1.1 For all commissions, orders and contracts issued by us (hereinafter referred to as "Orders") by or with companies, legal entities or a special funds under public law as specified in Section 310, Para 1 of the BGB German Civil Code on the purchase of goods, work or services (hereinafter referred to as "Deliveries"), the following purchase conditions exclusively apply. We hereby expressly reject any supplier conditions that deviate from these purchase conditions or are supplementary thereto. Said provisions are not binding for us. Our purchase conditions shall also exclusively apply in the exceptional event that we do not reject the incorporation of our supplier's conditions, or unconditionally accept their delivery with knowledge of contradictory or supplementary supplier terms and conditions.
1.2 These purchase conditions also apply to all future transactions with the supplier, even if these have not yet been expressly arranged.
1.3 The invalidity of specific provisions of these purchase conditions does not affect the validity of the remaining stipulations. In place of the invalid provision, a legally permissible provision shall apply that comes closest in economic terms to what was intended by way of the invalid provision.
2. Contract conclusion
2.1 All agreements made between the supplier and ourselves and all orders are only binding for us when made in writing or text. All amendments, additions or subsidiary agreements made before, during or after contract conclusion must also be made in writing or text. This formal requirement may only be dispensed with in writing or text.
2.2 If the supplier fails to confirm our order within a period of two (2) weeks of its receipt in writing or text, we are entitled to cancel. Delivery schedules are binding if the supplier does not object within three (3) working days of receipt. Any amendments, additions or other changes to our orders are only valid if express, special notification is given and our express authorisation is received.
3. Costs and payment conditions
3.1 The prices specified in the order are fixed prices. The prices include DDP delivery, packaging, suitable transport insurance to be arranged by the supplier and all other delivery costs, unless expressly agreed otherwise in writing. The legally applicable VAT is not included. Unless expressly agreed otherwise, all Incoterms used by us refer to the 2010 INCOTERMS published by the International Chamber of Commerce (ICC).
3.2 If the supplier is responsible for assembly, installation or commissioning and unless agreed otherwise in writing, the supplier shall bear all required ancillary costs, such as travel expenses and tool provision costs.
3.3 Invoices will only be processed if they are sent to us separately with the supplement "RW Rechnungsprüfung". Each order should be invoiced separately. Consolidated invoices are only permitted with our prior written consent. The invoice must clearly specify the order number allocated to our order, the order date, supplier number and our article number, if applicable.
3.4 Invoices must be issued in EUR. Payments will be made exclusively in EUR. The supplier must provide us with the correct IBAN and BIC codes for the account to be credited, in addition to their tax identification number.
3.5 Payments are made by bank transfer after acceptance of the delivery and receipt of an auditable invoice, along with the transfer of all documents pertaining to the delivery scope. If agreed in advance, invoicing via credit notes is also possible in accordance with the applicable tax legislation. Unless expressly agreed otherwise in writing, we shall effect payment of invoices within 30 days of the receipt of a correct invoice, without deductions.
3.6 The supplier is not entitled to fully or partially assign its claims against us or otherwise dispose of them without our express prior agreement in writing.
3.7 We are entitled to exercise rights of offset or retention as stipulated by law.
4. Delivery dates and conditions
4.1 The dates specified in the order or otherwise agreed are binding and must be strictly observed. The supplier must notify us immediately in writing if any delays or exceedance of the agreed schedules is foreseen. Said notification must specify the reasons and expected duration of the delay.
4.2 Partial deliveries and early deliveries are only permitted if we have given our express, prior agreement. Notwithstanding the above, payment claims shall only be considered valid from the original delivery date.
4.3 Unless otherwise agreed, a delivery note and work's test certificate in accordance with EN 10204, or a similar, internationally recognised test certificate, must be sent by E-mail in advance to QK@OKS-Germany.com. Said certification must include the details agreed upon with the supplier. Before the first deliveries, the OKS raw material/OKS MCM questionnaire must be completed and returned along with a current safety data sheet.
4.4 Deliveries are only possible at the times specified in the order or otherwise agreed. All persons in vehicles must register upon entering the OKS premises. Bringing children or animals onto the OKS premises is strictly forbidden. In the loading and unloading area, suitable safety footwear must be worn (with explosion protection where applicable). Any instructions given by safety personnel must be followed.
4.5 In the event of a delivery delay, we are entitled to charge a contractual penalty of 1% for every commenced week of delay up to a maximum of 10% of the order value. The supplier is entitled to prove to us that no damage, or significantly less damage, has been caused. We reserve the right to claim further damages. We are obliged to declare the retention of the contractual penalty at the latest upon payment of the invoice submitted after the delayed delivery is received.
4.6 Acts of God that prevent or considerably complicate delivery by our supplier or the acceptance or use of the delivery by our company or our customers shall delay our duty of acceptance for a reasonable period in accordance with our actual requirements. In the event of force majeure that affects us or our supplier, we are entitled to fully or partially withdraw from the contract as deemed necessary by us.
5. Place of performance, risk transfer, property acquisition
5.1 The place of performance is the location to which the goods are to be delivered or where the services are to be executed in accordance with the order. The place of performance for payments is our registered headquarters.
5.2 Delivery is to be made DDP at the expense and risk of the supplier, in accordance with applicable legislation and suitably packaged for transport to the address stipulated by us. The risk of accidental loss or damage to the delivery is only transferred to us upon acceptance of the goods by us or our appointed forwarder at the agreed place of performance or upon final acceptance of the delivery, whichever is later, even if we have already agreed to bear the freight costs.
5.3 With the transfer of risk at the place of performance or transfer to a forwarder commissioned by us, we assume ownership of the goods without any reservation of rights by the supplier.
5.4. Concerning the delivery of machines and systems, the transfer of risk only takes place after their final acceptance at the place of performance.
6. Liability for defects and other liability
6.1 The delivered goods will only be checked for identity and quantity in accordance with the shipping documents, in addition to any visible transport damage. As soon as they are detected in the due circumstances of normal business, delivery defects will be reported to the supplier within a reasonable period of at least five (5) working days after their detection. In this regard, the supplier renounces the objection of delayed notification of defects (Section 377 of the German Commercial Code).
6.2 Providing that no other agreement has been made in Section 6, the supplier is, in accordance with the statutory provisions, particularly liable for delivery defects, without limitation or exclusion on grounds of cause or amount, and insofar releases us from claims of third parties.
6.3 We are entitled to choose how said defects are remedied. The supplier may refuse our chosen manner of remedy if this is only possible at a disproportionate cost.
6.4 If the supplier does not commence the defect remedy immediately after our request, we are entitled, especially in urgent cases, and particularly to prevent acute risks or to avoid greater damage, to remedy the detected defects ourselves or through a third party, at the cost of the supplier without ceding any prior period of grace.
6.5 Claims based on material defects shall, unless otherwise agreed or the statutory provisions stipulate longer periods, lapse 24 months after the consumer purchases the final product, but no longer than 30 months after delivery to us. In case of work performance, the limitation period is 30 months from final written acceptance. If the delivery has been used for construction in accordance with its normal application, and caused its defectiveness, the limitation period only expires after 5 years. Further legal rights remain unaffected by this provision.
6.6 In the case of defects of title, the supplier also exempts us from any claims from third parties. For claims due to defects of title, including release of claims in accordance with Clause 1, a limitation period of 10 years applies.
6.7 If a defective delivery makes an incoming goods inspection necessary that exceeds the normal scope, the supplier shall bear the costs.
7. Product liability
7.1 The supplier shall indemnify us against all third-party claims from and in relation to personal injury and material damage, if and insofar as the cause thereof lies in the control and organisational area of the supplier. Within this framework, the supplier is also obliged, in accordance with the applicable legal provisions, to reimburse us without order for all expenses that are incurred from or in relation to a product recall or other measure carried out by us.
7.2 The supplier is obliged to contract a product liability insurance policy (including extended product liability and recall cost coverage) with a coverage of at least EUR 3,000,000 (three million Euros) inclusive per instance of person injury, material damage and product asset damage; our claims are not, however, limited to the coverage sum.
8. Observance of intellectual property rights and regulations
8.1 The supplier assures that their delivery and its use do not infringe against industrial property rights or any other rights of third parties, nor do they violate any legal or regulatory requirements. Our directive 'Avoiding dangerous substances' (FSS 7), which we can provide upon request, is to be adhered to, in addition to the environmental standard ISO 14001. As a participant of the UN initiative 'The Global Compact', we also expect our supplier to observe the principles contained therein. Upon request, the supplier is obliged to provide all relevant IMD system data, EU REACH, GDS and other internationally relevant legal exportation and chemical documentation free of charge. The supplier acknowledges that we use the supplier's product in lubricants that are subject to special laws governing the application of chemicals. Concerning exportation to other countries, this may mean the registration of substances and/or products, along with disclosure of the relevant data, also to an external third party if necessary. In the case of additional registration (for instance drinking water, food, organic products, etc.), the supplier shall offer their full support in obtaining this registration by providing the relevant data, also to external third parties if necessary. The supplier shall also provide an electronic copy of an EU safety data sheet that corresponds to the current EU legislation. Said sheet must be provided at least in English. In the event of changes to the composition or legislative modifications, the supplier is obliged to send an updated safety data sheet, without request, to email@example.com.
8.2 The supplier is obliged to exempt us from all claims made by third parties due to or in relation to the delivery or its use. Section 6.6, Clause 2 applies.
8.3 The supplier's indemnity obligation also extends to all expenses that arise for us as a result of or in relation to a third-party claim.
8.4. For the delivery of machines and systems that are governed by the EU Machinery Directive 98/37/EU, the supplier must provide a free-of-charge risk analysis in accordance with EN 1050 as stipulated by the EU Machinery Directive 98/37/EU.
8.5. The supplier acknowledges that as a manufacturer of chemicals, chemical mixtures and articles, we are a manufacturer, downstream user and importer as defined by the European Chemicals Regulation no. 1907/2006 (REACH regulation), and hereby guarantees that they shall observe all EU REACH specifications, in particular those required to process, sell or distribute goods within the EU, especially: (a) to register or allow the registration of chemical substances or preparations in the legally stipulated dimensions, (b) to implement internal organisational measures to document compliance with the EU REACH regulation, (c) to ensure that any use of chemical substances or preparations, that we or our customers have specified or reported to the supplier, in goods (including packaging material) or in laboratories, production, etc., is covered by the corresponding (pre-)registration or approval, (d) to inform us immediately if a pre-registered substance or preparation cannot or should not be permanently registered within the corresponding transitional period, (e) to refrain from selling or supplying any goods containing substances prohibited by REACH and (f) to inform us immediately of any contained substances of very high concern (SVHC) ((a) to (f) inclusive "EU REACH compliance").
The supplier acknowledges that violations of the EU REACH compliance shall, in accordance with the applicable legal provisions, result in a defect of the substance, preparation or other goods or article and shall exempt us from all claims, damage, liabilities and expenses (collectively "Claims") that are caused by the supplier's infringement against the aforementioned EU REACH compliance. The supplier shall also bear all costs related to our and their legal defence against such claims.
8.6 The supplier is obliged to have so-called proof of origin for the goods. This means that the supplier must provide both the required confirmation of the trade or preferential origin of the goods and any change of origin, immediately and without request. If necessary, the supplier must have their details concerning the origin of the goods confirmed by certification issued by the corresponding customs office. If the supplier fails to adhere to this requirement, they are liable for all resulting damages and commercial disadvantages.
For all goods and services to be provided, the supplier must comply with the applicable requirements of national and international exportation, customs and foreign trade legislation (hereinafter referred to as "Foreign Trade Legislation"). The supplier must also obtain all required shipping or export licences, unless the applicable foreign trade legislation stipulates that this duty to apply for said permits lies with us or another third party. If the aforementioned licences are not submitted within a period of three months from order acceptance, we are entitled to withdraw from the contract.
As soon as possible, and upon order acceptance at the very latest, the supplier must provide us with all written information and data required for compliance with the applicable foreign trade legislation for the exportation, transfer and importation – and further sale in the case of redistribution – of the goods and services.
8.7 The supplier assures that they themselves provide the services as stipulated in Section 1.1. and that any subcontractors (hereinafter referred to as "Subcontractors") are only to be used after receiving our prior written authorisation.
The supplier further assures that they themselves and all legitimately commissioned subcontractors and hire companies pay the workforce the applicable minimum wage as stipulated in the German Minimum Wage Act. The supplier also confirms that their company and others in the subcontractor chain commissioned by them are not excluded from the allocation of public contracts as specified in Section 19 of the German Minimum Wage Act (MiLoG).
Within the framework of supplier tender inspection, we are already entitled, without any specific reason, to request the random and anonymised submission of current payslips for employees used by the supplier and within the subcontractor chain (salary and payroll lists). The supplier may also choose to present proof of their and their subcontractors' compliance with the German Minimum Wage Act through the immediate provision of current certification issued by a suitable, objective expert (such as an auditor).
Should a claim be made against us through an employee of the supplier or subcontractor relating to a valid claim for compensation in accordance with the German Minimum Wage Act, the supplier is obliged to pay us a contractual penalty of EUR 250 per claim at our first request. The contractual penalty to be paid will be offset against any possible claim for damages by the customer and is limited per order to 10% of the specific order amount and max. EUR 25,000 per calendar year. The obligation to pay a contractual fee does not apply if the supplier is not at fault and can submit evidence of their burden of proof.
Upon our first request, the supplier is obliged to exempt us from all claims made against us by third parties in relation to the violation of the German Minimum Wage Act. Notwithstanding the above, this does not apply if we and/or our employees or agents are proven to have violated the stipulations of the German Minimum Wage Act wilfully or through gross negligence. If a claim is made against us through an employee of the supplier or their subcontractor in light of a valid compensation claim in accordance with the German Minimum Wage Act, we are entitled to cancel orders without notice in accordance with Section 1.1.
9. Retention of title, tools
9.1 All goods provided by us (e.g. parts, components, semi-finished products) remain our property.
9.2 The retention of title also extends to products developed through the processing, mixing or combining or our goods to their full value, whereby through these processes, we are considered as the manufacturer. If third-party property rights exist through processing, mixing or combining with their goods, we acquire joint ownership in relation to the objective value of the goods.
9.3 All tools provided to the supplier and those made by the supplier or ordered from a third party on our behalf, to which we have made a contribution to costs, remain under our ownership or become our property upon their manufacture or acquisition through the supplier. Said items must be clearly marked as our property and stored separately.
9.4 The supplier is obliged to store tools separately and visibly for us free of charge. This shall include sufficient insurance coverage, proof of which must be submitted to us upon request. The supplier is obliged to use the tools exclusively for the production of the parts specified by us, unless agreed otherwise. Such consent concerning the production of parts based on orders from companies that do not belong to the Freudenberg Group is hereby granted.
9.5 The supplier must maintain and repair all tools provided at their own costs. Upon contract termination, the supplier must return the tools to us immediately upon request, without any right of retention. Upon their return, the tools must be in a perfect technical and visual condition in accordance with their previous use. All repair costs are to be met by the supplier. The supplier may not, under any circumstances, send the tools for scrapping without our prior written consent.
10. Quality assurance
Throughout the entire duration of the business relations, the supplier is obliged to maintain a quality management system that meets the requirements of the standards DIN EN 1SO 9000 ff., QS9000, etc. Said system must be monitored at regular intervals through internal audits and in the event of any identified discrepancies, required measures are to be introduced to guarantee the perfect quality of all deliveries made to us. We are entitled to inspect the supplier's quality insurance at any time, prior to notification. Upon request, the supplier shall grant us access to certification and audit reports, in addition to all delivery- and inspection-related test records and documents.
11. Confidentiality, documents
11.1 All information, recipes, drawings, models, tools, technical records, process methods, software and other technical and commercial knowledge made accessible by us or gained by the supplier through us, in addition to work results achieved in relation to this (hereinafter referred to as "Confidential Information"), must be kept secret from third parties by the supplier and may only be used within the supplier's business for the execution of deliveries to us. Access thereto may only be granted to persons who require knowledge of the confidential information within the framework of the business relations and who have been bound to secrecy in accordance with this provision. This also applies upon termination of the business relation, providing and insofar as the supplier is unable to prove that such confidential information was already known or public at the time in which they requested it, or if it later became public through no fault attributable to them.
11.2 All documents (e.g. drawings, figures, test procedures), samples and models, etc. that are provided to the supplier by us within the framework of the business relations, remain our property and must be either returned or destroyed at the cost of the supplier, upon our request and at the latest upon termination of the business relations (including any copies, transcripts, extracts and replicas). No right of retention is granted to the supplier.
11.3 The disclosure of confidential information does not grant the supplier any rights to industrial property rights, knowledge or copyright provisions, and does not represent any right to prior publication or use in relation to the applicable patent, design and utility model legislation. All types of licences require written agreement.
12. Applicable legislation and court of jurisdiction
12.1 The law of the Federal Republic of Germany exclusively applies, under exclusion of its private international law, the Uniform UN Sales Law (CISG) and any other bilateral and multilateral agreements that serve the unification of international purchasing.
12.2 The exclusive court of jurisdiction for all claims arising from our business relations with the supplier, and in particular concerning contracts and their validity, is Munich. This place of jurisdiction also applies to disputes concerning the constitution and effectiveness of the contract. Notwithstanding the above, we are entitled to sue the supplier at any other or specific court of jurisdiction at our discretion.
12.3 If the supplier is based outside of the Federal Republic of Germany, we are also entitled to conclusively settle all disputes arising from or in relation to our business with the supplier, including concerning contract validity, in accordance with the arbitrary court regulation of the German Institution of Arbitration (DIS), under the exclusion of normal legal redress. Upon the request of the supplier, we shall exercise this option before the commencement of proceedings. The court of arbitration is its headquarters in Munich, Germany. Upon the request of the customer, we will exercise this right of choice before the commencement of proceedings. The arbitration shall be held in German, unless the supplier requests that English be used as the language of the case.
Maisach, October 2015 (Rev 1)