Freudenberg Sealing Technologies Pty Ltd (FST)
STANDARD TERMS AND CONDITIONS OF PURCHASE
1. Scope
1.1 These Conditions of Purchase shall apply exclusively to all our orders and contracts (“order”) governing the purchase of goods, services and work performance (“delivery”). We hereby explicitly object to any deviating or supplementary conditions set by our suppliers, they shall not be binding for us. Our Conditions of Purchase shall also apply exclusively if we do not object to the incorporation of our supplier’s conditions in individual cases or if, although being aware of contrary or supplementary terms and conditions of the supplier, we accept a delivery without reservation.
1.2 These Conditions of Purchase also apply to all future business relations with the supplier, even if they are not explicitly agreed upon again.
1.3 Should any provision of these Conditions of Purchase be invalid; this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a lawful provision coming as close as possible to the commercial purpose of the invalid provision.
2. Formation of contracts
2.1 Any agreement with the supplier and any orders shall be considered binding for us only if they are put down in writing. Any modification, addition, or subsidiary agreement before, at or after the contract formation also requires our consent in writing. This form requirement may only be waived by us in writing.
2.2 If the supplier does not accept our order in writing within two weeks of receipt, we shall be entitled to revoke the order. Delivery calls shall be binding unless the supplier objects within three (3) working days of receipt. Any deviation from, modification of or supplement to our orders shall only be effective if explicitly and separately indicated as deviation, modification or supplement and expressly approved by us in writing.
3.0 Prices and payment
3.1 Prices specified in the order are fixed. Prices are valid for delivery DDP, packaging, adequate transport insurance to be taken out by supplier, and all other costs of delivery, unless explicitly agreed otherwise in writing. GST and other taxes as applicable must be separately identified, otherwise it will be considered included in the price. Unless explicitly stated otherwise, any use of Incoterms shall be deemed as a reference to the INCOTERMS 2020 (“Incoterms”) as published by the International Chamber of Commerce (ICC).
3.2 In cases where the supplier is responsible for erection, assembly or commissioning, and the parties have not agreed otherwise in writing, the supplier shall bear all necessary incidental costs, such as travel expenses and costs for provision of tools.
3.3 Unless expressly agreed otherwise invoices will be processed only if we receive them via email to einvoice@fst.com. Each order must be invoiced separately. Collective invoices may also be issued with our prior written consent. Unless expressly agreed otherwise, invoices must state the order number specified in our order, the order date, the supplier number and our item number, all clearly highlighted.
3.4 The supplier shall provide the correct bank details, including the SWIFT code, and the ABN number if applicable.
3.5 Payments will be madeby bank transfer after taking delivery and receipt of a verifiable invoice and all documents pertaining to the delivery.
3.6 The supplier shall not be entitled to assign or otherwise dispose of its claims wholly or partly against us without our prior written consent.
3.7 We shall be entitled to exercise statutory setoff and retention rights.
4. Dates and terms of delivery
4.1 Delivery dates specified in the order or otherwise agreed upon are binding and must be strictly met. The supplier shall promptly notify us in writing of any potential delays or non-compliance with delivery dates and deadlines, explaining the reasons for the delay and specifying how long they are expected to prevail.
4.2 Deliveries by instalments and premature deliveries shall be allowed only with our explicit consent in writing. Payment claims, however, shall be due no earlier than on the delivery date originally agreed upon.
4.3 Unless otherwise agreed upon, deliveries must be accompanied by a delivery note and all applicable test certificates specifying the characteristics agreed upon with the supplier. Initial supplies, especially those involving samples, must be accompanied by comprehensive sample documentation.
4.4 On-site deliveries are only possible at the time stated in the order or as otherwise agreed. When entering a Freudenberg site all occupants of vehicles must be registered. It is prohibited to take children or animals to a Freudenberg site. Wearing safety boots is mandatory at loading and unloading facilities. Any instructions by the safety staff must be complied with.
4.5 In case of delays in delivery we may impose a contractual penalty of 1% for each commenced week of delay, but no more than a total of 10% of the order value; the supplier shall however have the right to prove that no damage was caused or the damage is materially lower. We reserve the right to claim further damages. We shall reserve the contractual penalty no later than upon payment of the invoice, following receipt of the delayed delivery.
4.6 Events of force majeure that render a delivery by our supplier or the acceptance or use of the delivery in our or at our customer’s business impossible or substantially more difficult shall postpone our acceptance duty for an appropriate period of time, considering our actual demand. In cases of force majeure concerning us or our supplier we shall also have the right, at our discretion, to wholly or partially withdraw from the contract.
5. Place of performance, passage of risk, acquisition of ownership
5.1 The place of performance shall be the location to which, according to the order, the goods have to be delivered or where the service is to be performed. The place of performance for our payments shall be our registered office.
5.2 The delivery shall be properly packed and made Incoterms DDP to the address stated by us or performed there for the supplier’s account and at supplier’s risk. The risk of accidental perishing or deterioration of delivery will pass to us only with receipt of delivery by us or by a forwarding agent appointed by us at the agreed place of performance or after final acceptance of the delivery, whichever is later, even if we have agreed to pay the freight charges.
5.3 With the passage of risk at the place of performance or with delivery to a forwarding agent specifically appointed by us we shall acquire ownership of the goods without reservation of any rights for the supplier.
5.4. In case of delivery of machinery or plant, the risk shall pass only after their final acceptance at the place of performance.
6. Liability for defects and other liability
6.1 We will check the delivered goods based on the accompanying documents for identity and quantity as well as for visible transport damage only. Defects in the delivery will be notified to the supplier once we discover them in the ordinary course of our business, within an appropriate time of at least 5 working days following the detection. Under these circumstances, the supplier hereby waives its right to object to claims in relation to defects on grounds that they have been raised too late.
6.2 Unless provided otherwise in this clause 6, the supplier shall be liable according to the applicable statutory provisions, in particular for defects of the delivery, and this liability shall not be limited or excluded, neither in cause nor amount, and shall also indemnify and hold us harmless from and against any third-party claim to the same extent.
6.3 We shall in principle be entitled to choose the type of subsequent performance. The supplier may however refuse the type of subsequent performance chosen by us if the costs resulting from that type of subsequent performance were unreasonably high.
6.4 If the supplier fails to remedy the defect promptly upon our request, we shall - in urgent cases, in particular to avert imminent danger or higher damages - have the right to remedy the defect ourselves at the supplier’s cost or have this done by a third party without having to grant a period of grace in advance.
6.5 Claims for defects shall become time-barred 24 months after the sale of the final product to the consumer, but no later than 60 months after receipt of the delivery by us, unless agreed otherwise or unless mandatory statutory provisions provide for extended limitation periods. In case of claims resulting from contracts for services and works, claims for defects shall become time-barred 30 months after the written final acceptance, this shall not apply to deliveries that, consistent with their common application, are used in buildings and have caused the building’s defectiveness, in that case claims will lapse after 5 years. Our additional statutory rights under the applicable law shall remain unaffected by this provision.
6.6 In addition, the supplier shall indemnify us from any third-party claims related to deficiencies in title. For deficiencies in title, including indemnification claims pursuant to this clause, a limitation period of 6 years shall apply.
6.7 If a defective delivery necessitates extra work in the incoming inspection process, the supplier shall bear the resulting costs.
7. Product liability
7.1 The supplier shall indemnify us from any third-party claims arising out of the death of or injury to any person or damage to property, if and to the extent the causes for the respective claim lie in the supplier’s domain. Under these circumstances the supplier shall also reimburse us for all costs and expenses according to the statutory provisions on the administration of others’ affairs that we incur as a result of or in connection with a recall action or any other measure.
7.2 The supplier shall undertake to maintain a product liability insurance (including coverage for extended product liability and recall costs) with a coverage of at least AUD 20,000,000 (AUD twenty million) in total per claim for personal, property or product-related damages; however, our claims shall not be limited to the covered amount.
8. Industrial property rights and legal provisions
8.1 The supplier shall ensure that neither the delivery nor the use of the product infringe upon industrial property rights or other rights of third parties and do not violate statutory provisions or official regulations of any kind. The supplier must comply with our guideline “Avoidance of particularly hazardous substances” (FSS 7), which we will provide upon request, and the environmental standard ISO 14001. Upon our request, the supplier shall provide all data relevant under export law free of charge. This includes but is not limited to Safety Data Sheets (“SDS”) and Global Harmonised System of classification and labelling of chemicals (“GHS”).
8.2 The supplier shall indemnify us from all claims raised against us by third parties for reasons of or in connection with the delivery or the use of the product, clause 6. 6, sentence 2 shall apply to such claims.
8.3 The supplier’s obligation of indemnification shall also cover all costs and expenses arising from or in connection with claims raised by a third party.
8.4. For the supply of machinery and plant falling under the EU Machinery Directive 2006/42/EC, the supplier shall also provide a risk analysis in conformity with EN ISO 12100 free of charge and together with the products.
8.5. The supplier acknowledges that we, as a manufacturer of products and items, are considered as a downstream user within the meaning of the European Chemicals Regulation No. 1907/2006 (“REACH”) and warrants to comply with all REACH obligations, in particular those governing the sale, processing or trading of goods within the EU, including:
(a) to perform any legally required pre-registration, registration or authorization of chemical substances or preparations,
(b) to implement internal organizational measures to document compliance with REACH,
(c) to ensure that any use(s) of chemicals or preparations in the products (including packaging materials), which we or any of our customers have specified or notified to the supplier, is covered by the respective pre-registration, registration or authorisation,
(d) to inform us without undue delay if a pre-registered substance or preparation will not or cannot be finally registered or authorized within the respective transition period and
(e) not to sell or deliver any product containing prohibited Substances of Very High Concern (SVHC) ((a) to (e) together “REACH Warranties”). The supplier acknowledges that any breach of a REACH Warranty will generally result in a defect of the respective substance, preparation or other product or item under the applicable law and agrees to indemnify us against any claims, liabilities, expenses and damages caused by the supplier as a result of breaching the aforesaid REACH Warranties and will support us in our legal defence against such claims at supplier’s cost.
8.6 The supplier undertakes to provide a so-called proof of origin for the products, i.e. the supplier shall provide us with the required declarations of origin in terms of commercial and preferential law in a timely manner, and shall also notify any change of origin without undue delay and without request. The supplier may have to prove its declarations of the products’ origin by means of an information sheet certified by its competent customs office. If the supplier fails to fulfill this obligation, the supplier shall be liable for any resulting damage and commercial disadvantages.
8.7 The supplier ensures that it will provide the performance owed pursuant to clause 1.1 itself and that it will use subcontractors and downstream contractors ("Subcontractor Chain") only with our previous written consent.
8.8 The Supplier further ensures that it shall itself, and all contractors of the Subcontractor Chain who have been duly called in by it as well as possible temporary employment agencies commissioned by them shall also, pay to the deployed temporary workers the applicable legal minimum wage.
8.9 We shall be entitled to request from the supplier on a spot-check basis the submission, without any specific reason, as anonymised data, the current payslips for the workforce used by the supplier and the Subcontractor Chain (payrolls). The supplier may also provide to us upon request proof of compliance with all applicable wage legislation within its own company and along the Subcontractor Chain by promptly submitting an up-to-date confirmation from a suitable objective expert (for instance a chartered accountant).
8.11 In the event that claims are asserted against us by an employee of the supplier of the Subcontractor Chain, based on a claim for remuneration that actually exists we shall be entitled to terminate any orders pursuant to clause 1.1 immediately on written notice, and without penalty.
8.12 The supplier undertakes to indemnify us upon demand from any claims which asserted by third parties against us in connection with the underpayment of the Subcontractor Chain. However, this shall not apply if it can be shown in the individual case that we and/or our employees or vicarious agents have ourselves violated these provisions intentionally or in a grossly negligent manner.
9. Reservation of title, tools
9.1 We reserve title to all items provided by us (e.g. parts, components, semi-finished goods) (“our goods”).
9.2 The reservation of title shall also apply to new products resulting from the processing of our items, or their mixing or combining with other items, in each case at the full value of the respective new product. These processes shall be performed on our behalf so that we shall be deemed to be the manufacturer. If third-party ownership rights remain after processing of our items or their mixing or combining with third party items, we shall acquire joint ownership in the new product at the ratio of the objective value of the processed, mixed or combined items.
9.3 Tools made available to the supplier as well as tools manufactured by the supplier on our behalf or ordered from a third party on our behalf (“our tools”) shall remain in our property or shall become our property upon manufacturing or acquisition by the supplier, in each case provided that we have entirely or partially paid for the tools. All of the abovementioned tools must be clearly marked as our property and stored clearly separated from other items.
9.4 The supplier shall store our tools on our behalf free of charge and clearly separated from other items, insure them sufficiently and provide evidence of the insurance cover upon request. The supplier shall use the tools exclusively for the purpose of manufacturing parts for us, unless otherwise agreed. We hereby already approve to the supplier’s use of our tools for the manufacturing of parts based on orders from other companies of the Freudenberg Group.
9.5 The supplier shall ensure proper maintenance and repair of the tools provided at his own cost. Upon termination of a contract, the supplier shall return the tools without undue delay at our request, and without exercising any right of retention. At the time of their return, the tools must be in impeccable condition, taking into account their previous use. Costs of repair shall be borne by the supplier. The supplier is prohibited from scrapping the tools without our prior written approval.
9.6 The supplier consents to the registration by us of our security interest in any of our goods and our tools held by the supplier on the Personal Property Security Register pursuant to the Personal Property Securities Act 2009 (Cth).
10. Quality assurance
10.1 The supplier undertakes to maintain a quality management system throughout our business relations in accordance with the updated versions of standards IATF16949, DIN EN ISO 9000 ff., QS9000 etc., to monitor the system by internal audits in regular intervals and to promptly take action if any deviation is detected, in order to ensure flawless quality of all items supplied to us. We shall have the right to inspect the supplier’s quality assurance system anytime with prior notice. Upon request the supplier shall permit us to examine certification and audit reports as well as inspection procedures including all test records and documents relevant to the delivery.
10.2 Our quality guidelines for suppliers, as amended from time to time, form an initial part of any order placed by us and any agreement between us and the supplier. Their current version will be made available to the supplier upon request and are available online on our homepage [www.fst.com].
11. Confidentiality, documents
11.1 The supplier shall treat any information, formulas, drawings, models, tools, technical records, procedural methods, software and other technical and commercial knowhow made available by us or acquired through us, as well as any related work results (“Confidential Information”) strictly confidential towards third parties. The supplier may only use the Confidential Information in its own business for purposes of performing deliveries to us and may only make it available to such persons who need to have access to it in connection with our business relation and are bound by a respective confidentiality obligation. This provision shall apply beyond the duration of our business relation if and to the extent the supplier is unable to prove that the Confidential Information was known to the supplier or was in the public domain already at the time it was acquired or was later made public without the supplier’s fault.
11.2 We retain title to any documents (e.g. drawings, figures, test specifications), samples, models etc. made available by us to the supplier in the course of the business relation, they shall be returned to us or destroyed at the supplier’s cost upon our request at any time, but no later than upon termination of the business relationship (including any copies, extracts and replicas). The supplier does not have any right of retention in relation to Confidential Information.
11.3 The disclosure of Confidential Information does not establish any industrial property rights, rights to knowhow or copyrights of the supplier and does not constitute a prior publication or right of prior use according to the applicable patent, design and utility model laws. Any kind of license is subject to a written agreement.
12.0 Modern Slavery
12.1 The supplier must take (and must ensure that each of its Relevant Persons take) all reasonable steps to ensure that no modern slavery, human trafficking, servitude, forced labour, bonded labour, child labour, slavery or forced marriage or deceptive recruiting for labour or services (Modern Slavery) is present in the supplier’s, or its Relevant Persons’, supply chains, or in any part of their businesses.
12.2 The supplier warrants that neither it nor any of its Relevant Persons:
a) has been convicted of any offence involving Modern Slavery or Modern Slavery-like practices; and
b) having made reasonable enquiries, has been or is, to the best of its knowledge, the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence of alleged offence of or in connection to any form of Modern Slavery.
12.3 The supplier warrants that:
a) has investigated the risk of Modern Slavery within its operations, and those of its supply chain;
b) neither the Supplier nor its Personnel engage in any conduct which is inconsistent with Human Rights;
c) the Supplier assesses and addresses risks regarding Modern Slavery and conduct inconsistent with Human Rights, including implementing appropriate due diligence and remediation programs.
d) the Supplier will notify FST as soon as possible of any confirmed instances of Modern Slavery and conduct inconsistent with Human Rights within its operations or those in its supply chain, and the actions undertaken to remedy the issue;
e) upon request, the Supplier will provide evidence to the satisfaction of FST which validates its compliance with this clause;
12.4 upon request, the Supplier will permit FST Personnel or its nominated representatives to undertake verification activities to validate the Supplier compliance with this clause, including access to the Supplier premises and records;
12.5 The Supplier will take reasonable steps to require each of its suppliers directly involved in the provision of Goods and/or Services to have, and maintain throughout the term of its agreement with the relevant supplier, policies and procedures that are designed to ensure that that no form of Modern Slavery or conduct which is inconsistent with Human Rights occurs in the relevant supplier's business, or by its personnel
12.6 The Supplier warrants that they have the necessary processes, procedures, investigations and compliance systems in place to undertake the actions in clauses 12.
13. Sanctions
13.1 The supplier warrants and represents that the supplier and its Personnel, its Related Bodies Corporate and its Related Bodies Corporates’ Personnel:
a) are not a Sanctioned Person;
b) are not violating any applicable Sanctions; and
c) are not engaging with a Sanctioned Person.
13.2 If the supplier:
a) provides incorrect information in connection with the Sanctions;
or
b) its Personnel, its Related Body Corporate or its Related Bodies Corporates’ Personnel become a Sanctioned Person,
the supplier must immediately give notice to FST and FST may:
c) immediately cancel any purchase order at no cost for FST; and
d) claim compensation from the supplier for any damages or losses which FST suffers relevant to clause 13.2
14. Compliance
The supplier guarantees not to deal with or otherwise cooperate directly or indirectly with any terrorist or any criminal individuals, entities or organizations. The supplier will in particular establish reasonable organizational measures to implement the EC-regulations No. 2580/2001 and 881/2002 as well as other respective requirements under US or international laws and regulations. Such measures shall include – without limitation – adequate software solutions. As soon as a good has left our facilities, supplier alone shall be responsible for the aforesaid compliance and will indemnify us for any and all claims or related costs, including reasonable attorney or consultant fees or administrative penalties or damages resulting from the violation of the respective laws and regulations by the supplier, its affiliates, employees, officers or any of its agents.
15. Applicable law, place of jurisdiction
15.1 The business relationship with the supplier shall be exclusively governed by the laws of Queensland, Australia.