Framework Agreement. between. Schwäbische Hüttenwerke Automotive GmbH, Wilhelmstrasse Aalen (Germany) - hereinafter referred to as SHW - and

Transcription

1 Framework Agreement between Schwäbische Hüttenwerke Automotive GmbH, Wilhelmstrasse Aalen (Germany) - hereinafter referred to as SHW - and [Supplier name and address] - hereinafter referred to as the Supplier - Preamble SHW manufactures pumps and engine components, as well as brake discs, for the automotive industry in particular. As a company with a long tradition behind it, SHW is an innovative development partner and recognised system supplier for the automotive industry and other industries. SHW manufactures products for both the original equipment service business and the spare parts market in line with the highest quality standards, and has thus established itself as a system supplier for the international automotive industry. Today, SHW is a trendsetter for CO 2 -efficient mobility with its CO 2 -related key components. The Parties agree that a fully functional supply chain plays a key role in securing and expanding their market position. The Parties intend to standardise their supply relationships to the greatest degree possible with regard to all products purchased from the Supplier. Now, therefore, the Parties agree to the following: 1. Subject matter of the Agreement and contractual products 1. This Framework Agreement and the provisions set out herein apply to all supply agreements relating to contractual products concluded within the context of the business relationship between SHW and the Supplier. The subject matter of the Framework Agreement is the longer-term obligation for the Supplier to supply products ( Contractual Products ) and ensure this supply. The conclusion of the Framework Agreement does not give rise to any entitlement to demand that supply agreements be concluded. 2. The Contractual Products shall be manufactured by the Supplier based, in particular, on the drawings and specifications to be provided by SHW and/or approved by SHW in accordance with section 7. Seite 1

2 3. In addition to SHW, all domestic and foreign companies affiliated with it pursuant to sections 15 et seq. of the German Public Limited Companies Act (AktG) are also entitled to conclude supply agreements with the Supplier, making reference to this Framework Agreement. For clarification purposes: The provisions that apply to SHW then also apply to the SHW Group companies that are commissioning the Supplier in each case. 2. Conclusion of an agreement 1. After receiving a service request, the Supplier shall inform SHW without delay whether or not a delivery agreement can be concluded and, if so, on what terms and conditions. 2. The Supplier shall verify the information and specifications provided by SHW relating to the performance of the services before the agreement is concluded and shall inform SHW if information or requirements provided by SHW are incorrect, incomplete, are not clearly described or are not suitable in order to achieve the purpose of the agreement. 3. The Supplier is not entitled to charge SHW for the (preliminary) services associated with verifying the service request. Any agreements that deviate from the above shall be set out in writing and signed by both Parties, specifying the fees charged by the Supplier. 3. Prices and payment terms 1. The unit prices and, where appropriate, their development shall be set out separately in the supply agreements. The unit prices are net prices valid worldwide excluding the logistics costs and other costs incurred by the SHW location in question (see also section 4 (2) of the Framework Agreement). If and insofar as a (partial) delivery is processed in another currency, then the delivery price shall be the corresponding amount in the currency in question based on the exchange rate (mean rate) set by the central bank in question on the day on which the order was placed. 2. The Supplier undertakes to perform cost structure analyses with SHW with the aim of reducing costs at the level of the Supplier. The Supplier shall disclose all of the necessary documents for this purpose. Before the analysis begins, the Parties shall agree on the distribution of the savings potential identified as a result. SHW and the Supplier shall split the cost savings potential 50/ The Supplier and SHW agree that all necessary measures shall be taken to maintain the competitiveness of the Contractual Products. The Contractual Products must correspond, at the very least, to those offered by comparable competitors in terms of technology, quality, price and supply reliability. If applicable, SHW shall inform the Supplier if there is a more favourable offer available and shall give it the opportunity to take suitable measures to make itself competitive. If the Supplier is unable to do so within four months of being notified as set out above, then SHW can opt to source the products from third parties and terminate the supply agreement in question for cause. 4. Payments and terms and conditions of delivery Seite 2

3 1. Payments shall require a verifiable invoice; any errors in the invoice shall stop payments from falling due. As soon as requested partial quantities have been delivered, the Supplier shall send its invoice specifying the order number shown in the individual agreement. In the absence of any agreements to the contrary, payments shall be settled as follows: 60 days after the invoice date and delivery, strictly net. If documents such as test reports, etc. are to be submitted prior to delivery, then the payment term shall begin when the goods and complete documents are received. 2. The deliveries shall be made at the expense and risk of the Supplier, ex works SHW, Bad Schussenried site, and packaged in accordance with the agreed packaging data sheet. 3. If it transpires in the future that the deliveries made on the basis of this Framework Agreement and the corresponding supply agreement are subject to a discounted rate of VAT or to no VAT at all, then the Supplier shall inform SHW without delay and, at the request of SHW, reimburse the difference compared with the VAT shown on the invoice. 4. SHW and the Supplier agree that any development costs incurred by the Supplier shall only be borne by SHW if and insofar as SHW s customer has actually reimbursed it for the corresponding costs. The Supplier shall provide SHW and its customer with suitable and verifiable proof of performance in written form on request. 5. Tools/machinery and other special equipment If tools, machinery or other special equipment is manufactured or purchased at SHW s request for the purposes of manufacturing the Contractual Products, then the Parties shall conclude a tool use agreement in this regard. 6. Delivery date, logistics, delays 1. The Supplier is obliged to inform SHW without delay of any delivery difficulties that it has identified irrespective of the reason. This shall not prejudice any claims on the part of SHW arising from delivery delays. 2. The Supplier warrants that it shall keep the capacities available to supply 100%, with a flexibility of 15 per cent either way, of the imputed annual requirements in each case, and shall supply the Products within this framework in line with the individual orders and release orders. In the event of an increase in quantities that is more than insignificant, turnaround times at the level of the Supplier may have to be taken into account, although the Supplier shall take all of the necessary steps to keep these turnaround times to a minimum. 7. Quality 1. Both Parties pursue a zero-error strategy. 2. As a proven specialist with long-standing experience in its area of activity, the Supplier undertakes to manufacture the Contractual Products in line with the drawings and Seite 3

4 adhering to flawless quality standards. It is responsible for the quality assurance of the Contractual Products, in particular taking into account SHW s quality management agreement. 3. Within this context, the Supplier shall adhere to technical instructions and specifications that SHW has issued to the Supplier insofar as the latter has not raised any objections and/or insofar as they have been agreed jointly between the Parties. In particular, the Supplier shall manufacture the Products in accordance with the Agreement on the quality assurance of deliveries, which has been attached to this Framework Agreement as a legally binding Appendix, and in accordance with any other quality assurance agreements that have been reached. The Supplier is obliged to maintain an effective quality management system in line with the ISO/TS regulations, as amended. For a transitional period, quality management systems in line with DIN EN ISO 9001, VDA 6.1 or QS 9000 standards are also still permitted. The Supplier must show that it is working towards a quality management system in line with ISO/TS Notwithstanding sub-sections (2) and (3) above, the Supplier shall guarantee the following, in particular: a) The Products shall comply, in all respects, with the applicable statutory requirements, provisions and regulations of the country in which the Contractual Product is manufactured, stored or from which it was supplied and where it is used. b) The manufacture of the Contractual Products is of a high quality and is consistent with the best industry standards. The Contractual Products are safe, marketable and suitable for their intended purpose, and comply with the specifications in all respects. c) The Contractual Products are labelled in accordance with the specifications and statutory provisions (the labelling shall include, in particular, the country of manufacture and the destination country/countries). 5. Notwithstanding the above, a scenario in which the Supplier delivers a different item or an insufficient quantity shall be deemed tantamount to a material defect. In the event that the Supplier delivers an excessive quantity, it shall not be entitled to a higher delivery price. The Supplier is obliged, after being asked to do so by SHW, to collect the excessive quantity delivered at its own expense without delay and to reimburse SHW for the expenses incurred as a result of, or in connection with, the excessive delivery (e.g. storage costs, personnel costs). For as long as the excessive quantities delivered are on the premises of SHW or a vicarious agent, SHW or the vicarious agent shall only be liable for wilful intent and gross negligence. 6. The Supplier shall perform its duties to the best of its knowledge and in accordance with the state of the art in science and technology. 7. The Supplier shall perform quality checks on the Products. 8. If SHW sets out requirements and/or recommendations for the Supplier regarding the characteristics of the Contractual Products or the type of manufacture, then this shall not release the Supplier from its obligations and any duty to provide SHW with information. 9. SHW shall only perform incoming goods checks in respect of externally visible damage and externally visible deviations in identity and quantity. SHW shall notify the Supplier of such defects without delay. SHW reserves the right to perform more detailed incoming goods checks. Furthermore, SHW shall object to defects as soon as they are identified during normal business operations. The Supplier shall waive any defence of delayed notice of defect in this regard. Seite 4

5 8. Claims based on defects and recourse, as well as liability and indemnification 1. In the absence of any provisions to the contrary, claims based on material defects pertaining to the Products supplied by the Supplier shall become statute-barred 48 months after the initial vehicle registration or installation of spare parts, but 60 months following the time of delivery to SHW at the latest. The limitation period set out in section 479 of the German Civil Code (BGB) shall remain unaffected. 2. Insofar as customers of SHW demand longer limitation periods than the aforementioned limitation periods of SHW during the term of this Agreement, then the Supplier declares that it is prepared to negotiate with SHW on adjustments to the limitation periods. 3. SHW has the right to determine the nature of any subsequent performance (new delivery or improvement). 4. After receiving a subsequent performance request from SHW, the Supplier must start rectifying the defect without delay. If a Supplier breaches its obligation as set out in the sentence above, then SHW shall have the right in those cases in which it cannot be reasonably expected to accept the type of subsequent performance to which it is entitled, in particular in cases of fraudulent intent on the part of the Supplier, to make subsequent improvements itself, without consulting the Supplier and at the expense of the Supplier, or have these improvements made by a third party (self-performance). In urgent cases, the right to self-performance shall apply even if no subsequent performance request is made. An urgent case shall be deemed to have occurred if and insofar as it is no longer possible, due to the particular urgency of the case in question, to inform the Supplier of the defect and the imminent damage and set it even a short deadline by which to remedy the defect itself. In the cases set out in this sub-section (4), SHW shall provide the Supplier with subsequent notice. 5. The Supplier is obliged to reimburse SHW for all expenses and damage incurred by SHW due to defective services. These include, in particular, the costs of identifying the defect, the costs associated with machinery or assembly line stoppages, additional handling expenses, transportation and expedited freight, as well as travel and labour expenses for additional test runs and all direct and indirect consequential damage relating to the defect. Section 280 (1) sentence 2 BGB shall remain unaffected. As a result, SHW is also entitled to demand compensation from the Supplier for those expenses incurred by SHW in its relationship with its customers due to the defective product supplied by the Supplier. Section 280 (1) sentence 2 BGB shall remain unaffected. Sub-section (11) below shall be unaffected by liability pursuant to this sub-section (5). 6. In the event that defective products are delivered, SHW shall have the right to return the Products to the Supplier at the latter s expense and risk. 7. The statutory provisions shall apply to liability under product liability legislation; subsection (11) below shall remain unaffected. 8. The Supplier must take/have taken out adequate liability insurance cover for purely financial losses, as well as sufficient product and vehicle recall cost insurance, and shall maintain this cover and furnish evidence of the insurance cover to SHW at any time on Seite 5

6 request. The insurance policies pursuant to the sentence above shall cover all companies affiliated with the Supplier pursuant to sections 15 et seq. AktG insofar as these companies are involved in delivery and/or services based on, or in connection with, a supply agreement concluded under this Framework Agreement. 9. In all other respects, the claims based on defects and liability shall be governed by the general terms and conditions of purchase of SHW and the statutory provisions. 10. During the contractual term, the Supplier shall employ the same manufacturing process using the same materials. The Supplier must report any changes to the manufacturing process or the materials that have to be made, for whatever reason, without delay, but at least six months before the time at which the change is scheduled to take effect. Changes may only be made if SHW has consented to them in writing. 11. The Supplier undertakes to indemnify SHW and each of the companies affiliated with it pursuant to sections 15 et seq. AktG against any liability vis-à-vis third parties/third-party liability claims resulting from the manufacture, delivery or storage of the Products insofar as the damage and/or expenses have been caused by an error in the Contractual Products supplied by the Supplier. In cases of strict liability, however, this shall only apply if and insofar as the Supplier is at fault pursuant to section 280 (1) sentence 2 BGB. If the cause of the damage falls within the Supplier s sphere of responsibility, the latter shall bear the burden of proof in this respect. The indemnification and reimbursement obligation shall not apply if and insofar as the underlying event can be proven to be attributable to wilful or grossly negligent misconduct on the part of SHW, its employees, representatives or vicarious agents; in the event of indemnification or reimbursement directly vis-à-vis a company affiliated with SHW pursuant to sections 15 et seq. AktG, the half-sentence above shall apply subject to the proviso that the indemnification or reimbursement obligation is due to misconduct that can be attributed to the affiliated company. 9. Spare parts deliveries The Supplier undertakes to supply SHW with spare parts and replacement products during the term of the Agreement and for a period of fifteen years following the termination of deliveries to SHW. The Supplier shall reach an agreement with SHW on the terms and conditions of the above. The prices for spare parts shall correspond to the prices agreed for series supplies. 10. Term and termination 1. The Agreement shall come into force when it is signed by both Parties and is valid for an indefinite period. 2. This shall not affect the right to termination without notice for cause. The term cause shall relate, in particular, to the following scenarios: a) the Supplier repeatedly supplies defective products or does not comply with the delivery period, b) the Supplier breaches the Agreement by failing to perform services under a supply agreement despite being set a grace period; c) liquidation proceedings are initiated in respect of the Supplier; Seite 6

7 d) there is a significant deterioration in the Supplier s financial situation, irrespective of whether or not there are grounds for insolvency pursuant to sections 17 to 19 of the German Insolvency Code (InsO); e) the Supplier submits a request to SHW for the deferral or reduction of outstanding receivables; f) it is no longer possible to reach the Supplier in a manner that can be deemed reasonable, or the Supplier has discontinued its business operations; or g) a competitor of SHW acquires a majority of the shares, within the meaning of section 16 AktG, in the Supplier or becomes a controlling company within the meaning of section 17 AktG; the Supplier shall inform SHW of any such change without delay. 3. Irrespective of the termination of this Framework Agreement, its provisions shall remain valid in respect of any supply agreements concluded prior to its termination until these supply agreements have been performed in full. In addition, the Supplier shall be obliged to accept orders under those agreements that are still ongoing at the time of termination until the end of their respective terms, and to continue to perform these agreements based on the provisions of this Framework Agreement. 3. Notice of termination must be submitted in writing. In the event that supply agreements are terminated, the Parties shall, where necessary, reach a mutual agreement on the details of the expiry of the supply agreements in question. 4. SHW shall be entitled to terminate supply agreements without notice for cause if a) an (imminent) interruption in supply/production affecting the Supplier that has a longterm impact on the supply situation at SHW means that deliveries cannot be ensured. b) the supply agreement between SHW and its customer is terminated for whatever reason. c) one of the scenarios set out in section 10 (2) a) to g) occurs. 11. Place of performance/place of jurisdiction 1. The place of performance is Bad Schussenried. The place of jurisdiction for all disputes arising from or in connection with this Framework Agreement and/or a supply agreement concluded on the basis of this Framework Agreement shall be the District Court (Landgericht) of Ellwangen insofar as this is legally permissible. 2. If, however, a claim for damages/indemnification is asserted against SHW in a foreign place of jurisdiction based on bodily injury and/or damage to property allegedly caused by a product defect ( Product Liability Claim ), then SHW can opt to assert a counterclaim, initiate proceedings for a third-party notice or assert claims for indemnification and full or partial recourse against the Supplier in this location, too. In such cases, only the law that applies in the place of jurisdiction shall apply with regard to the rights and obligations of the Parties. 12. Other provisions (incl. contributory negligence) 1. If and insofar as SHW asserts claims for damages against the Supplier, this shall not affect the defence of contributory negligence pursuant to section 254 BGB. Seite 7

8 2. The Supplier is not entitled to transfer rights and obligations under this Agreement or under supply agreements to third parties without the prior written consent of SHW. Section 354a of the German Commercial Code (HGB) shall remain unaffected. 3. The Supplier undertakes to adhere to the legal environmental protection requirements. In this respect, it is expected to introduce and further develop an environmental management system in accordance with ISO The General Terms and Conditions of Purchase of SHW shall apply to this Framework Agreement as amended at the time this Framework Agreement was concluded (as at: August 2017). 5. General terms and conditions of business of the Supplier shall not apply, even if the Supplier s quotes, orders, order acceptance notices or other documents refer to their validity. 6. The Supplier shall not use SHW s company name or logo, or the names or logos of any of the companies affiliated with it pursuant to sections 15 et seq. AktG, as customer references without the written consent of SHW. 7. If SHW or its customer so desires, then SHW/the customer each in its own right shall be entitled, after making a prior appointment, to access the Supplier s production site during business hours to inspect the manufacture of the Contractual Products. The right of access and inspection shall also apply to all other business premises of the Supplier, equipment and documents relating to the manufacture, storage and transportation of the Contractual Products, as well as all related components and Contractual Products before they are delivered to SHW. SHW/the customer can also arrange for an independent third party to perform such inspections. 8. Any documentation and information provided may only be used to process and supply Contractual Products that are intended for SHW and must not be provided, or made otherwise available, to third parties, which must, in turn, be subjected to corresponding obligations, without the express written consent of SHW. The documents are to be returned upon the termination of the Agreement with no right of retention. 9. No verbal collateral agreements have been made. Any amendments and supplements to this Agreement shall only be valid in writing. This shall also apply to any amendment to the provision governing written form itself. The provisions set out in section 127 (2) and (3) BGB shall not apply. 10. The following documents, in the order set out below, shall be definitive for the purposes of determining and executing the services to be performed under the Agreement: a) An Appendix to a supply agreement shall take precedence over b) a supply agreement, which shall take precedence over c) an Appendix to a logistics agreement, which shall take precedence over d) a logistics agreement, which shall take precedence over e) an Appendix to the agreement on the quality assurance of deliveries, which shall take precedence over f) the agreement on the quality assurance of deliveries, which shall take precedence over g) the Framework Agreement, which shall take precedence over h) the terms and conditions of purchase of SHW. Seite 8

9 11. This Framework Agreement and the supply orders concluded on the basis of this Framework Agreement shall be governed by German law, to the exclusion of (German) international private law. The UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply. 12. If one of the Parties fails to adhere to one or more provisions of this Framework Agreement or individual supply agreements and if the other Party draws a conclusion from this, then, even in the event of repeated breaches, this shall not be understood as a waiver of the obligation to adhere to these provisions. In the event of a difference of opinion between the Parties in respect of the application or interpretation of individual provisions of the Framework Agreement/supply agreement, the Supplier is not authorised to suspend the services it provides to SHW. 13. If a provision of this Agreement is invalid or unenforceable, either in full or in part, this shall not affect the validity or enforceability of the remaining provisions of this Agreement. Ineffective provisions shall be replaced by valid statutory law; unenforceable provisions shall be replaced by the enforceable provisions that most closely approximate the purpose of the unenforceable provision to the extent that they are legally permissible. Sentence 1 and sentence 2, last half of the sentence, shall apply accordingly to any unintended gaps or omissions. Place, date. Place, date... Schwäbische Hüttenwerke Automotive GmbH Supplier Signed Signed Signed Signed Appendices Seite 9