2. 2.1
Order, Prices, Support The price for the Vehicle shall be the recommended retail price (“RRP”) applicable at the time of each order less the support for the ordered Vehicle model applicable to the Company and/or the Affiliated Company according to Appendix 3 (“Support”). The Support is available on the Vehicles and factory fitted options only. The Support applies to the current model year standard production Vehicles available at the date of execution of this Agreement. BMW will communicate Support, if any, for campaign models, special editions, Vehicle models not listed and Vehicles with new engines, body styles or derivatives launched subsequent to this Agreement separately. The Support on the Vehicles is not available on any models supplied to the BMW dealer network on special terms from time to time. In the event that the Company informs the Agent no later than at the point of ordering the Vehicle of its intention to lease the Vehicle to a lessee that entered into Corporate Customer Support Agreement with BMW, the Support agreed with such lessee shall apply. The Company shall inform the Agent immediately, if it leases the Vehicle to a lessee other than the lessee communicated to the Agent. The Agent may adapt the Support in the event that the change of the lessee has an impact on the Support level.
2.2
In the event that the manufacturer or BMW change the RRP or the delivery costs, the attached BMW Price Protection Policy shall apply (Appendix 4).
2.3
The RRP includes Factory Fitted Options and excludes, where applicable, agent fitted accessories, road fund licence, pre-delivery inspection, delivery costs, first registration fee and VAT, which will be charged by the Agent at the statutory rates applicable at the time of the order (first registration fee, VAT, road fund licence), at the rates agreed between BMW and the Company in Appendix 5 (delivery costs), and/or at the rates agreed between the Agent and the Company (agent fitted accessories, pre-delivery inspection). If the first registration fee, VAT or road fund licence change between the date of order and the date of delivery, the Company must pay the amount applicable at the date of delivery.
2.4
The Support according to Appendix 3 is granted on the basis that -
During the Term of this Agreement, the Company and all Affiliated Companies shall purchase at least 5 Vehicles (“Minimum Number”); orders that were cancelled by the Company according to Clause 2.6 do not count towards the Minimum Number; the Company anticipates to purchase at least 10 Vehicles under this Agreement;
-
the Company remains the economic owner of the Vehicle and does not resell it within 6 months after the first registration of the Vehicle; in the event that the Company's business includes the provision of automotive financial services, including the leasing of vehicles, its right to sell the Vehicle upon early termination of the leasing contract and the Company's right to supply vehicles to customers on the basis of credit or hire agreements according to clause 1.4 remains unaffected, even if transfer of title is required, provided that the Company informs BMW 3
immediately of any sale by the Company within 6 months after the first registration; AND -
the Company uses the ordered Vehicles exclusively for its own employees (unless the Company's business includes the provision of automotive financial services, including the leasing of vehicles).
2.5
BMW may, without limitation to any other rights, require the Company to refund the Support in full in the event of any breach of Clause 2.4. The Company shall bear the burden of proof that the Vehicles are used in accordance with this Agreement.
2.6
The Company shall have the right to cancel its order for a Vehicle by sending a written notice to the Agent at any time prior to registration of the Vehicle. In the event that the Company cancels the order after the registration of the Vehicle, it shall pay a cancellation charge to BMW or the Agent, provided that the Agent informed the Company upon receipt of the order that the Company shall pay such charge for cancellations after the registration of the Vehicle. The Agent may in particular request the payment of cancellation charges for Vehicles with unusual specification. Other rights of the Agent and BMW for cancellations after registration of the Vehicle remain unaffected. In the event that the Company cancels the order upon the Agent’s pre-delivery inspection, the Agent may charge the costs of the pre-delivery inspection and the costs of any dealer fitted accessories to the Company.
3.
Responsibilities of the Agent The Agent is in particular responsible for the provision of vehicle quotations, product information, the provision of demonstrators, vehicle availability enquiries, the processing of the purchase order, the invoicing, the receipt of the Company’s payment of the purchase price, the supply of the Vehicle to the Company and any customer services issues before and after supply of the Vehicle. BMW may revoke the Agent's right to collect monies by giving notice to the Company. Upon BMW’s revocation, any payments by the Company shall be made to BMW only.
4.
Term and Termination
4.1
This Agreement is concluded for a 6 month period starting on ................….. (the “Term”) and may be terminated by either party in writing within this period upon 3 months’ prior notice.
4.2
Either party may terminate this Agreement with immediate effect if the other party: (i) commits a material breach of any term of this Agreement and does not correct the breach within 10 days of receipt of a written request requiring such correction, whereas in particular any breach of Clause 2.4 is considered a material breach of this Agreement; or (ii) becomes apparently insolvent or steps are taken to appoint a receiver or administrator over all or any of its assets or ceases or threatens to cease to carry on trading or calls a meeting of creditors, or a resolution 4
or petition is passed or presented for the winding-up (other than for a voluntary reconstruction or amalgamation). In the event that BMW terminates this Agreement according to this clause 4.2, BMW can immediately cease supplying Vehicles and cancel any purchase orders. 5.
Appendices The following appendices are part of the Agreement between BMW and the Company: Appendix 1 – Terms and Conditions of Sale Appendix 2 – List of Affiliated Companies Appendix 3 – List of Vehicles and Support Appendix 4 – BMW Price Protection Policy Appendix 5 – Delivery Costs
6.
Anti-corruption and anti-bribery
6.1
Each party shall comply with all applicable laws, statues, regulations and codes (“Relevant Requirements”) particularly but not limited to anti-bribery and anti-corruption.
6.2
In order to ensure compliance with anti bribery and anti corruption laws each party shall have the following obligations: 6.2.1 Each party shall have in place and maintain its own anti-bribery and anti-corruption policies to prevent bribery and corruption throughout its business (“Relevant Policies”) and shall observe them in particular within the business relationship with the other party. 6.2.2 Each party shall provide to the other party its Relevant Policies upon request. Each party shall promptly notify the other party in writing of any substantial amendment of its Relevant Policies. 6.2.3 Each party shall have in place and maintain throughout the term of the Agreement adequate procedures (for example commitment of toplevel management, risk assessment, due diligence procedures,, communication and training, monitoring and review measures) to ensure compliance with all applicable laws, statutes regulations and codes relating to anti-bribery and anti-corruption, and to monitor and enforce them wherever and whenever appropriate. Such adequate procedures shall be proportionate to the bribery and corruption risk each party is exposed to and to the nature, scale and complexity of its business activities. 6.2.4 Each party shall use its best endeavours to ensure that its associated persons who carry out services for or on its behalf under or in connection with the Agreement, including but not limited to its employees, sub contractors, agents, joint venture partners, suppliers and subsidiaries do also comply with the provisions of this Clause.
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6.2.5 Each party shall document its compliance with the provisions set out in this Clause and shall provide the documentation to the other party upon request. 6.2.6 Each party shall notify the other party as soon as it becomes aware of any offer, promise or request for any undue financial or other advantage of any kind made or received in connection with the negotiation, decision making process or performance of the Agreement. 6.2.7 Without limitation to the above clauses, neither party or any of its associated persons shall induce or reward the other party to perform improperly under the Agreement, bribe or offer, promise, give or request, agree, accept or receive a bribe or any undue financial or other advantage of any kind or allow any such to be offered, promised, given, requested, agreed, accepted or received on its behalf in connection with the negotiation, decision making process or performance of the Agreement. 6.3
BMW shall have the right to refuse performance under the Agreement if BMW has reasonable suspicion that the Company is or will be in breach of the terms of this Clause 6 or if performance would constitute a breach of the Relevant Requirements by BMW itself. This right of refusal shall remain effective until (i) the Company has demonstrated in writing that it has rectified the breach (if capable of remedy) and is again compliant with this Clause 6, or (ii) has provided evidence in writing that it was not responsible for the breach, or (iii) BMW’s performance would no longer constitute a breach of the Relevant Requirements. Any and all claims, in particular but not limited to damages, losses, liabilities and expenses (including but not limited to legal costs) resulting from a legitimate refusal to perform shall be expressly excluded.
6.4
Notwithstanding the terms of the Agreement, BMW shall have the right to terminate the Agreement if the Company breaches the terms of this Clause after having failed to remedy the same (if capable of remedy) within thirty (30) days of notice specifying the breach and requirement to be remedied and, due to this failure, BMW cannot be reasonably expected to continue the contractual relationship.
6.5
Notwithstanding Clause 6.3 above the Company shall be liable to BMW for damages, losses, liabilities and expenses (including but not limited to legal costs) actually incurred or suffered by, or awarded against BMW and occasioned by or arising out of any breach of this Clause by the Company
7.
Final Provisions
7.1
Each of the parties confirms that the terms of this Agreement set out the entirety of the terms relating to the subject-matter of this Agreement and in entering into this Agreement they have not relied in any way on any representation or warranty not set out in this Agreement.
7.2
Both parties will ensure that all information, data or materials received from the other party including, without limitation, any Support level granted by BMW, shall be kept strictly confidential at all times, even after termination of this Agreement.
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This shall not apply to the disclosure or use of any confidential information which is demonstrated by the recipient as being in the public domain at the time of the disclosure, being lawfully within the knowledge of the recipient at the time of disclosure, except through any breach of confidentiality by the recipient and having entered the public domain subsequent to disclosure as the result of the actions of a bona fide third party freely able to disclose such information and being required to be disclosed in satisfaction of any court order, subpoena, regulation or legislative enactment (subject to the party proposing to disclose confidential information advising the original discloser of the extent and circumstances of such disclosure as soon as reasonably practicable after becoming aware of the need to make such disclosure). 7.3
No amendment or variation to this Agreement will be effective unless agreed in writing by an authorised representative of each party.
7.4
The invalidity or unenforceability for any reason of any provision of this Agreement shall not prejudice or affect the validity or enforceability of its other provisions. The parties shall use all reasonable endeavours to replace the invalid or unenforceable provision by a valid and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
7.5
The Company shall not assign, novate, transfer, charge or otherwise deal with all or any of its rights and/or obligations under this Agreement or subcontract the performance of any of its obligations under this Agreement without the prior written consent of BMW.
7.6
No waiver by either party shall be effective unless it is made in writing. No failure or delay on the part of either party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
7.7
The Company warrants that all personal data communicated to BMW or the Agent is processed and used in accordance with all applicable data protection requirements whilst in its possession. BMW will use that data exclusively for the processing of purchase orders and for customer services purposes and will not transfer data to any third party except to BMW Group companies and the Agent. For the avoidance of doubt the Company and BMW agree to comply respectively with all data protection requirements in the transfer and processing of any personal data under this Agreement In the event that the Company's business includes the provision of automotive financial services, including the leasing of vehicles, BMW will not transfer personal data to Alphabet and BMW Financial Services.
7.8
BMW reserves the right to audit the Company to ensure that Vehicles have been purchased and utilised in accordance with this Agreement. In respect of all purchase orders to and deliveries from Agents, the Company shall maintain such accounts and records (the "Records") that are reasonably necessary for the conduct of an audit by BMW. The Company will allow BMW (by its own personnel or by a professionally qualified independent auditor) to access the Records during the Term of the Agreement and for 12 months thereafter on not less than 15 days notice at any time during normal business hours for the purposes of auditing or otherwise inspecting. The Company will afford to BMW all reasonable assistance in the carrying 7
Appendix 1 Terms and Conditions of Sale 1.
These terms and conditions, together with the details set out in the individual purchase contract and in the direct sales agreement, are intended to contain all the terms of the agreement between BMW (UK) Ltd (“BMW”) and the Company relating to the sale and purchase of the Vehicle.
2.
The Company must provide BMW with any information BMW needs in order to comply with money laundering legislation, and guarantee the accuracy of the information so supplied.
3.
This Agreement shall be governed by the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
4.
While BMW will endeavour to deliver the Vehicle by the estimated delivery date, BMW will not be liable for any claim for compensation of any description arising out of a delay in delivery due to reasons beyond BMW’s control. In the event of such a delay, the Agent will contact the Company to agree an alternative delivery date.
5.
BMW may give the Company notice cancelling the individual purchase contract at any time before delivery if the Manufacturer ceases to make the model or specification of the Vehicle the Company has ordered, or if BMW is unable to obtain it from the importer or other supplier, and clause 9 will apply.
6.
If BMW is unable to supply any factory fitted option the Company has ordered as part of the specification, the Agent will contact the Company and offer at the Company’s option either to substitute a reasonable equivalent or to delete the accessory from this individual purchase contract. Subject to this, the Company shall have no claim against BMW in respect of BMW’s failure to supply any accessory.
7.
The Agent will inform the Company when the Vehicle is ready for delivery, and the Company must pay the Purchase Price and take delivery within 28 days of being so informed. All payments must be made by bank transfer to the Agent’s account, unless other arrangements have been made with the Agent. If the Company fails to pay the Purchase Price and take delivery within 42 days of being informed that the Vehicle is ready for delivery, BMW may give the Company notice cancelling the individual purchase contract and clause 10 shall apply.
8.
The Company shall undertake not to assign the claims arising from the purchase contract and not to resell the vehicle within six months of receipt of the vehicle. If the Vehicle is sold for commercial purposes or to a commercial retailer in contravention to the above ruling, BMW reserves the right to claim damages and to cancel the Direct Sales Agreement with the Company. In the event that the Company's business includes the provision of automotive financial services, including the leasing of vehicles, its right to sell the Vehicle upon early termination of the leasing contract remains unaffected, provided that the Company informs BMW immediately of any sale within 6 months after the first registration.
9.
If BMW cancels the individual purchase contract pursuant to clause 5, the Agent will refund any deposit and, provided the cancellation was due to circumstances beyond BMW’s reasonable control, BMW shall have no further liability to the Company.
10.
If BMW cancels the individual purchase contract pursuant to clause 7, BMW will endeavour to sell the Vehicle to another person. If it is not sold within a reasonable time, BMW will sell it at auction. Within 7 days of the date of sale, BMW will give the Company a statement showing the sales price and any additional costs BMW has incurred in reselling the Vehicle and will refund the balance of the Company’s deposit, if any, after deducting the amount BMW has lost (i.e. any reduction in the sales price and the additional costs of resale). If BMW’s loss is greater than the Company’s deposit, the Company must pay BMW the difference within 7 days. BMW will provide copies of any receipts if the Company requests them.
11.
Title shall remain with BMW until the total Purchase Price has been paid in full. The Company will, however, be responsible for any loss or damage from when the Vehicle has been delivered to the Company, and should insure accordingly. A cheque will not be treated as payment until it has been cleared.
12.
If the Vehicle is new, BMW undertakes that any pre-delivery work specified by the Manufacturer will be carried out and the Vehicle will be sold with the benefit of the BMW dealer warranty. The BMW dealer warranty is additional to the Company’s statutory rights, and is not affected by any change of ownership of the Vehicle. Remedial work under warranty may be carried out by any dealer in the EEA authorised directly or indirectly by the Manufacturer, who may repair or replace any defective parts or (if he considers repair or replacement uneconomic) refund an appropriate part of the Purchase Price.
13.
Except for fraud or for death or personal injury resulting from BMW’s own negligence, BMW limits its liability for any breach of this agreement to the amount of the Purchase Price and expressly excludes all liability for loss of profit, goodwill or contracts and for any indirect, consequential or economic loss.
14.
Any notice given under this agreement must be in writing and sent by post to the address of the person who has signed the Direct Sales Agreement, and shall be deemed to have been received in due course of post.
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