EXHIBIT (10)(12) Supplier and Warranty Agreement with Gulf States Toyota, Inc.
[TOYOTA LOGO]
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GULF STATES TOYOTA, INC.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, XX 00000-0000
(000) 000-0000
FAX (000) 000-0000
SUPPLIER AND WARRANTY AGREEMENT
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This Agreement ("Agreement") is entered into as of the 2nd day of MARCH, 2001 by
and between GULF STATES TOYOTA, INC, 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx
00000, ("GST"), and MARKETING WORLDWIDE, LTD, a PARTNERSHIP [I.E. A TEXAS
CORPORATION, PARTNERSHIP, ETC.] having its principal offices at, 00000 Xxxxx,
Xxxxx X, Xxxxxxxx Xxxx, Xxxxxxxx, 00000 ("Supplier").
GST has agreed to purchase certain accessories/supplies from Supplier, and
Supplier has agreed to sell said accessories/supplies to GST, as more
specifically identified on the Purchase Order. For all dealings between the
Parties, the Parties agree to the following terms and conditions:
1. This Supplier and Warranty Agreement is contingent upon Supplier
executing the same and returning it to GST. This Agreement and Purchase
Order shall together represent the complete Agreement between GST and
the Supplier. However, for any conflict between this Agreement and the
Purchase Order, this Agreement shall control.
2. Supplier represents, and GST relies upon the representation, that
Supplier maintains Products Liability Insurance in the minimum amount
of U.S. $5,000,000. Supplier agrees to maintain at all times, at
Supplier's sole cost and expense, Products Liability Insurance.
Supplier agrees to maintain current certificates showing proof of
Products Liability Insurance and Workers' Compensation Insurance with
GST, Certificates should be mailed to Gulf States Toyota, Inc., Attn:
Xxxx Xxxxxx, 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000. THE
CERTIFICATE OF INSURANCE FOR PRODUCTS LIABILITY MOST SPECIFY THAT THE
POLICY INCLUDES THE SPECIAL BROAD FORM COMMERCIAL GENERAL LIABILITY
ENDORSEMENT (ISO FORM 26 00) OR ADDITIONAL INSURED - VENDORS
ENDORSEMENT (ISO FORM 20 15) OR THE EQUIVALENT, NAMING GULF STATES
TOYOTA INC., ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AS
ADDITIONAL INSUREDS DURING THE TIME THAT GST PURCHASES THE COMPONENTS
OR PARTS FROM SUPPLIER, AND FOR A MINIMUM OF ONE YEAR THEREAFTER. THE
CERTIFICATE OF INSURANCE MUST ALSO INDICATE THE PRODUCT(S) SUPPLIED TO
GST BY SUPPLIER OR STATE "ALL PRODUCTS SUPPLIED TO GST." SUPPLIER
ACKNOWLEDGES AND AGREES THAT, FROM TIME TO TIME, GST MAY REQUIRE AN
INCREASE IN THE AMOUNT OF SPECIFIC PRODUCT LIABILITY INSURANCE THEN
PROVIDED BY SUPPLIER.
3. GST has the right to approve all product packaging, including, but not
limited to carton size, product protection, quantity unit pack and
identification. Each carton must be identified with a GST issued part
number. Packing slips must indicate the purchase order number and part
number.
4. Supplier's invoices for all products delivered must be mailed to
Xxxxxxxx Business Services, 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx
00000. All such invoices must
state the GST purchase order number, GST vendor number and
corresponding GST part number.
5. GST agrees to use its best efforts to pay Supplier for all products
received within 30 days after receipt of the applicable invoice. All
payments shall be made without any deductions, taxes, assessments or
charges of any kind, except that GST shall have the right to offset
against the invoices any sums due to GST arising from Warranty or
Damage Claims, or any costs arising from Supplier recall or campaign of
parts and/or accessories.
6. The payment of an invoice by GST shall not waive in whole or in part
the right of GST to dispute any invoice or any amount or charge
appearing thereon. GST shall give to Supplier prompt notice of any such
dispute and the basis for the dispute. The parties agree to act in good
faith to resolve any such disputes promptly. GST shall have the right
to offset the full amount of any disputed sum which has not been
resolved within ninety (90) days after notice to Supplier.
7. GST reserves the right to initiate a recall or campaign of any products
supplied pursuant to this Agreement when GST determines, or any
government agency alleges, that such products are defectively designed
or manufactured and/or fail to comply with all applicable federal,
state or local laws, rules or regulations, including but not limited
to, safety, environmental and emission laws, rules and regulations.
8. GST agrees to provide Supplier with notice of a recall or campaign
action which affects the Supplier's product(s). Supplier agrees to
reimburse GST for all reasonable costs incurred by GST and/or its
Dealer(s) in connection with such recall, including, but not limited
to, the costs of notifying vehicle owners, sublet repairs, rental car
expenses, towing, labor and parts costs for replacement of all
defective products.
9. All transportation charges are to be included in product pricing FOB
Gulf States Toyota, Inc., Parts Distribution Center, 0000 Xxx. 00 Xxxx,
Xxx Xxxxxx, Xxxxx 00000 or to an otherwise designated direct drop
address. If, due to Supplier problems, premium freight is required in
order to meet shipping schedules, any such additional expenses will be
the sole responsibility of Supplier. Premium freight requested before
normal supply lead times are exhausted will be at the sole expense of
GST.
10. Title to and risk of loss for Supplier products shall remain with
Supplier until received by GST in accordance with the provisions of
Paragraph 5 above.
11. An attempt will be made to provide adequate forecasting on all
products, as well as, timely purchase order submission on a monthly
basis. Supplier acknowledges and agrees that these expected order
quantity estimates do not represent a commitment to purchase, and do
not otherwise bind GST. The forecast figures provided by GST to
Supplier represents anticipated volume only. A purchase commitment does
not exist until a purchase order has been executed and issued by GST.
12. Product pricing should include the possibility of less than full load
shipping required on behalf of the Supplier. The Parties must agree in
writing to all changes to the established product pricing before
implementation.
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13. This Agreement shall be governed and construed in accordance with the
laws of the State of Texas, without regard to conflict or choice of law
statutes or provisions.
14. If any provision of this Agreement is deemed invalid by a court of
competent jurisdiction, the portion(s) deemed invalid shall not affect
any other provision in this Agreement. The Agreement shall be construed
as if the invalid provision(s) had never been included.
15. Supplier agrees to test all product returns to validate the claimed
defect, unless otherwise instructed by GST. Supplier further agrees to
inform GST the results of its testing within 45 days of the receipt of
the returns.
16. All products manufactured and/or provided by Supplier for use by GST
are warranted against defects in material and/or workmanship for a
period of THIRTY-SIX (36) MONTHS OR 36, 000 MILES, whichever shall
occur first. This Warranty shall commence on the date of delivery of a
motor vehicle to the retail purchaser. Supplier agrees to comply with
the attached Supplier Warranty Requirements, which are incorporated as
a part of this Warranty Agreement.
17. New replacement service parts furnished by Supplier are warranted
against defects in material and/or workmanship for a period of TWELVE
(12) MONTHS OR 12,000 MILES, whichever shall occur first, or for the
balance of the new car warranty if greater and if installed when new,
from the date of installation.
18. Supplier further agrees to provide an adequate supply of service
replacement parts for all products purchased for the maximum warranty
period of the vehicle upon which the product was last installed.
19. SUPPLIER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS GST ITS
PARENT, SUBSIDIARY OR AFFILIATED COMPANIES, AND ANY AND ALL OF THEIR
OFFICERS, DIRECTORS, REPRESENTATIVES, AGENTS AND EMPLOYEES FROM AND
AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, DEMANDS, DAMAGES,
COSTS, BODILY INJURY, PROPERTY DAMAGE, ATTORNEY'S FEES AND EXPENSES
ARISING FROM ANY ALLEGED NEGLIGENCE, DEFECT IN DESIGN, MATERIAL,
WORKMANSHIP, WARNINGS OR INSTRUCTION, BREACH OF IMPLIED OR EXPRESSED
WARRANTIES, INTELLECTURAL PROPERTY INFRINGEMENT, MARKETING CLAIMS OR
OTHER CLAIMS IN ANY WAY CONNECTED WITH THE PARTS OR COMPONENTS
MANUFACTURED, HANDLED, SOLD OR OTHERWISE FURNISHED TO GST BY SUPPLIER.
20. Toyota warranty claims criteria require parts replacement at GST's
acquisition cost, plus A 45% markup. This amount is in addition to
labor reimbursement based upon a fair and reasonable time allowance
multiplied by the servicing dealer's warranty labor rate (pursuant to
the current Supplier Warranty Requirements) and any third party or
sublet fees.
21. GST will forward to Supplier, a representative sample of all parts,
which exceed $5.00 in value, replaced on warranty repairs for testing
purposes. Supplier shall reimburse GST for the shipping costs involved
both from the dealer to GST and from GST to the Supplier.
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22. Supplier agrees to abide by the attached Supplier Warranty
Requirements. These Requirements are incorporated into the terms and
conditions of this Agreement Requirements may change from time to time,
and GST will promptly notify Supplier of any revisions.
23. The GST Warranty Department will attach a copy of each claim to the
itemized monthly statement. Supplier shall give to GST written notice
of any disputed warranty claim within thirty (30) days after receipt of
said written notice from GST.
24. This Agreement supercedes and replaces all previous agreements, oral or
written, between the Parties, and the provisions contained herein will
govern the rights and responsibilities of the Parties for all
transactions. Any modifications shall require written approval by the
Parties. [WITH THE EXCEPTION OF THE CURRENT AVALON AND CAMRY PROGRAMS.]
25. In the event of any litigation or proceeding between the Parties or
their representatives concerning any provision of the Agreement, the
prevailing party shall be entitled to a reasonable sum for attorney
fees and court costs of such litigation or proceeding as determined by
the tribunal in such litigation or proceeding, or in a separate action
brought for that purpose.
The Parties intend for this Agreement and the attached Warranties requirements
to be a complete agreement between them concerning the matters contained herein.
any modifications must be in writing upon the approval of the Parties.
IN WITNESS HEREOF, this Agreement is executed as of the date and year first
stated above.
MARKETING WORLDWIDE, LTD.
/S/ XXXXX XXXXX
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By: XXXXX XXXXX
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Title: OPERATIONS MANAGER
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GULF STATES TOYOTA, INC.
/S/ XXXXX XXXXXXXXX
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By: /S/ XXXXX XXXXXXXXX
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TITLE: DIRECTOR
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3-19-01
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GULF STATES TOYOTA, INC.'S
SUPPLIER WARRANTY REQUIREMENTS
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1. The Warranty period on Toyota motor vehicles, including parts and
accessories must be 36 MONTHS OR 36,000 MILES, whichever occurs first.
Vehicles that have been placed in demo service are eligible for A
WARRANTY EXTENSION that gives the customer a 36-MONTH/36,000 MILE
warranty from the retail date and retail mileage. Supplier is expected
to honor claims falling into this category.
AFTER THE 36 MONTH/36,000-MILE WARRANTY EXPIRES, SUPPLIER MUST CARRY
THE REPLACEMENT PARTS AND ACCESSORIES FOR 12 MONTHS.
2. TERMS OF REIMBURSEMENT:
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a. Labor must be reimbursed at the servicing dealer's warranty
labor rate authorized by Toyota Motor Sales, USA, Inc.
b. Supplier may establish a reasonable labor standard and rate
for the repairs.
c. Defective parts shall be replaced with the dealer's existing
stock or ordered from the GST Parts Department.
d. Parts on warranty claims will be reimbursed at GSTs
acquisition cost, plus a 45% markup.
3. DEFECTIVE PARTS RECOVERY:
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GST will forward to Supplier all parts, which exceed $5.00 in value,
replaced on warranty repairs for testing purposes. Supplier shall
reimburse GST for the shipping costs involved both from the dealer to
GST and from GST to the Supplier.
4. CLAIM SUBMISSION PROCEDURES TO SUPPLIER:
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The GST Warranty Department will reimburse the dealers for warranty
repairs prior to submission to Supplier. GST will require the dealers
to tag all defective parts with an explanation of the claimed
failure(s).
The GST Warranty Department will submit a listing of all outstanding claims to
Supplier each month. Copies of all warranty claims will be provided, and
replacement parts will be shipped if applicable.
Upon receipt of the necessary documentation, GST will deduct from Supplier's
invoice valid warranty claims.
MARKETING WORLDWIDE, LTD. GULF STATES TOYOTA, INC.
By: /S/ XXXXX XXXXX By: /S/ XXXXX XXXXXXXXX
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Title: OPERATIONS MANAGER Date: 3/2/01 Title: DIRECTOR Date: 3-19-01
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