspects of NSE’s Code of Conduct, Appendix 5. NSE inspections may include audits related to the principles stated in NSE’s Code of Conduct. The SUPPLIER shall, prior to delivery of a new or changed product, perform quality control. Furthermore, the SUPPLIER shall ensure that all requirements regarding security and testing are fulfilled. Once a sample has been approved by NSE no alteration of the function, specifications, appearance, characteristics, material, production method, place of manufacture, type bound tooling or other equipment which may affect the product, may be done without the written approval of NSE. Delivery may thereafter be made only after renewed approval of a sample. Any variations from the approved product may lead to a claim of defect. NSE may claim a defect when NSE submits a notice about the defect to the SUPPLIER within twenty-four (24) months from the date of delivery. The above-stated time limit shall however not apply, should there be a risk of personal injury or damage to property other than the defective product, or of a repetitive defect. Responsibility for quality, product liability and tools are further described in Appendix 4. IV. Prices and payment terms The prices given are fixed for the first 12 months after acceptance. Prices include environmental tax. All prices are exclusive of VAT. Any extra cost for packing and/or packaging shall be agreed upon in advance. Starting with the 6th month after acceptance the prices stay valid for the agreed period, unless one of the following applies: 1) Price variations of raw materials +/- 10 % in comparison to the raw material price at the date of the tender trigger a negotiation with three month notice. a. The following Index will be used as reference for steel products: European Hot Rolled Coil prices for the month of the tender, based on the statistics from MEPS (INTERNATIONAL) LTD.IN TERNATIONAL) PS (INTERNATIONAL) LTD 2) Currency variations +/- 10 % in comparison to the exchange rate at date of the date of the tender trigger a negotiation with one month notice. If price negotiations as mentioned are not successful NSE may terminate the order(s) affected by a demand for price increase. NSE shall pay the SUPPLIER’s invoice within ninety (90) days from the day of complete delivery. The invoice must be correctly addressed, and include all other information as stated in Appendix 3, section 3. The agreed delivery shall be in accordance with “INCOTERMS 2000/2010”. Unless otherwise agreed, the delivery clause shall be “FCA”, Free Carrier at the SUPPLIER’s factory. The SUPPLIER shall recommend transport supplier, and give price inquiries for the deliveries. Upon NSE’s request the SUPPLIER shall book the transport, without any administration fee applying. General Purchasing Conditions for New Store Europe page 4 (15) V. Confidentiality and Exclusivity All products and specifications based on NSE’s initial idea and drawings shall be the property of NSE. The SUPPLIER may not use such ideas, designs and products with regard to production for third parties without NSE’s written consent. The SUPPLIER is aware that production for his own account or for that of a third party is not allowed when NSE holds the property right to a product or its specification. All information, equipment, know-how and technical documentation, including electronically stored data and computerized geometry’s to which a party has obtained access through the parties’ business relationship, shall for the duration of the General Purchase Agreement and for five (5) years thereafter shall be treated as confidential. It may not be shown to or in any other way communicated to or used by others than such personnel of either of the parties that are directly involved in the implementation of the deliveries to NSE. Copying or reproduction of such confidential information is permitted only within the framework of the fulfillment of a party’s obligations and with regard to the copyright laws and the regulations in this agreement. The SUPPLIER shall at NSE’s request either return or destroy everything referred to in this section, including copies thereof. The SUPPLIER and his subcontractors may only after written consent from NSE, make public the business relationship of the parties through advertising or in any other way. VI. Termination for cause A party is entitled to terminate the General Purchasing Agreement with immediate effect and without any liability for compensation due to such termination if: a) the other party is declared bankrupt, goes into liquidation or for any other reason can be assumed to have become insolvent; or b) the other party or their owners enters into negotiations for sale, merger or other close cooperation with a competitor to the first party, or such acquisition is actually agreed. This applies to any third party directly or indirectly connected to such competitor, c) one of the parties does not comply with this agreement, and does not repair such default within 2 weeks after being warned of the default. Termination according to this provision shall be done without unreasonable delay after such circumstance becomes known to the party or should have become known to the party. VII. Duration of agreement This agreement takes effect upon its signing by both parties, and remains valid until it is terminated by either party in writing with a notice period of three (3) months starting from the beginning of the month after the notice is given. General Purchasing Conditions for New Store Europe page 5 (15) VIII. Closing provision The Appendixes mentioned in this agreement are constituent parts of the agreement. a) Amendments of this agreement require written form. b) Should a provision of this agreement prove to be invalid or become invalid, the remainder of the agreement shall remain unaffected by this. Instead of the invalid condition or invalid part of a condition, a valid condition shall be applied which most closely approximates to the original legal and economic intent of the wholly or partially invalid condition. c) The place of jurisdiction is the court having jurisdiction for NSE’s principal place of business. NSE shall also be entitled however, to take legal action at the court having jurisdiction where the Supplier’s principal place of business is based. d) The agreement is governed by German law. Witzenhausen, 2010-10-07 Place and date New Store Europe Deutschland GmbH SUPPLIER Name Name …………………………………………….. ……………………………………………… General Purchasing Conditions for New Store Europe page 6 (15) Appendix Appendix 1: Contact list for the NSE Companies Appendix 2: Sign Off document Appendix 3: General terms for orders and deliveries Appendix 4: Responsibility for quality, product liability and tools Appendix 5: Code of conduct, New Store Europe General Purchasing Conditions for New Store Europe page 7 (15) Appendix 1: Contact information in NSE Companies (“members”) General Purchasing Conditions for New Store Europe page 8 (15) Appendix 2: Sign Off Document Agreed between New Store Europe and ………………………………………………………… 1. New Product (name): ………………………………………………………… 2. Product number: ………………………………………………………… 3. Drawing number: ………………………………………………………… 4. Price: ……………………. 5. Lead time in days from the SUPPLIERS warehouse, counted from placing the purchasing order: ……………………………………………………… 6. Normal batch size: ……………………………………………………….. 7. The above is approved by the responsible manager: The SUPPLIER: Date: ……………………. Sign: ………………………………………. 8. This document replaces document signed by ………………………………………….……….. and ………………………………………………. As an appendix to the Sign Off document there shall always be drawings signed and approved by both parties. General Purchasing Conditions for New Store Europe page 9 (15) Appendix 3: General Terms for orders and deliveries New Store Europe 1. Order 1.1. Inquiry and prices Inquires shall include description of the product or reference to drawings, description of measures, choice of material and quality, an estimate of the number of products per call off and number of call offs. The SUPPLIER’S reply to an inquiry shall include a tender offer or other price offer. 1.2 Prognosis New Store Europe has set a target to work with prognosis and buy parts either in bulk or store packed. When it is possible a prognosis will be sent to the SUPPLIER 6-12 weeks prior to the first delivery together with a delivery plan depending on the specific agreement per article. This means that the SUPPLIER takes responsibility to plan production of articles according to the prognosis and delivery plan. Articles must be ready for delivery the week that is set as a First call off week in the block order. The use of prognosis will make it possible for the SUPPLIER to plan the production and the purchasing of raw material in a way that will secure production and a short lead time. The prognosis is indicative, and not with the apprehension of a confirmed order. 1.3 Purchase- / Call off order A purchase order will be sent to the SUPPLIER for each project to be delivered. The purchase order will include approval of the price offered in the reply to the inquiry or in other price negotiation between the parties. The call off order/purchase order will include the following information: marking of the goods, delivery address, articles, quantities, drawing reference number and requested delivery date. Special packing instructions will follow the purchasing order when needed. SUPPLIER is required to send a confirmation back to NSE to confirm the delivery date. Confirmation of orders shall be made to the NSE project coordinator who has sent the order, within the timeframe stated in the General Purchase Agreement. 1.4 Delivery Confirmation When the delivery is being sent the delivery note should also be faxed or e-mailed to the project coordinator that sent you the order and to the delivering address. This must be done the same day as the transport pick up is done and should include the number on the CMR Freight Document. 2. Packing & Shipment Labeling The pallet labels should include: - SUPPLIER Name and number stated on our purchase order towards You - Our delivery address, stated on our purchase order - SUPPLIER’s article number - Article description - Quantity - Net kilo - Gross kilo - Date of shipment departure - Delivery Note number Shape of the pallet card should be A4 or A5 size and must be attached to the short end of the pallet. On smaller packages it should be attached well visible. For articles where packing instructions are not stated you should use General Purchasing Conditions for New Store Europe page 10 (15) - Cartoons for small items or Standard EUR pallet 1200*800 or 600*800 for larger items If the goods are larger than the pallet, use board on the pallet covering the size of the goods or use special pallet made for the actual goods. If a board is used, it must be attached to the pallet. Use pallet frames or corrugated cardboard for protection around the goods. Foam or sheets of paper should be used, when needed, between each article to avoid scratches or other damages. Use corner protection on each corner around all pallets if not frames are used. Wrap film around to protect against rain on each pallet. All goods should be secured to the pallets with straps. Do not use any tape directly on the product. All packaging material should be neutral, without labeling from the Supplier. 3. Documentation Delivery Note: On one of the pallets there should be a delivery note with collected information of what is in the delivery. The delivery note should be attached to pallet No.1. The delivery note must contain: - Purchase order from us - Our part number stated on the purchase order - Quantity of parts - Quantity of collies - Gross kilo - Delivery location - Pro forma Invoice (only applicable for deliveries from non EU-countries) The SUPPLIER shall upon delivery supply NSE with an export certificate or its equivalent containing among other things details of the origin of a product delivered and - in relevant instances – its EU or EEA value. Invoice The invoice should be sent to our postal address and must contain the following information: - Purchase order from us - Our reference - Our part number stated on the purchase order - Quantity of parts - Price per article - Sum - Payment condition - Delivery location - Delivery conditions General Purchasing Conditions for New Store Europe page 11 (15) Appendix 4: Responsibility for quality, product liability and tools Quality The SUPPLIER guarantees that the products supplied are free from defects. A product shall be considered defective if it: (i) in any respect deviates from the technical specification, (ii) does not fulfill the characteristics that the SUPPLIER has referred to through samples, prototypes or in offers and orders. The SUPPLIER is obliged to immediately inform the goods receiver and the responsible purchasing department at NSE of any defective products. The quality assurance system shall ensure the quality of the products throughout the manufacturing process. It shall cover the purchase of parts and raw material, production and all logistics needed for the manufacturing process. This also includes the quality inspection of raw materials, the quality assurance in the production as well as the final inspection of the finished products before shipment. An accepted Quality Plan shall be implemented in advance of all activities in the SUPPLIER organization throughout production until closing of the call-off/purchase order. Liability for defects or shortcomings 1. In the event that a product is defective or a delivery does not contain the agreed quantity, then NSE shall be entitled to demand immediate compensation, or demand immediate delivery of substitute product(s). 2. If a defective product cannot be repaired or replaced without delay by the SUPPLIER or there is a risk of production disturbances or delivery disturbances from NSE due to such defects, then NSE shall be entitled without obtaining the SUPPLIER’s consent, to make the necessary repair work or completely or partly terminate the purchase of the product. 3. In addition to what is set forth in sections 1) and 2) above, the SUPPLIER shall compensate NSE for any loss, cost or damage, direct as well as indirect, arising out of or relating to the defect or shortcoming in delivery, including but not limited to costs for assembly and disassembly, detection and analyze, scrapping and transportation. 4. It is in the interest of both parties to discuss problems, if any, and solve these before applying sanctions against the counter-party. Both parties are obliged to try to solve the problems on the costs as low as possible. 5. If NSE due to a delivery of a defective product considers it necessary to inspect all products of the same kind delivered by the SUPPLIER, NSE is entitled after giving the SUPPLIER notice thereof to make such inspection at the SUPPLIER’s expense and without awaiting the SUPPLIER’s approval. The notice shall describe the nature of the defect as well as the time and place of the inspection. If possible, the SUPPLIER shall be present at the inspection. 6. When a claim is presented on account of a loss or damage, NSE shall immediately notify the SUPPLIER accordingly and the parties shall undertake the investigations that are called for in order to defend such claims in the best possible way. At NSE’s request the SUPPLIER shall also assist NSE in the event of any dispute. 7. If there is a risk of a product causing personal injury or property damage due to a product being defective, and NSE for this reason decides to recall a product, the SUPPLIER shall compensate NSE for its costs in conjunction with such recall. 8. The SUPPLIER shall enter into and during the period of the Purchase Agreement maintain sufficient liability insurance and shall at NSE’s request also supply NSE with a copy of the insurance certificate. The SUPPLIER’s insurance shall i.e. cover damage to third parties and third parties’ property, including cover for the risk of a product recall. The insurance coverage shall be at least the total order value, up to 1 million Euros. General Purchasing Conditions for New Store Europe page 12 (15) Type bound tooling Type bound tooling shall be subject to the following: 1) The SUPPLIER shall establish a register, accessible to NSE, of all type bound tooling. 2) The SUPPLIER shall, at his own initiative and at his own expense, maintain type bound tooling in such a way that the specifications are complied with. 3) In the event that type bound tooling requires renewal, the SUPPLIER shall notify NSE or NSE member thereof in due time. 4) NSE or NSE member shall be entitled to acquire for a reasonable charge the type bound tooling as it’s owned by the SUPPLIER when deliveries of the relevant product to NSE member for serial production shall cease. 5) The SUPPLIER shall ensure that type bound tooling is stored in a safe and adequate manner and that it is insured for an amount equivalent to its replacement cost. 6) Type bound tooling may not be destroyed or scrapped without NSE member’s written consent. Type bound tooling that is the subject of intellectual property right(s) may furthermore not be copied without the consent of the owner of such intellectual property right(s). In addition, the following applies to type bound tooling owned by NSE member: 1) The SUPPLIER shall mark type bound tooling in such a way that NSE’s ownership is clearly shown and shall inform insurers as to the fact of NSE’s ownership. 2) Without NSE’s written consent the SUPPLIER may not use type bound tooling owned by NSE for production for his own account or that of any third party. 3) An invoice related to type bound tooling ordered by NSE shall not be issued until the day when the type bound tooling has been approved by NSE. General Purchasing Conditions for New Store Europe page 13 (15) Appendix 5: Code of Conduct New Store Europe NEW STORE EUROPE CODE OF CONDUCT l version 1.0 New Store Europe Code of Conduct represents our ethical guidelines for corporate responsibility and personal commitment Our Code of Conduct is closely linked to Vision Mission Core values Why a Code of Conduct? The Code of Conduct refers to the responsibility we have as a group and what employee behavior we demonstrate in the markets and relations in which we operate. We want to signal to customers, suppliers, employees and surroundings what ethical pillars New Store Europe is based on as a company. Every day we are exposed to challenges and difficult choices as a natural part of our business. These choices and decisions shall be based on our common corporate ethics, as described in our Code of Conduct. The Code of Conduct applies to all employees in New Store Europe companies. Topics General principles Marketplace behavior Employee conditions Environment Corporate commitment General principles New Store Europe has responsibilities as members of an international community and towards the countries and local environments in which we operate. Our way of doing business is therefore characterized by; > The respect of and compliance with international conventions and the United Nations Universal Declaration of Human Rights > The compliance with legislation and justice regulations in the countries where we do business > Within the sphere of influence we aim to ensure that all actors and partners in our value chain seek to abide by the principles in the New Store Europe Code of Conduct Marketplace behavior New Store Europe has compliance with competition laws and commitment to avoid anti-competitive actions that might harm democratic, economical and social development in the countries and communities in which we operate. > We strive to do business with a high degree of integrity > We comply to avoid any actions contrary to current competition laws, including corruption, bribery and unfair anticompetitive actions > We do not solicit or accept any undue payments > We do all financial transactions correctly according to local and international laws and regulations > We are obligated to treat customers and suppliers in an equal manner. We respect both customers and suppliers intellectual property rights, the same way we expect them to treat us Employee conditions It is of great importance for New Store Europe to build a strong and consistent relationship to all employees based on mutual respect and dignity. > Employment conditions offered to employees will at least meet minimum requirements of national legislation and relevant ILO (International Labour Organization) conventions > We do not use any involuntary labour or child labour > We provide a safe and healthy working environment for all employees General Purchasing Conditions for New Store Europe page 14 (15) > We do not tolerate any discrimination or harassment and provide equal opportunities for all without regard to gender, nationality, religion or other distinguishing characteristics > We respect the right of all employees to form and join unions of their choice > Information received from the company as well as from customers and suppliers should be respected and handled with confidentiality Environment This topic describes New Store Europe’s environmental policy. Our target is to work for a more sustainable society and to reduce the negative influence on the environment in all our processes. > We always economize with our resources > We provide environmental information and education to all employees in the group > We conduct an open and honest dialogue with customers and suppliers > We evaluate our development each year and work with continuous improvements > We see laws and regulations as minimum requirements Corporate commitment New Store Europe expect the following commitment from all our employees; > We expect all employees to act according to group values, policies and guidelines as a part of the New Store Europe Group > We aspire for quality in every relation and operation of which we are a part > We expect all managers to be aware of their status as role models for their employees and act accordingly > We support initiatives for professional development, continuous learning and improvements that benefit our company > We support a culture for knowledge sharing and use each others experience as much as possible General Purchasing Conditions for New Store Europe page 15 (15)
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