EXHIBIT 10.4
FORM OF DEALERSHIP AGREEMENT
BMW (GB) Limited
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THIS AGREEMENT is made BETWEEN BMW (GB) LIMITED whose registered office is at
Ellesfield Avenue Bracknell Berkshire RG12 8TA (hereinafter called "BMW GB") and
the Dealer specified in the Eighth Schedule hereto (hereinafter called "the
Dealer").
Preamble
BMW GB and the Dealer enter into this Agreement with the desire and the
expectation that the business endeavours of the Dealer and the dealer
organisation as a whole and the activities of BMW GB will result in the greatest
success possible.
BMW GB and the Dealer will endeavour through their co-operation in the
distribution and maintenance of Contract Goods to satisfy in every way the
expectations of Customers.
1. BASIS OF THE AGREEMENT
1.1 Distribution Rights for Contract Goods
BMW GB hereby appoints the Dealer to be and the Dealer undertakes the
duty of being a dealer in Contract Goods in the Territory as
hereinafter defined on the terms and conditions hereinafter appearing
from the Commencement Date specified in the Eighth Schedule hereto.
1.2 BMW Support
BMW GB intends that the Dealer will receive all relevant services to
enable the Dealer to offer to its Customers, as it sees fit, the
Customer Facilities as defined in Clause 14 hereof, but this Agreement
does not itself apply to such Customer Facilities.
1.3 Modification of the Contract Goods
(a) The Dealer will not, without the prior written consent of BMW GB,
modify the Contract Goods using other than BMW Parts or offer for
sale or distribute such modified goods unless such modification
is the subject of a contract with a final consumer and concerns a
particular BMW Vehicle purchased by such final consumer.
b) The Dealer will use only the model designations applied by the
Manufacturer from time to time.
1.4 Re-Sale of Contract Goods
The Dealer will not supply Contract Goods to any reseller not
authorised by BMW GB or directly or indirectly by the Manufacturer.
This restriction does not apply to the extent that any such reseller
purchases any BMW Parts for his own use in effecting repairs or
maintenance.
The term "reseller" includes any third party or intermediary not
authorised as aforesaid who represents himself as an authorised
reseller of BMW Vehicles or carries on an activity equivalent to that
of a reseller.
Sales of BMW Vehicles to final consumers using the services of any
other intermediary are permitted only if that intermediary has the
prior written authority of such final consumer to purchase a specific
BMW Vehicle and, as the case may be, to accept delivery thereof on the
final consumer's behalf.
The Dealer must before completing the sale of any BMW Vehicle intended
for use in the United Kingdom ensure that such BMW Vehicle is
registered with the appropriate registration authority.
In the event of any breach by the Dealer of this Clause 1.4, then,
without prejudice to all other remedies which may be available to BMW
GB, the Dealer may be required by BMW GB to pay the full recommended
retail price for the Contract Goods in respect of which the breach
occurs, and BMW GB may debit the account of the Dealer in accordance
with the direct debit procedure operated by BMW GB with an amount
equivalent to the aggregate of the difference between the recommended
retail price and the wholesale price otherwise payable by the Dealer,
together with any taxes thereon, and the amount of any bonus, discount
or rebate received by the Dealer which would not have been given to
the Dealer but for any sale or supply in breach of this clause 1.4.
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1.5 Independence of Dealer
The Dealer operates its business in its own name, on its own account
and at its own risk. It has no power to legally bind BMW GB or the
Manufacturer and it is understood and agreed between the parties
hereto that this Agreement shall not be construed as constituting the
Dealer as agent of BMW GB or the Manufacturer for any purpose
whatsoever. The Dealer will not describe itself as agent for BMW GB or
the Manufacturer or in any words indicating any relationship of agency
existing between the parties.
1.6 Assignment
The Dealer will not without BMW GB's prior written consent assign or
purport to assign the benefit of this Agreement either in whole or
part to any third party.
In deciding whether or not to grant such consent BMW GB will take into
account all those matters which it would normally take into account
when deciding whether or not to appoint a new dealer.
2. THE TERRITORY
2.1 Description of the Territory
The Territory is the area described in the Seventh Schedule hereto.
2.2 Responsibility in the Territory
The Dealer represents the interests of BMW GB in the Territory. It is
responsible for the sales promotion and full utilisation of the market
potential for Contract Goods in the Territory.
It is further responsible for ensuring the provision of the best
possible customer service.
The appointment of additional dealers in the Territory or any change
of the Territory during the term of this Agreement require prior
consent of the Dealer. This applies without prejudice to the right of
BMW GB to appoint an additional dealer or to establish branches or
distribution depots in the Territory if the Territory is served by
more than one BMW Dealer and any such BMW Dealer ceases to be a BMW
Dealer.
2.3 Activity Outside the Territory
The Dealer will not outside the Territory with respect to Contract
Goods:
a) maintain branches or delivery depots; or
b) entrust a third party with the distribution or servicing of
Contract Goods; or
c) solicit new Customers by personalised advertising.
2.4 Export
The Dealer will not supply any Contract Goods, directly or indirectly,
to any purchaser outside the territory of the European Economic Area
(EEA) nor will the Dealer modify any Contract Goods for the purpose of
such supply.
In the event of any breach by the Dealer of this Clause 2.4, then,
without prejudice to all other remedies which may be available to BMW
GB, the Dealer may be required by BMW GB to pay the full recommended
retail price for the Contract Goods in respect of which the breach
occurs and, accordingly, BMW GB may debit the account of the Dealer in
accordance with the direct debit procedure operated by BMW GB with an
amount equivalent to the aggregate of the difference between the
recommended retail price and the wholesale price otherwise payable by
the Dealer, together with any taxes thereon, and the amount of any
bonus, discount or rebate received by the Dealer which would not have
been given to the Dealer but for any supply in breach of this clause
2.4.
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3. ACTIVITY WITH RESPECT TO OTHER MOTOR VEHICLE PRODUCTS
3.1 Manufacture and Distribution of Third Party Products
The Dealer will not without the prior written consent of BMW GB
manufacture, sell, distribute, supply, or promote the distribution of
any product which competes with Contract Goods or use such products in
the repair or maintenance of any Contract Goods. The obligation
contained in this Clause 3.1 applies to the following:
a) new cars of other makes, EXCEPT on separate sales premises, under
separate management, in the form of a distinct legal entity and
in a manner which avoids confusion between makes
b) sale and use of Non-BMW Parts which do not meet the same quality
standard as BMW Parts
If the Dealer uses Non-BMW Parts for the repair or maintenance of BMW
Vehicles the Dealer undertakes to inform Customers, in a general
manner, of the extent to which such Non-BMW Parts might be so used.
The Dealer further undertakes to inform Customers in writing whenever
Non-BMW Parts have been used for the repair or maintenance of BMW
Vehicles.
The Dealer will use only BMW Parts in carrying out any warranty or
goodwill work or any work in connection with a product recall or
modification campaign concerning Contract Goods.
3.2 Reasons for Release from Obligations
BMW GB will release the Dealer from the obligations referred to in
clause 3.1 a) where the Dealer shows that there are objective reasons
for doing so.
4. SCOPE OF THE ACTIVITY OF THE DEALER
4.1 Objectives
4.1.1 Strengthening of the BMW GB Dealer Organisation
The Dealer will continually endeavour to strengthen the BMW dealer
organisation in its entirety.
4.1.2 Responsibility for Sales and Advertising
In assuming responsibility for the promotion of sales and the full
utilisation of the market potential for Contract Goods the Dealer will
use its best endeavours to conduct effective sales promotion and
advertising making use of the most appropriate advertising media.
4.1.3 Requirements of BMW GB
In order to comply with its duties the Dealer will ensure that its
business operations and representation conform with the reasonable
requirements of BMW GB in respect of sales, customer and parts
service, as they are, for example, set forth in the Schedules to this
Agreement or as otherwise notified from time to time by BMW GB.
4.2 Sale of BMW Vehicles
4.2.1 Delivery Forecast
Prior to the beginning of each sales year, which shall be the calendar
year unless otherwise notified by BMW GB, BMW GB shall propose to the
Dealer a delivery forecast.
The delivery forecast shall be based on the production potential of
the Manufacturer and shall take into account, in particular;
a) forecast sales defined by BMW GB on a national level; and
b) the market potential resulting from BMW GB's estimate of future
sales in the Territory and nationally.
4.2.2 Sales Targets
The Dealer and BMW GB will annually agree sales targets in respect of
BMW Vehicles and may also agree other specific targets in respect of
BMW Vehicles from time to time. As well as the criteria referred to in
clause 4.2.1 the following aspects shall in particular be taken into
account:
a) Sales previously achieved in the Territory; and
b) The business development possibilities of the Dealer.
4.2.3 Maintenance of Stocks and Demonstration Vehicles
The Dealer undertakes to maintain an inventory of BMW Vehicles for
display, demonstration and sale in each model series which is in line
with the projected sales targets referred to in clause 4.2.2 and which
is in accordance with the provisions of the Schedules hereto.
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The Dealer will effect comprehensive insurance with an insurance
company or underwriter of repute for any vehicle loaned to it by BMW
GB for any purpose to the current retail price of the vehicle or any
other value specified by BMW GB and upon request produce to BMW GB
satisfactory evidence of such insurance.
4.3 Dealer's Parts Responsibilities
4.3.1 The Dealer and BMW GB will annually agree sales targets in respect of
BMW Parts and may also agree other specific targets in respect of BMW
Parts from time to time. There shall be taken into account similar
considerations to those applying to targets for BMW Vehicles referred
to in sub-Clauses 4.2.1 and 4.2.2 hereof.
4.3.2 Supply of Parts
The Dealer will offer actual and potential Customers a supply of BMW
Parts which corresponds to such Customers' expectations.
4.3.3 Maintenance of Stocks
The Dealer will maintain stocks of BMW Parts which are adequate in
view of the business, market responsibility and servicing duties of
the Dealer as well as the actual needs of Customers, in accordance
with BMW GB's requirements set forth in Section B of the Third
Schedule hereto, the parts information material published from time to
time by BMW GB, and as otherwise notified by BMW GB from time to time.
4.3.4 Storage Space and Outfitting Thereof
The Dealer will continuously maintain storage space appropriately
equipped for the storage of BMW Parts, to the standards set forth in
Section B of the Third Schedule hereto and as otherwise notified by
BMW GB from time to time.
To the extent the Dealer offers or uses Non-BMW Parts covered by
clause 3.1 of this Agreement it will identify these parts separately
from BMW Parts.
4.4 Dealer's Service Responsibilities
4.4.1 Servicing of Customers' Vehicles
The Dealer will provide service for all BMW Vehicles pursuant to the
provisions of the Fifth Schedule hereto, the conditions for warranty
and goodwill and the service information material or other
requirements published by or circulated from time to time by BMW GB
and/or the Manufacturer.
4.4.2 Scope of Customer Services
The Dealer will:
a) accept BMW Vehicles from the transport company used for the
purpose by BMW GB, store them and deliver them to the Customers;
b) inspect repair and maintain BMW Vehicles in accordance with any
instructions of BMW GB and/or the Manufacturer in force from time
to time;
c) on the instructions of BMW GB participate in product recall or
modification campaigns in which the Dealer will examine and
modify if necessary all Contract Goods concerned;
d) handle warranty and goodwill claims for any Customer provided the
relevant Contract Goods were delivered by a supplier within the
territory of the European Economic Area authorised directly or
indirectly by the Manufacturer.
4.4.3 Service Facilities
The Dealer will maintain service facilities which enable it to render
services in accordance with the requirements of Customers and BMW GB.
For this purpose the Dealer is required to equip its facility with the
BMW-prescribed special tools, measuring and test instruments and
equipment and to conform with the provisions as to Service
Requirements set forth in the Fifth Schedule hereto and as otherwise
notified by BMW GB from time to time.
4.4.4 Service for Third Party Products
In so far as the Dealer provides service in respect of third party
products, the Dealer will ensure that a third party cannot benefit
unduly from investments made by BMW GB and/or the Manufacturer,
notably in equipment or the training of personnel.
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5. DIRECT SALES THROUGH BMW GB
5.1 Sales Reservation
BMW GB may supply Contract Goods directly or indirectly to:
a) final consumers, to the extent this occurs through branches or
distribution subsidiaries,
b) fleet users,
c) public or local authorities or similar national or international
organisations,
d) foreign public organisations,
e) racing drivers and teams recognised by BMW GB or by the
Manufacturer or any of their Connected Undertakings,
f) its employees and their families and those of any Connected
Undertaking of BMW GB,
g) its suppliers or employees thereof, celebrities and media
representatives where it feels there are special reasons for so
doing,
h) vehicle and original equipment manufacturers, and
i) Connected Undertakings of BMW GB.
6. SUPPLIES AND SALES TO THE DEALER
6.1 Obligations to Deliver and Purchase
BMW Vehicles will be supplied on consignment to the Dealer by BMW GB upon
the terms and conditions set out in the First Schedule hereto.
BMW Vehicles will be sold to the Dealer by BMW GB on the terms and
conditions set out in the Second Schedule hereto.
BMW Parts will be sold to the Dealer by BMW GB on the terms and conditions
set out in the Third Schedule hereto.
6.2 Ordering of Contract Goods
The Dealer will order Contract Goods according to the BMW GB ordering
system or such amended procedures as are from time to time notified by BMW
GB.
6.3 Assumption of Warranty
a) BMW GB grants to the Dealer a warranty for Contract Goods according to
the terms of sale and delivery for BMW Vehicles and Parts as specified
in the Second and Third Schedules hereto.
b) When reselling or supplying Contract Goods to a Customer the Dealer
will grant to the Customer a warranty which at least corresponds to
the scope of the warranty granted by BMW GB to the Dealer.
c) Warranty claims will be handled and settled in accordance in to the
Fourth Schedule hereto.
6.4 Liability for Orders
BMW GB will not be liable for its failure to deliver any orders of the
Dealer:
a) For reasons of Force Majeure as defined in Clause 13.4 of this
Agreement;
or
b) If the Manufacturer's production series of any Contract Goods ordered
has been discontinued.
7. BUSINESS OPERATIONS
7.1 Business Premises and Equipment Thereof
7.1.1 General Requirements
The Dealer will maintain business premises which are appropriate in
terms of size, equipment, facilities, location, internal and external
appearance (i.e. corporate identity), and in all technical and
business aspects in such a way as to meet reasonable expectations of
actual and potential Customers of the BMW brand as well as the
requirements of BMW GB necessary to fulfil the purpose of this
Agreement.
7.1.2 Business Premises and Offices
The Dealer's business premises, offices and other installations and
their technical equipment must meet reasonable Customer expectations
with respect to sales and service of Contract Goods. They must conform
to the standards and provisions set forth in the Fifth and Sixth
Schedules hereto and as otherwise notified by BMW GB from time to time
and must also correspond to the particular business situation of the
dealership including such considerations as volume of sales, service
and parts business.
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The Dealer's obligations hereunder apply in particular, but without
limitation, to:
a) showrooms and space for new cars;
b) presentation and sales facilities for the parts business; and
c) capacity and equipment of customer service facilities
7.1.3 Business Expansion - Investment
The Dealer will expand its business and facilities in line with the
expansion of business volume, save that, the Dealer will obtain the
prior written consent of BMW GB if the operations of the Dealer may be
directly or indirectly affected by any substantial work of
construction and alterations or other large investment or other major
commitment which the Dealer intends to carry out or undertake.
7.2 Personnel Requirements
7.2.1 Key Personnel
BMW GB enters into this Agreement in reliance upon the fact that the
Key Personnel specified in the Eighth Schedule will ensure that the
obligations of the Dealer under this Agreement are properly fulfilled.
7.2.2 Changes in Key Personnel
The Dealer will not appoint any person in substitution for or in
addition to the Key Personnel specified in the Eighth Schedule or
change any of the functions carried out by the said Key Personnel or
any of them without the prior written consent of BMW GB. This consent
may be withheld only if BMW GB consider that the change or its effect
might impair the performance of this Agreement or other important
interests of BMW GB.
7.2.3 Sales and Technical Personnel and Training
The Dealer will employ in all aspects of its business covered by this
Agreement sufficiently trained business and technical personnel and
ensure their ongoing and further training. The Dealer will make use of
the training facilities and systems offered by BMW GB and, in
co-operation with BMW GB, enable and encourage the regular attendance
by its personnel at the appropriate training courses.
7.3 Financing and Equity
7.3.1 Financial Situation - Equity Holdings
The financial base of the Dealer's business and the equity holdings
must correspond to the requirements generally and reasonably approved
by BMW GB for BMW Dealers for a proper and economically sound
management of the Dealer's business. BMW GB may verify through
inspection of the Dealer's relevant business records, and those of any
Connected Undertaking of the Dealer relevant to the Dealer's business.
the amount of the share capital, equity holdings and any shareholder
agreements on profit and loss distribution and, if necessary, require
measures to be initiated which ensure compliance with this clause.
7.3.2 Changes in the Ownership and Equity Holdings
No change in the ownership of, or the composition of shareholdings in,
the Dealer or any material change in the constitution of the Dealer
shall be made without the prior written consent of BMW GB.
This consent may be withheld only if BMW GB consider that the change
or its effect might impair the performance of this Agreement or other
important interests of BMW GB.
7.4 Organisational Requirements
7.4.1 Data Processing - Exchange of information
In order to ensure the most rational operational procedure possible
the Dealer will use data processing in all areas of its business to
the extent economically feasible. The Dealer will create the
organisational and technical basis necessary to ensure the optimum
development of its business and the reciprocal flow of data between it
and BMW GB.
The Dealer will ensure that its data processing system is compatible
with that of BMW GB.
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7.4.2 Accounting
In the interest of uniformity of the accounting system within the BMW
GB dealer network the Dealer will operate an accounting system
compatible with the requirements of BMW GB and will send to BMW GB, at
the request of BMW GB, an operating report in such form as may be
specified from time to time by BMW GB to cover the Dealer's
operations.
8. ADVERTISING AND TRADEMARKS
8.1 Advertising
The Dealer will advertise Contract Goods in accordance with recommendations
made from time to time by BMW GB. The Dealer will give preference to the
advertising materials recommended by BMW GB.
The Dealer will not use any advertisement which is inconsistent with the
public image or corporate identity of BMW GB or the Manufacturer or which
may in any respect bring the Dealer, BMW GB or the Manufacturer into
disrepute.
8.2 Business Name
8.2.1 The Dealer will represent itself to third parties as an officially
authorised BMW Dealer.
8.2.2 The Dealer will not use the names Bayerische Motoren Werke or any
translation or any derivation or abbreviation thereof in its own name
or address nor will the Dealer without the prior written consent of
BMW GB change its name.
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8.3 Exhibitions and Fairs
8.3.1 The Dealer will give BMW GB reasonable notice when it intends to
participate in an exhibition or trade fair. BMW GB may prohibit the
Dealer from participating in exhibitions and fairs in relation to the
Contract Goods when the reputation of BMW GB or the Manufacturer may
be jeopardised.
8.3.2 When participating in any exhibitions or fairs in relation to the
Contract Goods, the Dealer will comply with the requirements of BMW GB
in respect of any use of the Manufacturer's trademarks.
8.4 Use of Trademarks generally
8.4.1 The Dealer will use in its business the Manufacturer's trademarks as
notified by BMW GB to the Dealer in such manner as is specified by BMW
GB from time to time and without making any additions or change to
them.
8.4.2 The Manufacturer's trademarks may not be used for or in connection
with goods other than Contract Goods.
8.4.3 Unless specifically authorised by BMW GB in writing, the Dealer has
no right to license any third party to use any of the Manufacturer's
trademarks.
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8.5 Trademark Infringement
8.5.1 The Dealer will immediately inform BMW GB of any infringement of the
Manufacturer's trademarks by third parties. BMW GB will take
appropriate action against such trademark infringement and the Dealer
will support BMW GB in such action or prevention of infringement.
8.5.2 The Dealer shall not, without the prior written consent of BMW GB,
permit any of the Manufacturer's trademarks to be used to endorse or
promote any third party products or services.
8.6 Corporate Identity
The Dealer will observe in its advertising and its business stationery as
well as generally in the use of the Manufacturer's trademarks the Corporate
identity Programme from time to time provided by BMW GB.
9. SUPPLY OF INFORMATION BY DEALER
9.1 Advice and Information
BMW GB will at any time and in an appropriate manner advise and counsel the
Dealer on the basis of data and other information supplied to it by the
Dealer with regard to business and technical matters. This includes in
particular, management advice based on BMW GB's experience acquired through
comparing dealer businesses and balance sheets submitted by BMW Dealers. It
is therefore necessary that BMW GB and the Dealer mutually inform each
other on all essential points pursuant to the provisions of the following
clauses
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9.2, 9.3 and 9.4 and that the Dealer reports continually and fully to BMW
GB on its business activity.
Customer data received by BMW GB from the Dealer will be held by BMW GB
after as well as during this Agreement and, in the event of the Dealer
ceasing to be a BMW Dealer, may be shared by BMW GB with other BMW Dealers.
The Dealer will notify in writing a Director or the Company Secretary of
BMW GB immediately it becomes aware of any claim or proceedings against it
or BMW GB or the Manufacturer or another BMW Dealer arising in connection
with any Contract Goods or otherwise and the Dealer will, where the claim
or proceedings entail a possible liability of the Dealer for damages in
respect of which the Dealer may wish to have recourse against BMW GB or the
Manufacturer, follow BMW GB's instructions.
9.2 Reports on Sales Activity
The Dealer will report regularly to BMW GB its sales including in
particular the immediate presentation of new orders and registration
applications. BMW GB may at any time request reports on the market
situation, stock in hand and estimated stock requirements of the Dealer
including estimated customer orders within the scope of the Dealer's
business.
9.3 Business Data of the Dealer
The Dealer will if so requested by BMW GB participate regularly in the BMW
GB comparative dealer study with an integrated accounting plan. The Dealer
will be informed by BMW GB of the result of the comparative dealer study.
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The Dealer will submit annually within six months of its financial year end
for inspection by BMW GB its balance sheet and profit and loss account
certified by its auditors. In the case of the Dealer having a Connected
Undertaking, the annual financial statements of the Connected Undertaking
will be submitted as well as the annual financial statements of the Dealer,
insofar as BMW GB consider that this is important for the evaluation of the
Dealer's BMW business.
9.4 Supply of information - Inspection of the Business Records
In order to review the performance by the Dealer of its obligations under
this Agreement, BMW GB will be provided by the Dealer with all necessary
information and documents from time to time requested by BMW GB and the
Dealer will permit any person authorised by BMW GB to enter any premises of
the Dealer at any reasonable time for the purpose of obtaining such
information or inspecting documents including all business and accounting
records.
10. CONFIDENTIALITY AND PROTECTION OF DATA
10.1 Confidentiality of the Dealer's Information
BMW GB will treat all information supplied to it by the Dealer under
clauses 7.3.1, 7.4.2, 9.3 and 9.4 as confidential between BMW GB the
Manufacturer and the Dealer, save insofar as such information comes into
the public domain or into the possession of BMW GB from a source other than
the Dealer, and save insofar as it is reproduced by BMW GB in the
comparative dealer study referred to in sub-clause 9.3.
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10.2 Confidentiality of the Manufacturer's and BMW GB's Information
10.2.1 The Dealer will both during and at any time after the termination of
this Agreement:
a) treat all information supplied to it by BMW GB or the
Manufacturer as confidential between the Dealer, BMW GB and
the Manufacturer, save insofar as such information comes
into the public domain other than as a result of any breach
by the Dealer of its obligations hereunder; and
b) ensure that any of its employees or agents who come into
possession of such information will be informed of and will
observe the obligations of this Clause 10.2.
Without prejudice to the generality of the foregoing, the
Dealer's obligations under this clause shall apply in particular
with regard to the know-how provided by the Manufacturer or BMW
GB for sales and service including any information intended only
for the internal use of the Dealer.
10.2.2 The Dealer will not, either during or at any time after the
termination of this Agreement, make public, use to the detriment or
prejudice of BMW GB or the Manufacturer, or, except in the proper
course of the Dealer's duties under this Agreement, divulge to any
person any information which either expressly or by implication or
from its context is confidential concerning any aspects of the
business or affairs of BMW GB or the Manufacturer.
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10.3 Technical Information
Without prior written consent by BMW GB the Dealer shall not be entitled
either during or at any time after the termination of this Agreement to
provide to third parties technical information supplied by BMW GB and/or
the Manufacturer and/or any of their Connected Undertakings. In the event
that third parties request the Dealer to provide such information, he shall
immediately inform BMW GB thereof.
11. DURATION OF THE AGREEMENT AND TERMINATION
11.1 Duration
This Agreement contains the whole agreement between the parties and is in
substitution for and supersedes all previous agreements (if any and whether
written or oral) between BMW GB and the Dealer relating to Contract Goods.
It will commence or will be deemed to have commenced on the Commencement
Date shown in the Eighth Schedule and will continue thereafter unless
terminated in accordance with me provisions of this Agreement.
11.2 Termination by the Dealer
The Dealer may terminate this Agreement at any time by giving not less than
twenty-four months' written notice to expire at the end of any calendar
month. Any right the Dealer may have to terminate this Agreement for
fundamental breach is not affected by this clause.
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11.3 Ordinary Notice to Terminate by BMW GB
BMW GB may terminate this Agreement at any time by giving not less than
twenty-four months written notice to expire at the end of any calendar
month.
11.4 Termination for Cause by BMW GB
BMW GB may terminate this Agreement forthwith and without notice for cause
where the Dealer fails to perform any of its basic obligations including
but not limited to:
a) The Dealer (including in the case of a firm any partner thereof)
becoming insolvent by reason of its inability to pay its debts as they
fall due, or entering into liquidation whether voluntarily or
compulsorily other than for the purposes of a reconstruction or
amalgamation, or having a trustee, receiver, administrative receiver
or similar officer appointed in respect of all or any part of the
business or assets of the Dealer, or making any arrangement or
composition with its creditors, or suffering the making of an
administration order in respect of all or any part of its assets, or
taking or suffering any similar action in consequence of a debt, or
ceasing or threatening to cease to trade or, if the Dealer is not
incorporated, dying.
b) Circumstances arising which BMW GB consider impair the
creditworthiness and/or financial position of the Dealer such that an
orderly continuation of the business is or may be jeopardised or is no
longer possible;
c) any payments made to BMW GB by the Dealer by any means being
dishonoured or cancelled otherwise than by reason of a clerical error;
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d) the Dealer becoming unable to control its business or any premises
thereof wholly or in part as is necessary to enable it to fulfil its
obligations under this Agreement;
e) any material information provided by the Dealer to BMW GB in the
negotiations leading to the formation of this Agreement or required to
be provided by the Dealer at any time to BMW GB by this Agreement
being false;
f) the Dealer repeatedly and to a substantial extent violating the
provisions of Clauses 1.4 and 2.4 of this Agreement;
g) the Dealer or any Connected Undertaking of the Dealer (including, in
the case of a firm, any partner thereof) or any of its or their
Directors or any Key Personnel as specified in the Eighth Schedule
hereto committing any indictable offence that might bring the Dealer
or BMW GB or the standing of BMW GB or the Manufacturer into
disrepute;
h) any dispute arising between BMW GB and the owners, shareholders or
managers of the Dealer or between any of those persons which in the
opinion of BMW GB impairs the effective management of the Dealer's
business and the observance by the Dealer of its obligations
hereunder;
i) the Dealer failing to obtain any consent required under this Agreement
from BMW GB, save where BMW GB would have been obliged to grant the
relevant consent.
j) any circumstance arising which BMW GB considers substantially impairs
the business reputation of the Dealer;
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k) the Dealer committing a serious breach of this Agreement or a breach
which is similar to a breach previously remedied following notice
under clause 11.5 of this Agreement; or
l) the Dealer taking any action that endangers the status of this
Agreement under Commission Regulation (EC) No 1475/95 (known more
generally as the Block Exemption).
11.5 Notice of Termination for Unremedied Breach
Subject always to Clause 11.4 of this Agreement, if the Dealer commits a
breach of any of its basic obligations under this Agreement which BMW GB
considers capable of remedy BMW GB may give to the Dealer notice of such
breach requiring the same to be remedied within 28 days, or such other
period as BMW GB considers reasonable in the circumstances, and if the
Dealer fails to remedy the breach within such period BMW GB may terminate
this Agreement by not less than three months written notice to expire at
any time.
11.6 Changes in Connected Undertaking
Should any change occur or be proposed in the beneficial ownership of any
Connected Undertaking of the Dealer the Dealer will advise BMW GB as soon
as possible of such change or proposal.
11.7 Reorganisation of Network
If BMW GB or the Manufacturer considers it necessary to reorganise the
whole or a substantial part of its dealer network BMW GB shall be entitled
to terminate this Agreement by giving not less than twelve months' notice
in writing to the Dealer to expire at any time.
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12. CONSEQUENCES OF TERMINATION OF THE AGREEMENT
12.1 Cancellation of Orders
Upon termination of this Agreement BMW GB reserves the right to cancel all
or any unexecuted orders accepted by it in respect of Contract Goods. BMW
GB is not obliged to do so but may fulfil any of the orders to the extent
BMW GB sees fit provided that they do not exceed the purchase quotas set
forth in the Dealer Order Objectives already established by BMW GB with the
Dealer and provided also that the Dealer submits a list within two weeks of
the termination of this Agreement in which the individual Customers and the
particular Contract Goods for such Customers are adequately specified and
to which copy sales contracts are attached.
12.2 Handling of the Warranty Obligations of the Dealer
BMW GB is not obliged to do so, but may deliver to the Dealer BMW Parts to
the extent the Dealer needs them to fulfil its warranty obligations to
Customers which arose prior to the termination of this Agreement within the
scope of the warranty of BMW GB pursuant to clause 6.3.
12.3 Return of the Contract Goods
a) BMW GB will within a period of 60 days after termination of this
Agreement buy back the stocks of the Dealer's Contract Goods on the
condition that they:
(i) were acquired directly from BMW GB or a BMW Dealer; and
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(ii) are included in the current sales programme of BMW GB at the time
of the re-purchase; and
(iii) are not sold; and
(iv) are new, unused and undamaged and, where applicable, in their
original retail packaging; and
(v) are clearly identifiable
b) BMW GB will be under no obligation to re-purchase Contract Goods if
the termination of this Agreement is the result of actions of the
Dealer which entitle or would have entitled BMW GB to terminate the
agreement under clause 11.4 or 11.5.
c) The Dealer will at BMW GB's request sell its entire stock or part of
its stock of Contract Goods to BMW GB.
d) Forthwith upon the termination of this Agreement any BMW Vehicles on
consignment shall be returned at the expense of the Dealer (or at the
expense of BMW GB if terminated by BMW GB) to BMW GB or to any place
or person specified by BMW GB in the same condition as when received
from BMW GB and on such return of the said Vehicles BMW GB shall repay
the Dealer any sum deposited under the terms set out in the First
Schedule hereto in respect of the BMW Vehicles returned less any sum
considered by BMW GB to be due for loss damage or deterioration to the
said Vehicles.
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12.4 Re-Purchase Price
a) BMW Vehicles will be re-purchased at their cost price to the Dealer.
The cost of any rectification or repairs necessary to any such BMW
Vehicles will be deducted from the amount paid to the Dealer.
b) The price to be paid by BMW GB for the re-purchase of BMW Parts shall
be the list price in force for such parts at the date on which the
offer to repurchase is made by BMW GB less any increase in the price
of such BMW parts during the period of twelve months prior to the date
of such offer to repurchase, and less the normal discount granted by
BMW GB and the average bonus earned by the Dealer in the same period.
12.5 Return Delivery
Return delivery of the Contract Goods will be effected at the risk and cost
of the Dealer, save that if the Contract Goods are delivered on the
instructions of BMW GB to a place other than a Distribution Centre, the
risk passes to BMW GB when the Contract Goods have been properly
transferred to the forwarding agent or the carrier or other person
responsible for the return delivery or a person designated by BMW GB. In
this case, the transport costs are assumed
by BMW GB, to the extent they exceed the costs of transport from the
business premises of the Dealer to the Distribution Centre.
12.6 Removal of Advertising - Trademarks
a) Upon termination of this Agreement the Dealer will at its own expense
immediately remove from its premises all advertising material of BMW
GB or the Manufacturer and, insofar as it is the property of BMW GB or
the
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Manufacturer or any of their Connected Undertakings, return it to BMW
GB. Furthermore, the Dealer will offer to sell, at BMW GB's request,
all items within the BMW GB Corporate Identity Programme which are the
property of the Dealer, at net book value, subject to a maximum price
of the current market price which, in default of agreement, will be
specified by BMW GB.
b) Within one month of the termination of this Agreement the Dealer will
at its own expense deliver to BMW GB all records, designs, manuals,
specifications, handbooks, advertising material, corporate identity
material, pylons, documents and any property belonging to BMW GB or
the Manufacturer or any of their Connected Undertakings in its
possession together with any copies thereof.
c) Forthwith upon the termination of this Agreement the Dealer shall at
its own expense remove from its premises all signs containing the name
BMW and/or the BMW emblem and/or any other trademark or trade or brand
name of the Manufacturer and shall cease to use the name BMW and/or
the BMW emblem and/or any other trademark or trade or brand name of
the Manufacturer on any stationery, advertisement or other literature
and will not take any steps that might lead the public to infer that
it is a BMW Dealer or fail to correct any confusion that the Dealer is
still a BMW Dealer.
12.7 BMW GB Servicing Equipment
Within two months of the termination of this Agreement BMW GB may serve
written notice on the Dealer requiring that the Dealer sell all or part of
its stock of special tools, including electronic analysis and testing
equipment, to BMW GB at a price determined by BMW GB as the reasonable
trade value applicable at
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the time of such re-purchase. If BMW GB does not serve such notice on the
Dealer then BMW GB may endeavour to assist the Dealer in selling such stock
of special tools.
12.8 Rights and Duties Arising from the Termination of the Agreement
a) Termination of this Agreement for any reason shall not, unless
otherwise expressly provided herein, affect any accrued rights of the
parties hereto arising prior to the date of termination or any
obligations which either expressly or from the context of this
Agreement are intended to survive termination of the Agreement and
without prejudice to the generality of the foregoing, it is expressly
agreed that Clauses 10.1, 10.2, and 10.3 hereof will continue
notwithstanding termination of this Agreement.
b) To the extent certain rights and duties are fixed in this Agreement
for the time following the termination thereof, compliance therewith
does not have the effect of extending the terminated Agreement.
13. FINAL PROVISIONS
13.1 Incorporation of Schedules
The following are deemed to be part of this Agreement:
Schedules 1 to 8 inclusive
13.2 Alterations
No modifications or alteration to this Agreement shall have effect unless
the same is agreed in writing between the parties.
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13.3 Law and Jurisdiction
This Agreement shall be governed by and construed in all respects in
accordance with the law of England. Subject to clause 13.10, BMW GB and the
Dealer irrevocably agree that the Courts of England are to have exclusive
jurisdiction to decide any disputes which may arise out of or in connection
with this Agreement.
13.4 Force Majeure
BMW GB shall not be liable to the Dealer for any loss or damage sustained
by the Dealer as a result of any failure or delay on BMW GB's part in the
performance of any of its obligations under this Agreement or any agreement
for the sale of Contract Goods if and to the extent that such failure or
delay shall be by reason of any matter or thing beyond the reasonable
control of BMW GB including but not limited to Acts of God, labour
disputes, transportation failure or delays, riots, delays in production,
strikes or difficulties of the Manufacturer in proceeding with the
production of Contract Goods.
13.5 Right of Set-Off
At any time during or after the termination of this Agreement:
13.5.1 BMW GB shall be entitled to set off against any claim made by or any
amount due to the Dealer:
a) The Invoice Sum of any Contract Goods, or other goods, delivered
to or as directed by the Dealer, remaining unpaid by the Dealer
in whole or in part; and
b) the value of any amount due to or any claim by BMW GB from or
against the Dealer, whether under this Agreement or under any
other agreement between BMW GB and the Dealer.
13.5.2 Without prejudice to the provision in Clause 13.5.1 above, BMW GB
may apply in or towards the payment of any amount due to, or claim by,
BMW GB from or against the Dealer:-
a) any sum of money deposited by the Dealer with BMW GB; and
b) any goods or other property whatsoever belonging to the Dealer
which may be in the possession of BMW GB.
13.6 Headings
The headings appearing herein are inserted for convenience only and shall
not affect the construction of this Agreement.
13.7 Restrictive Trade Practices
Neither party to this Agreement shall give effect to or enforce or purport
to enforce any provision of this Agreement by virtue of which this
Agreement is subject to registration under the Restrictive Trade Practices
Act 1976 until the day after particulars of this Agreement have been
furnished to the Director General of Fair Trading pursuant to the terms of
Section 24 of that Act.
13.8 Waiver of Breaches
Failure by BMW GB or the Dealer to enforce at any time any of the
provisions of this Agreement shall not be construed as a waiver of any of
BMW GB's or the Dealer's rights hereunder nor in any way affect the
validity of this Agreement or any part thereof.
13.9 Notices
13.9.1 Unless otherwise stated all notices to be served or given under this
Agreement shall be in writing and for this purpose "writing" shall
include transmission by facsimile transmission.
13.9.2 Any notice to be served or given by either of the parties upon the
other shall be sent by prepaid recorded delivery or registered post or
(in the case of a notice to be given by BMW GB to the Dealer) may be
delivered by hand to the address as provided below or by facsimile to
the correct facsimile number at such address of the party to be served
and shall be deemed to have been received by the addressee at the time
of delivery or in the case of service by post 48 hours after posting
(excluding Saturdays, Sundays and Public Holidays) or in the case of a
facsimile transmission on the date received by the addressee if
received on or before 2.00 pm on any day (excluding Saturdays, Sundays
and Public Holidays) and if received after 2.00 pm it shall subject as
aforesaid be deemed to have been received on the following day
(excluding Saturdays, Sundays and Public Holidays).
13.9.3 Any notice served on the Dealer shall be sent to the Dealer's last
known address.
13.9.4 Any notice served on BMW GB shall be sent to its registered office
for the time being.
Dealer's rights hereunder nor in any way affect the validity of this
Agreement or any part thereof.
13.9 Notices
13.9.1 Unless otherwise stated all notices to be served or given under this
Agreement shall be in writing and for this purpose "writing" shall
include transmission by facsimile transmission.
13.9.2 Any notice to be served or given by either of the parties upon the
other shall be sent by prepaid recorded delivery or registered post or
(in the case of a notice to be given by BMW GB to the Dealer) may be
delivered by hand to the address as provided below or by facsimile to
the correct facsimile number at such address of the party to be served
and shall be deemed to have been received by the addressee at the time
of delivery or in the case of service by post 48 hours after posting
(excluding Saturdays, Sundays and Public Holidays) or in the case of a
facsimile transmission on the date received by the addressee if
received on or before 2.00 pm on any day (excluding Saturdays, Sundays
and Public Holidays) and if received after 2.00 pm it shall subject as
aforesaid be deemed to have been received on the following day
(excluding Saturdays, Sundays and Public Holidays).
13.9.3 Any notice served on the Dealer shall be sent to the Dealer's last
known address.
13.9.4 Any notice served on BMW GB shall be sent to its registered office
for the time being.
13.9.5 Each party agrees to notify the other forthwith of any change in its
registered office or address (as the case may be) or facsimile number.
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13.10 Conciliation Procedure
13.10.1 If the parties disagree in respect of any matter mentioned in
13.10.2 below they may use the procedure agreed in 13.10.3 below for
quick resolution of the dispute.
13.10.2 The procedure in 13.10.3 applies to any disagreement in respect of:
a) a termination of this Agreement pursuant to sub-clauses 11.4,
11.5, 11.6 or 11.7 of this Agreement; or
b) sales targets pursuant to sub-clauses 4.2.2 or 4.3.1; or
c) quantities of Contract Goods kept by the Dealer for display
and/or stock pursuant to sub-clauses 4.2.3 or 4.3.3; or
d) BMW Vehicles, or quantity thereof, kept by the Dealer for
demonstration, pursuant to sub-clause 4.2.3.
13.10.3 The procedure to resolve the dispute shall be for either party as
soon as reasonably practicable after the dispute arises to initiate
reference to the conciliation panel referred to in 13.10.4 below by
serving written notice on the other party stating the matter about
which there is disagreement and requesting reference to the
conciliation canel, providing a copy of such notice to the Company
Secretary of BMW GB for the time being. Upon service of such a notice
by either party the Company Secretary of BMW GB shall refer the matter
to the conciliation panel and notify the Dealer that he has done so.
13.10.4 The conciliation panel shall be such panel as is established for
the purpose by separate arrangements from time to time between BMW GB
and a representative body of the BMW Dealer Network
("the Representative Body") to the intent that there shall at all
times while this Agreement is in force be a standing panel of four
members, two of whom are nominated by BMW GB and two of whom are
nominated by the Representative Body, who will receive reference of
any matter under clause 13.10.3 and will seek to resolve any dispute
properly so referred to the conciliation panel. The conciliation panel
will determine its own procedure in all respects, subject to the
arrangements agreed between BMW GB and the Representative Body. BMW GB
and the Representative Body may at any time nominate substitutes for
the persons they have respectively nominated as members of the
conciliation panel, either permanently or, if a member of the panel is
unsuitable, unable or unwilling to act in a particular matter, on a
temporary basis.
13.10.5 In the event that the above conciliation procedure has not been
initiated by either party serving written notice under 13.10.3 within
7 days after a dispute has arisen, or has not led to results accepted
by both parties within one month of service of a notice under 13.10.3,
or that at any time the interests of either party may be substantially
impaired without recourse to a Court, either party shall be at liberty
to commence any Court proceedings.
13.11 Value added and other Taxes
To the extent that in any respect sums payable by the Dealer to BMW GB are
from time to time subject to Value Added Tax or any other taxes, the Dealer
shall pay such Value Added Tax or other taxes in addition to the sums
payable.
14. Definitions
1. (a) In this Agreement and in the Schedules hereto (unless the context
otherwise requires) the words and expressions set out in Column (1)
below will have the meanings set out opposite them in Column (2)
below:
(1) (2)
"BMW Dealer" a person having a written agreement with BMW GB or
any other importer of Contract Goods appointed by the
Manufacturer within the territory of the European
Economic Area, or with the Manufacturer, to sell
Contract Goods;
"BMW Parts" all parts which are to be installed in or upon a BMW
Vehicle so as to replace components of that vehicle
which BMW GB offers in its current sales programme
for BMW Parts, irrespective of whether those parts
are made by the Manufacturer or supplied to the
Manufacturer or BMW GB by third parties.
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"BMW Vehicles" new motor vehicles with three or more road wheels
which are included in BMW GB's sales programme as
notified by BMW GB from time to time and which bear a
trademark of the Manufacturer.
"Connected Undertakings" (a) undertakings one of which directly or indirectly;
(i) holds more than half of the capital or
business assets of the other, or
(ii) has the power to exercise more than half
the voting rights in the other, or
(iii) has the power to appoint more than half
the members of the supervisory board, board of
directors or bodies legally representing the
other, or
(iv) has the right to manage the affairs of the
other;
or (b) undertakings in relation to which a third
undertaking is able directly or indirectly to
exercise such rights or powers as are mentioned in
(a) above;
"Contract Goods" BMW Vehicles and BMW Parts;
"Customer" a person who purchases or acquires, whether by way of
lease, hire, hire purchase or otherwise, one or more
Contract Goods for his own personal or commercial use
and not for re-sale in the course of business;
"Customer Facilities" a) finance, leasing, or similar products offered by
BMW GB or any of its Connected Undertakings; and
b) BMW GB's Used Car Programme; and
c) BMW GB's Accessories Programme; and
d) Extended warranties
"Distribution Centre" premises at which Contract Goods are stored by or on
behalf of BMW GB following importation into the
United Kingdom;
"Invoice Sum" The Aggregate of:
(i) the price payable by the Dealer for the Contract
Goods in question (inclusive of any amounts payable
for extras and value added tax and any other taxes if
applicable);
and (ii) the cost of transport between the Distribution
Centre and the place of delivery including all costs
of packaging, warehousing, loading, unloading and
checking;
"Manufacturer" Bayerishe Motoren Werke Aktiengesellschaft of Munich,
Germany
"Non-BMW Parts" all parts which are to be installed in or upon a BMW
Vehicle so as to replace components of that vehicle
which are not BMW Parts.
"Supply" and "Sell" include other forms of supply such as leasing as well
as the ordinary meaning of the words;
"United Kingdom" The United Kingdom of Great Britain and Northern
Ireland but including also for the purpose of this
Agreement, where the context admits, the Channel
Islands and the Isle of Man, which shall also for the
purpose of this Agreement be treated as within the
territory of the European Economic Area.
"Year of this Agreement" the period commencing on 1st January in any year and
ending on 31st December in the same year.
(b) The masculine shall include the feminine, the singular shall include
the plural and person shall include a body corporate or partnership
and vice versa.
(c) Any reference in this Agreement or in the Schedules by name to any
document issued by BMW GB or the Manufacturer shall include any
document amending or replacing the same from time to time.
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FIRST SCHEDULE
CONSIGNMENT - (VEHICLES)
BMW Vehicles will be supplied on consignment to the Dealer by BMW GB on the
terms and conditions set out in this Schedule.
1. The Dealer will receive from BMW GB Dealer Order Objectives showing the BMW
Vehicles allocated to it during any Year of this Agreement.
2. The Dealer will within the time specified in the Dealer Order Objectives
take delivery, using the forms supplied by BMW GB, of BMW Vehicles
allocated.
3. The Dealer will pay or arrange payment to BMW GB by direct debit on taking
delivery of each BMW Vehicle a sum equal to the Invoice Sum of each BMW
Vehicle or any lesser sum agreed by BMW GB but excluding the amount
chargeable by reference to value added tax and any car tax.
4. (i) BMW GB will arrange transport of each BMW Vehicle to the Dealer's
business premises.
(ii) When a BMW Vehicle is delivered the Dealer will ensure that it is
inspected for any damage or defects by a responsible person who, when
such inspection has been carried out, should sign the carrier's
receipt form. Should any BMW Vehicle have been damaged in transit the
Dealer should immediately notify the carrier of such damage in
writing. The Dealer will deal with any claim against the carrier in
accordance with instructions issued from time to time by BMW GB.
5. The Dealer will notify BMW GB immediately of the occurrence of any of the
said events set out in the paragraph 11 of this Schedule stating the date
and nature of the event.
6. Forthwith upon the happening of any of the events specified in paragraph 11
of this Schedule the relevant BMW Vehicle(s) will be deemed to be sold to
the Dealer by BMW GB on the terms and conditions set out in the Second
Schedule hereto and the Dealer will forthwith upon receipt of an invoice
from BMW GB pay to BMW GB by direct debit the amount of value added tax and
any car tax chargeable on the sale by BMW GB plus any balance due in
respect of the Invoice Sum.
7. The Dealer will indemnify BMW GB from and against loss of and all damage
caused to each of the BMW Vehicles during the period (hereinafter called
"the Risk Period") commencing at the time on which each of the BMW Vehicles
arrives at the Dealer's business premises and ending on the earliest to
occur of the following three events:
(i) the date of sale of each such BMW Vehicle; or
(ii) the date on which each such BMW Vehicle is returned to any premises of
BMW GB pursuant to paragraph 9 of this Schedule or Clause 12.3 (d) of
this Agreement; or
(iii) the date on which each such BMW Vehicle is delivered, with the prior
written consent of BMW GB, to the premises of another BMW Dealer under
a so called "swap arrangement";
and for this purpose will effect with an insurance company or
underwriter of repute and continue in force during the currency of
this Agreement at its own expense a policy or policies of insurance on
each of the BMW Vehicles for the Risk Period against all risks in a
sum not less than the amount of the Invoice Sum of the BMW Vehicles.
The Dealer will produce to BMW GB on demand satisfactory evidence of
such insurance together with proof of payment of the current premiums.
8. The Dealer undertakes whilst any BMW Vehicle is on consignment:
(i) not to alter in any way the specification of or type of equipment
fitted to any BMW Vehicle without the prior written consent of BMW GB;
(ii) to keep each BMW Vehicle properly housed in the Dealer's business
premises or other premises previously approved in writing by BMW GB
under proper supervision and to take all reasonable precautions for
the safety thereof;
(iii) not to remove any BMW Vehicle from the premises referred to in clause
(ii) without the prior written consent of BMW GB;
(iv) to allow any BMW Vehicle to be inspected by the servants or agents of
BMW GB at any reasonable time;
(v) to keep accurate records showing the history of each BMW Vehicle from
the time of receipt hereunder to the happening of any of the events
specified in paragraph 11 of this Schedule;
(vi) to make returns to BMW GB of stocks of BMW Vehicles on consignment at
the close of business on such dates as are specified by BMW GB from
time to time and on every day preceding the effective date of change
in the amount chargeable by reference to value added tax and any car
tax and such other returns as BMW GB may from time to time require;
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(vii) not to do anything that might cause the insurance policy or policies
effected pursuant to paragraph 7 of this Schedule to be avoided by the
insurance company concerned.
9. (i) The Dealer may on giving seven days notice in writing to BMW GB and
within three days of the expiration of such notice return at its own
expense any BMW Vehicle to BMW GB or to any person nominated by BMW GB
in the same condition as when received;
(ii) BMW GB may by notice in writing demand the return of any BMW Vehicle
on consignment and within seven days of such demand the Dealer will
either pay for such BMW Vehicle in full or at its own expense return
to BMW GB or to any person nominated by BMW GB such BMW Vehicle in the
same condition as when received and in case of default by the Dealer
BMW GB will either alone or with or by others and without notice be
entitled to enter at any time upon the premises where BMW Vehicles may
be and remove them.
10. Forthwith upon the return of any BMW Vehicle to BMW GB in accordance with
the provisions of paragraph 9 of this Schedule BMW GB shall repay to the
order of the Dealer any sum deposited under the provisions of paragraph 3
of this Schedule in respect of each BMW Vehicle thereby affected less any
sum considered by BMW GB to be due for loss damage or deterioration to any
such BMW Vehicle.
11. Each BMW Vehicle will be deemed to be sold to the Dealer by BMW GB upon the
terms and conditions set out in the Second Schedule of this Agreement upon
the happening of any of the following events;
(i) the BMW Vehicle is the subject of an offer of sale made by the Dealer
which is accepted by a person or the subject of an offer to purchase
made by a person which is accepted by the Dealer;
(ii) the despatch by hand or by post of an application to the relevant
registration authority for registration of the BMW Vehicle;
(iii) the commencement of, or the despatch of the BMW Vehicle to another
party for, modification adaptation of or addition to the BMW Vehicle
(other than maintenance repair or the addition of any "slip-on-" type
of accessory solely for sales promotion and not to the order of a
Customer) or the giving of written instructions therefor;
(iv) the BMW Vehicle is let out by the Dealer on hire or made the subject
of a contract hire agreement;
(v) the BMW vehicle is made subject to a hire purchase agreement, credit
sale agreement, charge, lien, or bill of sale;
(vi) the BMW Vehicle is used on the road for demonstration purposes;
(vii) the BMW Vehicle is purchased by the Dealer or applied or appropriated
by the Dealer to stock or for its own use or that of another person;
(viii) the specification of or type of equipment fitted to the BMW Vehicle
is altered without the prior written consent of BMW GB;
(ix) the BMW Vehicle is transferred to another BMW Dealer otherwise than
under cover of a valid sale or return agreement or under a "swap
arrangement" in either case approved by BMW GB; or
(x) the Dealer retains the BMW Vehicle for a period of more than 90 days
or such other period specified by BMW GB from the date of its delivery
to the Dealer Provided always that the parties hereto may extend such
period in respect of any one or more of the BMW Vehicles on
consignment by agreement in writing made before the said period would
otherwise have expired for such further period (expiring not later
than 12 months after the date of delivery of such vehicle to the
Dealer) as they may agree.
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SECOND SCHEDULE
CONDITIONS OF SALE: BMW VEHICLES
BMW Vehicles will be sold to the Dealer by BMW GB on the terms and conditions
set out in this Schedule.
1. Orders
(i) BMW GB will not be bound to supply the Dealer with any BMW Vehicle
ordered until it sends the Dealer written confirmation of its
acceptance of the Dealer's order which acceptance will not be
despatched until BMW GB has confirmation from the Manufacturer that it
will be able to manufacture the BMW Vehicle ordered.
(ii) Each BMW Vehicle will normally be ready for despatch from the
Distribution Centre not later than 4 months after the date upon which
BMW GB has despatched its written acceptance of the Dealer's order.
(iii) Notwithstanding the foregoing, any delivery date or delivery period
quoted by BMW GB is a business estimate only and time will not be of
the essence.
2. Specifications
BMW GB reserves the right to alter the design and specification of any BMW
Vehicle or part thereof.
3. Prices
The price payable by the Dealer for each BMW Vehicle will be the price
published in BMW GB's wholesale price list current at the date on which the
relevant sale invoice is produced plus value added tax and any car tax.
4. Delivery
(i) BMW GB will arrange transport of each BMW Vehicle to the Dealer's
business premises.
(ii) When any BMW Vehicle is delivered the Dealer must ensure that it is
inspected for any damage or defects by a responsible person who, when
such inspection has been carried out, should sign the carrier's
receipt form. Should any BMW Vehicle have been damaged in transit the
Dealer should immediately notify the carrier of such damage in
writing. The Dealer will deal with any claim against the carrier in
accordance with instructions issued from time to time by BMW GB.
(iii) The Dealer will pay to BMW GB any cost incurred in connection with
the delivery of each BMW Vehicle from the Distribution Centre to the
Dealer's business premises.
5. Risk
Risk in each BMW Vehicle will pass to the Dealer upon delivery thereof to
the Dealer's business premises.
6. Retention of Property
(i) The property in and legal and beneficial ownership of each BMW Vehicle
sold by BMW GB to the Dealer shall remain in BMW GB until the Dealer
has paid to BMW GB:
(a) the full Invoice Sum in respect thereof; and
(b) the full Invoice Sum in respect of any other goods the subject of
any other contract with BMW GB.
Provided that sub-clauses (a) and (b) shall be construed and receive
effect each as a separate clause and accordingly in the event of
either of them being for any reason whatsoever unenforceable according
to its terms, the other shall remain in full force and effect.
(ii) So long as the property in and legal and beneficial ownership of any
BMW Vehicle sold by BMW GB to the Dealer remains in BMW GB, BMW GB
shall have the right, with or without prior notice to the Dealer, to
retake possession of any such BMW Vehicle and for that purpose to
enter upon any premises where any such BMW Vehicle is stored or is
reasonably thought to be stored in any of the following events:
(a) The Dealer is in default of any of its obligations under any
agreement with BMW GB; or
(b) The Dealer (not being a company, but including, in the case of a
firm, the firm or any partner therein) commits an available act
of bankruptcy, or becomes apparently insolvent, or (being a
company) does anything or fails to do anything which would
entitle any person to present a petition for winding up, or does
anything or fails to do anything which would enable insolvency
proceedings to be commenced, or (being a partnership) is
dissolved; or
(c) The Dealer does anything or fails to do anything which would
entitle a person to appoint a Receiver or entitle a Receiver or a
person appointed by a Court to take possession of any of its
assets; or
(d) The Dealer makes any assignment, agreement or composition with or
executes any trust deed for creditors or ceases or threatens to
cease to trade or dies or repudiates the agreement or is
otherwise unable to pay its debts as they fall due.
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(iii) If the Dealer resells any BMW Vehicle before beneficial ownership of
the BMW Vehicle has vested in it and BMW GB loses title to the BMW
Vehicle in consequence, BMW GB's beneficial entitlement shall attach
to the proceeds of sale (which expression includes any right to or
claim for such proceeds) and the Dealer shall hold such proceeds of
sale in trust for BMW GB and keep them separate from other money.
(iv) The Dealer acknowledges that it is in possession of each BMW Vehicle
sold by BMW GB to the Dealer solely as a fiduciary for BMW GB until
such time as the Dealer has paid to BMW GB:
(a) the full Invoice Sum in respect thereof; and
(b) the full Invoice Sum in respect of any other goods the subject of
any other contract with BMW GB.
Provided that sub-clauses (a) and (b) shall be construed and receive
effect each as a separate clause and accordingly in the event of
either of them being for any reason whatsoever unenforceable according
to its terms, the other shall remain in full force and effect.
(v) The Dealer will advise BMW GB immediately of any action by third
parties, (for example, creditors of the Dealer), concerning any BMW
Vehicle the property in which has not passed to the Dealer.
(vi) BMW GB may maintain an action for the price of each BMW Vehicle sold
notwithstanding that the property in such BMW Vehicle may not have
passed to the Dealer.
7. Payment
(i) Unless otherwise agreed the Dealer will make payments to BMW GB in
accordance with the direct debit procedure operated by BMW GB
(ii) Should any sum payable under this Agreement by the Dealer to BMW GB be
overdue BMW GB reserves the right to suspend all further deliveries of
BMW Vehicles.
8. Warranty and Exclusion
(i) BMW GB warrants to the Dealer that a BMW Vehicle will be free from
defects in materials and workmanship for one year beginning with the
date of the first registration.
(ii) If a valid claim arises in respect of a tyre, the Dealer will make a
claim against the manufacturer of the tyre or its agent in the United
Kingdom and in the event that the Dealer shall fail to obtain
satisfaction in respect thereof, BMW GB will accept responsibility for
such claim on receipt of satisfactory evidence that the Dealer has
used its best endeavours in pursuing its claim against such
manufacturer or agent.
(iii) No claim under warranty will be considered unless the defect has been
notified to BMW GB without delay and a warranty claim has been made in
accordance with the provisions of the Fourth Schedule hereto.
(iv) BMW GB will deal with any warranty claim in accordance with the
provisions of the Fourth Schedule hereto.
(v) BMW GB warrants to the Dealer that any BMW Part fitted pursuant to a
warranty claim will be free of defects from the date of installation
in a BMW Vehicle under warranty until the expiration of the warranty
period for such vehicle.
(vi) The warranty does not apply if there is non-compliance with the
Warranty Guidelines set out in any relevant Warranty and Service
Handbook issued by BMW GB from time to time.
(vii) The warranty will not be affected by any change of ownership of the
BMW vehicle.
(viii) The warranty given by BMW GB is in substitution for and to the
entire exclusion of any condition term or warranty relating to the
quality or fitness of any BMW Vehicle whether express or implied by
statute common law or otherwise howsoever.
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THIRD SCHEDULE
PARTS BUSINESS
A: CONDITIONS OF SALE AND DELIVERY: BMW PARTS
BMW Parts will be sold and delivered to the Dealer by BMW GB on the terms and
conditions set out in this Schedule.
1. Orders
(i) The Dealer will place all orders for BMW Parts in the manner specified
by BMW GB from time to time.
(ii) BMW Parts will be despatched to the normal address within the
Territory used by BMW GB to invoice the Dealer unless otherwise
requested in writing by the Dealer.
(iii) BMW GB will endeavour to comply with any delivery time quoted by it
to the Dealer but any delivery time quoted by BMW GB is a business
estimate only and time shall not be of the essence.
2. Specifications
BMW GB reserves the right to alter the specification of any BMW Part sold
hereunder from that shown in any of its current price lists or other
publications provided that the functioning of the BMW Part will not be
adversely affected thereby.
3. Prices
The price payable by the Dealer for any BMW Part will be the recommended
retail price published in BMW GB's price list current at the date on which
the relevant invoice is produced subject to any discounts that may have
been determined by BMW GB at the date of invoice. Any price quoted for the
BMW Parts will be exclusive of the costs of any special packaging required
by the Dealer.
4. Delivery
(i) It will be the Dealer's responsibility to examine each BMW Part as
soon as practicable following delivery and to notify BMW GB whether or
not the BMW Part has been delivered in a satisfactory condition.
Should any BMW Part have been damaged in transit or be missing from
the delivery the Dealer should immediately notify BMW GB of such
damage or shortfall in the manner specified by BMW GB from time to
time by 12 midday on the day of delivery unless otherwise agreed by
BMW GB in writing. The Dealer will handle any claim in accordance with
instructions issued from time to time by BMW GB. Any BMW Parts
returned to BMW GB by the Dealer will be at the expense and risk of
the Dealer unless returned on BMW GB's delivery vehicles.
(ii) BMW GB will bear the cost of any carriage charges relating to orders
placed by the Dealer except that the Dealer will pay any charge made
by BMW GB for orders delivered at the request of the Dealer outside
the normal delivery schedules of BMW GB from time to time applicable.
5. Risk
Risk in each BMW Part will pass to the Dealer upon delivery thereof to the
Dealer's business premises or to such other destination as may have been
specified by the Dealer.
6. Retention of Property
(i) The property in and legal and beneficial ownership of each BMW Part
sold by BMW GB to the Dealer shall remain in BMW GB until the Dealer
has paid to BMW GB:
(a) the full Invoice Sum in respect thereof and
(b) the full Invoice Sum in respect of any other goods the subject of
any other contract with BMW GB.
Provided that sub-clauses (a) and (b) shall be construed and receive
effect each as a separate clause and accordingly in the event of
either of them being for any reason whatsoever unenforceable according
to its terms, the other shall remain in full force and effect.
(ii) So long as the property in and legal and beneficial ownership of any
BMW Part sold by BMW GB to the Dealer remains in BMW GB, BMW GB shall
have the right, with or without prior notice to the Dealer, to retake
possession of any such BMW Part and for that purpose to enter upon any
premises where any such BMW Part is stored or is reasonably thought to
be stored in any of the following events:
(a) The Dealer is in default of any of its obligations under any
agreement with BMW GB; or
(b) The Dealer (not being a company, but including, in the case of a
firm, the firm or any partner therein) commits an available act
of bankruptcy or becomes apparently insolvent, or (being a
company) does anything or fails to do anything which would
entitle any person to present a petition for winding up, or does
anything or fails to do anything which would enable insolvency
proceedings to be commenced, or (being a partnership) is
dissolved; or
(c) The Dealer does anything or fails to do anything which would
entitle a person to appoint a Receiver or entitle a Receiver or a
person appointed by a Court to take possession of any of its
assets; or
(d) The Dealer makes any assignment, agreement or composition with or
executes any trust deed for creditors or ceases or threatens to
cease to trade or dies or repudiates the Agreement or is
otherwise unable to pay its debts as they fall due.
(iii) If the Dealer resells any BMW Part before beneficial ownership of the
BMW Part has vested in it and BMW GB loses title to the BMW Part in
consequence, BMW GB's beneficial entitlement shall attach to the
proceeds of sale (which expression includes any right to or claim for
such proceeds) and the Dealer shall hold such proceeds of sale in
trust for BMW GB and keep them separate from other money.
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(iv) The Dealer acknowledges that it is in possession of each BMW Part sold
by BMW GB to the Dealer solely as a fiduciary for BMW GB until such
time as the Dealer has paid to BMW GB:
(a) the full Invoice Sum in respect thereof; and
(b) the full Invoiced Sum in respect of any other goods the subject
of any other contract with BMW GB
Provided that sub-clauses (a) and (b) shall be construed and receive
effect each as a separate clause and accordingly in the event of
either of them being for any reason whatsoever unenforceable according
to its terms, the other shall remain in full force and effect.
(v) The Dealer will advise BMW GB immediately of any action by third
parties, (for example, creditors of the Dealer), concerning any BMW
Part the property in which has not passed to the Dealer.
(vi) BMW GB may maintain an action for the price of each BMW Part sold
notwithstanding that the property in such BMW Part may not have passed
to the Dealer.
(vii) Until such time as the Dealer becomes the owner of any BMW Part, the
Dealer will store such BMW Part on his premises separately from his
own goods or those of any other person and in a manner which makes the
BMW Part readily identifiable as the goods of BMW GB, but if the BMW
Part is not so stored, it shall be assumed that all BMW Parts
remaining in stock with the Dealer were those BMW Parts most recently
delivered by BMW GB and that BMW Parts have been sold by the Dealer on
a first in first out basis.
(viii) If any BMW Part, the property of BMW GB, is admixed with goods the
property of the Dealer or is processed with or is incorporated
therein, the product thereof shall become and/or shall be deemed to be
the sole and exclusive property of BMW GB. If any BMW Part, the
property of BMW GB is admixed with goods the property of any person
other than the Dealer or is processed with or incorporated therein,
the product thereof shall become and/or shall be deemed to be owned in
common with the other person.
7. Payment
(i) Unless otherwise agreed the Dealer will make payment to BMW GB in
accordance with the direct debit procedure operated by BMW GB.
(ii) Payment for the BMW Parts will be made at the end of the month
following the month in which BMW GB's invoice is provided.
(iii) Should any sum payable under this Agreement by the Dealer to BMW GB
be overdue BMW GB reserves the right to suspend all further deliveries
of BMW Parts.
8. Packaging
Unless otherwise advised BMW GB's packaging material identified as
returnable (including pallets and roll cages) should be returned to BMW GB
in accordance with instructions issued by BMW GB from time to time. If such
packaging materials are returned to BMW GB in a damaged condition the
Dealer will reimburse BMW GB therefor.
9. Complaints
Complaints in respect of incomplete consignments, of consignments which do
not comply with the type and quantity ordered, or which comprise BMW Parts
showing recognisable external defects, are to be notified to BMW GB in the
form and manner specified by BMW GB from time to time. Failing notification
in the foregoing manner, the consignment will be deemed to have been
accepted by the Dealer without reservation.
10. Warranty obligation and Exclusion
(i) BMW GB warrants to the Dealer that unless a longer period is specified
in the Parts Guide a BMW Part will be free from defects in material
and workmanship for twelve months from sale to a Customer or, if the
BMW Part is installed by the Dealer into a BMW Vehicle from the date
of installation, subject to the limitation set out in paragraph 8(v)
of the Second Schedule.
(ii) No claim under warranty will be considered unless the defect has been
notified to BMW GB without delay and a warranty claim has been made in
accordance with the provisions of the Fourth Schedule hereto.
(iii) BMW GB will deal with any warranty claim in accordance with the
provisions of the Fourth Schedule hereto.
(iv) The warranty does not apply if there is non-compliance with the
Warranty Guidelines set out in any relevant Warranty and Service
Handbook, or other warranty document related to BMW Parts, issued by
BMW GB from time to time.
(v) Any warranty will not be affected by any change of ownership of the
BMW Part in question.
(vi) The warranty given by BMW GB is in substitution for and to the entire
exclusion of any condition term or warranty relating to the quality or
fitness of any BMW Parts whether express or implied by statute common
law or otherwise howsoever.
11. BMW GB operates a buyback system in accordance with arrangements and on
conditions notified by BMW GB from time to time in which the Dealer is free
to participate.
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B: PARTS STANDARDS
The following provisions give details of the standards required of the Dealer in
providing a parts service that meets the standard demanded by BMW Customers.
1. Inventory-keeping of BMW Parts
The Dealer will maintain an appropriate stock of BMW Parts to conform to
Clause 4.3 of this Agreement.
In addition to the storing guidelines in this Schedule the Dealer will:
- accept and store deliveries of BMW Parts which are supplied by BMW GB
free of charge in connection with recall measures, even though no
explicit order for them has been placed:
- accept and pay for the BMW GB recommended dealer kit of service items
for new vehicles and revised models of existing vehicles. Advance
information will be given and costs kept to a minimum.
The Dealer will install and operate systems to control its stock in
accordance with reasonable BMW GB requirements.
2. Parts Exchange Service
The exchange programme and processing details are detailed in separate
literature issued by BMW GB
3. Stock Orders
Subject to clause 4.3.3 of this Agreement, stock orders will be submitted
by the Dealer to properly replenish its warehouse with BMW Parts. In this
connection orders will be placed in accordance with arrangements notified
by BMW GB to the Dealer which must be strictly maintained.
4. Emergency Orders
In the event of an unexpected demand and in unforeseen cases of special
urgency the Dealer may place an emergency order for the purpose of a
short-term delivery of BMW Parts. Deliveries made on account of emergency
orders may be charged with reduced discount determined by BMW GB from time
to time.
5. Warehouse Equipment
Buildings and areas in which BMW Parts are stored and/or sold are to be
equipped and maintained in a manner to meet the requirements of BMW GB and
the standard expected by BMW Customers.
The warehouse is to be set up and equipped in such a manner that:
- all categories of BMW Parts may be stored with maximum protection
against the danger of damage while the available space is being used
most efficiently;
- efficient acceptance of the delivered BMW Parts by the Dealer is
provided, in accordance with BMW GB requirements notified to the
Dealer from time to time;
- assembly space, special packing material and transportation facilities
are provided for the shipment of BMW Parts;
- the office space from which the storage space is managed is arranged
adjoining the warehouse if possible.
- counter facilities are in accordance with requirements specifed by BMW
GB from time to time.
6. Warehouse Size
The size of the warehouse must be large enough to hold the volume of BMW
Parts which is required by the volume of the services rendered by the
Dealer, with consideration of demands by its own workshop, trade and cash
sales. The standard of the warehouse has to be such that rational,
economical and functional stock-keeping is facilitated in compliance with
the Dealer's sales volume.
Suggested values to determine the size of the warehouse are available from
BMW GB.
7. Personnel
The requirements relating to personnel and training are as notified by BMW
GB from time to time.
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8. Obligations to Maintain a Supply of Documentation of Parts
For the purposes of information and efficiency sufficient quantities of
technical literature, microfilm reading devices, parts service leaflets,
electronic data reading devices and any other relevant devices for similar
purposes should be maintained by the Dealer.
In case of the new publication of a leaflet one copy will be furnished free
of charge to the Dealer. The Dealer may obtain additional copies which will
be charged to the Dealer's account. Microfilms and other film material
relating to parts service will be delivered to the Dealer and charged to
its account.
The Dealer also will receive amendments of the parts literature, which also
will be charged to its account. The Parts data media updating service
operates by exchanging new data media against the old. The old data media
are to be returned to BMW GB at the instruction of BMW GB. All microfilm
and data media supplied by BMW GB remain confidential to BMW GB who also
own the copyright therein and the Dealer shall not part with possession
thereof to any third party or make any copies thereof.
9. Parts Business Activities
BMW GB endeavours to assist the Dealer in handling the duties assigned to
it by BMW GB for the parts business. For this purpose BMW GB will engage
regional managers. These regional managers will advise and assist the
Dealer in building up and maintaining an effective organisation of the
Dealer's parts business to provide the highest level of Customer Service.
At the request of BMW GB the Dealer will assist BMW GB in carrying out
parts analyses research and planning operations.
In order to facilitate effective assistance to the Dealer it will be
essential that the Dealer provides the regional manager with all required
information and grants him access to any necessary documentation.
In this connection the Dealer will regularly and in compliance with the
wishes of BMW GB pursue and conduct a market analysis with a view to
competition in the parts business. In addition the Dealer will supply
statistical information in the form reasonably required by BMW GB from time
to time.
10. Architectural and Equipment Consultation
In the event of major building and equipment projects in respect of the
Dealer's parts business BMW GB will assist the Dealer as far as possible
with regard to the planning and organisation of its storage area. In such
cases the dealer will co-operate closely with the employees of BMW GB.
11. Publicity and Sales Promotion
In addition to its own publicity campaigns the Dealer will participate in
national promotional activities of BMW GB and other promotional activities
agreed with BMW GB as being suitable for the Dealer. For this purpose BMW
GB will furnish the Dealer with promotional material which is suitable for
the appropriate campaign, either free or upon reasonable payment, as
determined by BMW GB.
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FOURTH SCHEDULE
WARRANTY AND CLAIMS PROCEDURES
1. General
This Schedule governs the handling of warranty claims resulting from sales
of Contract Goods to Customers.
2. Basis for Warranty and Goodwill settlements
(i) Grantor of the Warranty
The Dealer will provide a warranty in respect of any Contract Goods in
accordance with clause 6.3 (b) of this Agreement. In the case of the
sale of a BMW Vehicle the giving by the Dealer of a warranty to the
Customer in accordance with the Warranty and Service Handbook as
supplied by BMW GB from time to time will constitute compliance by the
Dealer with its obligation under Clause 6.3 (b) of this Agreement.
(ii) Goodwill Claims
BMW GB may in its absolute discretion wholly or partly accept the cost
of labour and/or materials incurred in the rectification of defects
appearing after the expiration of any warranty period but this shall
not imply recognition of any legal liability. Goodwill claims will
only be considered if the BMW GB inspection and maintenance servicing
has been carried out regularly and correctly in accordance with the
service booklet by a BMW Dealer and the Customer has followed the
instructions for use and care of the Contract Goods in accordance with
any instructions or handbook issued with the Contract Goods.
3. Performance of Warranty and Goodwill Work
(i) General requirements
The Dealer will use its best endeavours to ensure that warranty and
goodwill work is given preference to other services performed by its
workshop. Customers in transit from the United Kingdom or abroad have
the right to expect any warranty or goodwill repair work essential to
the safety and good working order of their BMW Vehicle to be given
priority by the Dealer.
(ii) Investigation of Customer's Claim
All warranty and goodwill claims made by a Customer must be thoroughly
investigated by the Dealer. Should a claim not be justified the Dealer
will explain this to the Customer in a suitable manner. The Dealer
should only forward a claim to BMW GB if it is convinced that the
claim is justified.
(iii) Order of the Customer
The Dealer will only undertake warranty or goodwill work for a
Customer once the Customer or his authorised agent has signed a formal
workshop repair order setting out details of the work to be performed.
(iv) Method of Warranty and Goodwill Work
Should a defect be of such a nature that it may be rectified by
alternative methods (i.e. repair or the exchange of a complete unit)
the most economic method shall be adopted. The interest of the
Customer must be suitably observed and, if in doubt, the Dealer should
consult BMW GB for advice as to the best method of handling
rectification.
(v) Authorisation of BMW GB in particular cases
In deciding whether or not work falls within the terms of the
warranty, the Dealer shall rely on its own discretion except that
where the repair or replacement of a major unit (as defined by BMW GB
from time to time) or paint work the cost of which exceeds the amount
specified by BMW GB in the warranty manual or any other item that BMW
GB from time to time may stipulate is concerned, the Dealer shall
obtain the authorisation of BMW GB before proceeding.
4. The Handling of Warranty Claims between the Dealer and the Customer.
The Dealer will perform warranty services free of charge in respect of any
Contract Goods delivered by a supplier within the territory of the European
Economic Area authorised directly or indirectly by the Manufacturer to the
extent that the Dealer will be entitled to reimbursement under the warranty
given by BMW GB under Clause 6.3 (a) of this Agreement. The Dealer will
perform the said services irrespective of whether the Contract Goods
concerned have been purchased from itself or not.
-33-
Where the Dealer performs services for a Customer otherwise than under
warranty and makes a goodwill claim in respect thereof to BMW GB the normal
charge for services and materials may be made to the Customer in the first
instance. If a goodwill claim is accepted in its entirety by BMW GB no
costs shall be borne by the Customer and accordingly any sum that has been
charged to the Customer will be reimbursed to the Customer by the Dealer.
Where a goodwill claim is accepted only in part, a proportional refund
should be made by the Dealer immediately to the Customer of any charge made
to the Customer equivalent to the proportion of the actual cost of
effecting the repair to the Dealer that is refunded by BMW GB. The
Customer's refund should be the relevant proportion of the price charged to
it. The Dealer will inform the Customer immediately if the claim is
rejected by BMW GB.
5. Handling of Warranty Claims between the Dealer and BMW GB
(i) Claims
In order to obtain reimbursement of expenditure incurred in carrying
out warranty or goodwill work, the Dealer must submit a claim to BMW
GB therefor within the period and in the manner specified by BMW GB
from time to time.
(ii) Requirements of Claims
Where the Dealer submits a request for reimbursement it must retain
available at its premises a workshop order giving complete details of
the work carried out together with a mechanically stamped job card to
show repair time expended and information as to the name and address
of the owner of the vehicle/part concerned, and other means of
identifying the vehicle/part. The details set out in the warranty
claim must be identical to those in the workshop order.
(iii) Validation of Claims
In submitting a warranty claim the Dealer is vouching for the claim
and the complete accuracy of the details stated. The Dealer will make
a particular effort to supply any details likely to be considered
relevant by BMW GB in deciding whether or not to reimburse expenditure
as a goodwill claim. Such details will include, but will not be
limited to, the mileage, date of registration and details of the
previous owners of the BMW Vehicle concerned. Where a claim is made in
relation to parts which have already been replaced, details of the
original repair will be relevant and must be taken from the relevant
invoice.
6. Reimbursement of Dealer's Expenses
(i) General Extent of Reimbursement
Where BMW GB accepts that a Customer has a valid claim under a
warranty given by the Dealer subject to 6 (v) below BMW GB will
reimburse the costs of rectifying the defects and will at its option
repair or replace defective parts and any other parts or components
damaged thereby at the agreed prices/rates for parts and labour. Parts
exchanged in this way will become the property of BMW GB and will be
returned, at the Dealer's expense and risk unless returned on BMW GB's
delivery vehicles, to BMW GB within the time specified in the BMW
warranty manual.
(ii) Reimbursement for Labour
The Labour costs expended by the Dealer will be paid according to the
work/time unit allowable for the work performed in accordance with the
BMW GB work/time schedules. Should the Dealer not provide details of
the work/time units actually spent on the work performed, costs will
be reimbursed by BMW GB on the basis of the actual time expended
(provided this is not unreasonable) converted into work/time units.
BMW GB will determine the amount to be reimbursed to the Dealer in
respect of each work/time unit and will from time to time, review the
rate of such allowance. In deciding what charge should be made in
respect of each work/time unit, BMW GB will rely upon receiving an
accurate return, at intervals specified by BMW GB, setting out the
Dealer's overheads in the provision of servicing.
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(iii) Reimbursement for Services rendered by Third Parties
Where warranty services are rendered by a third party to the order or
at the request of the Dealer with the prior consent of BMW GB, BMW GB
will reimburse the Dealer the reasonable costs (plus VAT) connected
therewith.
(iv) Examination Right of BMW GB
BMW GB is authorised to have its representatives examine the proper
processing of the warranty claims at the Dealer's premises at any
reasonable time. For this purpose the Dealer shall hold ready for
inspection by the appropriate BMW GB representative his entire records
and vouchers such as workshop orders, time stamp cards and/or control
room lists, receipts for parts removed, invoices for replacement parts
and BMW GB credit notes in case of goodwill settlements, insofar as
these records are connected with warranty and goodwill settlement
claims.
The Dealer shall retain such warranty records in a suitable manner for
the period specified in the warranty manual in order that an
inspection on short notice will be possible at any time.
(v) Non Refundable Costs
No refund will be made for costs incurred for carrying out the
pre-delivery inspection or maintenance or servicing or safety checks
or for minor adjustment and resetting or unless otherwise specified by
BMW GB. the time expended on diagnosis of the defect.
Expenditure incurred by the Dealer as a result of incorrect diagnosis
of an apparent defect, or inadequate or negligent service work, is not
recoverable from BMW GB.
Also excluded are expenses incurred because of non compliance with
technical information furnished by BMW GB or because of non-compliance
with recognised rules of servicing and maintenance in the motor trade
or costs which result from repair work which has been badly performed.
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FIFTH SCHEDULE
SERVICE REQUIREMENTS
The following provisions govern the requirements made by BMW GB for Customer
service by authorised BMW Dealers. They have the essential purpose of
guaranteeing to the Customer a service which meets his reasonable expectations.
1. Acceptance, Storage and Delivery of BMW Vehicles
(i) Acceptance
The Dealer will accept BMW Vehicles from the BMW GB appointed delivery
company in accordance with the requirements of the First and Second
Schedules.
(ii) Storage
BMW Vehicles stored by the Dealer will be stored in accordance with
instructions given by BMW GB from time to time.
(iii) Delivery to Customers
With the knowledge that the delivery of BMW Vehicles will affect the
Customer's opinion with regard to the quality of the vehicle and
customer service, the Dealer will perform the following services
and/or actions prior to or at the time of the delivery to the
Customer:
(a) Prior to the delivery the Dealer will perform a pre-delivery
inspection free of charge to the Customer. In compliance with the
service booklet and/or instructions issued from time to time by BMW GB
the Dealer will perform the specified works and the Dealer will enter
this pre-delivery inspection into the service booklet and certify the
entry with its official stamp, date and signature. In the event that
the Customer collects the vehicle from BMW GB then BMW GB will perform
the pre-delivery inspection on behalf of the Dealer and will charge
the Dealer accordingly;
(b) The Dealer will maintain records for all BMW Vehicles serviced
including details of all pre-delivery inspections undertaken;
(c) Prior to the release of the vehicle the Dealer will check whether all
documents belonging to the vehicle as prescribed by the Manufacturer
are updated and available, such as the owner's handbook, the service
booklet, the register of dealers and emergency service locations, any
directions for use etc. These documents shall be handed to the
Customer at the time the vehicle is released to him.
(d) The Dealer will instruct the Customer in the operation of the BMW
Vehicle and the regulations and facilities relating to warranty and
service before or at the time of handover of the BMW Vehicle.
2. Performance of Maintenance and Repair Works
(i) Obligation of the Dealer
The Dealer will perform all maintenance and repair work prescribed by
BMW GB in compliance with the instructions valid at the time. For this
purpose it is necessary that the Dealer uses the special tools and
workshop equipment prescribed by BMW GB at the time. The Dealer will
make sure that all orders for maintenance and repair work are accepted
properly using the repair order forms specified or approved by BMW GB
and signed by the Customer.
(ii) Maintenance Works
The Dealer will perform all maintenance works within the prescribed
intervals in compliance with the BMW GB work instructions valid at the
time. The performance of the maintenance work is to be certified in
the service booklet.
(iii) Product Modification Campaigns
The Dealer will participate in all product modification and/or recall
campaigns initiated by BMW GB, and, if required, the Dealer will
perform the examination or work prescribed by BMW GB in relation to
BMW Vehicles the subject of the campaign, regardless of whether the
BMW Vehicles in question have been purchased from the Dealer or not.
-36-
The processing of such campaigns will be governed by the instructions
issued by BMW GB or the Manufacturer on each occasion or, if no other
arrangements have been made, by the warranty and goodwill-settlement
provisions then in effect.
The Dealer will use its best endeavours to ensure that all BMW
Vehicles subject to the product modification or recall campaign sold
by it, or serviced by it in accordance with the customer service file,
will be produced to it or to an authorised BMW Dealer located most
conveniently to the Customer, in order that the appropriate
examination and/or modifications may be performed.
This applies also to affected new BMW Vehicles and vehicles which have
been resold in the meantime. In this case the Dealer will endeavour to
locate the vehicle owner and to inform him accordingly. Should such
efforts remain unsuccessful the Dealer will advise BMW GB in writing.
(iv) Free Services
The Dealer will carry out any service specified from time to time by
BMW GB as being free to the Customer in respect of the labour content
in accordance with separate instructions issued by BMW GB.
3. Workshop
(i) The size of the workshop and its associated areas will be as
recommended by BMW GB such that all BMW Vehicles sold by the Dealer
and all BMW Vehicles being operated in the Territory may be serviced.
If several BMW Dealers should be operating in the same Territory this
should be duly considered in the determination of the workshop size.
(ii) Workshop Appearance
The appearance of the workshop shall be in keeping with the BMW
Corporate identity Programme. The Dealer will ensure the workshop and
its associated areas are kept clean and tidy at all times.
(iii) Workshop Equipment
A faultless performance of the maintenance and repair work on BMW
Vehicles requires that the Dealer has available a sufficient quantity
of all workshop equipment items prescribed by BMW GB and that these
are maintained to the highest standard and are operational at all
times.
The Dealer will ensure that it is equipped with all special tools
which are mandatory for the operation of a BMW Dealer service
department.
(iv) Workshop Organisation
In order that a Dealer's workshop may be operated profitably it is
necessary that a workshop organisation is established and regulated in
compliance with the best principles of business administration. For
this purpose the Dealer shall apply in its individual workshop
organisation the instructions and organisational documentation
established by BMW GB as notified to the Dealer from time to time. In
order to guarantee the profitability of the Customer service the
Dealer will appoint a responsible person for the performance and
control of suitable business administration measures.
4. Advice to the Dealer by BMW
(i) Architectural and Equipment Advice
BMW GB and/or its regional manager and other specialists will give
advice to the Dealer in respect of the design and layout of the
workshop and the requirements in respect of workshop equipment.
(ii) Advice in regard to Organisation/Business Administration
The BMW GB regional manager and other appropriate employees of BMW GB
will be ready to assist and support the Dealer in regard to all
organisational and administrative service questions.
(iii) Provision of Service Statistics
Every Dealer needs suitable up-to-date aids to decision making to
control and evaluate its workshop results. For this purpose the Dealer
will supply service statistical information in the form reasonably
required by BMW GB from time to time.
5. Personnel Requirements
(i) The Dealer will employ a sufficient number of technically qualified
service personnel for the performance of maintenance and repair work
in proportion to the BMW Vehicle volume to be serviced by it.
The number of the required service employees will be governed by the
BMW GB recommendations valid at the time.
(ii) All service employees of the Dealer will wear BMW GB recommended
working clothes. The attitude, appearance and technical knowledge of
the management personnel of the workshop as well as that of all
employees dealing with the Customers (for instance at the service
reception etc.) have a vital importance to the image of the BMW
customer service. The Dealer will ensure that the appropriate
employees are always polite, helpful, efficient, correct and
product-supportive in their dealings with Customers.
The Dealer will immediately investigate any complaint made by a
Customer and use its best endeavours to eliminate the cause of the
complaint.
(iii) The Dealer will ensure that the service employees have the required
knowledge with regard to the Contract Goods, modern repair methods,
methods of workshop management, discipline and organisation and that
they know how to react with Customers.
The Dealer shall assign all service employees to training courses held
by BMW GB and/or at training locations determined by BMW GB. In
addition the Dealer will regularly provide training and advanced
training instructions to its service employees itself.
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6. Service Documentation - Certifications
(i) Customer Service Documentation
BMW GB supplies the Dealer with customer service documentation which
must be available to service employees at all times.
Upon its first appointment as a Dealer BMW GB will supply to the
Dealer an initial information pack of customer service documentation.
Future orders should be made in the usual manner of ordering parts.
The Dealer will stock a sufficient supply of dealer/emergency service
lists and Aftersales Marketing Literature to serve as handouts for
customers.
7. Customer Servicing
(i) Customer Service
It is a prerequisite in offering a high level of service to Customers
and for the prevention of Customer complaints that the Dealer and its
personnel do not make any detrimental remarks concerning BMW GB or the
Manufacturer, the Contract Goods, other contractors of BMW GB or the
Manufacturer or employees of any of them.
The Dealer will ensure that the Customer is promptly and correctly
advised of any defects which become apparent whilst work is being
carried out.
Repairs must be guaranteed for specific mileage and time periods.
Methods of payment for service and repairs should be notified to the
owner prior to the acceptance of the work.
Parts replaced during repair or service should be made available for a
reasonable period for inspection by the Customer.
Permission of the Customer should always be sought for additional work
which may present itself during service or repair, and his signed
approval obtained, if possible.
(ii) Customer Complaints
The Dealer will make sure that it satisfactorily clarifies and settles
any enquiries and complaints presented by Customers. In exceptional
cases only, BMW GB itself will handle such Customer Enquiries, and if
it does so, will use reasonable endeavours to ensure that the Dealer
is consulted before a decision is given to a Customer. The Dealer will
support BMW GB in this regard and in the clarification of any possible
questions. BMW GB will counsel and advise the Dealer in a suitable
manner of the appropriate correspondence or action to be undertaken.
Provision will be made for a service goodwill budget under the control
of an appropriate manager to allow for policy adjustments to be made
to further customer goodwill and retention.
(iii) Vehicle History and Customer Follow Up File
In order that the required customer contacts may be maintained it is
prescribed that the vehicle history and Customer follow up file, in
the form specified by BMW GB, will be set up, maintained and evaluated
by an employee of the Dealer responsible therefor.
(iv) Customer Service Promotion
The Dealer will carry out all suitable actions to promote Customer
retention including providing the highest level of service and
ensuring that the Customer is aware of service available from the
Dealer, BMW GB and the Manufacturer.
(v) Co-operation Between BMW GB and the Dealer
The BMW GB Aftersales Department is the contact point for all service
questions between BMW GB and the Dealer. This department will always
advise and assist the Dealer appropriately.
8. BMW Service Representatives
(i) Task of the Regional Manager
The regional manager of BMW GB will give advice and support to the
Dealer in all technical, organisational and administrative customer
service questions
(ii) Co-operation with the Dealer
To facilitate a smooth service operation the Dealer will comply with
all reasonable instructions given in the name of BMW GB through the
regional manager.
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SIXTH SCHEDULE
CORPORATE IDENTITY DETAILS
BMW is one of the world's outstanding motor vehicle manufacturers and enjoys the
highest reputation in the eyes of its customers, competitors and the public at
large. It is essential that the high standards established in the BMW Identity
Programme are maintained at all times.
This Schedule sets out the requirements relating to the appearance and functions
of the Dealer to ensure that these standards are maintained.
1. BMW Identity
(i) The Dealer will subject to statutory and any other necessary consents
provide complete exterior corporate identity of the building, in
accordance with the BMW Identity Programme issued by BMW GB as updated
from time to time. At all times the highest standards of repair and
decoration must be in evidence.
(ii) A showroom will be provided for the display of BMW Vehicles, and new
cars of other makes may only be displayed in the same sales premises
if the Dealer has obtained any consents that it is required to obtain
from BMW GB.
(iii) The Dealer will provide interior facilities to the requirements of
the BMW Corporate Identity Programme. This will include the provision
of a customer contact area in the Dealer's showroom or in a separate
area if provision in the showroom is agreed to be impractical. This
customer contact area will include customer reception, service
reception, parts boutique and retail counter, and customer waiting
area, including cloakroom facilities. Decorative finishes and
materials will comply with the BMW Corporate Identity Programme as
specified by BMW GB from time to time.
(iv) The Dealer will have BMW Stationery as advised by BMW GB for both
internal and external documentation.
2. Customer Facilities
Unless otherwise agreed by BMW GB the Dealer will provide an adequate
signed parking area, lined out, for its Customers and visitors.
3. Dealership Vehicles
Delivery and other commercial vehicles should be painted in accordance with
the guidelines provided in the BMW Identity Programme. All vehicles will be
maintained in a condition which will support the prestigious image of the
BMW marque.
4. Architectural Advice
BMW GB will give or arrange to be provided advice to the Dealer in respect
of the selection of a suitable site, the preparation of building plans and
proposals and the equipping of the Dealer's business premises.
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SCHEDULE 7
THE TERRITORY
Dealer Code:
Dealer Name:
Signed by XXXXX
---------------------------
for and on behalf of BMW (GB) Limited
Signed by XXXXX
---------------------------
for and on behalf of the Dealer
Dated:
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EIGHTH SCHEDULE
DETAILS OF THE DEALER
Dealer name :
Trading as : SYTNER
Registered office : WOODCOTE HOUSE
HARCOURT WAY
MERIDIAN
Authorised Premises :
Type of organisation: Private limited company
SHAREHOLDER OWNERSHIP PERCENTAGE
- ----------- --------- ----------
SYTNER GROUP LTD 100
THE DEALER'S
THE DEALER PARENT COMPANY
-------------------- --------------------
Authorised s/capital :
Issued share capital :
Date of incorporation:
Commenced trading :
Banker :
OTHER DEALERSHIPS DATE CATEGORY
- ----------------- --------- --------
KEY PERSONNEL
Dealer Principal :
Managing Director :
Sales Director :
Service Director :
Parts Director :
Accountant :
Company Secretary :
General Manager :
Sales Manager :
Service Manager :
Parts Manager :
Commencement date of this Agreement :
Date of this Schedule :
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SIGNED BY ) XXXXX
for and on behalf
of BMW (GB) LIMITED ) XXXXX
in the presence of: )
SIGNED BY ) XXXXX
for and on behalf of THE DEALER in the )
presence of: )
XXXXX
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