1. DEFINITIONS
1.1. Each term defined below has the same meaning in this Agreement whether it is used in its plural, singular, or possessive
form.
1.2. “Acceptance Period” means, unless otherwise agreed in an SOW, a commercially reasonable time following Supplier’s
performance of a Service or delivery of an Item, or notice from Supplier that a Service or an Item is complete.
1.3
“Affiliate” means an entity that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, Buyer.
1.4
“Agreement” means a PO, the related SOW, if any, and these Terms.
1.5
“Buyer” means the entity or entities identified in the PO to receive Items or Services.
1.6. "Confidential Information" means: (a) information relating to Buyer’s research, development, products, trade secrets,
technology, technology architecture, business models, plans or processes, marketing plans, customers, finances, business
affairs or personnel (actual or planned), including any information that Supplier may have created in the course of its
performance of work in connection with Buyer; (b) any information of or relating to any Information Provider or an Affiliate that
Supplier obtained in connection with its work for Buyer; (c) any additional information described as “Additional Confidential
Information” in an SOW; and (d) Specifications. Confidential Information does not include information that: (a) Supplier can
demonstrate to have rightfully obtained from a third party who had the right to disclose it to Supplier; (b) has become publicly
known through no wrongful act of Supplier; or (c) Supplier has developed independently and without the use of any Confidential
Information, as evidenced by appropriate documentation.
1.7
“Control” means (i) ownership of at least 50% of an entity’s common stock, membership interest or similar ownership
interest or (ii) the ability to otherwise direct an entity’s management activities.
1.8. “Correction Period” means, unless otherwise agreed in an SOW, a commercially reasonable time following Supplier’s
receipt of the description of Nonconformities.
1.9. “Cure” means to reperform a Service or to deliver substitute Items to correct any Nonconformities by promptly
reperforming a Service or delivering Items, in each case that meets its respective Specifications.
1.10
“DPCC” means Daimler Purchasing Coordination Corp. as agent of Buyer.
1.11. “Due Date” means the date by when a Service must be performed, or by when an Item must be delivered.
1.12. “Fees” means the amount of fees payable to Supplier under the terms of an SOW for each Service or Item.
1.13. "Information Provider" means any third party person or entity that supplies technology or other information to Daimler.
1.14. “Item” means any tangible thing that Supplier provides under this Agreement as described in an SOW.
1.15. “Nonconformity” means the manner in which a Service or Item fails to conform to its respective Specifications.
1.16. “PO” means a purchase order issued by DPCC as agent of Buyer.
1.17. “Service” means a service that Supplier provides under the terms of an SOW. A Service does not include an Item or the
delivery of an Item.
1.18. “Specifications” means the criteria for measuring whether Supplier has achieved the respective result for each Service
and each Item, as set forth in the Statement of Work.
1.19. A “Statement of Work” or “SOW” is a document attached to the PO, referenced in the PO or the PO itself.
1.20. “Supplier” means the entity identified in the relevant PO to provide Services or Items pursuant to that PO.
1.21. “Term” means the period of time when an SOW is in effect.
1.22. “Terms” means these General Terms and Conditions and any attachments hereto.
1.23. “Time and Materials” or "T&M" means only that the Fees to be paid for any accepted Services or Items are determined by
the parties' agreed upon daily or hourly rates (as specified in the SOW) multiplied by the number of man-hours or days (based
on an 8-hour day unless otherwise specified) that Supplier has taken to complete the relevant Service or Item. "T&M," therefore,
specifically does not mean that Supplier is entitled to payment for time and materials expended on a Service or an Item, if Buyer
has not Accepted that Service or Item.
2.
SUPPLIER’S OBLIGATIONS AND RELATIONSHIP
2.1. Supplier’s Obligations. Supplier will perform the Services described in each SOW, all in accordance with the applicable
Specifications and by the Due Dates set forth in each SOW; and will deliver the Item(s) as set forth in each SOW.
2.2 Supplier shall not use a subcontractor in the performance of its duties hereunder without Buyer’s prior written approval.
2.3 In regard to each subcontractor approved by Buyer, Supplier shall provide evidence of the subcontractor’s liability insurance
in sufficient coverage and policy limits as required for the services to be provided by such subcontractor.
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2.4. Supplier Relationship. Neither Supplier nor its subcontractors, or the employees or agents, shall be deemed to be
employees or agents of Buyer or DPCC, Supplier and its subcontractors are independent contractors for all purposes and at all
times, and Supplier shall be wholly responsible for withholding or payment of all federal, state and local income and other payroll
taxes with respect to its employees, including, contributions from them, as required by law.
3.
DUES DATES AND TERMINATION
3.1. Due Dates for Items. Time is of the essence of this Agreement, and if performance of a Service or delivery of an Item is
not completed by the time promised, Buyer reserves the right without liability in addition to its other rights and remedies to
terminate the related SOW in whole or in part and to purchase substitute Services or Items elsewhere and charge Supplier with
any loss incurred. Unless a specific date for delivery of an Item is stated in the SOW, Supplier must deliver all Items within a
commercially reasonable time not to exceed thirty (30) days past the Effective Date of the SOW.
3.2. Termination for Breach. Unless otherwise stated in an SOW, if one party provides notice to the other of any alleged
material breach, the alleged breaching party must cure the breach within thirty (30) days of the date of its receipt of that notice.
A party may terminate said SOW if the other party’s material breach remains uncured after the above-mentioned cure period. If
Supplier becomes insolvent, suspends operations or if a petition is filed or proceeding commenced by or against Supplier under
any state or federal law relating to insolvency, bankruptcy, or receiverships, Buyer may immediately terminate this Agreement by
providing notice to Supplier.
If either party terminates an SOW for material breach, then: (i) Buyer will pay Supplier the Fees under said SOW for any Service
or Item that Buyer Accepts; (ii) Buyer will pay Supplier a prorated amount of the Fees under this Agreement for any partially
completed Service or Item that Buyer Accepts; and (iii), if required by Buyer, Supplier must deliver all partially completed
Services and Items.
Buyer may terminate an SOW immediately upon notice, if Supplier or any of its employees or agents breach the confidentiality
provisions of these Terms, or the further engagement of Supplier becomes unlawful.
3.3. Termination for Convenience. Buyer may terminate an SOW, in whole or in part, for convenience by giving sixty (60)
days notice to Supplier.
If Buyer terminates for convenience: (i) Buyer will pay Supplier the Fees under said SOW for any Service or Item that Buyer
Accepts; (ii) for any partially completed Service or Item, whether or not Accepted, Buyer will pay Supplier a prorated amount of
the Fees that would be due under said SOW if the Service or Item had been Accepted; (iii) Supplier shall deliver all partially
completed Services and Items, if so requested by Buyer; (iv) for the delivery of Items, Buyer shall be responsible for payment of
reasonable cancellation charges based upon Supplier’s reasonable costs incurred as a result of termination but in no event to
include anticipated profits for Items that will not be delivered as a result of termination.
4.
FEES, PAYMENTS, TAXES AND SHIPPING COSTS, AND FEE WARRANTY.
4.1. Fees. Buyer will pay Fees to Supplier for each Service or Item only upon Buyer’s acceptance of the Service or Item,
except as described in Section 3.3. All Fees are fixed price unless "Time and Materials" or "T&M" is clearly indicated in an
SOW, or as may otherwise be stated in an SOW.
In addition, for any Fee amount designated as T&M, the stated amount is a "not-to-exceed" amount. In particular, if the actual
time-to-complete any Service or Item is expected to exceed the stated T&M amount, Supplier must obtain Buyer’s prior written
approval to any increase in Fees by amending the applicable SOW in accordance with Section 15.8 of this Agreement.
4.2. Payments. Amounts due hereunder are payable as set forth in the PO after the end of the month in which Buyer has
both accepted the related Service or Item and has received an accurate invoice from Supplier. If any accurate invoice becomes
more than 90 days past due, Supplier may suspend performance of Services or the delivery of Items, unless there is a good
faith dispute between the parties over the amount of the invoice, except that in no event may Supplier withhold delivery of any
completed Service or Item, or interfere with or restrain, electronically or otherwise, Buyer’s ability to use any previously delivered
Services or Items.
4.3. Effect on Payment - Delays. If a Due Date is missed , Buyer is not obligated to pay for the related Service or Item until
the Item is delivered or the Service is completed, and in each case, until Accepted.
4.4. Effect on Payment - Changes in the Scope of Work. If the parties agree to increase or otherwise change the scope of the
Services or an Item to be provided under an SOW, and those changes involve any additional associated fees, the parties must
amend the applicable SOW in accordance with Section 15.9. No fees beyond the Fees specified in an SOW are payable by
Buyer.
4.5. Taxes and Shipping Costs. All prices shall be F.O.B. place of delivery (destination), unless otherwise specified herein,
inclusive of applicable taxes (see below), excises, duties, quotation fees or any other governmental impositions on or related to
the production, sale or transportation of the Items or performance of the Services except as otherwise separately stated herein,
and subject to increase only with the prior written consent of Buyer. Buyer and Supplier shall cooperate upon the reasonable
request of the other in obtaining and furnishing certificates or other evidence of inapplicability of or exemption from any sales,
use, excise or other taxes to which either of the parties may be entitled. Buyer agrees to pay any and all personal property
and/or ad valorem taxes assessed or otherwise levied against any property placed in the hands of Supplier by Buyer for the
purpose of fulfilling this Agreement.
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4.6. Fee Warranty. Supplier warrants that the Fees are not less favorable than those currently extended to any other
customer for the same or similar Services or Items in similar quantities or specifications.
5.
ACCEPTANCE AND CORRECTION OF NONCONFORMITIES
5.1. Acceptance. If Buyer accepts a Service or an Item, Buyer will either send notice to Supplier of its acceptance within the
Acceptance Period. If Buyer does not accept a Service or an Item, it will describe any Nonconformities in writing to Supplier
within the Acceptance Period. Payment by Buyer shall neither constitute an acceptance of a Service or an Item nor a waiver of
any of Buyer’s rights. Buyer’s acceptance of a Service or an Item does not operate as a waiver of Buyer’s right to describe
Nonconformities in writing to Supplier and require Supplier to fix the Nonconformities under the warranty in Section 7.
5.2. Correction of Nonconformities. At Supplier’s expense, Supplier must Cure any Nonconformities within the Correction
Period. If Supplier fails to Cure within the Correction Period, Buyer may exercise its termination rights under Section 3.2 of this
Agreement and charge Supplier for, or withhold payment to Supplier for, costs incurred by Buyer in obtaining a substitute Item or
Service from a different Supplier.
6.
INSURANCE, INDEMNIFICATION, COMPLIANCE, AND REPORTS
6.1. Insurance. Suppliers of Services will procure and maintain worker's compensation insurance during the Term. In
addition, Supplier will procure and maintain during the Term comprehensive general liability (including contractual liability),
automobile, and property damage insurance each with a minimum limit of $5 million dollars per occurrence. The policies must
name Buyer and DPCC as additional insureds (other than the worker’s compensation policy) and contain endorsements stating
that the policies are primary and not excess over or contributory with any other valid, applicable, or collectible insurance in force
for Buyer or DPCC. Buyer may require Supplier to furnish evidence of this required insurance without relieving Supplier of any
liability or obligation under this Section.
6.2. Indemnification. Supplier will defend, indemnify, and hold Buyer and its Affiliates, each of their respective directors,
officers, employees, and agents and each of their respective successors and assigns, harmless against all claims, liabilities,
losses, damages, costs and expenses of any nature (including but not limited to reasonable attorneys' fees and costs of suit)
arising out of or resulting from the injury or death of any person or damage or loss of any property allegedly or actually resulting
from or arising out of any act, omission of Supplier or its employees, agents, or subcontractors in connection with performing its
obligations under this Agreement.
6.3.
Required Compliance.
6.3.1. Required Compliance – General. Supplier will comply with all laws, executive orders and governmental rules and
regulations applicable to the performance of this Agreement. Supplier will defend, indemnify and hold Buyer and its Affiliates,
each of their respective directors, officers, employees and agents and each of their respective successors and assigns,
harmless from and against all claims, liabilities, losses, damages, costs and expenses of any nature (including but not limited to
reasonable attorneys' fees and costs of suit) resulting from or arising out of any failure of Supplier or Supplier’s employees,
agents and subcontractors to comply with any applicable law, executive order, governmental rule or regulation.
6.3.2. Required Compliance – Labor Laws. Supplier hereby certifies that the Services and Items described in this Agreement
have been or will be produced in compliance with the Fair Labor Standards Act of 1938 (as amended, the “Act”) and any
amendments hereto, as well as the provisions of any other law with respect to labor relations, minimum wages and hours of
employment, now in effect or hereafter enacted, and with any and all rules and regulations issued under the Act and other laws.
Supplier agrees that this certification may be considered as the certificate contemplated by the amendment dated October 26,
1949, to the Act.
6.4. Reports. At least once a month, Supplier will report to Buyer in writing on the status of its performance of the Services.
On reasonable request at any time, Buyer may inspect Supplier’s work in progress and receive copies of it.
6.5
Records and Information.
Supplier shall keep proper records and books in accordance with generally accepted
accounting principles consistently applied throughout the term of the relevant SOW and for a period of six (6) months following
its expiration or termination. Buyer shall have the right to access and review Supplier’s records and books relating to the supply
of part or all of the Items or the rendering of part or all of the Services or any payment related thereto during regular business
hours at mutually convenient times.
6.6
Proof of Origin. The Items sold hereunder may be required for export. Supplier shall be obligated, using the form
specified by Buyer, to give a written declaration on the origin of the Items supplied. Such declarations shall be transmitted to
Buyer not later than the first delivery of Items.
7.
7.1.
WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION
Warranties and Representations.
7.1.1 Supplier warrants and represents to Buyer that, at all times relevant, Supplier will not be prevented by any third party, via
agreement, employment or other legal relationship (past or present) or otherwise, from providing Items or Services required
under an SOW as works-made-for-hire or to assign (or license, as applicable) to Buyer the rights thereto as set forth in the
SOW.
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7.1.2 Supplier further warrants and represents to Buyer that all Services and Items provided by Supplier do not infringe any
patents, copyrights, mask work rights, trade secret rights, trademark or trade dress rights, or any other proprietary rights of
others (including but not limited to moral rights or rights of privacy or publicity) of any third party.
7.1.3 Supplier warrants that Supplier has not previously granted and will not grant any rights to any third party that are
inconsistent with the rights granted to Buyer herein.
7.1.4 Supplier warrants that each of Supplier's employees, consultants, contractors, partners or agents who have been or will
be involved in the development of the Services and Items have signed or will sign an agreement with Supplier conveying to
Supplier all rights in the Services and Items as necessary for Supplier to meet its obligations under this Agreement and agreeing
not to use or disclose any Confidential Information other than as required for Supplier’s performance of its obligations under this
Agreement.
7.1.5 Supplier warrants that Supplier has full power to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights granted to Buyer under this Agreement.
7.1.6 Supplier warrants that it has conducted a criminal background investigation on each of Supplier's employees or agents
who have been or will be involved in the development of the Items or Services and further warrants that Supplier and each of its
employees and agents who have been or will be involved in the development of the Services or Items have not been convicted
of any felony or a misdemeanor involving crimes of violence, fraud, misappropriation, or other breach of trust.
7.2.
Performance Warranties.
(a) Supplier warrants that each Service will meet the respective Specifications described in the applicable SOW for a period
designated in Supplier’s standard warranty for such Services or for a period of one (1) year, from the date of performance,
whichever is greater.
(b)
Supplier warrants to Buyer that all Items furnished will be free from defects in material and workmanship and will conform
to its respective Specifications, described in the applicable SOW for a period designated in Supplier’s standard warranty for
such Items or for a period of one (1) year, from the date of delivery to Buyer, whichever is greater.
(c)
No variation in the type or quantity of any Items are authorized and Buyer may reject a delivery that varies in the type or
quantity authorized for shipment. All Items are subject to inspection and acceptance or rejection upon delivery at the Buyer
facility.
(d)
Supplier warrants that all Items and Services covered by this Agreement shall conform to the Specifications and shall be
new, first class, fit and sufficient for the purposes intended (as evidenced by the specifications), merchantable, of good material
and workmanship and free from defect.
(e)
Supplier further represents and warrants that it and its employees are and will continue to be fully experienced and
properly qualified to supply the Items, perform the Services and perform all of its obligations under this Agreement.
(f)
These warranties shall run to Buyer, and its customers and users of its products. Supplier, at its expense (including,
without limitation, expenses of removal, packing, transportation and reinstallation), agrees to promptly replace or correct defects
of any Items or Services not conforming to the warranties contained in this section 7, when notified of such non-conformity by
Buyer. In the event Supplier fails to promptly correct defects in or to promptly replace nonconforming Items or Services, Buyer,
after reasonable notice to Supplier, may make such corrections or replace such Items and Services and either charge Supplier
for, or offset any payment to Supplier against, the costs so incurred by Buyer.
(g)
These warranties are in addition to all other warranties, express or implied, at law or in equity.
7.3.
Remedy for Breach of Warranty.
(a)
For any breach of the warranties specified in Section 7.2.1, or 7.2.2 above, Supplier must: (i) promptly reperform, repair
or replace the nonconforming Services or Items upon receipt of Buyer’s description of the applicable Nonconformities; or (ii) if
Supplier cannot reperform, repair or replace Services or Items within a commercially reasonable period of time, then, at Buyer’s
request, promptly refund the prorated portion of Fees paid for such Services or Items. Supplier will replace promptly all
defective Items returned to it. This remedy is non-exclusive, and Buyer is not precluded from exercising any other remedy
available to it at law or in equity.
(b)
In addition to any other remedies it may have, Buyer reserves the right to reject any shipment of Items, any individual
Items or any Services that do not conform to Buyer’s approved specifications and return them to Supplier at Supplier’s expense;
provided, however, that non-conforming Items or Services may not be replaced without Buyer’s written authorization.
7.4. Infringement Indemnification. Supplier agrees to indemnify, hold harmless and at Buyer’s request, defend Buyer and its
Affiliates, each of their directors, officers, employees and agents and each of their respective successors and assigns, against
all losses and expenses of any nature (including but not limited to reasonable attorneys' fees and costs of suit) arising out of or
resulting from any claim that any Services or Items infringe any patent, copyright, mask work right, trade secret right, trademark
or trade dress right, or any other proprietary right (including but not limited to moral rights or rights of privacy or publicity) of any
third party.
7.5
Indemnification Claim. Buyer must notify Supplier of any such claim in writing within 30 days of learning of the claim.
Buyer agrees to provide Supplier with assistance and information in Buyer’s control as required to assist Supplier in defending
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claims under this Section. Supplier further agrees to reimburse Buyer for reasonable expenses incurred by Buyer in providing
such assistance. Buyer may withhold payments due Supplier under this Agreement until Buyer is indemnified fully by Supplier
as required under this Section.
7.6
Exclusion of Consequential Damages. EXCEPT FOR LIABILITY OR DAMAGES ARISING UNDER SECTIONS 7.1, 7.4,
OR ANY VIOLATION OF SECTION 14 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY CLAIM UNDER THIS AGREEMENT.
8.
Work on Buyer’s Premises. If Supplier's work or performance of Services under this Agreement involves operations by
Supplier on the premises of Buyer, Supplier shall take all necessary precautions to prevent the occurrence of any injury to
person or property during the progress of such work or Services. If Supplier performs any part or all of the Services on-site, it
shall comply with Buyer's safety and environmental procedures, including without limitation, the Expat/Contractor/Supplier
Safety and Security Guidelines, the Hazardous and Toxic Substance Disclosure Requirements and the Environmental
Protection Plan for Construction. None of Supplier's employees shall be permitted to perform Services on-site until they have
successfully completed all of Buyer's (and if there is a construction manager, the construction manager's) safety and
organizational requirements.
9. Permits and Licenses. Supplier shall promptly apply for and procure without additional compensation all permits,
certificates and licenses required by governmental authorities having jurisdiction over the Items and Services, Supplier or the
location of the Items and Services prior to providing such Items or Services. Proof of such permits, certificates, or licenses shall
be submitted to Buyer. This requirement is also applicable to all subcontractors of Supplier. In the event that Supplier intends
to perform Services for which the State of Alabama requires the bidder to have a license prior to bidding to perform the Services,
Supplier shall obtain such license prior to placing its bid.
10. Cutting and Patching. Supplier shall not cut, excavate, or otherwise alter any existing structures or any other contractor’s
work without Buyer’s prior written permission.
11. Existing Services on Site. Where the Services involve breaking into or connecting to existing service lines or services,
Supplier shall carry out the work at times directed by Buyer. Supplier shall not, by its or its subcontractors' acts or omissions,
cause a partial or complete shutdown of, or otherwise interfere with, Buyer’s operations without giving notice seventy-two (72)
hours in advance to Buyer and obtaining the prior written consent of Buyer.
12. Clean-Up. If Supplier performs any Services on-site, Supplier shall keep its work site in a neat, clean and safe condition
and properly dispose of all debris and rubbish caused by Supplier's operations. In the event Supplier fails to maintain its work
area in a manner satisfactory to Buyer, or to effect such cleanup or removal immediately after receipt of written notice to do so,
Buyer shall have the right without further notice to Supplier to perform such cleanup and remove such items on behalf of, at the
risk of and at the expense of Supplier. Buyer may offset such amount against any amounts Buyer owes Supplier.
13. Patterns, Tools, and Dies.
All patterns, tools, dies, drawings, specifications or other material furnished by Buyer to
Supplier, or which are specifically paid for by Buyer, and any replacement thereof or anything affixed or attached thereto, shall
be and remain Buyer’s personal property. Such property, if it can reasonably be done, shall be plainly marked or otherwise
adequately identified by Supplier as the property of the entity designated by Buyer and shall be safely stored separate and apart
from Supplier’s property. Supplier shall not substitute any items or materials of any kind for such property and shall not use
such property except for filling Buyer’s order. While in Supplier’s custody or control, such property shall be held at Supplier’s
risk, and shall be subject to removal at Buyer’s request, in which event Supplier shall immediately prepare such property for
shipment and shall deliver it to Buyer or Buyer’s nominee in the same condition as originally received, reasonable wear and tear
excepted. Supplier will keep such tooling or property in its possession and/or control fully covered by insurance, free of liens
and encumbrances and will replace such tooling or property when lost, damaged or destroyed. Buyer shall have the right to
enter Supplier’s premises at all reasonable times to inspect such property and Supplier’s records with respect thereto. All
requests for reimbursement for tooling costs are subject to review, approval and audit by Buyer. Supplier acknowledges and
agrees that it may not hold Buyer’s patterns, tools, dies or other material furnished by Buyer after Buyer requests its return for
any reason, including, without limitation, any alleged breach by Buyer.
14. CONFIDENTIAL INFORMATION AND DATA
14.1. Confidentiality. In performing its obligations under this Agreement, Supplier may have access to Confidential Information.
14.2. Supplier’s Duty Not to Use or Disclose. Supplier agrees not to use any Confidential Information other than as required in
order for Supplier to perform its obligations to Buyer under this Agreement. Without limiting the scope of this duty, Supplier
agrees not to use any Confidential Information for its own benefit or for the benefit of anyone other than Buyer, and Supplier
agrees not to design or manufacture any products, which incorporate any Confidential Information. Supplier agrees to take all
reasonable precautions to prevent the unauthorized use or disclosure of Confidential Information, both during and after the
Term. Supplier may disclose Confidential Information if required by any judicial or governmental request, requirement or order,
so long as Supplier takes reasonable steps to give Buyer sufficient prior notice in order to allow Buyer to contest such request,
requirement or order.
14.3. Ownership of Confidential Information. All Confidential Information remains the property of Buyer, the applicable Affiliate,
or the applicable Information Provider. Buyer, the applicable Affiliate, or the applicable Information Provider owns all right, title
and interest, including any and all copyrights, patents, trade secrets, trademarks, trade dress and any and all moral rights in the
Confidential Information. No license or other rights in the Confidential Information is granted under this Agreement. Further,
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upon Buyer’s written request, Supplier agrees to return to Buyer, or destroy and give notice of destruction, all copies of any
Confidential Information in any form.
14.4. Use of Logos. Supplier agrees that it will not permit its employees, agents, and subcontractors to use the trademarks,
service marks, logos, names, or any other proprietary designations of Buyer or any Affiliate, whether registered or unregistered,
without Buyer’s, or the relevant Affiliate’s, written consent.
14.5. ALL INFORMATION PROVIDED BY BUYER TO SUPPLIER IS PROVIDED "AS IS" AND WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING ITS ACCURACY OR PERFORMANCE.
14.6.
Information Security Standards. Supplier agrees to comply with the information security standards listed on Exhibit E.
15. GENERAL TERMS
15.1. Assignment. Supplier may not assign or delegate the Agreement or its rights or obligations under the Agreement,
including by operation of law, without Buyer’s prior written consent..
15.2. Equitable Relief. Any breach of the confidentiality provisions of this Agreement by Supplier will result in irreparable harm
to Buyer. Supplier therefore agrees that Buyer has the right to seek an injunction or other equitable relief to enforce this
Agreement and any of its provisions, without prejudice to any other rights and remedies that Buyer may have.
15.3. Attorneys Fees. If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to
reasonable attorney fees and expenses in addition to any other allowable relief.
15.4.
Law and Jurisdiction. This Agreement is governed by and must be construed in accordance with the law of the State of
Delaware without reference to its conflict of laws principles.
15.5. CONSENT TO JURISDICTION AND VENUE. IN THE EVENT THAT SUPPLIER SHOULD EVER ASSERT A CLAIM OR
COUNTERCLAIM AGAINST BUYER FOR ANY REASON RELATED TO AN SOW OR ANY RELATED DOCUMENT, BUYER
AND SUPPLIER UNCONDITIONALLY AGREE TO ASSERT SUCH A CLAIM IN THE FORM OF A LAWSUIT TO BE
COMMENCED IN STATE COURT IN NEW CASTLE COUNTY, DELAWARE, OR A COUNTY AND STATE DESIGNATED BY
DAIMLER IN A WRITTEN NOTICE TO SUPPLIER WITH SUPPLIER HEREBY CONSENTING TO THE JURISDICTION AND
VENUE OF THE COURTS OF THOSE COUNTIES AND STATES FOR SUCH PURPOSES.
15.6. Integration Clause. This Agreement and its Exhibits constitute the entire Agreement and supersede any prior agreement
between Supplier and Buyer concerning the subject matter of this Agreement.
15.7. No Waiver. A party may waive any of its rights under this Agreement by an appropriate writing that specifically refers to
the contractual right being waived, but a failure by a party to enforce a right, including without limitation, a right arising as a result
of a breach of this Agreement, or to insist upon performance of an obligation arising from this Agreement may not be construed
as a waiver of any of that party's rights, does not affect the validity of this Agreement or any part of it, and does not prejudice
that party's rights regarding any subsequent action.
15.8. Amendments and Procedures.
15.8.1. Amendments. Other than as specified in Section 15.8.2, this Agreement may only be amended in a writing signed by
an authorized representative of each party with authority to sign amendments to this Agreement.
15.8.2. Changes. Buyer shall have the right, at any time and from time to time, to request changes in the Items or Services,
which changes may include without limitation (a) performing significant additional work or providing significantly more or different
materials than called for in the SOW, (b) omissions or deletions of any part(s) of the Services or (c) revisions in the drawings,
designs or Specifications, method or shipping or packing or the place of delivery (such change, addition, omission, or deletion in
the singular "Change" and in the plural "Changes"). Upon receipt of a Change request executed by Buyer, Supplier shall
promptly furnish to Buyer a statement setting forth in detail Supplier's fixed and firm proposed adjustment to the Fees resulting
from such Change. Changes shall only become effective upon written agreement executed by Buyer which shall constitute final
settlement on all items covered therein. If Buyer and Supplier cannot agree on the terms of such Change, Buyer may
nonetheless order Supplier to proceed with the Change and, in such case, the Fees shall be (a) increased only for significant
additional work outside the Specifications in an amount equal to Supplier's reasonable and necessary incremental cost if and to
the extent proven by Supplier, and/or (b) reduced for omissions or deletions of any part(s) of the Services or Items by the same
proportion such omission/deletion has in regard to the Services or Items. In no event shall Supplier be entitled to any
compensation (for any cost or expense resulting from or arising out of any Change) other than as provided in this Agreement.
15.9. Severability. Whenever possible, each part of these Terms must be interpreted as enforceable under applicable law. If
a part of these Terms is unenforceable under applicable law, it is unenforceable only to the extent required by applicable law,
and the remainder of these Terms is otherwise fully enforceable.
15.10. Force Majeure. To the extent that a party is not able to perform an obligation hereunder due to fire, flood, a strike or
other labor interruption, war, riot, an act of God, an act of government, insurrection, civil disturbance, or other cause beyond that
party’s reasonable control, that party may not be liable for failing to perform that obligation, except that this Section may not
excuse any party from the obligation to pay money that is owed.
15.11. Additional Rights. The rights and remedies of Buyer and Supplier set forth herein shall be in addition to any other rights
and remedies provided at law or in equity and the failure or delay by either party to exercise any rights or remedies hereunder
{00040041.DOC;7}
shall not operate as a general waiver thereof. Pending resolution of any dispute to the extent the relevant SOW is not
terminated, Supplier shall continue performance thereunder, as directed by Buyer.
15.12. Notice. In order to be effective, a notice given pursuant hereto must be:
a)
in writing,
b) sent by (i) certified mail, return receipt requested, (ii) facsimile or email, with a confirmation copy dispatched promptly
by certified mail, return receipt requested, or (iii) by courier service, and,
c)
sent to the respective address set forth in the PO.
A party may change the location at which it is to receive notices by notifying the other party of the change in locations. A notice
takes effect upon the earlier of the notified party receiving the notice or five (5) days after the notice is sent.
15.13. Inspection and Audit. Throughout the term of the relevant SOW and a period of six months thereafter, Buyer may inspect
and evaluate all Items (including all tooling and material used in their manufacture), and all Services at times and places
designated by Buyer. Supplier shall permit Buyer or its agent to audit the books, records, and processes of Supplier during
normal business hours and at the sole cost and expense of Buyer for the limited purpose of determining compliance with SOW’s
and these Terms.
15.14. Social Responsibility. Supplier agrees to comply with the standards and requirements set forth in MBST 36. The current
version of MBST 36 can be found at the following website: https://daimler.portal.covisint.com.
15.15. Survival of Terms. All warranties and indemnifications shall survive termination or completion of this Agreement.
Additionally, the provisions of Sections 1, 2.3, 3.2, 3.3, 4.5, 4.6, 6, 7, 14, and 15 shall survive termination of this Agreement.
16. ADDITIONAL TERMS
16.1. Mercedes-Benz U.S. International, Inc. If Supplier is providing Services or Items to Mercedes-Benz U.S. International, Inc.,
the provisions of Exhibit A are also applicable. If there is a conflict between these Terms and Exhibit A, then the terms of Exhibit
A shall prevail.
16.2. Mercedes-Benz Financial Services USA LLC. If Supplier is providing Services or Items to Mercedes-Benz Financial
Services USA LLC, the provisions of Exhibit B are also applicable. If there is a conflict between these Terms and Exhibit B, then
the terms of Exhibit B shall prevail.
16.3. Detroit Diesel Corporation. If Supplier is providing Services or Items to Detroit Diesel Corporation, the provisions of Exhibit
C are also applicable. If there is a conflict between these Terms and Exhibit C, then the terms of Exhibit C shall prevail.
16.4. Daimler Trucks North America LLC. If Supplier is providing Services or Items to Daimler Trucks North America LLC, the
provisions of Exhibit C are also applicable. If there is a conflict between these Terms and Exhibit C, then the terms of Exhibit C
shall prevail.
16.5. Mercedes-Benz USA, LLC. If Supplier is providing Services or Items to Mercedes-Benz USA, LLC, the provisions of
Exhibit D are also a part of this Agreement. If there is a conflict between the terms of the Agreement and Exhibit D, then the
terms of Exhibit D shall prevail.
{00040041.DOC;7}
EXHIBIT A – Mercedes-Benz U.S. International, Inc. (“MBUSI”)
1.
Immigration.
(a) Supplier (i) shall at all times during the term of this Agreement comply, in all respects with all immigration laws, statutes,
rules, codes, orders and regulations, including, without limitation, the Immigration Reform and Control Act of 1986, as amended,
the Immigration and Nationality Act, as amended, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, and all other applicable state or local laws, as amended,
and any successor statutes, laws, rules and regulations thereto (collectively, the “Immigration Laws”), (ii) has properly
maintained, and shall at all times during the term of this Agreement properly maintain, all records required by the Department of
Homeland Security (the “DHS”), including, without limitation, the completion and maintenance of the Form I-9 for each of
Supplier’s employees located in the United States, and (iii) has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any inspection requests related to such I-9 Forms by DHS or by MBUSI. During the
term of this Agreement, Supplier shall, and shall cause its directors, officers, managers, agents and employees to, fully
cooperate in all respects with any audit, inquiry, inspection or investigation that may be conducted by the DHS of Supplier or any
of its employees. All agreements and contracts between Supplier and its subcontractors shall provide, and shall require the
subcontractors to cause all agreements and contracts with sub-subcontractors to provide, that the subcontractor or subsubcontractor, as the case may be, is subject to all of the terms and conditions of this Agreement, except to the extent expressly
stated otherwise in this Agreement.
(b) Supplier will not knowingly employ, hire for employment, or continue to employ any unauthorized aliens to perform any
Services, and Supplier agrees to attest to such representation by a sworn affidavit in the form attached as Attachment 19(b).
Supplier shall require each subcontractor and sub-subcontractor to furnish to Supplier an affidavit similar to Attachment 19(b).
Furthermore, Supplier will not knowingly allow any subcontractor or sub-subcontractor to employ or continue to employ any
unauthorized aliens to perform any Services. Prior to performing any Services, Supplier agrees to enroll and maintain
enrollment in the federal work authorization program by the DHS commonly known as E-Verify or any subsequent replacement
program (the "E-Verify program"), to provide to MBUSI evidence of Supplier's enrollment in the E-Verify program, and to utilize
the E-Verify program during the performance of the Agreement in accordance with the applicable state and federal rules and
regulations. Supplier will retain and make available for inspection by MBUSI, or any authorized governmental agency, at the
MBUSI jobsite (and if requested provide a copy to MBUSI), on the first day of employment or upon reasonable notice, a
completed I-9 Employment Eligibility Verification Form and an E-Verify confirmation. Upon request, Supplier will provide to
MBUSI any available copies of associated employment eligibility, identity, and work authorization documentation for each
person that Supplier employs on the MBUSI jobsite. If Supplier receives actual knowledge of the unauthorized status of one of
its employees on the MBUSI jobsite, or if Supplier learns of facts that would lead a reasonable person to infer the unauthorized
status of any employee on the MBUSI jobsite, Supplier will immediately remove that employee from the MBUSI jobsite, inform
MBUSI, and shall require each subcontractor and sub-subcontractor to act in a similar fashion with respect to such
subcontractor's or sub-subcontractor's employees.
(c) Supplier represents and warrants that each employee and subcontractor and sub-subcontractor employee will have
evidence of appropriate immigration authorization to perform the Services at the MBUSI jobsite. On-site credentials will not be
issued by MBUSI for any Supplier or subcontractor or sub-subcontractor employee unless the employee meets these
requirements. Suppliers who fail to present evidence of appropriate immigration authorization to MBUSI shall not be allowed to
perform work at MBUSI in accordance with applicable laws and regulations. The Supplier shall remain responsible for any and
all damages incurred for failing to meet the appropriate immigration requirements and failure to remedy will be a breach of
contract. It is the responsibility of the Supplier to seek legal counsel and bear all costs for obtaining such immigration
authorization for its employees and subcontractors’ and sub-subcontractors' employees prior to these employees’ assignment to
the MBUSI jobsite.
(d) All indemnification obligations in Article 19 of this Agreement shall be enforced to the fullest extent permitted by applicable
law for the Owner Indemnified Parties’ benefit, regardless of the causes or alleged causes of the claims.
2.
Electronic Data Interchange System and Edocs Systems.
(a) MBUSI is using the Auto Industry Actions Group (AIAG) version 3050 sub-set of the American National Standard Institute
(ANSI) Accredited Standard Committee (ASC) X12 Electronic Data Interchange (EDI) standards. Supplier shall implement an
EDI communication system with MBUSI that enables it to comply with MBUSI’s EDI requirements and the eDocs Terms of Use
attached hereto as Attachment 33.
(b) When required by MBUSI and pursuant to eDocs Terms of Use (to be provided by MBUSI), Supplier shall use the EDI and
eDocs system as the means of communication under the Agreement.
(c) Supplier shall identify a administrator for both the EDI system and the eDocs system. Only the administrator named by the
Supplier and registered in MBUSI’s portal shall be entitled to enable or to deactivate EDI and eDocs users for Supplier at any
time. Even in the absence of electronic signatures, the parties agree that the orders, decisions and commitments
communicated by them over the EDI system and the eDocs system shall be binding and shall be considered legally valid.
Offers and acceptances submitted electronically via the EDI system and the eDocs system shall be legally binding upon the
Supplier. Decisions and commitments communicated by one of Supplier’s registered users shall constitute binding confirmation
{00040041.DOC;7}
of the acceptance of orders or sales agreements. Supplier shall only grant employees and agents entitled to submit legally
binding declarations of intent authorized status to make those declarations via the EDI system and the eDocs system. The user
IDs and passwords created for the EDI system and the eDocs system shall only be accessible to Supplier’s agents and
employees who are able to submit declarations of intent, offers and acceptances that are legally binding on Supplier. Supplier
shall, and shall cause its employee and agents to keep such IDs and passwords confidential. In the event Supplier terminates
its relationship with an employee or agent who has knowledge of such an ID or password, Supplier shall immediately terminate
that ID and/or password.
(d) Every process communicated via the EDI system and the eDocs system, and particularly offers, acceptances and
communications regarding the Services shall be recorded and stored along with the identification of the user creating it. This
record shall be used exclusively as evidence of the content and the fact that a party submitted a legally binding offer,
acceptance or declaration of intent.
3.
Taxes. Supplier shall not charge any sales, use, excise or other taxes with respect to the Items or Services pursuant to
MBUSI’s Alabama direct payment permit, number 456, a copy of which shall be provided to Supplier at Supplier’s request.
4.
Packing, Marking and Shipping. Shipments shall be routed in accordance with MBUSI’s instructions, and unless
otherwise specified by MBUSI, shipments shall be delivered F.O.B. Buyer’s dock, 1 Mercedes Drive, Vance, Alabama 35490.
Supplier agrees to reimburse MBUSI for all expenses incurred by MBUSI as a result of improper packing, marking or routing.
MBUSI’s purchase order number and part number and Supplier’s shipment identification number shall appear on each package
and bill of lading. Item for two or more of MBUSI’s locations shall be shipped in separate packages for the different locations.
Shipments in excess of those authorized may be returned to Supplier, and Supplier shall pay the transportation charges both
ways for such shipments. MBUSI may at any time and from time to time change shipping schedules previously furnished to
Supplier, or direct temporary suspension of scheduled shipments. MBUSI’s count will be accepted as final on all shipments.
Unless otherwise expressly agreed to in writing by MBUSI, no charge shall be made by Supplier for containers, crating,
packing, boxing, bundling, dunnage, drayage, or storage.
5.
Law and Jurisdiction. Any questions arising out of or in connection with this Agreement shall be governed by and
construed in accordance with the laws of the State of Alabama without giving effect to its conflict of laws provisions. At MBUSI’s
option, Supplier agrees to litigate all claims and actions arising under or otherwise concerning this Agreement in either the
Circuit Court of Tuscaloosa County, Alabama or the Federal District Court for the Northern District of Alabama, and hereby
agrees not to contest personal jurisdiction of any such Alabama court.
MBUSI, at its option, may also invoke non-binding
mediation and Supplier agrees to submit to such mediation and to dismiss any legal proceedings relating to the subject matter
thereof. MBUSI, at its option, may require that Supplier continue to supply the Item and Services pursuant to the terms of this
Agreement during any such arbitration or mediation process. MBUSI’s SUPPLIER HEREBY WAIVES ANY RIGHT SUPPLIER
MAY HAVE TO A JURY TRIAL ARISING FROM ANY DISPUTES RELATED IN ANY WAY TO THE AGREEMENT.
6.
Design-Build Work. In the event that MBUSI asks Supplier to perform any Services or manufacture the Items on a
design-build basis, Supplier shall perform all design, manufacture, construction and/or installation services, and provide all
material, equipment, tools and labor necessary to complete the Items and Services described in and reasonably inferable from
the Agreement to produce the intended result. Supplier shall, consistent with applicable state licensing law, provide or procure
the necessary design services, including architectural, engineering and other design professional services, for the preparation of
both drawings and specifications to enable the Supplier to complete the Items and Services in a manner that is consistent with
the Agreement. Supplier shall continuously submit interim design documents to MBUSI for MBUSI's review per MBUSI's
schedule. If MBUSI does not approve the submissions, MBUSI will return them to Supplier and Supplier shall revise the
submissions and return them to MBUSI within five (5) days for approval. Once the detailed drawings and specifications have
been approved by MBUSI, they shall become the Specifications. Supplier shall submit one set of the final drawings and final
specifications to MBUSI immediately upon such approval. MBUSI's review and approval of the design submissions is for
purposes of establishing an acceptable set of drawings and specifications which are in line with its requirements.
7.
Inspection and Testing. Supplier shall inspect all Items and Services to insure they are suitable for MBUSI's purposes.
Supplier shall, without additional compensation, make or cause to be made all tests required by this Agreement. Supplier shall
furnish MBUSI with documentation satisfactory to MBUSI as a result of inspections and tests. MBUSI shall have the right at all
reasonable times to inspect and/or test the Items and Services at MBUSI's premises as well as Supplier's and its suppliers'
shops for conformance with this Agreement. All Items and Services shall be subject to final inspection and test by MBUSI. Any
Items which are not fully satisfactory to MBUSI may be rejected by notice to Supplier. Neither inspection nor payment will
relieve the Supplier of its responsibility to provide Items and Services which conform to the provisions of this Agreement.
8.
Minority-Owned Business Enterprises/Women-Owned Business Enterprises. Consideration is to be given to
Minority-Owned Business Enterprises ("MBEs") and Women-Owned Business Enterprises (“WBEs”) for the supply of the
Services and Items necessary for Supplier to supply MBUSI with the Services and Items. Supplier is required to use its best
efforts to have a minimum MBE participation equivalent of fifteen percent and a minimum WBE participation equivalent of five
percent in its subcontractors and suppliers. MBEs and WBEs should be certified by a certifying agency that is approved by
MBUSI. The National Minority Supplier Development Council and its regional affiliate councils are MBUSI-approved certifying
agencies. Supplier shall be accountable for the usage of MBEs and WBEs through the monitoring and reporting of its MBE and
WBE
subcontractors
and
suppliers.
9.
Warranty on Items. Supplier also warrants that no part of any Items or Services provided hereunder shall contain any
traces of silicone (any of a large class of polymers of R2SiO where R is a hydrocarbon).
{00040041.DOC;7}
{00040041.DOC;7}
EXHIBIT B – Mercedes-Benz Financial Services USA LLC (“MBFS”)
1. Nonpublic Personal Information
1.1.
Confidentiality of Nonpublic Personal Information. In the course of its performance under this Agreement and
other agreements with Supplier, MBFS may disclose to Supplier information that meets the definition of “nonpublic personal
information” (“Nonpublic Personal Information”) in the regulations promulgated under Title V of the Gramm-Leach-Bliley Act of
1999 as amended from time to time, 15 U.S.C. 6801 to 6809 (“GLB Act Privacy Regulations”). Supplier shall not use or disclose
such Nonpublic Personal Information to any nonaffiliated third party other than to carry out the purpose or purposes for which
MBFS disclosed such information to Manheim, including use under an exception in the GLB Act Privacy Regulations in the
ordinary course of business to carry out the purpose or purposes for which the Nonpublic Personal Information was disclosed to
Supplier. Supplier agrees that any affiliate of Supplier shall use and disclose Nonpublic Personal Information to any
nonaffiliated third party only to the extent that Supplier may use and disclose such information. If MBFS discloses Nonpublic
Personal Information to Supplier in connection with joint marketing, Supplier shall not use and disclose such Nonpublic Personal
Information other than to carry out the purpose or purposes for which MBFS disclosed such Nonpublic Personal Information to
Supplier, including use under an exception in the GLB Act Privacy Regulations in the ordinary course of business to carry out
the purpose or purposes for which the Nonpublic Personal Information was disclosed to Supplier.
1.2
Confidentiality of Other Personal Information. In the course of its performance under this Agreement and other
agreements with Supplier, MBFS may disclose to Supplier other personal information that would not be considered Nonpublic
Personal Information, but still must be kept confidential under the laws of certain states (“Other Personal Information”). Supplier
shall not use or disclose such Other Personal Information to any nonaffiliated third party other than to carry out the purpose or
purposes for which MBFS disclosed such information to Supplier. Supplier agrees that any affiliate of Supplier shall use and
disclose Other Personal Information to any nonaffiliated third party only to the extent that Supplier may use and disclose such
information.
1.3.
Safeguarding of Nonpublic Personal Information. Supplier shall maintain physical, electronic and procedural
safeguards in compliance with applicable federal and state laws and regulations to protect the Nonpublic Personal Information
and Other Personal Information received from MBFS, including, but not limited to, the maintenance of appropriate safeguards to
restrict access to Nonpublic Personal Information and Other Personal Information received from MBFS to those employees,
agents or service providers of Supplier who need such information to carry out the purpose or purposes for which such
Nonpublic Personal Information or Other Personal Information was disclosed to Supplier.
2.
Compliance Clauses for Service Providers
2.1
Compliance with Laws. Supplier will comply with all laws, executive orders and governmental rules and regulations
applicable to the performance of this Agreement including, but not limited to, the Consumer Leasing Act, the Electronic Fund
Transfer Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Truth in
Lending Act, Sections 502-509 of the Gramm-Leach Bliley Act, and unfair, deceptive, and abusive acts and practices as set
forth in the Dodd-Frank Act. Supplier will defend, indemnify and hold MBFS and its parent and each of their respective affiliates
and directors, officers, employees, agents and each of their respective successors and assigns, harmless from and against all
claims, liabilities, losses, damages, costs and expenses of any nature (including but not limited to reasonable attorneys' fees
and costs of suit) resulting from or arising out of any failure of Supplier or Supplier’s employees, agents and subcontractors to
comply with any applicable law, executive order, governmental rule or regulation.
2.2
Monitoring. Supplier agrees to allow MBFS to regularly and continuously monitor Supplier’s operations to ensure that
the Supplier is complying with federal and state consumer protection laws. Such monitoring shall include, but not be limited to,
review of relevant policies and procedures, training materials, and monitoring and testing results.
2.3
Supplier Procedures. Supplier agrees to provide MBFS with all revisions to its written policies and procedures and
training materials related to federal and state consumer protection laws.
2.4
Agency Notice. Supplier agrees to promptly notify MBFS in the event a federal or state regulatory agency notifies the
Supplier of any noncompliance or makes an allegation of noncompliance.
{00040041.DOC;7}
Exhibit C – Daimler Trucks North America LLC and Detroit Diesel Corporation (each, “DTNA”)
1.
Compliance with Laws. Supplier’s compliance obligations includes without limitation compliance with all statutory,
regulatory and contractual requirements that may be applicable to Supplier pursuant to DTNA’s status as a contractor with the
U.S. Government, the provisions of which are made a part of this Agreement by reference and include, without limitation,
Federal Acquisition Regulations commonly known as Equal Opportunity, Affirmative Action for Disabled Veterans and Veterans
of the Vietnam Era, Affirmative Action for Workers with Disabilities and Utilization of Small Business Concerns.
2.
Compliance with Trade Laws and Regulations. Supplier will promptly notify DTNA in writing of material or
components used by Supplier in producing the Items that were purchased in a country other than the country in which the Items
are delivered to DTNA. Supplier will furnish DTNA with any documentation necessary to establish the country of origin,
appropriate value for Customs Clearance, DTNA Part Number and Part Description, as well as documentation necessary for
Customs Clearance and Other Government Agency reporting (FDA, FCC, DOT, etc.). Supplier will promptly advise DTNA of
any material or components imported into the country of origin and any duty included in the purchase price of the Items. The
rights to and benefits of any duty drawback, including rights developed by substitution and rights which may be acquired from
Supplier's suppliers and export credits, to the extent transferable to DTNA, are the property of DTNA. Supplier will provide all
documentation and take any necessary steps to drawback any duty, taxes or fees paid to, and to receive export credits from, the
government of the country of origin upon exportation of the Items from such country. Supplier will provide DTNA or the
appropriate governmental authority all documentation and information required by law or regulation to determine the minimum
duty to be paid upon the importation of the Items into any country or to obtain any refunds or drawbacks of duties paid. Supplier
warrants that the information regarding the import or export of the Items supplied to DTNA is true and correct and that all sales
will be made at not less than fair value under the anti-dumping laws of the countries to which the Items are exported.
2.1
Custom’s - Trade Partnership Against Terrorism. DTNA supports the U.S. Customs and Border Protection (CBP)
Customs-Trade Partnership Against Terrorism (C-TPAT) program. This program is designed to protect the supply chain from the
introduction of hazardous or prohibited contents in shipments to the United States or to any of DTNA’s facility, sub-tier supplier, or
customer, wherever located. Shipments through U.S. importers, from manufacturers in foreign countries, and through U.S. brokers,
freight forwarders, and/or carriers should be with certified and validated C-TPAT transportation companies unless otherwise
approved by DTNA. Information about C-TPAT can be found at www.cbp.gov. Supplier will comply with the requirements of the CTPAT initiative and will provide DTNA with necessary documentation through DTNA’s web based C-TPAT Secure system
supporting compliance upon request of DTNA. This documentation will be provided by Supplier to DTNA in the manner
requested by DTNA. Failure to comply will automatically rate the Supplier’s supply chain security level as “High Risk”.
2.2
Free Trade Agreements and Tariff Preference Programs. Through DTNA’s web based Supply Chain Solicitation
system, Supplier must provide to DTNA, upon DTNA’s request, product country of origin information under North American Free
Trade Agreement, US - Chile Free Trade Agreement, US - Australia Free Trade Agreement, Buy America, General System of
Preferences or other relevant, existing or future trade agreements or tariff preference programs. If required by DTNA, based on the
origin of the product under the relevant rules of origin, Supplier will complete and deliver to DTNA a certificate of origin or affidavit
appropriate to the relevant trade agreement or tariff preference program, and any other information necessary to enable DTNA to
satisfy DTNA’s obligations in utilizing such trade agreements or tariff preference programs. Supplier must continuously monitor
Supplier’s materials sourcing, bills of material, and/or formulations for changes that might affect the validity of any origin
determination or certificate of origin provided to DTNA. If any such change affects origin information or a certificate of origin
provided to DTNA, Supplier must immediately notify DTNA in writing. Supplier further agrees to comply with recordkeeping
requirements under the applicable tariff preference program. It is important that reasonable care can be demonstrated in the
preparation of these documents. The reasonable care standard became law on January 1, 1994 and places additional burdens
and requirements on the public sector that deals with CBP, whether directly or indirectly.
2.3
Importer Security Filing (ISF) Requirements for Ocean Imports into USA. CBP requires an ISF to be filed for all
shipments traveling to the U.S. via Ocean Carrier. Suppliers must provide all ISF filing data elements to DTNA’s ISF filer at
least 48 hours prior to vessel’s loading at Origin by e-mailing: [email protected] and [email protected]. Failure to do so may result in a NO LOAD ORDER and/or substantial penalties per occurrence. If the ISF
information is not supplied within the timeframe required or is not supplied accurately and correctly, then all additional expenses
incurred due to fines and/or no load mandates (storage, demurrage, etc.) and delays in the Supply Chain, will be at Supplier’s
expense. Penalties and additional costs resulting from changes in mode of transportation or storage charges due to Supplier’s
failure to timely and accurately provide ISF data elements will also be at Supplier’s expense. DTNA expects that all ocean
shipments will arrive on schedule and that there will be no cause for production or service delays as a result of failure to comply
with the ISF regulations.
{00040041.DOC;7}
2.4
Export Related Requirements.
a. Export Compliance. Performance hereunder may involve the use of or access to articles, technical data or software that is
subject to export controls under 22 United States Code 2778-2794 (Arms Export Control Act) and 22 Code of Federal
Regulations 120-130 (International Traffic in Arms Regulations), 50 United States Code 2401-2420 (Export Administration Act)
and 15 Code of Federal Regulations 730-774 (Export Administration Regulations), Foreign Assets Control Regulations (FACR),
31 CFR, Parts 500-599, and their successor and supplemental laws and regulations (collectively hereinafter referred to as the
"Export Laws and Regulations"). Supplier shall comply with any and all applicable Export Laws and Regulations, and any
license(s) issued thereunder. b. Foreign Persons. Supplier shall not give any Foreign Person (as that term is defined in the
Export Laws and Regulations) access to technical data or software as those terms are defined in the applicable Export Laws
and Regulations without the prior written consent of DTNA and obtaining any applicable U.S. government license in advance.
Any request for such consent must state the intended recipient's citizenship(s), and status under 8 U.S.C. 1101 and 8 U.S.C.
1324 (the "Immigration and Naturalization Act"), and such other information as DTNA may reasonably request. No consent
granted by DTNA in response to Supplier's request under this paragraph b shall relieve it of its obligations to comply with the
provisions of paragraph a, nor constitute consent for Supplier to violate any provision of the Export Laws and Regulations. c.
Indemnification. Supplier shall indemnify and save harmless DTNA from and against any and all damages, liabilities, penalties,
fines, costs, and expenses, including attorneys' fees, arising out of claims, suit, allegations or charges of Supplier's failure to
comply with the provisions of the Export Laws and Regulations and breach of the warranty in paragraph a. Any failure of
Supplier to comply with the requirements or any breach of the warranty contained in paragraph a. shall be a material breach of
this agreement. d. Export Restriction. Supplier shall notify DTNA if any Deliverable under this Agreement is restricted by export
control laws or regulations. e. Denied Party List. Supplier shall immediately notify DTNA if Supplier or any of Supplier’s
subcontractors is or becomes listed on any Denied Parties List, or if Supplier or any of its subcontractors’ export privileges are
restricted in any manner by any governmental agency. f. Supplier represents that it is registered under ITAR, as applicable.
3.
Electronic Data Interchange. Supplier will use commercially reasonable efforts to implement electronic data
interchange or another electronic procurement system determined by DTNA for order processing. All transactions shall be in
accordance with DTNA’s Implementation Guide (IG) for Electronic Data Interchange (EDI) or other electronic procurement
system. Implementation of electronic data interchange and transactions by Supplier will be at Supplier’s expense.
4.
Hazardous Substances; Labels. Supplier will promptly notify DTNA in writing if the Items or Services are subject to
laws or regulations relating to hazardous or toxic substances or products governed by the Toxic Substances Control Act
hazardous waste disposal, or to any other environmental or safety and health regulations. Supplier will furnish all appropriate
shipping certification and instructions for shipping, safety, handling, exposure, and disposal (including without limitation material
data safety sheets) in a form understandable by DTNA’s non-technical personnel and in enough detail to identify all action that
the user must take. All labels must conform to the ANSI Z535 standard for product safety labels or another standard acceptable
to DTNA.
5.
Packing; Marking; Shipping. Shipments shall be routed in accordance with DTNA’s instructions, and Supplier agrees
to reimburse DTNA for all expense incurred by DTNA as a result of improper packing, marking or routing. DTNA’s purchase
order and line number, part number, and Supplier’s SID will appear on each package and bill of lading. Supplier shall transmit
accurate advanced shipment notices (ASN) not later than thirty (30) minutes after shipment leaves the Supplier’s facility. For
ERS, package labeling should include bar code format agreed upon by both parties. Supplier will promptly forward the original
bill of lading or other shipping receipt for each shipment in accordance with DTNA’s instructions. DTNA may specify the carrier
and/or method of transportation and Supplier will process shipping documents and route shipments of the goods from the FOB
point accordingly. Goods for two or more of DTNA’s locations will be shipped in separate packages for the different locations.
DTNA may from time to time change shipping schedules previously furnished Supplier, or direct temporary suspension of
scheduled shipments. DTNA’s count will be accepted as final on all shipments. Shipments in excess of those authorized may be
returned to Supplier, and Supplier shall pay the transportation charges both ways for such shipments. Supplier is responsible for
the goods until delivery at the designated FOB point. Unless otherwise expressly agreed to in writing by DTNA, no charge shall
be made for containers, crating, boxing, bundling, dunnage, drayage, or storage. DTNA will not be responsible for delays in the
payment of invoices if these requirements are not met.
{00040041.DOC;7}
Exhibit D-Mercedes-Benz USA, LLC (“MBUSA”)
1.
Enforcement and Severability - Buyer’s or MBUSA’s failure at any time to enforce any of the provisions hereof or any
right with respect thereto, or to exercise any option, shall in no way affect the validity hereof. The Agreement is to be governed
by and construed under the laws of the State of New Jersey. In the event that any one or more of the provisions contained
herein shall for any reason be held to be legally unenforceable, such unenforceability shall not affect the other provisions of the
Agreement, which shall remain valid and in full effect.
2.
Communications- Supplier hereby agrees that it will not take any of the following actions with respect to the execution
of the Agreement or the provisions of the Services hereby without first obtaining express written consent from the MBUSA
business department contact, including but not limited to the following: 1) issuing a press release; 2) providing written or verbal
commentary to the media; 3) making an external speech or taking other publicity-related activities relating to or which mentions
MBUSA or the Services provided hereunder. In addition, Supplier hereby agrees that it will refer any inquiries from the media
concerning the Services provided under the Agreement to the MBUSA Corporate Communications Department for review and
coordination prior to Supplier making a response to such inquiry.
3.
Trademarks- Supplier acknowledges and agrees that the words "Mercedes-Benz," "Mercedes," “Sprinter,” and “Smart”
and the Three-Pointed Star Within a Circle, the Sprinter logo and the Smart logo are the solely owned and validly registered
trademarks and trade names of Daimler AG – Daimler Aktiengesellschaft, the ultimate parent company of Buyer. Supplier
recognizes that it is not authorized to use any of Daimler AG’s trademarks and trade names without the prior written approval of
Buyer.
{00040041.DOC;7}
Exhibit E
Information Security Standards:

Supplier shall comply with all Daimler AG and Buyer Information Security Policies.

Supplier shall ensure that physical and logical controls are in place to restrict and limit access to Buyer sensitive
business information to authorized users. These access controls include, but are not limited to, the following:




permitted access methods, and the control and use of unique identifiers such as user IDs and passwords as
specified in Daimler AG and Buyer Information Security Policies
authorization process for user access to the information and privileges as approved by the Daimler AG Information
Owner
the right to monitor, and revoke user activity
use of anti-virus software

Supplier will not duplicate or transfer data received from Buyer to other computers or storage media, including those of
Buyer unless it is necessary in order to achieve the purpose of the contract.

Supplier will only provide its employees and subcontractors the level of access required to fulfill the requirements of the
contract. Supplier undertakes to impose on its employees and subcontractors, who become aware of such information
and of technical and commercial knowledge and discoveries, the same obligations as those which it has entered into
herein, as far as is legally possible, even for the period after an employee leaves the company. Supplier shall notify
Buyer without delay of any menace to data as a result of distraint, confiscation or any other governmental access,
insolvency or settlement procedures or other events or measures of third parties. Supplier acknowledges that access
to Daimler AG network and data is provided only for the purpose of contract fulfillment.

Supplier will ensure that third parties (i.e Supplier’s clients) cannot access information and data, which the Supplier
collects for Buyer, stores in its data processing system, processes in any other way or uses. In particular, the Supplier
shall guarantee the outright and verifiable separation of data processing for different controllers within its data
processing systems and applications (multi-client capability).

Supplier shall document procedures to ensure that integrity and availability of Buyer data is adequately protected.

Supplier shall impose controls on (i) the copying of Buyer information and (ii) the printing of Buyer information.

Supplier shall ensure that its administrators and users are adequately trained in Buyer security methods and
procedures.

Supplier shall ensure that its IT infrastructure is protected against malicious software and code.

Supplier will have a documented arrangement for timely reporting, notification and investigation of security incidents
and security breaches that have occurred in its premises.

Supplier shall put physical protection controls in place to ensure that assets are physically secure.

Supplier shall follow Buyer validated procedures regarding hardware and software installation and maintenance
including change management, patch management and software upgrades.

Supplier shall obtain Buyer’s approval of any third parties and subcontractors used by Supplier to perform its duties
under the Agreement.

Buyer reserves the right to audit the security framework of Supplier including the right to access the premises and data
processing systems in, or on, which Buyer data is used and processed in order to check the appropriateness of all
technical or organizational data security measures.

Buyer is entitled to monitor the compliance with data protection provisions and the information security measures in
accordance with the requirements of this Agreement. Supplier shall provide the requested information and provide full
evidence that these obligations have been met within a reasonable period.

Upon completion of contractual requirements or termination of the Agreement, Supplier shall return to Buyer all the
information, data, documents and storage media which it has received and any copies thereof. Supplier shall provide
evidence and confirm in writing that all the information, data, documents and storage media and any copies thereof
have been returned and deleted. Buyer may decide on an earlier date for data deletion at any time. Supplier shall
return Buyer data to authorized Buyer personnel.

Supplier must comply with the statutory obligations regarding data protection and the security requirements of Buyer (in
order to ensure the protection of data, information and the underlying information processing infrastructure) in
accordance with the relevant provisions provided within the Federal, State and Local laws governing the Agreement.
Supplier shall communicate the name(s) and contact data of the person(s) responsible for data protection and
information security.

All test and scrap material accruing to the Supplier shall be destroyed by the Supplier or handed over to Buyer taking
due account of the necessary security measures.
{00040041.DOC;7}

Remote maintenance of the Buyer hardware and software and of the data stock protected by this agreement is only
permitted if Buyer has consented to the remote maintenance and the IT systems used for remote maintenance are
comprehensively protected against unauthorized or improper entry or access. The same applies if it is possible during
remote maintenance to gain indirect access to data protected by this Agreement. Supplier must comply immediately
with any special requirements which Buyer may have regarding the execution of the remote maintenance.
Supplier must inform employees and agents that they will be subject to certain customary checks on entering and
leaving the property of the relevant Daimler group company property.
At Buyer’s request, Supplier will reassign any of its employees assigned to perform services hereunder so that said
employee is no longer working on a Buyer matter.
{00040041.DOC;7}