Conditions of purchase Windhager HandelsgesmbH

Transcription

1 Conditions of purchase Windhager HandelsgesmbH Version dated 10/ General - area of applicability All current and future orders of Windhager HandelsgesmbH, FN 63036a, A-5303 Thalgau, Industriestrasse 2 shall take place exclusively on the basis of the following terms and conditions of purchase, even if these are not expressly referred to. Our terms and conditions of purchase shall be deemed to have been approved fully in terms of contents at the most by delivery of the goods and shall therefore be binding on the Supplier. We reserve the right to change these terms and conditions of purchase in terms of contents or to add to them. Contradicting or deviating terms and conditions of business of our suppliers, as well as deviating order confirmations, shall not be binding on us. Our terms and conditions of purchase shall therefore also apply if we accept the delivery of the Supplier without reservation if we are aware of conflicting terms and conditions of the Supplier or terms and conditions of the Supplier which deviate from our terms and conditions of purchase. Should any individual parts of these terms and conditions of purchase subsequently be or become ineffective for any reason, the effectiveness of the remaining provisions of these terms and conditions of purchase and the associated delivery contracts shall not be affected thereby. Ancillary agreements, additions or amendments to our orders and our terms and conditions shall require written form to take effect and our authorised company signature. 2 Offers, issuing of the contract, orders The Supplier shall be bound in relation to us by its orders four weeks after sending. In case of doubt, oral and telephone agreements shall only be binding if confirmed in writing. The Supplier shall immediately check the order and, if supplied, plans, drawings, calculations and other documents for recognisable errors, uncertainties or incompleteness and shall inform us straight away of necessary changes or clarifications. We shall retain ownership rights and copyright in respect of images, drawings, calculations and other documents, as well as any samples which are produced; these may not be made accessible to third parties without our express written agreement. These shall only be used for production in accordance with our order. Following termination of the business relationship, these documents and data shall be returned without the need to issue a request. Copies shall be destroyed, unless these need to be retained within the framework of statutory retention obligations or as part of usual data security. The documents shall be kept secret in relation to third parties for a duration of 3 years following completion of the order - with the exception of publicly accessible information - unless the knowledge contained in the images, drawings, calculations and other documents has become generally known. Should the ordered goods or packaging be manufactured in accordance with our specific guidelines, production may not be started until we have checked and approved in writing the agreed selection samples. The Supplier shall

2 manufacture the samples at its own expense and shall provide us with them free to our address. All changes to the delivery stock, construction, packaging, technology or composition in relation to the standard or status of technology which was applicable at the time of conclusion of the contract shall require our prior written agreement, otherwise we shall be entitled to refuse acceptance of the delivered goods. All orders shall only be legally binding on us if they are made on our headed paper (order forms) and are properly signed by an authorised signatory. The order forms can also be forwarded by fax or . Changes to our orders, as well as deviations from the terms and conditions of purchase in individual cases, shall only be valid and effective with our written confirmation which is signed by an authorised signatory. All additional costs and expenses which are incurred due to an unauthorised de facto change to the order or to these terms and conditions shall be borne by the Supplier. 3 Order confirmation Our contracts and orders shall be immediately confirmed in writing by the Supplier, at the latest within 3 calendar days, otherwise we shall no longer be bound by the order. Order or contract confirmations which deviate from the order shall not be recognised by us without written approval and shall not lead to any change to the original order. 4 Delivery time, penalty The delivery time shall commence on the date of our order. The delivery dates and times agreed with us shall be complied with under all circumstances. Should the Supplier ascertain that a full delivery or service is not possible, it shall immediately name the reasons and apply to us for the setting of a new delivery time. Losses which are incurred due to a delayed notification by the Supplier shall be reimbursed by it. Further claims due to delivery delay shall not be affected thereby. The noncompliance with the delivery times or dates, for whatever reason, shall entitle us to choose whether to rescind the contract or to demand performance and pursue a claim for damages due to delay, also in case of partial deliveries, without us having to put the Supplier in default or being required to grant a period of grace. We shall not be obliged to accept partial deliveries. Regardless of the above, from the time of occurrence of the objective delivery delay, we shall be entitled to demand a contractual penalty from the Supplier of 1.0% of the net order value per order and per calendar day, however to a maximum of 20% of the total contract value of the net order value, which is independent of fault and which cannot be reduced by court order. In case of force majeure on the part of the Supplier (in particular strike, lockout, operational disruptions, natural disasters etc) we shall be entitled to choose rescission of the contract or the setting of a new delivery date, to the exclusion of all claims of the Supplier regardless of legal reason.

3 5 Delivery, transfer of risk As a rule, the delivery shall take place via the cheapest and quickest route, duty paid and unloaded free to our address at the agreed destination at the risk of the Supplier. The Supplier shall bear the risk of transportation until the proper handover of the goods at the destination specified by us. The price and performance risk shall not be assumed by us until we have accepted the delivery and acknowledgement by a person authorised by us has taken place. A delivery note shall be attached to each delivery which contains the order data, the order date and the order number, as well as the quantity unit applied in the order. Transport documents must contain the same information and agree with the delivery note. Damages due to relocation shall be borne by the Supplier. Additional expenses for partial deliveries shall be assumed by the Supplier. The delivery note must be available at the time of handover of the goods. Whether this be through handover, or through recognisable identification of the corresponding parcel as "delivery note inside", the delivery note must be on the top at the time of opening of the parcel; the goods must be clearly described. Should the Supplier breach these obligations, we shall not be responsible for processing delays. 6 Prices, invoicing, payment, packaging The prices listed by the Supplier in the order confirmation or negotiated with us shall be fixed prices including transportation insurance, as well as packaging and any disposal costs, or contributions to a waste disposal system (for example ARA). For each individual order, the bill shall be invoiced, stating all legal requirements and the order number. Invoices for agreed partial deliveries shall not become due until performance of the full delivery has take place. According to our choice, payment shall take place within 14 days with a 3% discount or within 60 days net following proper delivery and receipt of the invoice by us. Delayed payments due to incomplete or incorrect invoices shall entitle us to a discount deduction. Our payments shall take place subject to invoice checking. Claims of the Supplier for whatever reason shall lapse within one year of the invoice becoming due. We shall be entitled to set off claims of parent companies, subsidiary companies, affiliate companies or associated companies against claims of the Supplier. Defects ascertained by us at the time of acceptance shall entitle us to withhold the invoice to a reasonable amount until these have been corrected. We shall reserve the right to retain any packaging material which has been charged for or to return this at the expense of the Supplier with a deduction of the total load value. We do not recognise wear and tear fees, unless otherwise agreed, palleted deliveries shall take place on pool pallets. The rate for pool pallets currently amounts to 9.50 per pallet. On delivery, we shall decide as to whether we use the pallets or exchange them. The Supplier shall be obliged to take return of packaging material of the delivered goods at its own expense and, if applicable, to have it disposed of or recycled.

4 7 Option of set off, cheque payment We expressly reserve the right of set off with counterclaims arising out of other transactions concluded with the Supplier, and we also reserve the right to pay invoices by cheque or exchange under the same terms and conditions. 8 Guarantee, damages, liability, product liability The Supplier hereby expressly guarantees, within the framework of its own guarantee undertaking and indemnifying and holding us harmless, that the delivered goods, including any packaging, comply with the respective market-specific Austrian, German and European norms, ordinances and laws, in particular all safety and identification regulations (such as the product safety directive plus national implementation acts in the respective valid version, REACH ordinance, CE identification, GS identification) which apply to the use of the objects of delivery and that any approvals, permits and certifications have demonstrably been obtained. The Supplier also hereby expressly guarantees that the respective products plus packaging are not classified as hazardous in the RAPEX list. The same shall apply to the performance data and other characteristics contained in our order and order confirmation. In addition, the Supplier hereby guarantees that mass, weight, productions on the basis of drawings or samples correspond to the contents of the order. Should we supply the Supplier with plans, drawings, materials and/or accessories, the Supplier shall be obliged to check these for completeness, correctness and suitability for the intended purpose. Should the Supplier not raise any objections, it shall also be entirely bound by guarantee in this respect. A goods in check by us shall only take place in respect of externally recognisable damage and externally visible deviations in identity, quantity or optical defects to the packaging. We shall immediately raise a complaint in respect of such defects. In case of defect complaints by us, the Supplier shall be obliged to immediately co-operate in the determination of the defects at its own expense with its own specialist personnel. We shall reserve the right to carry out further goods in inspections. We shall immediately notify the Supplier of other defects, once these have been determined in accordance with the facts of proper business procedure. In any case, the Supplier hereby wavers the objection of delayed notification of defects. In case of goods which are intended for further processing, the deadline for the notification of defects shall not commence prior to further processing at our premises or those of our customer. In all cases, the guarantee shall include not only the absolute dealing with defects (for example replacement delivery, correction, exchange) rather the Supplier shall also incur liability in case of simple negligence for direct and indirect consequential damage caused by defects, as well as for the costs of determining defects and defect treatment in respect of the delivered goods, including any packaging and all costs of any withdrawal action of the defective goods from the market. The statutory guarantee periods shall apply from the defect-free handover and/or the complete provision of services, however at the minimum for a time of 24 months, calculated from the time of transfer of risk. In case of delivery of goods which are used for a building in accordance with their usual method of use, the claims shall lapse 3 years after delivery. In case of hidden defects, the guarantee period shall not start to run

5 until the time of the defect becoming obvious. By the express or conclusive acceptance of our order and by otherwise indemnifying and holding us harmless, the Supplier hereby expressly declares that no third party rights, in particular no property rights or ownership rights, exist in relation to the object of delivery and service. In case of defect complaints, we shall be entitled to demand a free-of-charge subsequent delivery of the defective goods or to rescind the contract by setting a short period of grace. Additional costs of a replacement delivery shall be at the expense of the Supplier. Should a delivery not correspond to our order, its return shall take place at the expense and risk of the Supplier. We shall reserve the right to refuse or require a replacement delivery. A replacement delivery may only take place due to a replacement order. We shall be fully entitled to the statutory defect claims. We shall not waiver guarantee claims by acceptance or approval of submitted samples or specimens. Should a service not correspond to the order, a defect which can be dealt with shall be corrected at the latest within 8 calendar days. Should the defect be legal or factual or not be able to be corrected with sufficient economic means, we shall be entitled to rescind the contract or, should this be technically impossible or economically infeasible, we shall be entitled to demand a price reduction up to zero. We shall be entitled to carry out the defect correction by ourselves at the expense of the Supplier without the expense corresponding to usual local and market prices if danger in delay is present or special urgency is present, in particular if the defect is not dealt with following the expiry of a maximum of 8 calendar days or the immediate correction of the defect is advisable and necessary for the continuation of our operation or to avoid financial penalties. In all cases, all additional expenses and loss profits incurred by us shall be borne by the Supplier. Restrictions of any kind of the obligations and duties for the Supplier resulting out of the applicable EU or national regulations, such as the Product Liability Act or comparable legal provisions, shall not be recognised. The Supplier shall be responsible for all third party claims which are asserted due to personal injury or damage to property and which are due to a defective product delivered by it; the Supplier shall be obliged to indemnify us and hold us harmless is respect of any liability arising as a result. Should we be obliged to carry out a product recall in relation to third parties due to a defect in a product delivered by the Supplier, the Supplier shall bear all costs connected to the said product recall. To the extent that is possible and reasonable, we shall inform the Supplier of the content and extent of the recall measures to be carried out and we shall give the Supplier the opportunity to make a statement. Other statutory claims shall remain unaffected. The Supplier shall be obliged to conclude and maintain a product liability insurance policy with a reasonable sum insured of 1,000, per incidence of personal injury/damage to property and shall provide us with a copy of the policy without the need to issue a request. 9 Property rights The Supplier shall indemnify us and hold us harmless in respect of no third party rights, in particular commercial property rights and copyright, being infringed in connection with its delivery in EU Member States and/or other countries in which it manufactures products or has products produced. Should a third party bring a claim

6 against us due to breach of property rights, the Supplier shall be obliged to release us from such claims, regardless of fault. Copyright, rights of use and other rights in respect of development proposals and ideas prescribed by us or contributed by us during negotiations shall be our intellectual property. 9a Image rights - rights of use The Supplier hereby assigns to us irrevocably and unlimited in terms of time and location, all rights of use for all currently known types of exploitation and those which are produced in the future, including the right of use in online networks, in particular the Internet, for the images produced by the Supplier (picture and/or film material in whatever form) in respect of the products purchased by us. This assignment of rights shall also include processing in all forms and in all technical procedures. In particular, we shall be entitled to use the images in journalistic form for illustrative and advertising purposes. Whilst indemnifying us and holding us harmless, the Supplier hereby confirms that it is in possession of the necessary rights for the assignment of rights. The Supplier hereby wavers separate fee payments in any form and shall not bring any claims of any type and for any reason due to the assignment of rights and the agreed use by us. 10 Forwarding on of data The Supplier hereby consents to the automatically supported saving, processing and forwarding of its personal data connected to the business transaction. 11 Cancellation A free-of-charge cancellation of contracts and orders shall be carried out by us immediately. Such a cancellation shall be deemed to have been carried out in good time if the Supplier is informed of the cancellation in writing within 7 working days of the placing of the order. Should a (provisional) insolvency administrator be appointed for the company of the Supplier, should insolvency proceedings be opened against the assets of the Supplier or not be commenced due to a lack of assets, we shall be entitled to rescind the contract in full or in part. In case of the opening of insolvency proceedings against the assets of the Supplier or in case proceedings are not commenced due to lack of assets, we shall be entitled to a free-of-charge cancellation of all ongoing orders.

7 12 Setting off, assignment We shall reserve the right to set off any claims against the Supplier with the liabilities. However, a setting off of claims of the Supplier against us with liabilities shall be excluded. Claims against us can only be effectively set off with our prior agreement. 13 Liability, statute of limitation The liability of the Supplier for damage shall be in accordance with the statutory regulations. An exclusion of liability due to simple negligence shall also be excluded. The statutory statute of limitation shall apply. A reduction to the statute of limitation shall be excluded. 14 Retention of ownership All deliveries shall enter our irrevocable ownership on handover, any retention of ownership shall not be recognised by us. By indemnifying us and holding us harmless, the Supplier hereby guarantees to us that no third party retention of ownership exists in relation to the delivered goods. 15 Closing provisions, place of performance, place of jurisdiction, applicable law. The Supplier is aware that we only co-operate with selected suppliers for the purpose of quality assurance. The Supplier shall not be permitted to forward the order or parts thereof to third parties without our prior written agreement, in particular to sub-contractors, this to the loss of any claim to remuneration. The respective current general terms and conditions of purchase and other forms used by us can be accessed on the Internet at Should one or more provisions of these general terms and conditions of purchase be ineffective or subsequently become ineffective, this shall not affect the validity of the remaining clauses. Invalid clauses shall be replaced by us with such provisions which come closest to the economic sense and purpose of the invalid provision. The place of performance for all deliveries, services and payments shall be. The exclusive place of jurisdiction for parties shall be the objectively competent court of the city of Salzburg. The exclusive applicability of Austrian substantive law is hereby agreed, to the exclusion of the UN Convention on the International Sale of Goods. The Applicability of the UNCITRAL Treaty (BGBI. Number 96/1988) shall be excluded. 15 Intellectual property All forwarded drawings, plans, documents, data and the information and technical details contained therein which are not generally known, in whatever form, shall be considered to be the protectable intellectual property of Windhager HandelsgesmbH and must be treated in the strictest confidence. This may only be used for the purpose of fulfilment of the contract without any further rights being assigned. All

8 transferred drawings, plans, documents, data and the information contained therein which is not generally known may not be made available to anybody in any form without the express consent of Windhager HandelsgesmbH. The transferred protectable technical information may only be registered as a patent or utility model worldwide or otherwise legally protected by Windhager HandelsgesmbH itself or a person authorised by Windhager HandelsgesmbH. On termination of the contract, all drawings, plans, documents, data and the information contained therein which is not generally known, including all copies or duplicates made, must be immediately returned to Windhager HandelsgesmbH without the need to issue a request. The commencement, contents and termination of the working relationship with Windhager HandelsgesmbH shall be subject to the confidentiality obligation. A breach of these obligations shall entitle Windhager HandelsgesmbH, in individual cases, to charge a contractual penalty of 45, which shall be immediately due, independent of fault and cannot be reduced by a court order.