General Terms and Conditions of Purchase (edition )

Transcription

1 General Terms and Conditions of Purchase (edition ) 1. Scope of validity 1.1. Orders placed by the Buyer (hereinafter referred to as Buyer ) shall be subject exclusively to these conditions, unless stipulated otherwise in writing Deviating General Terms and Conditions of the Supplier (hereinafter referred to as Supplier ) shall be expressly rendered invalid, even if said conditions are included in the supplier s order acknowledgment and are not contradicted. All amendments, changes and agreements shall be made in writing. 2. Offer The Supplier shall specify the quantities and nature exactly in accordance with our enquiry and clearly indicate any deviations. If approximate quantities (approx.) are given in our enquiry, the Supplier shall agree to a small deviation (either above or below our order quantity) in relation to the order value. Offers, cost estimates, drawings and test certificates for technical equipment and similar shall be provided for the Buyer free of charge. 3. Order 3.1. Irrespective of the content of submitted offers, only the content of the orders actually placed in writing by the Buyer s Purchasing Department shall be binding Orders placed by the Buyer only become legally binding if they were placed by the Buyer s purchasing department in writing or by electronic transmission. This also applies to changes and / or amendments. 4. Declaration of Acceptance 4.1. The order shall be accepted or declined in writing immediately. In the event that the Buyer does not receive the Supplier s declaration of acceptance within two working days from the date of order, the contract shall come into force with the content as stated in the order. As long as the order has not become effective by means of the declaration of acceptance including the full scope of the order, the Buyer shall be entitled to cancel the order without naming any reasons. The cancellation shall be considered in time if made before receipt of the declaration of acceptance. Any deviations from the order shall be clearly marked and shall require for their effectiveness the Buyer s explicit approval in writing. The unconditional acceptance of delivered goods shall not be deemed as such approval Insofar as prices, delivery dates, etc. are not stated in the order, the Supplier shall complete this information in his declaration of acceptance or the contract shall not come into force. If the missing information is provided by the Supplier, the Buyer shall have the right to cancel the order without naming any reasons within two working days of receipt of the declaration of acceptance. With the submission of an offer or acceptance of the order, the Supplier declares to the Buyer that he has examined in his own responsibility all data and specifications passed to him by the Buyer or his authorized agents and guarantees their accuracy and completeness. 5. Delivery Dates, Inspection, Storage 5.1. If no deadline is specified, the delivery of the goods or the services shall commence without delay. In the event of an impending delay in delivery or performance, the Supplier shall inform the Buyer immediately in writing, naming the reasons and the expected length of the delay. In this case the delivery date for goods or services shall be extended only if expressly acknowledged by the Buyer in writing. The agreed right to a price rebate shall not become invalid if the performance deadline is extended by mutual agreement and shall be calculated from the new performance date. In the event of even a partial delay, which is not remedied by the Supplier within the appropriate extended time limit set by the Buyer, the Buyer shall be entitled to terminate the contract in part or in its entirety The goods or services shall be considered delivered or performed when the contract has been completely fulfilled. Depending on the agreed scope of delivery of goods and services, this shall also include in particular proper assembly, erection, provision of documentation to the required and adequate extent, training and instruction, etc With prior notice, the Buyer shall be entitled to inspect the Supplier s and his subcontractor s and pre-suppliers production facilities to inform himself of the progress made with the ordered goods and services and the quality thereof, or to accept delivery on the Supplier s premises In the event that the deliveries are made prior to the agreed delivery date, the Buyer shall be entitled to return these to the Supplier at the risk and expense of the Supplier and / or to charge the Supplier for their storage The Supplier shall guarantee the Buyer that, in the event that the Buyer postpones the dispatch date, he will store the goods ordered for at least three months at his own risk and cost. 6. Prices, Payment Conditions 6.1. Prices shall be fixed prices in accordance with the delivery conditions as per Clause 6.1, inclusive of documentation, packaging and all ancillary costs such as taxes and other charges, however exclusive of Value Added Tax Payment shall generally be subject to a 3% discount if made within 45 days after receipt of invoice and acceptance of goods, or net within 90 days. Until any deficiencies have been remedied, the Buyer shall be entitled to withhold the entire payment, whereby the entitlement to a discount shall continue to be valid in its entirety. The right to apply a discount to payments made within the discount period shall not be cancelled by the fact that other payments (in Page 1 of 5

2 particular part payments) were made outside the discount time limit. During the period of guarantee, the Buyer shall be entitled to retain up to 10% of the order value The Buyer shall have the option of making payment at his discretion by means of e-banking or by acceptance of a bill of exchange, whereby the costs of the latter shall be borne by the Supplier. The payment deadline shall be considered fulfilled if the e-banking payment transaction or the acceptance of the bill of exchange were made within the deadline If the Supplier is of the opinion, for any reason whatsoever, that he is entitled to a higher remuneration than the order value, he must immediately - upon receiving knowledge of such circumstances state his claim in writing to the Buyer stating the amount, all the circumstances and reasons for the entitlement, or forfeit his claim. 7. Delivery Conditions, Dispatch, Packaging 7.1. Unless otherwise specified in the order, delivery/service shall be made DDP in accordance with INCOTERMS in the edition currently in force. Unloading of goods on construction sites shall take place at the cost and risk of the Supplier. Cash on delivery shall not be accepted. The delivery shall be accompanied by a delivery note with all delivery data such as order number, order items, part number(s), exact description of the goods, order ID as well as customs and goods numbers etc. in the case of deliveries from outside the EU. Joint delivery of several items from different orders with a joint delivery note shall be permitted only if the delivery documents dearly allocate the items ordered to their respective orders. In the event of deliveries to different recipients named by the Buyer, the Supplier shall include all delivery documentation provided by the Buyer with his deliveries. In the case of individually agreed deliveries, e.g. free carrier, the Buyer s Packing & Shipping instructions shall be complied with. If these are not available, the Supplier must request them from the Buyer and obtain the Buyer s approval for the same Part, excess and incomplete deliveries shall require the express written permission of the Buyer Deliveries to the receiving department of the respective delivery address shall take place at the business hours stated in the order Products subject to special regulations, e.g. those stated in the Austrian Chemicals Law, must be appropriately classified, packaged and labelled; the legally required safety data sheets are to be included and all other stipulations complied with at the Supplier s cost The Buyer shall have the right to forward the Supplier s / Supplier s sub contractors / sub-suppliers technical documents to the customer or end customer if so required The Supplier shall appropriately package the good(s) ordered at his cost according to standard commercial practices. The domestic Supplier shall observe the regulations of the»verpackungsverordnung" (VOO, Packaging Regulation) in the respectively valid version. The "ARA" license number, the "packaging fractions" and the weights shall be stated in the delivery note. lf the Supplier does not employ the services of a third party, the Supplier shall state this in the declaration of acceptance and immediately collect the packaging material from the location as designated by Buyer and dispose of the same at his own expense in accordance with VVO regulations. If the Supplier fails to do so, the Buyer shall be entitled to store, dispose or have disposed the packaging material at Supplier's risk and cost. The Supplier shall at his own risk and expense take back and dispose of any residues or residual materials which remain from items delivered and which must be designated as waste or "hazardous waste. 8. Billing, Proof of Performance A single copy of the invoice shall be sent to the address specified by the Buyer including the following: order number, all order and delivery information, the ARA license number and, in the case of deliveries from EU countries, the UID number. Invoices shall be issued separately according to the respective order or delivery in such a way that they can be compared with the order and the invoice allocated correctly. The invoice total and the itemized prices must correspond with the order; piece numbers, weights and quantities must correspond with the actual scope of delivery / performance. Only invoices conforming to these criteria shall be released for payment and begin the discount period. Invoices for services or assembly work shall be accompanied by the originals of time records confirmed by the Buyer s on-site representative, and be accompanied by bills of materials. Invoices not complying with these requirements shall be regarded as not presented and shall therefore not be processed. In the case that the Buyer requires an invoice sent by means of electronic data transmission, the Supplier must ensure that he is technically equipped for this purpose, at his own cost. 9. Delivery and Service Default, Contractual Penalties, Withdrawal 9.1. The Supplier shall strictly comply with agreed delivery dates. The Supplier shall take all precautions and measures to meet such deadlines at his own expense. In the event of default, the Buyer shall be entitled to demand 1% of the total order value at the commencement of each week of delay irrespective of any fault on the part of the Supplier and the proof of any damage. This stipulation does not change the Supplier s obligation to perform the contract The entitlement to a price reduction is limited to 10 % of the total order value The Buyer reserves the right to claim compensation for damages or other claims exceeding the amount in the agreed entitlement to a price reduction Furthermore, the Supplier shall undertake to inform the Buyer in writing and in detail about possible delays as soon as such delays appear imminent. Page 2 of 5

3 9.5. If it already becomes apparent within the Supplier s delivery period that the goods / services cannot properly be supplied by the agreed deadline, the Buyer shall have the right to take all measures at the expense and risk of the Supplier to avoid such a delay If the Supplier is in obvious financial difficulties, the Buyer shall have the right to withdraw from the contract immediately and without granting an extension. In this event, the legal consequences shall be the same as for culpable default. All additional costs incurred by the Buyer in this case shall be deducted from payments due the Supplier, or shall be invoiced separately to the Supplier In the event that the Supplier becomes the subject of insolvency proceedings, or there is a change in the ownership structure, the Buyer shall be entitled to withdraw from the contract wholly or in part, irrespective of any legal consequences. The Supplier shall undertake to inform the Buyer immediately about such circumstances. 10. Acceptance, Guarantee The Buyer shall not be obligated to inspect the delivered items immediately upon taking delivery, or to promptly issue a notice of defects. The obligation to issue a notice of defects in compliance with Section 377 HGB ("Austrian Trade Code ) is therewith waived Deliveries and services supplied and performed by the Supplier shall comply with the general and particular laws and regulations in force in Austria, for example with respect to workforce safety and environmental protection, and in the realm of safety engineering, in particular electrical engineering safety regulations in compliance with the Austrian ÖVE and VDE regulations, Ö and DIN standards as well as European (EN) standards. In particular, only the latest technical version shall be delivered. The Suppler shall also undertake to comply with regulations governing the transport of hazardous goods, hazardous waste and special storage and operating regulations and to inform the Buyer accordingly and in due time The Supplier shall be liable for full, unrestricted guarantee on all ordered goods and services he supplies or performs for the duration of three years or for longer guarantee periods if stated by law or as contractually agreed - and their fault-free performance. The Supplier shall ensure compliance with the usually stipulated and promised qualities as well as all applicable legal standards and clauses in this contract. Furthermore, the Supplier guarantees that the design, construction, serviceability and production methods of the subject(s) of this order are state of the art; that the material used is first-class and the quality appropriate for the purpose and that the subject(s) of this order are suitable for the intended use The guarantee period begins with successful acceptance of the ordered items/services by the Buyer s customer/end customer or if the goods and services are used in the Buyer s own production facilities- upon first use of the subject of this contract and handover of all documentation to the Buyer. However, the guarantee period ends at the latest after four years from the date of delivery / performance (= handing over of the ordered goods or services to the agreed delivery address) as well as hand-over to the Buyer of all items that are part of scope of delivery, i.e. necessary test certificates, descriptions, operating instructions, and similar. After remedying any and all deficiencies the guarantee period shall commence anew for the entire scope of delivery. In the event of a dispute between the parties as to whether a guarantee case exists, the Supplier shall undertake to remedy the fault at his own cost for the duration of the dispute Payments do not constitute a waiver of a notice of defect or any other right of compensation of any nature whatsoever. In the event of a notice of defect or claim the purchase price / wages may be retained in full The Supplier shall undertake, at his own cost and risk, to rectify the defects by means of repair, exchange and / or additional delivery immediately on their occurrence. If he fails to meet this obligation to speedily remedy defects, the Supplier shall have the right to remedy the defects or perform the unfulfilled service himself or through third parties at the cost and expense of the Supplier In the case of engineering, consulting, software or documentation services or in the case of staff delegation the Buyer shall provide unlimited guarantee for the accuracy and completeness of the written and verbal information and instructions In the case of short deliveries or over deliveries or quality deviations, the Supplier shall reimburse all costs arising from the need for additional inspections, packaging, returns or storage or similar. Returns of amounts not ordered or delivered in excess shall in any case be at the cost and risk of the Supplier The Supplier further guarantees to carry out maintenance, repair and service on the supplied goods at current market rates as well to provide subsequent deliveries, replacements and wear and tear parts for a period of 15 years from the date of acceptance Objections based on a delayed claim for right of recourse in accordance with 933b Section 2 ABGB shall be waived. 11. Training, Documentation If the scope of supply comprises technical equipment and components, the Supplier shall supply timely training for the Buyer s, customer s or end customer s operating personnel and maintenance personnel free of charge. The Supplier shall, if asked to do so, also provide training at a later time and at regular intervals at the current market rate up to 15 years after acceptance. If the scope of supply comprises technical equipment and components installed or assembled by third parties or by the Buyer, the necessary assembly plans (including all connections, any building/construction requirements or similar), data sheets, installation instructions, processing guidelines, storage, Page 3 of 5

4 operating and maintenance regulations, CE declarations and notes on the special features of the delivery items are to be included. Labels must be in German (even for deliveries from abroad). The operating instructions and regulations are to be issued in duplicate in German and, if requested by the Buyer, also in other languages. 12. Compensation for Damages, Product Liability In the event that the good(s) or services ordered are defective and claims are made against the Buyer as a result, the Supplier shall indemnify the Buyer The Supplier is under obligation to the Buyer to safe keep all necessary documentation and to monitor the product diligently. The Supplier shall also be obligated, if necessary, to immediately recall defective goods at his own cost, to hand over the manufacturing documentation and to provide every possible assistance in defending product liability claims of any kind, and to name the manufacturer or importer without delay within. 13. Sucontractors and Suppliers With the exception of standard parts, the Supplier shall provide the Buyer with the names of the subcontractors and sub suppliers involved in the fulfilment of the order shortly after order confirmation. However, this shall not constitute a legal relationship between the Buyer and the subcontractors and sub suppliers The Supplier shall be liable for his sub contractors and sub suppliers to the same degree as for his own contractual obligations, i.e. as if he had fulfilled the scope of delivery in its entirety himself The Supplier shall be responsible for passing on all relevant requirements and specifications in our procurement documents to his subcontractors and sub suppliers if these are required to carry out our order correctly as stated in the contract. 14. Proprietary Rights With the payment of the purchase price / wages, patent rights, petty patents, brand and trademark protection or copyright entitlements shall be considered paid for free use and (repeated) re-sale of the goods/services ordered by the Buyer. The Supplier shall indemnify the Buyer in the event of infringement of third party copyrights in connection with the ordered goods and services. 15. Work performed on the Buyer s business premises / building sites If the Supplier carries out work for the Buyer (e.g. on one of the Buyer s business premises, on his building sites and/or the end customer s premises or building sites) he shall comply strictly and in every detail with the fire safety, workforce safety, environmental safety and any other regulations. The Supplier shall be responsible for obtaining the necessary information or for obtaining the relevant regulations from the Buyer. The Supplier shall be liable to the Buyer for all damages arising from non-compliance with these regulations. 16. Reservation of Ownership, Prohibition of Assignment, Setting Off, Transfer of Title, Transfer of Ownership All deliveries to the Buyer shall be made free of reservation of ownership and rights of third parties. Such reservations shall also be ineffective without the Buyer s explicit contradiction Payables arising from deliveries to the Buyer may be assigned to third parties only if these are sanctioned by the Buyer in advance, in writing The Buyer shall be entitled to set off counterclaims, including those not due or those from The Buyer s affiliated companies. The Supplier is not entitled to setoffs The Supplier shall not be entitled to transfer his contractual obligations and duties to a third party without obtaining the Buyer s express approval in advance. 17. Supplied Material, Manufacturing Equipment, Secrecy Manufacturing equipment, e.g. tools, models, etc. and films or photos financed by the Buyer, as well as drawings, plans and all documents required for the fulfilment of the order including data transferred electronically and provided by the Buyer remain the property of the Buyer from the moment of their production and are to be identified as such. They shall be returned to the Buyer immediately either on request or at the latest at the time of delivery / performance. Storage, maintenance and repair of manufacturing equipment shall be at the cost and risk of the Supplier. They may not be used by the Supplier for his own purposes and their use is especially not permitted by third parties The Supplier undertakes to keep secret all information not only company and business secrets that he was entrusted to him in connection with the order or that he has otherwise acquired. The Supplier shall also bind his personnel and the companies he has subcontracted to the same obligation. Any information passed on or made available to third parties including copies of documents and documentation connected with the subject of the order requires explicit prior approval in writing from the Buyer. If this obligation to secrecy is infringed, the Buyer shall have the right to withdraw from the contract in whole or in part. 18. Employing Foreign Nationals The Supplier shall undertake to strictly comply with the Employment of Foreign Nationals Regulation (AuslBG) in the current version. The Buyer shall have the right at any time to carry out work inspections to ensure that the legal requirements set out in the AuslBG are complied with and to peruse all relevant documents in connection with such Page 4 of 5

5 compliance. In the event of a breach of the stipulations set out in the AuslBG and/or the conditions stated in this paragraph, the Supplier shall completely indemnify the Buyer. 19. General Business correspondence shall be conducted solely with the staff member of the purchasing department stated on the order and shall always include the order number Messages sent by fax, pdf files sent by as well as any other EDI (Electronic Data Interchange) or similar transaction standards shall also comply with the written form requirements stated in these terms and conditions The Supplier shall ensure that his sub suppliers and subcontractors comply with the Buyer s purchasing conditions, and in the event of non-compliance, shall assume full liability thereof The Supplier shall undertake to immediately notify the Buyer of any changes to his business address by registered mail. Until the Buyer receives notification of the new address, any correspondence sent to the previous address shall be deemed delivered. The Supplier undertakes to immediately report to the Buyer any changes to process and product specifications that may affect the work defined in the contract and, if necessary, obtain the Buyer s permission to proceed If one or more clauses contained in these Terms and Conditions should be or become null and void, or if this contract is incomplete, the remaining content shall not be affected. The ineffective clause shall be replaced by a clause that comes closest to the commercial and legal intention of the ineffective clause. Loopholes in the contract shall be closed in the same way The Supplier undertakes to immediately report to the Buyer if ordered parts are not available anymore or cannot continue to be produced by the Supplier in future. The Supplier shall place all drawings and documents necessary to procure replacements at the disposal of the Buyer. 20. Place of Jurisdiction, Applicable Law Agreed place of jurisdiction in the event of disputes in connection with this contract or the termination of this contract shall be exclusively Graz / Austria This contract is subject exclusively to Austrian Law. It excludes the agreements in The United Nations Charter on Contracts for the International Procurement of Goods and relegation of the öiprg (Austrian International Company Law) to other conflict rules. Preding/Weiz, Page 5 of 5