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general conditions of purchase

1. GENERAL CONDITIONS

1.1. All Purchase Orders placed by FRICON Portugal are governed by these FRICON – Portugal General Conditions of Purchase. Any alteration, variant, condition or addendum to these General Conditions shall only be considered valid and effective if it is included in the Purchase Order, Specific Order Conditions and/or Contract and has been expressly agreed to in writing by FRICON.

1.2. In the event of any contradiction between these General Conditions of Purchase and the Purchase Order, Particular Conditions of Order and/or Contract, the provisions of the latter documents shall prevail.

1.3. FRICON’s General Conditions of Purchase shall prevail over any General Conditions of Sale of the Supplier.

1.4. The Supplier accepts these General Conditions of Purchase from the moment it accepts the Purchase Order, as defined in Section 4 of this document. Alternatively, if the Supplier has previously received these General Conditions of Purchase within the scope of its commercial relations with FRICON, they shall be deemed to be known by the Supplier for all purposes when submitting a quotation for any equipment or material contained in this Purchase Order.

1.5. By accepting this Purchase Order, the Supplier automatically:

1.5.1. You acknowledge that you have in your possession and are fully aware of all the information necessary for the execution of the Purchase Order;

1.5.2. Acknowledges its ability to carry out the Purchase Order;

1.5.3. It waives the right to apply its own General Conditions of Sale.

1.6. Any incompatibilities, doubts, errors or omissions in the Purchase Order must be submitted in writing to FRICON within 5 days of the date of communication of the Purchase Order. The deadlines established and communicated will not be affected by these incompatibilities, doubts, errors or omissions, and therefore will not be altered.

1.7. Any proposed changes to the Purchase Order requested by the Supplier must be expressly approved by FRICON in writing and, if they are made after the acceptance of the Purchase Order, may not be carried out by the Supplier without the express written agreement of FRICON, all without prejudice to the responsibilities assumed by the Supplier.

1.8. The Supplier undertakes to inform FRICON whenever it detects a deviation from the functionalities and characteristics provided for in the object of the Purchase Order, and for this purpose must propose alternatives that satisfy it, with FRICON reserving the right to reject them.

1.9. Any alteration to the production process, the origin of the materials or equipment in relation to that defined in the negotiation phase, Purchase Order, Special Order Conditions and/or Contract will only be valid with FRICON’s written approval.

1.10. If the Supplier fails to comply with the provisions of the previous point, FRICON reserves the right to reject the materials / equipment covered by the Purchase Order, and the Supplier shall be subject to the penalties provided for in point 10 of these General Conditions.

1.11. Within the scope of this Purchase Order, there shall be no contractual relationship between the end Customer (if it is not FRICON), and the Supplier and/or its Subcontractors.

1.12. Unless otherwise stated in writing by FRICON, the contractual language shall be Portuguese. For all documents contained in the Purchase Order submitted in another language, it shall be presumed that the Supplier is able to interpret them, unless otherwise indicated in writing prior to Acceptance.

2. SCOPE OF SUPPLY

2.1. The Purchase Order must be fulfilled in strict compliance with the specifications, conditions and quantities set out therein, the Particular Conditions of Order, the Contract and/or other contractual documents, as well as in compliance with the legal rules and regulations applicable to the object of the supply in question.

2.2. The Supplier undertakes to communicate in good time any condition that may compromise the execution of the Purchase Order under the agreed terms.

2.3. In the Purchase Order, all necessary accessories and activities (i.e. detailed engineering, technical information, transportation, unloading and any testing of materials and equipment, among others) are considered to be included in the supply, in order to fully comply with the order.

2.4. Whenever requested by FRICON, the supplier must participate in person or represented by a qualified and authorized person in meetings relating to the scope of its supply.

2.5. The Supplier shall make available to FRICON, at no additional cost to FRICON, all materials, documentation or any other activities within the scope of its supply that may be necessary for the correct functioning, operation and/or maintenance of the materials and equipment contained in the Purchase Order, even if not mentioned or fully specified herein and in its annexes.

2.6. Whenever, within the scope of the Purchase Order, the Supplier’s activity is conditioned or constrained by third parties, the Supplier undertakes to cooperate in order to overcome the resulting difficulties.

2.7. The Supplier is obliged to strictly and fully comply with and have its personnel comply with all legislation and regulations applicable to the activity pursued and to demonstrate that it is in possession of all authorizations, licenses and/or approvals that, under the terms of the law and regulations, are applicable to it and are necessary for the pursuit of its activity, as well as for the fulfilment of the obligations arising from the Purchase Order. In addition, the Supplier guarantees compliance with all general and specific safety regulations, as well as all other specific service conditions in force at FRICON and communicated to it by FRICON.

2.8. The Supplier shall be fully liable for any and all damages that may result from non-compliance with the aforementioned standards.

2.9. The Supplier is responsible for obtaining any authorizations, approvals, approvals or import / export licenses that may be necessary in accordance with its responsibilities in fulfilling the supply obligations arising from this Purchase Order.

2.10. The Supplier undertakes to comply with and follow all the definitions in terms of the technical specifications of the equipment and materials expressed in the Purchase Order (i.e. descriptive memory, manufacturing standards and industrial processes, assembly methods, tests and operation of the same) and in the legally applicable rules and standards, and may not alter them or carry them out in any other way without the written approval of FRICON.

2.11. The Supplier undertakes to communicate changes to what has previously been established in the Purchase Order, and must provide all the elements necessary to support them.

2.12. The transfer of the risk of the object of the Purchase Order shall take place with the delivery of the object under the conditions and at the locations provided for therein.

2.13. The international rules (Incoterms 2010) of the International Chamber of Commerce will be used to interpret the contracted supply conditions.

3. SUBCONTRACTING

3.1. The Supplier may not, under any circumstances, and without the prior written consent of FRICON:

3.1.1. Assign or transfer part or all of this Purchase Order;

3.1.2. Set up a company, consortium or group of any kind to carry out the Purchase Order;

3.1.3. Subcontract the parts of the Purchase Order that require its direct expertise and that have been awarded to the Supplier due to its competence or experience in that field.

3.2. Given FRICON’s agreement for the Supplier to subcontract part or parts of the Purchase Order, the Supplier shall ensure the performance of the supplies entrusted to its subcontractors, and shall be solely responsible to FRICON for the correct execution of the Purchase Order.

3.3. FRICON reserves the right to refuse any entity presented by the Supplier in the list of its subcontractors.

4. ACCEPTANCE OF THE PURCHASE ORDER

4.1. Acceptance of the Purchase Order must be made by sending FRICON a copy of the Purchase Order, in electronic format to the respective issuer of the Purchase Order or on paper, duly signed by the Supplier’s legal representative(s) in the corresponding space. However, the delivery, even partial, of any materials, equipment or services that are the subject of this Purchase Order shall be deemed to be acceptance of the same and of these General Conditions, even if said confirmation has not been sent to FRICON.

5. PRICES

5.1. Prices are fixed and not subject to revision.

5.2. The prices set out in the Supplier’s Proposal include all costs and expenses arising from, or resulting from, the execution of the Purchase Order, Specific Order Conditions and/or Contract;

5.3. The prices of the supplies include packaging, transportation, loading, unloading and insurance of the supplied goods delivered to the place indicated by FRICON in the Purchase Order, Particular Conditions of Order and/or Contract.

5.4. All charges, fees and taxes, duties, licenses, import duties, customs duties and any other costs related to the execution of the Purchase Order in both the country of origin and the country of destination are included in the price.

5.5. Likewise, in the event of any supplies being made of imported products and goods, the contingencies of currency exchange and the payment of taxes and duties are considered to be included in the price presented on the date of the Purchase Order, and FRICON does not assume any price adjustment as a result of these variations.

6. STORAGE, WRAPPING AND PACKAGING

6.1. The equipment and materials to be supplied must be duly packaged and numbered by the Supplier so that they can be identified for guarantee purposes.

6.2. The Supplier shall make available to FRICON, if so requested, together with the equipment and materials supplied, an itemized list of all the items delivered, with information on the respective numbering mentioned in the previous paragraph.

6.3. Unless otherwise specified in the Purchase Order, Particular Conditions of Order and/or Contract, any and all packaging must preserve the equipment from any deterioration, in accordance with its normal form of storage, for a period of 6 (six) months.

6.4. FRICON reserves the right to postpone the dispatch of all or part of the goods. In this case, the Supplier shall ensure their storage and protection at its premises and shall be responsible for the goods pending delivery, assuming the storage costs for a period of 3 (three) months from the specified delivery date.

6.5. The Supplier shall not accept any charges for packaging, boxes, wrappings or other storage and transport devices, unless specified in the Purchase Order, Particular Conditions of Order and/or Contract.

6.6. All risks of transport and conservation of the goods shall be borne by the Supplier up to the time of their delivery to the place indicated, unless any other particular condition is duly expressed in the Purchase Order, Particular Conditions of Order and/or Contract.

6.7. The supplier must provide FRICON with product safety data sheets in accordance with the Reach directive in the case of hazardous chemical substances and the Rosh declaration in the case of electrical materials;

6.8. The Supplier must also provide the quality certificate, indicating the corresponding leak number, in the case of metal products, in accordance with Standard EN 10204. If polymers are supplied, the supplier must provide the relevant certificate of conformity. In both cases, certificates must accompany the material;

6.9. In the case of perishable materials, they must be delivered with at least 80% of their shelf life still to expire.

7. INSPECTION

7.1. The materials and equipment supplied, as well as their component parts, must be new and free from any defects.

7.2. The Supplier is responsible for the partial and overall quality of the materials and equipment supplied.

7.3. All goods and merchandise are subject to inspection and approval by FRICON and will be returned if they do not correspond, in whole or in part, to the specifications of the Purchase Order, and the Supplier must replace them entirely at its own expense, also bearing all the costs inherent in their return, repair and replacement.

7.4. In order to be able to carry out, within the scope of the supply, audits, inspections or the verification of materials and manufacturing processes in accordance with the specifications of the Purchase Order, the Supplier will give FRICON’s representatives free access to its premises, whenever the latter deems it convenient, and FRICON may be accompanied by the Customer. FRICON shall have the right to refuse any materials or manufacturing processes that do not comply with the established clauses. This supervision, or the lack of it, in no way diminishes the Supplier’s responsibility for the Provisional and Final Acceptance of the material.

7.5. In the event of any Non-Conformities within the scope of the Purchase Order, all travel, inspection, disassembly, occurrence identification, assembly, testing and inspection costs incurred within the scope of this Purchase Order shall be borne by the Supplier.

8. INSURANCE

8.1. The Supplier shall be responsible for taking out and maintaining in force all the insurance required and necessary for full compliance with the Purchase Order, in accordance with the provisions of these General Conditions, Specific Order Conditions and/or Contract, so that FRICON’s position is safeguarded with regard to any loss or damage occurring during the execution of the supply.

8.2. The Supplier is obliged to provide FRICON with proof of the insurance established under the terms of the previous paragraph whenever it so requests.

9. NON-CONFORMITIES

9.1. Non-Conformity cases will be raised whenever, at any stage of the execution of the Purchase Order, anomalies, faults, errors, delays, deficiencies, poor or inappropriate packaging for the means of transport used, faults and/or incompatibilities with the technical specifications and Standards in force are found.

9.2. The Non-Compliance process will be duly registered by FRICON and a Complaint will be sent to the Supplier. These occurrences will negatively influence the Supplier’s classification in the Supplier Evaluation Process in force at FRICON, and it may be subject to being deprived of receiving Purchase Orders until it submits to FRICON, in writing, the appropriate justifications and responses to the Complaints, as well as implementing corrective actions to avoid the repetition of the non-conformities identified. Verification of the effectiveness of the implementation of corrective actions must be communicated in writing to FRICON.

9.3. The lifting of a non-conformity does not suspend the fulfillment of the Purchase Order in all previously agreed terms.

9.4. FRICON may reject non-conforming materials, equipment or services, also subjecting the Supplier to the penalties or termination provided for respectively in points 10 and 17 of these General Conditions, or the corresponding ones established in the Purchase Order, Particular Order Conditions and/or Contract.

10. PENALTIES

10.1. FRICON reserves the right, in the event that the Supplier, for reasons attributable to it, fails to comply with the deadlines set out in this Purchase Order, to apply the following penalties, without prejudice to compensation for excess damage and the right to rescind the Purchase Order:

10.1.1. If the Supplier has not completed its obligations within the set deadlines, it will be subject to a penalty corresponding to 0.5% (half a percent) for each calendar day of delay, calculated on the value of the position of the Purchase Order in which the missing good or goods are included;

10.1.2. If the non-compliance in question exceeds 10 (ten) calendar days, the penalty to be applied from the end of that period will be increased to 1% (one percent), calculated in the same terms as the previous paragraph, up to a maximum of 10%.

10.2. FRICON reserves the right to deduct the amount of the penalties from the payment of the Purchase Order.

10.3. If the Supplier is unable to demonstrate that it is in a position to correct the non-conforming materials and equipment in good time, they may be rejected in whole or in part, and the Supplier shall be obliged to compensate FRICON for all resulting damages.

10.4. Insofar as they are established for late performance, the application of the penalties provided for in point 10.1 does not release the Supplier from the obligation to comply with the contract.

11. TRADEMARKS, PATENTS, MODELS

11.1. The Supplier guarantees that its activity in execution of the Purchase Order will not entail the infringement of any intellectual property rights of third parties.

11.2. The Supplier undertakes to indemnify FRICON for all losses, damages or costs arising from actions or proceedings due to the use, possession or sale of the materials or equipment supplied in execution of the Purchase Order and, as well, for infringement of intellectual property rights including expenses arising from such actions and/or proceedings.

11.3. The obligations arising from the direct or indirect use of know-how, patents, utility models, designs, including those relating to obtaining the necessary authorizations from the respective owners and the payment of the corresponding charges, shall be borne exclusively by the Supplier, who shall be held solely responsible in the event of any legal issue arising therefrom, as well as for any claim arising from the infringement or alleged infringement of these rights.

11.4. The Supplier may not invoke any personal rights in relation to intellectual property rights with a view to preventing the fulfillment of its obligations under the Purchase Order.

12. OWNERSHIP OF TECHNICAL MATERIAL

12.1. Any and all material entrusted to the Supplier by FRICON for the purposes of studying and executing this Purchase Order, namely drawings, tools, molds, equipment, raw materials, etc., shall invest the Supplier in the legal obligations of faithful depositary of such materials, obliging them to be returned in the conditions in which they were received and as soon as they are requested.

12.2. The Supplier is also liable for loss of or damage to items provided by FRICON. The latter shall bear all costs of replacing lost or damaged items and all damages caused to FRICON by such loss/damage.

12.3. All execution projects, written or drawn parts, final screens, drawings, software, studies, reports or any other intellectual creations prepared by the Supplier under the terms of the Purchase Order, as well as all respective intellectual property rights thereon, shall be the property of FRICON for all purposes, and may be freely modified by FRICON once the contractual relationship between FRICON and the Supplier has ended.

13. CONFIDENTIALITY

13.1. The Supplier undertakes not to disclose to third parties and not to use, for its own benefit or that of third parties, any and all information contained in these General Conditions of Purchase or in other documents and/or contacts made within the scope of this Purchase Order.

13.2. The obligation of confidentiality shall continue even after the termination or fulfillment of this Purchase Order.

14. PROVISIONAL ACCEPTANCE

14.1. Where applicable, Provisional Acceptance of supplies will be taken by FRICON only after verification of the following requirements:

14.1.1. Satisfactory completion of all supplies under this Purchase Order, following inspection by FRICON or its designee;

14.1.2. The delivery by the Supplier of all the documents provided for in the Purchase Order and all its annexes, duly approved by FRICON;

14.1.3. FRICON obtains provisional acceptance, if applicable.

14.2. Should FRICON identify any deficiencies or omissions that prevent Provisional Acceptance, it shall immediately notify the Supplier, who shall be obliged to fully remedy the deficiencies identified at its sole responsibility and expense, within a period to be agreed between the parties.

15. GUARANTEES

15.1. Unless otherwise expressly provided for in this Purchase Order, the Specific Ordering Conditions and/or the Contract, or in FRICON’s written acceptance of the Supplier’s Proposal, the Supplier undertakes to provide services for a minimum period of 12 (twelve) months.

15.2. During the warranty period, the Supplier undertakes to correct, repair or replace, at its own expense and risk, all materials, equipment or services, or any part of them that prove necessary, that show errors, faults, deficiencies, malfunctions and/or incompatibilities with any Technical Specifications or Standards and legal rules in force, providing FRICON with a detailed report of the occurrence, bearing all indirect costs for transport, labor, travel, accommodation, meals, etc.,.

15.3. The repair or replacement of the defective elements implies the start of a new warranty period, which, if FRICON deems it necessary, will also be subject to the Provisional and Definitive Acceptance process to which the previous non-compliant goods and equipment were subject.

15.4. FRICON may have the necessary repairs, modifications or replacements carried out at the Supplier’s risk and expense if the Supplier’s response is inadequate or out of time, notifying the Supplier to pay for them or, alternatively, deducting the corresponding charges from payments to the Supplier.

16. PAYMENT TERMS

16.1. Invoices are due 90 days from the date of receipt. Payment is made subject to analysis and checking of the invoice.

16.2. The terms of payment for supplies are indicated in the Purchase Order. Payment terms previously specified within the framework of a business relationship between FRICON and the Supplier may also be used provided that express reference is made to them in writing in the Purchase Order, Special Order Conditions and/or Contract.

16.3. Full compliance with supply obligations, the provision of any documents, the delivery of any financial guarantees and compliance with other material contractual obligations, under the exact terms and conditions set out in the Purchase Order, Specific Order Conditions and/or Contract, is an indispensable condition for the payment of invoices.

16.4. Any claim, sanction or legal penalty against FRICON by its customers, related to the scope of the Purchase Order, may result in payments being withheld until:

16.4.1. The Supplier shall assume such claims, sanctions or legal proceedings;

16.4.2. The legal process or procedure is concluded without consequence or any obligation for FRICON;

16.4.3. The Supplier has fulfilled all its obligations under the Purchase Order.

17. RESCISSION

17.1. The Purchase Order may be terminated by FRICON, at any time and without any liability or financial charge, in any of the following cases:

17.1.1. If the supplies made are not in accordance with the specifications of these General Conditions of Purchase, the Purchase Order, the Particular Conditions of Order, the Contract and/or other contractual documents;

17.1.2. If the goods or materials delivered do not comply with the samples or specifications submitted by the Supplier for approval by FRICON;

17.1.3. If the total or partial delivery deadlines provided for in this Purchase Order are not met by the Supplier without a justified reason accepted by FRICON;

17.1.4. If justified doubts arise as to the Supplier’s rights over the materials, equipment or services supplied, its right to patents, trademarks, models and designs;

17.1.5. If the Supplier becomes bankrupt or insolvent, or applies to the competent authorities;

17.1.6. If the Supplier breaches any of the clauses and conditions of the Purchase Order or General Conditions of Purchase;

17.1.7. In any other case of termination provided for by law.

17.2. If the termination covers only part of the Purchase Order, FRICON shall only be liable for the payment of the materials, equipment or services that are compliant, accepted and already delivered, without the Supplier having any right to compensation in respect of the part affected by the termination. In addition, if elements need to be removed or replaced, all costs involved will be borne by the Supplier.

17.3. Immediately following notice of termination, the Supplier shall return, within a period to be agreed, any and all materials entrusted by FRICON, as well as all materials, studies, drawings, tools, molds, etc. relevant to the continuation of the supplies in progress, subject to the penalties for delay provided for in point 10.1.1.

17.4. FRICON shall have the right to terminate the contract if the End Customer suspends or cancels the order; in this case, FRICON shall pay the Supplier for the conforming, accepted and already delivered goods.

17.5. All payments received by the Supplier in respect of non-conforming materials, equipment or services shall be refunded to FRICON, with the Supplier undertaking to make the refund within 30 days of the date of termination.

17.6. FRICON reserves the right, at the time of termination, to call in any bank guarantees for its benefit.

18. APPLICABLE LAW AND DISPUTE RESOLUTION

18.1. These General Conditions of Purchase, the Purchase Order, the Particular Conditions of Order and/or the Contract are governed in all respects by the legislation in force in the Portuguese legal system.

18.2. For the resolution of any disputes arising from this Purchase Order, in particular as regards its interpretation, application, validity, execution, fulfillment and termination, the Parties assign exclusive jurisdiction to the Vila do Conde Judicial Court.

19. SUPPLIER EVALUATION

FRICON evaluates its suppliers according to different criteria:

19.1 Evaluation criteria

19.1.1. Criterion 1 – Compliance with delivery deadlines
Analysis of the Supplier’s performance with regard to the suitability of delivery times for FRICON’s needs, penalizing those who show delays in supply in relation to the deadline indicated in the Purchase Orders.

19.1.2. Criterion 2 – Compliance with specifications
The supplier’s ability to comply with the contractual conditions or the specifications of the products requested, with penalties being imposed on those who present “Non-Conformities”

19.2. Evaluation
90-100 – Adequate supply or good performance

80-89 – Able or unrestricted supplier

70-79 – Medium quality supplier in need of improvement

0-69 – Unfit supplier and/or with an impact on production to be eliminated

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