This Aptiv Sale Policy ("Sale Policy”) is incorporated by reference into every quotation, order acknowledgement and invoice issued by Aptiv Global Operations Limited, an Irish limited liability company, or any entity that it controls, is controlled by or is under common control with (collectively "Aptiv") for the supply of goods to its customer (“Customer”).
Aptiv’s quote for products or services, as may be amended from time to time ("Quote"), whether or not in response to a request for quotation ("RFQ"), is an offer by Aptiv to Customer (as identified on the Quote) to sell the products and/or services described in the Quote (the "Products") on the terms set forth in the Quote. Unless otherwise identified in the Quote, Aptiv will supply, and Customer will purchase, 100% of Customer’s requirements for the Products. The drawings, specifications, and statements of work, as they are mutually agreed to in writing, together with this Sale Policy and the Quote and any agreed purchase order, constitute the "Agreement". Neither the Quote, any acknowledgement or other document issued by Aptiv nor Aptiv's manufacture or delivery of the Products will constitute an acceptance of any terms and conditions included in any RFQ, purchase order or other document issued by Customer. This Sale Policy and the related Quote supersede any additional or different terms and conditions of purchase proposed by Customer, which are specifically excluded. Any acceptance by Aptiv of Customer’s RFQ, award of business or purchase order is expressly conditioned upon Customer’s acceptance of this Sale Policy. In the event of an inconsistency between the terms of this Sales Policy and the terms of a purchase order or other document issued by Customer, the terms of this Sales Policy control.
Unless otherwise stated in the Quote, prices will be automatically and retroactively adjusted to account for factors that increase Aptiv’s cost of providing the Products to Customer. In addition to the price of the Products, all taxes that may be imposed by any taxing authority on the sale, delivery, or use of the Products and for which the Aptiv may be responsible will be paid by the Customer to Aptiv upon Aptiv's request. Aptiv will work to mitigate any tariffs or trade-related costs which are imposed or otherwise arise after the date of its Quote. Prices will be adjusted by the amount of any increase in tariffs or trade-related costs which cannot reasonably be mitigated, and Customer will issue a revised purchase order to Aptiv reflecting the increase within fifteen (15) days of the effective date of the adjustment. Any costs not expressly agreed to be borne by Aptiv in the Quote will be borne by Customer.
Delivery terms and locations are as stated in the Quote or an agreed purchase order. Delivery dates are estimated and are not guaranteed. Aptiv will use reasonable efforts to meet Customer's requested delivery dates, provided Customer has complied with Aptiv’s applicable lead time requirements. Both risk of loss and title transfer to Customer will occur upon delivery at the location specified in the Quote, or if not specified, Aptiv’s manufacturing location. Until the Products have been paid for in full, Customer, or any agent of Customer or third party will hold the Products subject to a security interest or lien in favor of Aptiv allowing for the right or re-possession by Aptiv to the extent permitted by applicable law. Aptiv may take possession of the Products at any time after payment for the Products or any other payment owed to Aptiv is past due.
Customer will provide Aptiv firm (non-cancelable and non-reschedulable) releases for finished Products, firm (non-cancelable and non-reschedulable) authorizations to purchase raw materials and (iii) planning volumes for the periods set forth in the Quote. Aptiv is not obligated to: (a) manufacture or ship Products in excess of its quoted maximum capacity or (b) increase its production capacity in the absence of a mutual written agreement.
Payment terms are as stated in the Quote, begin on the date of delivery or tender of delivery of the Products, and may not be changed unless Aptiv agrees in writing. Payment must be made via electronic funds transfer, with no discount for early payment. If in Aptiv’s opinion, reasonable grounds for insecurity arise with respect to Customer’s ability or willingness to perform, in addition to any other rights available to Aptiv under applicable law, Aptiv may (i) demand adequate assurance of Customer’s performance, including by requiring advance payment or collateral and (ii) cancel further shipments until its demand is satisfied. If Customer becomes delinquent in payment and, upon request refuses to accept cash in advance shipments, Aptiv will have the right to cancel any order of Customer, to withhold further deliveries, and declare all unpaid amounts for Products previously delivered immediately due and payable. All amounts past due will be subject to an interest charge of 1.5% per month.
The Products will be packaged and shipped as provided in the Quote. In the absence of such a provision in the Quote, the Products will be packaged in accordance with standard industry practice using returnable packaging. Unless otherwise provided in the Quote, export or other special packaging will be charged to and paid by the Customer.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESSED OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF THE CUSTOMER WILL BE LIMITED TO THE FOREGOING WARRANTIES TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE THEM OR MODIFYING THIS LIMITATION WILL BE BINDING UPON APTIV UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF APTIV.
If Aptiv is the supplier of the Products at the end of serial production of the Customer vehicle program for which Aptiv is the supplier as specified in the Quote, Aptiv will supply Customer with service parts for the period of time specified in the Quote, or, if not specified therein, a maximum of ten (10) years after the end of serial production. If, during the service period, it is not reasonably feasible for Aptiv to provide service parts, including as a result of obsolete or otherwise unavailable materials or components, Aptiv’s obligation to provide service part support is limited to proposing alternate solutions, such as (without limitation) a final one-time purchase, the substitution of functionally equivalent products or Customer funded new tooling, development or other measures to support delivery of substitute service parts. Aptiv reserves the right to require Customer to purchase service parts in minimum batch quantities. The price(s) for service parts will be as agreed in writing by the Parties on an order by order basis and, at all times, are subject to adjustment by Aptiv to account for decreased volumes during the service period as well as all increased or additional costs, including, but not limited to, costs related to raw materials and/or component parts, tooling and equipment acquisition and/or set up, development, packaging, manufacture, processing, assembly, and delivery. Aptiv reserves the right to change the manufacturing location and corresponding supply base as needed for service parts. Aptiv and Customer will minimize revalidation requirements resulting from such changes.
Aptiv may terminate the Agreement or suspend its performance under the Agreement, upon Customer's: (i) material breach, threat to breach or repudiation of any term of the Agreement which remains uncured for thirty (30) days after Customer receives written notice of such breach, provided that all payment defaults are material and the cure period for payment defaults will be five (5) days after Customer receives written notice; (ii) assignment of the Agreement for the benefit of creditors, or if proceedings in bankruptcy or insolvency are instituted by or against Customer; (iii) entering or offering to enter into a transaction that includes a sale of a substantial portion of its assets or a merger, sale or exchange of stock or other equity interests that would result in a change in control; or (v) financial or other condition that could, in Aptiv’s sole judgment, endanger Customer’s ability to perform. Customer may only terminate the Agreement upon a material breach by Aptiv which remains uncured thirty (30) days after Aptiv receives written notice of such breach from Customer. If this Agreement is terminated prior to the end of the vehicle program for any reason, in addition to all other contractual, legal or equitable rights Aptiv may have , Customer will, within forty-five (45) days, pay to Aptiv: (a) the contract price for all finished Products manufactured prior to termination; (b) the cost of all work in process (based upon the contract price multiplied by percentage completion); and (c) the cost of all raw materials and components purchased by Aptiv in connection with the Agreement. In addition to the foregoing, if this Agreement is terminated prior to the end of the vehicle program absent a material breach by Aptiv, Customer will, within forty-five (45), also pay to Aptiv (x) all costs anticipated by Aptiv to be amortized in the Product piece price over the expected volumes of the Program as reflected in the Quote including, without limitation, for research and development, capital equipment, tooling and machinery; and (y) Aptiv's costs for settling claims or disputes with its sub-suppliers in connection with equipment, tooling, component parts, raw materials, or services related to the Products. Unless separately agreed in writing by Aptiv, Aptiv will have no obligation to assist Customer in the transition of production of the Products or similar parts to itself or to another supplier. If Customer terminates this Agreement for any reason other than Aptiv’s material breach, Aptiv will not be obligated to release any of Customer's Tooling (as defined in Section 18) or provide any transition support relating to the supply of the Products to Customer, until Customer makes all required termination payments.
Aptiv will not be liable for any failure to perform or delay in performance due to any cause beyond the reasonable control of Aptiv, including acts of God, compliance in good faith with any applicable foreign or domestic government regulation or order whether or not it proves to be invalid, fires, floods, windstorms, other natural disasters, riots, wars, labor problems (including disputes, strikes, slowdowns or lockouts), inability to obtain power, components, materials, transportation, or equipment, outbreak of infectious disease, changes in tariffs, tax, trade or national security-related laws or regulations or similar governmental actions that directly or indirectly increase the cost of providing the Products. If, in the exercise of commercially reasonable efforts to continue performing in connection with any such excusable delay, Aptiv incurs any additional costs, such costs will be borne by Customer and, upon Aptiv’s request, those additional costs will be paid directly or paid in advance by Customer.
Under all circumstances, Aptiv' s aggregate liability for any claims and damages arising out of or resulting from (i) this Agreement, (ii) the design, manufacture, delivery, sale, repair, replacement or use of Products, or (iii) the furnishing of any service, except in the case of Aptiv 's gross negligence and/or willful and intentional misconduct, will not exceed, the revenues received by Aptiv from Customer for the Products which gave rise to the claim during the twelve (12) month period preceding the date of such claim(s) and damages. NOTWITHSTANDING ANYTHING CONTAINED IN THE AGREEMENT, APTIV WILL NOT BE LIABLE TO CUSTOMER FOR ANY CLAIMS MADE BY CUSTOMER’S CUSTOMERS OR FOR ANY LIQUIDATED, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OF THE PRODUCTS OR EQUIPMENT, COST OF CAPITAL, COST OF ANY LINE STOPPAGES OR PLANT SHUTDOWNS OR ANY DAMAGES CLAIMED BY CUSTOMER'S CUSTOMER.
The ownership of all of the intellectual property rights in the Products, including all updates, improvements and modifications to the Products, including any software created or developed in connection with the Products (“Aptiv Intellectual Property”), will vest in Aptiv immediately upon their creation, and will be the sole and exclusive property of Aptiv. Aptiv Intellectual Property includes any technologies developed during any design, development and testing activity or non-recurring engineering work directly related to the Products supplied pursuant to this Agreement (“Foreground IP”) in addition to all Aptiv Intellectual Property developed before or independently of the engineering work related to this Agreement (“Background IP”). Aptiv Intellectual Property under this Agreement includes any customizations, designs, interfaces or modifications to and for Aptiv hardware or software including algorithms, software, specifications, calibrations, source code and/or object code made in connection with the Products, even if Customer has paid Aptiv for such customizations, designs, interfaces or modifications. Under no circumstances does Customer obtain any legal or equitable right, title or interest in any of the Aptiv Intellectual Property. Subject to this Agreement and only during the Term, Aptiv grants to Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to Aptiv Intellectual Property solely to incorporate Products purchased from Aptiv into Customer’s products and manufacture, sell, offer for sale and distribute Customer’s products. Subject to this Agreement and only during the Term, Customer grants to Aptiv a worldwide, non-exclusive, royalty free, fully paid-up license, with right to sublicense to Aptiv’s affiliates, to all Customer and third party intellectual property rights necessary for the goods or services that are the subject of Aptiv’s quote to make, have made, use, reproduce, modify, improve, prepare derivative works of, distribute, display, perform, offer to sell, sell and import the goods or services that are the subject of this quote to supply goods or services to Customer.
Subject to the following exceptions, Aptiv shall indemnify and hold Customer harmless against any claim made against Customer by a third-party alleging that the Products infringe the intellectual property of that third-party. Aptiv shall not be liable to indemnify Customer if: (i) Company does not notify Aptiv of any third-party’s claim of infringement within thirty days of receipt of such claim, (ii) Company’s ability to defend the claim has been prejudiced by Company’s non-compliance with any of its obligations under this Agreement, (iii) the Company does not give Aptiv reasonable assistance and access to documents and information of Company required by Aptiv to defend the claim, (iv) the claim has arisen because of the use of the Products as part of Customer’s products developed by the Customer and the claim relates to Customer’s product as a whole or any other use of the Products in combination with hardware, software, equipment and materials not supplied by Aptiv, (v) the claim has arisen due to Aptiv’s compliance with Customer’s instructions, (vi) the claim has arisen because of the inclusion of standardized technology, including but not limited to 3G, 4G, 5G, LTE, WiFi, USB, Bluetooth, charging protocols, audio codecs and video codecs requested by Company for inclusion in the Products, (vii) the claim has arisen because of the inclusion of third-party or open source software specified by Customer, or (viii) Customer does not permit Aptiv to have control of the defense of the claim and related settlement negotiations.
Aptiv will be and remain the owner of all data captured, observed, and/or generated by, or otherwise related to, the Products. All rights, title and interest in such data will belong solely and exclusively to Aptiv. Customer agrees to provide Aptiv with access to data generated by or within an Aptiv product which is collected by Customer and Customer will only use such data with respect to the applicable vehicle program, and only while this Agreement remains in effect. Aptiv and Customer are independently responsible for compliance with all applicable laws, rules and regulations related to data protection, data breaches and data privacy for the data that in within that Party’s possession. Should a Party violate any laws, rules and regulations related to data, that Party will defend, indemnify and hold the other Party harmless for any violations or claims resulting from that violation.
Each of Aptiv and Customer will defend, indemnify and hold the other harmless from any claims, suits, proceedings, or actions arising directly out of the gross negligence or willful misconduct of itself or its employees. All liability will be apportioned in relation to the fault of Aptiv, Customer and any other third party which might be liable. Aptiv will have no other indemnification obligations to Customer.
With the exception of open source software, Aptiv will not deliver any software used in its Products to Customer. Should Customer source software from Aptiv, Aptiv will not share with Customer any Product-related source code. Aptiv will disclose any third party and open source software in a software product, and to the extent the software product includes third-party or open source software, Customer is responsible for obtaining and complying with all third-party and open source software licenses. To the extent that any software, algorithms, specifications, calibrations, source code and object code are made available to Customer for use before, or during the term of, the Agreement, it may only be utilized in conjunction with the quoted vehicle program and exclusively within the scope of such program.
Software support and maintenance are not included in the Quote and will be quoted separately.
Warranty liability for software will be limited to an over-the-air (OTA) remedy, regardless of whether Customer implements OTA. In all circumstances where an OTA or other software action is offered by Aptiv to address a Customer request or other matter, Aptiv’s responsibility will be limited to the cost of OTA or other software action.
“Tooling” means tooling, jigs, dies, gauges, molds, fixtures, and patterns required for production of the Products. Only Tooling that is fully paid for by Customer in accordance with the tooling payment terms set forth in the Quote or other otherwise under a separate written agreement will become the property of Customer (“Customer’s Tooling”). During its use at Aptiv’s facility, Customer’s Tooling will be maintained during its useful life for quoted volumes, capacities and program duration only, exclusive of extensions in accordance with Aptiv's usual preventative maintenance practice. Aptiv will be under no obligation to maintain, repair, refurbish or replace any of Customer's Tooling beyond normal preventative maintenance. Customer will bear the risk of ordinary wear and tear, loss or damage. Prices for Customer’s Tooling do not include transportation costs, storage beyond completion of production of the Products governed by the Agreement, or the costs of marking or packaging. Customer acknowledges that Aptiv's possession of Customer’s Tooling is integrally related to Aptiv's performance under the Agreement. Upon termination, expiration or cancellation of the Agreement for any reason, Aptiv will have a lien on and may maintain possession of Customer's Tooling until Aptiv is paid in full for all amounts due from Customer to Aptiv. Furthermore, Customer will not have any interest in or right to purchase any property, including Tooling, owned by Aptiv or any other party, even if such property is used in the production of the Products. Aptiv does not transfer any intellectual property rights or know-how in tooling to Customer. Tools cannot be moved from Aptiv’s location without Aptiv’s written approval.
If a program delay, unplanned plant shutdown or similar program interruption that is not caused by Aptiv occurs, Customer will reimburse Aptiv for any costs associated with the delay or interruption. If a program is suspended, cancelled or terminated, has no material requirements or if the supply of parts is otherwise terminated for any reason, any up-front commercial benefits and all unrecovered costs, including labor, design, development and testing, tooling and capital costs, will be payable to Aptiv by Customer upon Aptiv’s invoice to Customer.
Customer acknowledges and agrees that it will not setoff, debit or recoup any amount allegedly owed to it by Aptiv against any amount payable to Aptiv unless Customer has provided advanced written notice of the proposed setoff with a detailed explanation for the basis and has received Aptiv’s written agreement to allow the proposed setoff. If Customer sets off, debits or recoups from amounts payable to Aptiv without Aptiv’s consent, Aptiv will be entitled, in addition to all of its other rights hereunder or otherwise, to withhold shipments of Products until Customer reverses such improper set off, debit or recoupment.
Any and all information (including photographs, samples, models, prototypes) disclosed by or on behalf of Aptiv to the Customer or to which Customer is exposed in connection with this Agreement and the supply of products, including, without limitation, manufacturing methods, procedures, processes, technologies, know-how, trade secrets, formulas, ideas, inventions, drawings, specifications, product data, designs, software, business plans, marketing plans, business operation information, financial information, pricing information, cost information, strategies, Customer lists, supplier lists, and any representations, compilations, analysis, and summaries of the foregoing ("Confidential Information") will be held by Customer in strict confidence and used solely for the purpose of doing business with Aptiv. Customer will restrict access to and limit disclosure of Aptiv's Confidential Information to only those of Customer's employees, directors, officers, and advisors with a need to know the information to accomplish the purpose of this Agreement, provided that they have been instructed and are bound not to disclose the Confidential Information or use it for any purpose other than as permitted under this Agreement. Customer will not disclose or transfer any of Aptiv's Confidential Information, either directly or indirectly, to any other person or entity without the written consent of Aptiv. Aptiv will have no obligation to provide any of its non-public financial or other Confidential Information to Customer. In the event of an uncured default or proper request for adequate assurance of performance, Aptiv is required only to produce limited financial or other Confidential Information relevant to the default and ability to perform its obligations in the future and only after mutually agreed upon procedures have been established for review of such information. If the parties enter into a separate confidentiality agreement regarding the business relationship covered by this Agreement, such confidentiality agreement will govern to the extent its terms are inconsistent with this Section 21.
Regardless of whether Customer was directed or suggested to use Aptiv for the manufacture of the Products, Aptiv is a supplier to Customer only, and unless Aptiv has signed a separate agreement with Customer's customer or otherwise expressly agreed in a signed writing, Aptiv will not be bound by any terms and conditions or cost sharing programs imposed upon Customer by Customer's customer, whether or not Aptiv has notice of such terms. Customer will defend, indemnify and hold Aptiv harmless from and against any costs, damages, expenses or other liabilities related to any commercial issues, warranty and recall matters between Customer and its customer.
If Customer directs, recommends or requests that Aptiv use a particular supplier or requires that Aptiv use a component or material produced by a particular supplier (any such supplier being a “Directed Supplier”), Customer and Aptiv will agree upon a RASIC chart highlighting the responsibilities of the parties. In the absence of an agreed RASIC chart, Aptiv will have no obligation to use such Directed Supplier. Customer is responsible for any additional costs due to the use of a Directed Supplier. Customer will also be fully responsible for the performance of the Directed Supplier and, to the extent requested by Aptiv, will resolve all commercial issues, warranty and recall matters, product liability or other claims, and production interruptions arising from or related to the components provided by the Directed Supplier directly with the Directed Supplier and will indemnify, defend and hold Aptiv harmless from and against any claims, costs, damages, expenses or other liabilities related to these issues.
If Aptiv is required or directed by Customer to sell to a third party, Customer guarantees fulfillment of all such third party’s obligations to Aptiv, including full and timely payment. Disputes between Customer and such third party will not alter this obligation. Customer will indemnify and hold Aptiv harmless from and against any claims costs, damages, expenses or other liabilities associated with sales to the third party.
If Aptiv is directed by an OEM customer to sell to Customer, notwithstanding any disputes between Customer and such OEM customer, and without regard to whether Customer has been paid in full by such OEM customer, Customer will fully and timely pay Aptiv.
Cybersecurity requirements and technical specifications are provided by Customer. Customer is solely responsible to provide and continuously ensure a secure connection between the Products and Customer’s network or any other network. Customer is responsible for establishing and maintaining appropriate measures (including the installation of firewalls, application of authentication measures, encryption of data, installation of antivirus programs, etc.) to protect Customer’s products, network, and system. Aptiv will not be liable for any damages or losses related to security breaches, unauthorized access, interference, intrusion, leakage, and/or theft of data or information from vehicle-connected customer networks. Aptiv is not required to provide support for security updates or monitor, and will not be liable for, internal or external sources of cyber threat intelligence for weaknesses, vulnerabilities, or incidents impacting a Product.
Aptiv reserves any and all other rights and remedies available to Aptiv under the terms of this Sale Policy and under applicable law.
Aptiv and Customer acknowledge and agree that the Products sold hereunder may be subject to import, export and sanctions laws and regulations of the U.S. and other countries where the Parties conduct business (collectively referred to as “Global Trade Laws.” Customer will not cause Aptiv to violate any Global Trade Laws. Customer also agrees that it will not export or re-export or otherwise transfer any Products or technical data provided hereunder to any country, person, entity or end-user subject to export controls. Customer specifically agrees not to export or re-export the Products or technical data hereunder (i) to any country or party to which, at the time of the transfer, the United States or any other country where the Parties conduct business has embargoed or restricted the export or reexport of the relevant products or services; (ii) to any end-user who the Customer knows, or has reason to know, will utilize the Products or technical data for any purposes prohibited by applicable Global Trade Laws including, without limitation, in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in the relevant export transactions by any applicable government authority. Aptiv may refuse to enter into or perform any order, and may cancel any order, placed under this Agreement if it determines, in its sole discretion, that entry into or performance of such order would violate any applicable Global Trade Laws.
In the performance of the Agreement, Customer will fully comply with all applicable laws, statutes, rules, regulations, conventions, orders, standards and ordinances, including, without limitation, all Global Trade Laws, all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, as such acts may be amended from time to time.
Customer may not assign this Agreement, in whole or in part, without the prior written consent of Aptiv. Any attempted assignment or subcontracting by Customer without such consent will be ineffective and will not relieve Customer of its duties or obligations under this Agreement. In the event of a proper assignment, the Agreement will be binding upon and inure to the benefit of the Customer's successors and assigns.
Customer and Aptiv are independent contractors, and nothing contained herein makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party.
No amendment or waiver of any provision of the Agreement will be effective unless it is in writing and signed by the party against which enforcement of the amendment or waiver is sought. The failure of Aptiv to require performance under any provision of this Agreement will in no way affect Aptiv's right to require full performance at any subsequent time, nor will the waiver by Aptiv of a breach of any of the terms and conditions of this Agreement constitute a waiver of any other breach of the same or any other term.
If one or more provisions of the Agreement should be or become invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and the parties will substitute the invalid or unenforceable provision with a valid provision that as closely as possible achieves the same business purpose as the invalid or unenforceable provision.
This Agreement contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless any such amendment, modification, or supplementation is done so in writing and explicitly references this Agreement and is signed by both authorized representatives of both parties hereto.