- “Confidential Information” means all documents and information marked as “confidential” by the disclosing party in writing or orally of which the parties
- gained knowledge on the basis of the cooperation as well as all information which by its nature is confidential.
- “Customer(s)” means any VMI’s customer VMI has granted access for the Portal.
- “Data” means any exchange of information relating between the parties, including but not limited to Customer’s needs (Purchase Orders), VMI technical or
- commercial information, and any and all data, information and other material made accessible and available by one party to the other in the frame of the use
- of the Portal.
- “GTCS” means VMI’s General Terms and Conditions of Sale.
- “GTCU” means these general terms and conditions of use of the Portal.
- “Platform Data” refers to all access Data (for example Customer ID, user name or password), Contract Data (data on the existing contractual relationship
- with the Customer as regards use of the Portal), transaction Data (log files electronically recorded during use of the Portal), business Data and registration
- “Purchase Orders” means any purchase order, amendment to a purchase order placed by the Customer via the Portal.
- “Services” means any technical information, parts information, prices, access to Purchase Order management, Customer can find in the extranet.
- “Portal” means VMI web portal, collaborative platform where Customers’ and VMI’s Data are made accessible and exchanged, for collaboration purposes, to
- facilitate the processing of electronic business transactions by means of a browser interface or integration in internal systems of the Customer, notably in
- respect to engineering, supply chain management and quality management..
2. Subject matter
These GTCU aims at defining the terms and conditions relating to the use by Customer of the Portal for the exchange of Data and provision of Services by VMI. For the business relationship between VMI and its Customers these GTCU shall apply exclusively for the provision of the Services defined in article 1.
3. Contract conclusion and Purchase Orders
3.1. Online application by Customer.
Customer will apply online for being granted access to use the Portal. The Customer is obliged to provide correct and complete registration Data, to update any changes without undue delay or to inform VMI of such changes. The registration must be made by the Customer. A commercial agent, an association and/or any other similar organisation may not make a registration on behalf of the Customer.
3.2. Application of GTCU.
By applying online, the Customer hereby accepts the application of the GTCU while using the Portal and these GTCU will apply to all business relationships even if they are not expressly agreed again after each log in. The parties agree that these GTCU shall form an integral part of: the contract signed between the parties, if applicable, VMI GTCS, which will be applicable to any Purchase Order sent by the Customer via the Portal, as the case may be.
3.3. Acceptance of application by VMI.
Upon receipt of the online application VMI shall send an e-mail to the Customer which confirms receipt of the online application and lists the details of the application. Such confirmation shall not constitute an acceptance of a Purchase Order, but is merely to inform the Customer that VMI has received the online application. Acceptance of the online application shall be subject to VMI’s freely exercised discretion and shall be effected by granting the Customer access to use the Portal.
3.4 Application of VMI GTCS to the Purchase Orders.
The Customer hereby agrees that as a condition of acceptance of its application, the Customer must sign VMI GTCS, which will be applicable to at the date of application, in case there is no frame contract already signed between the parties. In this case, the GTCS will apply to any Purchase Order sent by the Customer via the Portal.
3.5. Purchase Orders.
Customer acknowledges that any Purchase Order sent through the Portal shall be a valid and firm Purchase Order in accordance with VMI’s quotation, and subject to the terms and conditions of the contract signed between the parties or GTC, as the case may be, as supplemented by the terms and conditions hereunder. Update or cancellation of a Purchase Order shall not be allowed as soon as the relevant Purchase Order has reached the status “accepted”.
4. Performance obligations of VMI
4.1. Access to the Portal.
The Customer acknowledges and accepts that VMI shall not take any responsibility regarding the misuse by Customer of the Portal including in particular any storage and upload of wrongful Data. Customer hereby agrees to indemnify and hold harmless VMI for any damage arising from any misuse of the Portal by the Customer or its employees.
4.2. Force majeure.
VMI is not obliged to perform the Services where it becomes impossible for VMI to perform the Services due to cases of force majeure such as industrial action, acts of nature, war or similar unforeseeable events or beyond VMI control.5. Customer’s obligations
5. Customer’s obligations
5.1. Compliance with the GTCU.
The Customer is obliged to comply with the GTCU.
5.2. Selection of qualified employees; representation rights.
The Customer has to name at least one administrator of its company who manages the access and registration Data. The Customer may appoint as participants only natural persons with the relevant expertise. It must grant them power of representation to make and accept declarations of intent on its behalf.
5.3. Data formats.
The Customer shall be obliged to make the Platform Data available to VMI in the prescribed formats by using the interfaces provided for
5.4. Responsibility for technical requirements and Data verification.
It is entirely within the Customer’s scope of responsibility to provide the equipment and technology required for the use of the Portal and to observe the system requirements of the latter. This notably applies to all necessary equipment, data transmission lines, telecommunications services, browsers and the use of encryption methods. The Customer shall bear the costs incurred for this as well as any other charges.
5.5. Use of the Portal and prohibition of manipulation.
The Customer hereby commits to maintain and update its Data under its own responsibility, in order to ensure the appropriate use of the Portal. In the case Customer faces or anticipates to face an impossibility to comply with the provisions of the present GTCU due to malfunction of the Portal, then Customer shall: immediately inform VMI of the encountered malfunction, explaining the reason that prevent the Customer, and describing in detail the trouble; inform quickly VMI about all actions taken to correct and mitigate such trouble. The Customer shall not manipulate the Portal in any way whatsoever. The Customer may notably not enter or transfer any data which contains viruses, trojan horses or similar executable program codes which are capable of damaging, viewing, intercepting, forwarding or deleting data or systems, or of providing unauthorized access to data, systems or areas. The Customer shall not use any mechanisms, software or any other tools which can interfere with or put an excessive strain on the Portal.
5.6. Safekeeping of the employees’ access Data.
The Customer is obliged to pass on access Data only to the authorized employees the Customer has registered with VMI. Third parties must be prevented from gaining knowledge of, accessing and using access Data. Any acts in which the accesses Data of an authorized employee are used shall be deemed acts performed by them and shall be attributed to the Customer.
5.7. Prohibition on modification and exploitation; IP rights.
The Customer shall not modify, publish, transfer or participate in the transfer and sale of the Services or equipment object of the Services, nor store or reproduce them or produce, distribute or display derived content or commercially exploit VMI Services and information in any other way.
6. VMI’s rights
6.1. Rights upon registration.
VMI is entitled but not obliged to verify the registration Data of the Customer by collecting data from the Customer itself or from third parties. VMI may demand proof of power of representation for each Customer’s employee registered by the Customer. VMI may refuse registration for objective reasons, notably where a prospective customer provides wrong or misleading registration Data, if there is clear indication that its creditworthiness is not ensured or if there is clear indication that applicable international, European or national legal regulations are violated.
6.2. Rights of use.
VMI may for a period of five (5) years after the last Purchase Order receipt from the Customer, use the Customer profile and business Data, word and device marks, designations and other ancillary copyrights of the Customer for the purposes required for performance of the Purchase Orders sent via the Portal, notably reproduce, edit, translate and transmit such data and information. Domain names, word and device marks as well as trade names of VMI are protected by law. VMI reserves all ownership rights and rights of use in the present and future structuring and design of the Portal.
6.3. Blocking of illegal content.
VMI may, in the event of gaining positive knowledge of the illegality, or upon learning of facts and circumstances which indicate illegality, block illegal content without undue delay.
6.4. Withdrawal of the right of use in the event of misuse.
VMI is entitled to temporarily or permanently exclude Customers from using the Portal if such Customer breaches its contractual obligations, notably under article 5, one (1) week after issuance of a warning. Blocking the access to the Portal without warning is permissible only if a) the Customer has given cause for termination of the contractual relationship without notice or b) the facilities of VMI or public safety or public order are at risk or c) immediate blocking was ordered by the authorities or is required for statutory reasons. After termination of Customer’s violation of its duties, VMI shall lift the blocking if no further violations on the part of the Customer are to be expected.
In the event of a culpable material breach of duty jeopardizing the performance of the Services or a culpable breach of duty the fulfilment of which is a prerequisite for proper performance of the GTCU, VMI liability shall be limited to the amount equaling the regular remuneration the Customer paid to VMI within one year for the respective Service agreed.
8. Amendments to the GTCU
VMI shall inform the Customer of any amendments to the GTCU by providing it with the amended version of the GTCU and shall draw the Customer’s attention to the right to object, the period for objection and the significance of remaining silent. The Customer may object to amendments to the GTCU within a period of two (2) weeks of announcement of the amendments and receipt of the amended version of the GTCU. If the Customer does not object to the amendments within such two (2) week period, the amendments shall become effective after expiry of such period.
9. Term and termination of the GTCU
9.1. Termination for good cause.
The contracting parties are entitled to terminate the contractual relationship related to the Portal as a whole without observing any notice period for good cause if, taking into account all circumstances and giving due consideration to the interests of both parties, the party giving notice of termination cannot reasonably be requested to continue the contractual relationship or to use the Service until expiry of the notice period for termination. For VMI, good cause exists in particular if a Customer misuses the Services, if it seriously or repeatedly breaches its contractual obligations, if insolvency proceedings are opened against the assets of the Customer or such opening is imminent or if a significant deterioration occurs in respect of the Customer’s asset situation which gives rise to fear that it will not fulfil its obligations temporarily or permanently. In the event of valid termination without notice, VMI may block the Portal without warning.
9.2. Reactivation fee.
VMI reserves the right to charge a reactivation fee in the event of the Customer’s re-registration.
10.1. Obligation to maintain confidentiality.
The parties undertake to maintain confidentiality in respect to all confidential information during the term of these GTCU until such confidential information is public. This shall not apply where these GTCU or GTCS provide for a right to pass on such Confidential Information.
10.2. Right to pass on Confidential Information.
VMI may pass on Customers confidential information in order to fulfil the purpose of the GTCU. VMI is entitled to pass on to the company managing the Portal, information concerning the contractual relationship between VMI and the Customers (such as contractual status, access granted, imminent deactivation due to failure to pay) and which is relevant and necessary for the electronic handling of business processes.
11. Final provisions
11.1. Governing law.
These GTCU shall be governed exclusively by the laws of France.
11.2. Place of jurisdiction.
Exclusive place of jurisdiction for all disputes arising from or in connection with this GTCU is Nantes, France.
11.3. Changes and amendments.
Any changes or amendments to these GTCU require written form.
11.4. Waiver to Customer’s T&Cs.
Customer’s general terms and conditions shall not apply, even if VMI does not expressly contradict their applicability.
The GTCU and their respective contractual components represent the entire provisions relating to the subject matter hereunder and
replace all previous provisions agreed between the parties in respect of the subject matter hereunder. No oral side agreements have been made. Should
any of the provisions in these GTCU be invalid or unenforceable in whole or in part, this shall not affect the remaining provisions. The contracting parties
shall replace any invalid provision without undue delay by a valid provision which comes as close as possible to the economic purpose of the invalid