General terms & conditions of purchase of Johann Eberhard GmbH
Unless explicitly otherwise agreed in writing in the orders themselves, the following conditions apply to our orders. Differing conditions or deviations shall only be valid if explicitly recognised by us in writing. Our silence in response to documents sent by you, such as order confirmation, invoices or other correspondence, does not signify our agreement or tacit consent to a change in our terms & conditions of purchase. Telefax or emails shall also be considered forms of writing. The delivery / performance shall be deemed an unconditional and complete recognition of our terms & conditions of purchase. Orders shall be confirmed immediately. The prices specified in the order are absolute fixed prices excluding the legal value added tax. Offers and samples may not lead to any costs for us. Drawings, drafts, models, samples, manufacturing specifications etc. that we have entrusted to the supplier for the submission of tenders or for the performance of an order remain our property and may not be used for other purposes, reproduced or made available to third parties.
Scope of delivery and/or service
The deliveries and/or services to be rendered by you shall be performed in full and in such a manner that at the time of ordering, they correspond to the state of the art, are as good as new and of the highest quality, and comply with all applicable legal regulations in Austria and the place of performance. Agreed delivery periods and dates are binding. Delivery periods start upon receipt of the order. The supplier shall notify us of any delays immediately, stating the reasons. The criteria for compliance with the delivery period or date are: for goods, receipt by us, and for services, the day on which work is completed. The supplier is obliged to compensate us for any damage caused by delay. In addition, we are also entitled to impose a contractual penalty of 5% (five percent) of the order amount. We have the right to refuse the acceptance of goods delivered prior to the agreed delivery date and to return the goods delivered early at the expense and risk of the supplier or to store them with third parties. The acceptance of goods is only possible on workdays from Monday through Thursday 07:00 – 15:30 and on Fridays from 07:00 – 12:00. Unless otherwise agreed, we shall not be charged for the freight or packaging of the deliveries made to us. The supplier shall always bear the risk of transport. The confirmation of receipt shall be deemed merely an acknowledgement of the receipt of goods, but not, however, as proper performance. A packing slip and delivery note stating our order details such as supplier number, order number, article number and article description shall be attached to all shipments. For partial deliveries, the remaining amount still to be delivered shall be indicated. In the event of non-compliance with the agreed delivery dates due to circumstances for which the supplier is responsible, we are entitled to demand compensation notwithstanding further legal provisions. Furthermore, we are also entitled to withdraw from the contract. The acceptance of the delayed delivery does not constitute a waiver of claims for compensation. In the case of repeated delays to delivery, following prior warning we are entitled to completely cancel the orders that have not yet been fulfilled at this time with immediate effect.
Unless otherwise agreed, the goods to be delivered shall be packaged in an appropriate manner as is customary in the trade. The supplier is liable for damages resulting from inadequate packaging or corrosion. The delivery of the goods shall occur in non-returnable or returnable packaging. Returnable packaging shall be used if this is requested by us (purchaser) and is coordinated. The supplier shall dispose of all product and transport packaging delivered to us at their own expense in accordance with the legal regulations that apply in Austria.
The supplier is fully responsible for the quality of his supply in all regards. Unless otherwise agreed, the supplier shall fulfil ISO 9000 et seq. or individually arranged quality stipulations. We would like to point out in particular that the supplier shall notify the purchaser of all changes to the process (including relocation) before implementation. The purchaser has the right to object to the change if there is reason to fear this may represent a detriment to his interests. If this is the case, the implementation may not be carried out. The supplier grants the purchaser and / or the customer of the purchaser the right to carry out their own auditing within two (2) weeks after prior consultation. The supplier has a special obligation to provide documentation if the purchaser thus requires, or if the necessity to document critical characteristics arises from a legal provision or as a result of substantial risks to persons, property or assets. Upon request, the supplier shall allow the purchaser to inspect these documents or send the purchaser corresponding copies. The supplier shall impose corresponding obligations upon his subcontractors.
Invoicing and payment
Invoices shall be sent to us via post, separately from the delivery, in duplicate and stating the order details. Payment deadlines start on the day of receipt of the invoice, but not, however, before acceptance of the service or receipt of the delivery. The payment shall occur as agreed, otherwise within 14 days less 3% discount or within 60 days net. In the event of delays to the delivery or service, the agreed due dates for payments shall be postponed accordingly. We are entitled to demand interest on our advance payments amounting to 8 percent above the respective base interest rate of the European Central Bank for the period of the delay. Without our prior written consent, the supplier is not entitled to assign his claims or to have them collected by a third party. We may not unreasonably withhold our consent. We may claim any forfeited contractual penalty until the final invoice or final payment. This does not require us to state any reservation at the time of acceptance of performance. If a supplier ceases his services, or if insolvency proceedings against his assets are applied for or if a legal or out-of-court conciliation procedure is filed for, we are entitled to withdraw from the part of the contract that has not yet been fulfilled.
Guarantee / warranty
We shall immediately inform the supplier of any deficiencies as soon as they are ascertained in accordance with the normal course of business. The supplier waives the right to objection to a delayed notification of deficiencies. The confirmation of receipt shall not be deemed a recognition of the freedom from deficiencies of the goods. In the event that random samples expose deficiencies, we are entitled to the warranty rights and claims for damages for the entire delivery. The legal regulations apply to the warranty rights. In urgent cases, without prejudice to any other claims we may have, we are entitled to remedy deficiencies at the expense and risk of the supplier after notification to the supplier. If damages arise for us and / or our customers due to deficient delivery or services, the supplier is obliged to compensate for the damages, unless he proves that he and the persons for whose behaviour he is legally responsible bear no fault.
All documents, drawings, models, samples etc. entrusted to the supplier for the submission of tenders or for the performance of orders remain our property alone and may not be used for deliveries or services to third parties or for the supplier’s own purposes. Such information may not be reproduced or used for commercial purposes without our prior written consent – except for deliveries to us. Products that are produced based on documents drawn up by us, such as drawings, models and the like, or that are produced based on our confidential specifications or using our tools or tools modelled on our tools may neither be used by the supplier himself nor offered or supplied to third parties. This also applies accordingly to our print Jobs.
The supplier is liable for the claims that are asserted due to a violation of intellectual property rights and applications for intellectual property rights based on the use of his deliveries or services in accordance with the contract. He indemnifies us and our customers from any such claims. We commit to immediately inform the supplier of any risks of infringement or supposed risks of infringement of which we become aware and to give him the opportunity to counteract any such claims by mutual agreement. We shall inform the supplier of any recall action that is partially or completely a consequence of a deficiency in the contractual object supplied by the supplier; we shall also give him the opportunity to participate and shall discuss efficient performance with him, unless particular urgency renders the notification or participation of the supplier impossible. If a recall action is the consequence of a deficiency in the contractual object supplied by the supplier, the supplier shall bear the costs of the recall action.
The place of performance for deliveries and services is the destination
The relevant regulations apply in addition to these general terms & conditions of purchase. The law of the Republic of Austria applies exclusively. The application of the Hague Conventions Relating to a Uniform Law on the International Sale of Goods is excluded. The invalidity of individual provisions of these terms & conditions of purchase shall not affect the validity of the remaining provisions. If a provision is deficient, in particular if it violates applicable law or is unenforceable, the parties commit to immediately replace the deficient clause with a defect-free, that is specifically with a legally valid, enforceable clause that comes as close as possible to the intention of the original clause from an economic point of view. The place of jurisdiction is the headquarters of the purchaser. Austrian law applies exclusively. However, we are also entitled to file a suit at the supplier’s headquarters.
St. Josef, 25.04.2016