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GENERAL PURCHASE ORDER CONDITIONS
The Company is Volkswagen Autoeuropa – Automóveis, Lda, a company incorporated
under the laws of the Republic of Portugal with its registered office at Quinta da Marqueza,
parish of Quinta do Anjo, municipality of Palmela, Setúbal, Portugal.
These General Purchase Order Conditions shall be fully applicable and binding upon any
purchase of goods/provision of services requested by the Company thus governing the legal
relationship between Supplier and the Company.
1.
ACCEPTANCE
(a)
The Company’s Purchase Order shall only be valid if made on the proper forms,
duly numbered and authorised with the name of Company’s representative;
Purchase Orders shall be deemed to have been accepted by the Supplier subject to
these General Terms and Conditions upon commencing any work, deliver any
goods or provide any services, whereupon the Supplier shall not be entitled to make
any objection or observation with respect to such Orders or to these General Terms
and Conditions.
These General Terms and Conditions shall always prevail over those of Supplier.
No terms of sale or supply of the Supplier which differ from or contradict these
General Terms and Conditions shall be binding on Company, unless expressly
accepted in writing.
The Purchase Order, together with any written instructions issued by the Company
in development thereof or with any agreement signed by both Parties, shall contain
the complete and final agreement between the Company and the Supplier, and no
other agreement or understanding in any way purporting to modify the rights and
obligations thereof shall be binding upon Company unless expressly accepted by
Company in writing or subsequent to the date of the Order.
The Purchase Order has the purpose of allowing the Company to purchase
goods/hire services, on a non-exclusivity basis thus not precluding the right of the
Company to contract, total or partially, with other suppliers for the acquisition of
identical goods/services, in particular in case of delay or non-fulfilment, even if
partial, of the Seller in the compliance of the obligations arising from the
agreement, either causing or not the termination of the same by the Company.
(b)
(c)
(d)
(e)
2.
Purchase Orders: Order, Blanket Purchase Order, contract/agreement ”on
request” and Release Authorisation
These General Terms and conditions are applicable to any agreement of purchase of
goods/provision of services.
The term “Order” shall be construed to mean a single purchase and sale/services
agreement, under which Company acquires goods/obtains the rendering of services
in exchange for a certain price. A “continued supply/services agreement” or
multiple purchase agreement is an agreement under which a series of supplies is
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purchased/the services are rendered based on two documents: the Blanket Purchase
Order or the Contract/Agreement “on request” and the Release Authorisation.
The term “Blanket Purchase Order”/ Contract/Agreement “on request shall mean a
preliminary agreement under which the Company and the Supplier agree to the
identification of certain gods/services, the price thereof and the availability, supply
and provision of the same by the Supplier, but without specifying the actual
quantities of goods/services and/or delivery/completion dates. In such cases, by
means of Release Authorisation issued by the Company, Supplier agrees to provide
a certain quantity of goods/services on specified delivery/completion dates, on the
understanding, unless otherwise stipulated in said Release Authorisation, that the
Company shall be under no obligation to acquire or receive a minimum quantity of
goods/services.
Supplier shall not deliver/provide to the Company any goods/services covered by
Blanket Purchase Orders / Contract/Agreement “on request” except upon receipt of
written instructions or Release Authorisation furnished to the Supplier by the
Company. Company shall accordingly accept no responsibility for the delivery of
goods/provision of services in respect to which it has specified no quantities and/or
delivery/completion dates. Supplier agrees that the Company may, due to its own
production requirements, change or temporarily suspend the request of
goods/services specified in any Release Authorisation, written instructions or Order.
3.
OBLIGATIONS OF SUPPLIER
The Supplier undertakes to:
(a) Deliver the goods/execute the services in compliance with the standard quality
levels of the Company;
(b) Correct, at his own cost, all defects, vices and mistakes regarding the works and the
goods/services;
(c) Observe all applicable legal regulations, whether relative to its activity and in
particular the delivery of goods/execution of the services, complying with all
technical, fiscal, administrative, labour, corporate, environmental or any other
obligations and regulations in accordance with Community and Portuguese
applicable Law;
(d) Comply with all rules or instructions of a general nature issued by the Company
concerning the operation, organisation, health and safety in its premises, in
particular the “Instructions, Rules and Procedures for External Companies” and the
“Instructions and Procedures of Certifications ISO 9002 and ISO 14001”;
(e) Accept entire responsibility for all and any damages and losses (either patrimonial
or non-patrimonial) caused by it or by its employees, collaborators and/or
subcontractors as a result of or within the delivery of goods/execution of the
services;
(f) Assume entire responsibility before the Company for any losses and or damages it
may suffer in result of any delay or total or partial contractual non-fulfilment which
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are attributed to Supplier, in particular the ones resulting from the total or partial
breakdown of the production of the Company and its consequences;
(g) Assure, in any circumstance, the timely, complete, and continuous delivery of
goods/provision of the services even in the event of strike by either the employees
of the Supplier or by any of the employees of the sector of activity to which the
Supplier belongs, so that the delivery of goods/execution of the services are not, in
any way, disturbed, delayed or impaired;
(h) Observe and comply with any and all legal regulations governing environmental
protection and pollution control, in particular with the Company’s Environmental
Policies as well as with procedures and instructions adopted in the Company’s
premises under the ISO 14001.
4.
COMPETITIVENESS
(a)
During the validity of this agreement, any of the parties shall be entitled to proceed
with benchmarks in order to compare the price of the goods/services with the
market conditions, including as regards quality.
Should the Company find during the validity of this agreement another solution,
totally or partially, comprising the goods/services object of this agreement in
competitive terms, including price, quality and/or delivery of the same, the
Company shall consult with the Supplier in order to ascertain whether the Supplier
is able to meet the proposed terms and conditions and the Parties must agree on a
economical and operational adequate solution. Should that not be the case, the
Company shall be entitled to procure equivalent goods/services, totally or in part,
from third parties, the scope of this agreement being automatically reduced, no
compensation or indemnity being due by the Company to the Supplier on whatever
grounds.
Without prejudice of the provisions of the previous paragraph, the Company may
legally terminate this agreement on the grounds of this Clause, by means of a
written notice for the purpose addressed to the Supplier with a prior notice of 60
days regarding the date in which the termination shall produce its effects.
In case of decrease or increase in the volume of production of the Company it
reserves the right of decreasing or increasing the volume of the goods/services
object of this agreement
(b)
(c)
(d)
5.
DURATION OF AGREEMENTS
Orders and Release Authorisations shall be carried out immediately in accordance
with their terms, and shall specify the dates of delivery in case of goods or of
completion in case of services.
Blanket Purchase Orders and Contracts/Agreements “on request”, unless otherwise
specified, shall be deemed to have a duration of twelve months as from effective
order date, and shall be renewable automatically from year to year, unless any of the
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parties is notified in writing that an extension on the same conditions will not be
made.
Upon the expiration of the duration of the agreement, or of any extension thereof,
Company’s and Supplier’s obligations shall be limited to the terms of the Purchase
Order and/or any Release Authorisations issued as well as to the present Terms and
Conditions. Unless otherwise agreed any Release Authorisations sent to Supplier
during the terms of validity of a Blanket Purchase Order or of a Contract/Agreement
“on request” shall be complied with in accordance with their terms and with the
terms of such Order/Contract/Agreement even if the delivery of goods/provision of
the services and payment thereof take place after the expiration of the term of
validity of the agreement.
6.
PACKING, MARKING, SHIPPING AND FREIGHT
(a)
All supplies made to the Company shall be packed, marked and shipped in
accordance with the requirements of the carrier and of the Purchase Order or other
written instructions of the Company, but care shall be taken to ensure that
transportation costs generally are kept to the minimum. The Supplier agrees to
direct the carrier to route shipments in accordance with the Company’s instructions.
If transportation costs, within the aforesaid limitations, are not the minimum
obtainable, the difference shall be borne exclusively by the Supplier.
All freight or transportation charges shall be deemed to be incurred, paid or owned
by and at the risk of the Supplier, and the cost thereof shall be always considered to
be included in the price, unless otherwise specified or agreed in writing by the
Company. Any transportation costs paid by the Supplier for which the Supplier, by
prior written agreement by the Parties, is entitled to reimbursement shall be added to
the Supplier’s invoice as separated item and the receipted freight bill shall be
attached thereto.
Unless otherwise agreed in writing by the Parties, no charge shall be invoiced by the
Supplier for containers, crates, boxes, baling, stowage, internal transport or storage.
Unless otherwise agreed, delivery of goods purchased shall in all cases be
understood to be made free of charge at the Company’s Plant in Palmela, Portugal.
In those cases where the Supplier supplies goods from outside Portugal such goods
shall be understood to be “delivered free of charge” (DDU) at said Plant, provided
only that any expenses incurred in respect of customs duties and import taxes shall
be payable by the Company. The Supplier shall bear any risks to which the goods
may be subject until their delivery to the Company. Ownership shall pass to the
Company with the risk.
Notwithstanding the provisions of paragraph (a), (b), (c) and (d) above, the Supplier
shall also comply in all packaging, marking and shipping and freight operations
with any and all applicable Portuguese and Community legal requirements.
(b)
(c)
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7.
DELIVERIES/PROVISION OF SERVICES - EXCUSABLE DELAYS
(a)
Delivery and completion terms and dates shall be of the essence of the agreement.
If, prior to the date on which performance is due, Supplier foresees any difficulties
arising with regard to the delivery of goods/provision of services, or if
circumstances beyond Supplier’s control prevent delivery of goods or provision of
the services by the agreed date, Supplier shall inform the Company immediately,
but (notwithstanding the provisions set out at (b) below) without Supplier being
hereby released from any liability towards the Company from any and all damages
and/or losses which may be caused by Supplier’s wilful or negligence act or delay.
While such circumstances continue, Company shall be entitled to procure the
ordered goods/services from any other source and to reduce to the same extent, and
without any liability, the quantity of goods/services specified in the Orders.
(b) Neither party shall be liable for any failure to comply with these General Terms and
Conditions arising from causes or events beyond its reasonable control provided the
same are not due to the fault or negligence of such party.
8.
PRICE / REMUNERATION AND PAYMENT TERMS
(a) Apart from the prices/remuneration agreed by the Parties and specified in the
Purchase Order, no other payment or price shall be due by the Company to Supplier
under this agreement at any title whatsoever.
(b) The prices/remuneration shall be fixed and not be revised during the validity of the
agreement.
(c) The price specified in the Purchase Order shall be deemed, in the absence of any
indication to the contrary, to include all taxes lawfully payable, except Value Added
Tax (VAT), which Supplier shall specify separately on its invoice.
(d) Invoices received and posted/accounted by Volkswagen Autoeuropa in a specific
month are payable on the 27th of the following month, upon confirmation of the
services rendered or goods delivered. All supplier invoices must be sent to the
Accounting Department of Volkswagen Autoeuropa at the following address:
Volkswagen Autoeuropa - Automóveis, Lda. - Accounting Department, Quinta da
Marqueza - 2951-510 Quinta do Anjo, Portugal ".
(e) The non-fulfilment of the above mentioned formalities may cause delays in the
payment, which shall not be considered responsibility of the Company.
(f) In the event of defective delivery/performance, the Company may refuse payment
and shall be entitled to withheld an appropriate amount until such time as the
defective goods have been replaced or due performance has been made.
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9.
TERMINATION
Delivery of goods/performance of services specified in Purchase Orders may be
terminated by Company at its option, in whole or in part, at any time by written
notice to the Supplier, in particular in case of delay and/or non-fulfilment by the
Supplier of any of its obligations arising from this agreement, after Supplier enters
into a situation of bankruptcy, suspension of payments or insolvency, or if a
receiver of some or all of its assets is appointed or if it compounds or makes any
arrangement with its creditors to facilitate the orderly sale or liquidation of its
assets, as well as in any other similar circumstances.
10.
CHANGES
(a)
By issuing a written Purchase Order Amendment, Company may modify at any
time, among others:
1. The plans, designs and/or specifications related to the goods/services covered by
the Purchase Order;
2. Shipping or packing of goods and the place of execution of the services;
3. The place of delivery.
Should any of the modifications affect the time of performance and the costs of the
delivery of goods/provision of services, the Company agrees to adjust accordingly,
after reviewing the reasonableness of a remuneration increase/decrease, the
remuneration, the completion dates or both.
(b)
11.
SUBCONTRACTING
OBLIGATIONS
AND
ASSIGNMENT
OF
CONTRACTUAL
The Supplier may not subcontract, totally or partially, the execution of the
agreement or assign to third parties, in any form, the fulfilment of its obligations
with respect to the Purchase Order, without the prior written consent of the
Company.
12.
CONFIDENTIALITY / NO ADVERTISING
(a)
The Supplier hereby undertakes to hold strict confidentiality over all information
known or to be known as a result of the execution of the agreement, or in
connection thereof, including all information received prior to the execution of the
same.
For this purpose, confidential information shall mean all and any information
relative to the Company, to its activity and business secrets, to its partners, obtained
in writing, verbally or by other means regardless of its origin and classified as
confidential information or the information not being thus classified but which
disclosure to third parties may be potentially liable to cause damages to third
parties, to the Company or to any Volkswagen Group Company.
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(h)
Without the written consent of the Company, the Supplier may not advertise,
mention or publicise, in any case or under any circumstances, in connection with its
own commercial or industrial activities, the fact that it has an agreement with the
Company to provide services, nor may Supplier use the Company’s name, mark or
logotypes in any of its correspondence, publications or advertising.
13.
NOTICES
Any notices or other communications required or permitted hereunder shall be deemed
as sufficiently given when served by registered mail with notice of receipt to the
addresses of the Parties specified in the Purchase Order and any such notice or
communication shall be deemed to have been served on the date of signature of the
notice of receipt.
14.
LAW / ARBITRATION
(a)
The Purchase Order shall be construed and governed according to the laws of the
Republic of Portugal.
In case of dispute regarding the interpretation, the enforcement and/or the nonfulfilment and execution of the Agreement, the Parties will endeavour to obtain an
equitable and adequate solution by amicable settlement. Should an amicable
solution not be possible within the delay of 30 (thirty) days as from the date one
party notifies the other of the existence of the dispute, either party may, at any time
thereafter, resort to arbitration carried out by an Arbitration Court set up under the
terms of this Article and in compliance with the provisions of Law no. 31/86, of
August 29, composed by a sole arbitrator or three arbitrators. Failing the agreement
to choose the third arbitrator the same shall be designated by the President of the
Arbitration Committee of the “Centro de Arbitragem Comercial da Associação
Comercial de Lisboa/Câmara de Comércio e Indústria Portuguesa”, upon request of
the most diligent Party.
The Court shall be considered constituted on the date of acceptance of the sole
arbitrator or on the date of appointment of the third arbitrator, this being considered
to have been executed, in the situation of lack of agreement referred to in the
previous number, on the date of notification of the appointment. The Arbitration
Court will sit in Lisbon and the procedure before the Arbitration Court shall be
governed by the procedural rules adopted by the “Centro de Arbitragem Comercial
da Associação Comercial de Lisboa/Câmara de Comércio e Indústria Portuguesa”
and by the provisions of the Civil Procedure Code.
The Arbitration Court, which may define its own competence, will analyse the facts
and will decide on the legal questions as would the Portuguese Court, and from the
decision supplied there will be no appeal. The decision of the Arbitration must be
pronounced within a period of 120 days as from the date of constitution of the
Court.
(b)
(c)
(d)
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(e)
(f)
All costs related with the Arbitration Court, including the Arbitrators' fees, shall be
borne by the Party against which the decision is supplied or, should the decision not
be supplied against just one Party, by both Parties hereto, in the proportion stated in
the Arbitration Decision.
For the filing of any preventive procedure as well as for the execution of the
decision of the Arbitration Court, either Party may elect the most convenient
jurisdiction.