General purchase conditions
Karl Mertl Handelsges.m.b.H.
A-2320 Schwechat-Rannersdorf, Hähergasse 14
- Conclusion of Contract
- Prices, Invoices
- Performance of Delivery, Place of Performance and Delivery, Passing of Risk, Packaging, Insurance
- Delays in Delivery
- Declaration of Origin, Export Control, REACH
- Defects, Damages, Consequential Damages, Product Liability
- Retention of Title
- Right of Detention, Setoff and Assignment
- Payments, Discounts
- Industrial Property Rights
- Confidentiality, Data Protection
- Applicable Law, Place of Jurisdiction
- Closing Provisions
The present General Purchase Conditions shall apply to all present and future deliveries and services provided to us, with the exclusion of Suppliers’ general business conditions and with the proviso of deviating written agreements. The present General Purchase Conditions shall also apply when we accept deliveries and services, without any reservation, aware of Supplier’s conditions, which are contrary to or deviate from our conditions or if Supplier intends to effectuate the implied acceptance of his General Terms and Conditions by sending his order confirmation or another letter. In this case, too, our General Purchase Conditions preclude Supplier’s conditions.
We shall only be bound by written orders (sent also electronically) placed by our purchase department/sales department, which must be accepted in writing (also electronically) to become effective, and which must not deviate in substance or contain any restrictions, within a 14-day period of acceptance beginning on the order date. Our order, confirmed by Supplier, shall be returned and serve as order confirmation.
Oral or telephone agreements shall only become binding upon us if they are subsequently confirmed in writing or by e-mail.
3.1. Agreed prices shall be fixed prices; price increases of any kind shall be precluded. Unless agreed otherwise, prices shall include delivery under Incoterm 2010 DAP as well as proper packaging, which shall be free of any obligations under the Packaging Ordinance.
All prices shall be net amounts, exclusive of the statutory value-added tax.
3.2. All invoices shall be sent to us by e-mail (to: email@example.com) in one copy, indicating our order number; otherwise they cannot processed, or only with a time delay attributable to Supplier.
4.1. The delivery date indicated in the order shall be binding. If delivery on call has been agreed, deliveries must be made one week after receipt of the call, at the latest.
Supplier shall announce the specific delivery time one week in advance, as a minimum; Supplier shall observe the indicated time slots for delivery as well as the safety requirements at our warehouse. Partial deliveries shall require our written consent; excess or short deliveries shall only be permitted within the scope of the respective order specifications, at a maximum of +/- 10%.
4.2 Supplier shall enclose a delivery note with every delivery, indicating our order number, the delivered quantities, the precise product description, the TARIC Code as well as an international consignment note (CMR).
In case of cross-border shipments, we shall be provided in good time with all documents necessary for customs clearance.
4.3. Unless agreed otherwise, the place of performance and delivery shall be our warehouse at Schwechat-Rannersdorf. Incoterm DAP shall generally apply to the passing of risk. Risk shall therefore pass to us when the unloaded delivery arrives at our warehouse.
4.4. If, in individual cases, direct delivery to our customer has been agreed, we must be consulted prior to shipment concerning shipping modalities. Incoterm DAP named customer shall apply if there are no other agreements.
4.5. Supplier shall ensure that his goods have been packaged in such a manner that they can be handed over in the agreed quality, according to order specifications. Supplier shall bear all costs arising from defective or wrong packaging.
Irrespective of the agreed passing of risk, Supplier shall take out sufficient insurance coverage for the every transport of goods delivered to us.
Supplier shall bear all costs and be responsible for any damage due to non-compliance with shipping, customs-clearance and documentation requirements.
The timely arrival of a delivery shall be determined by the receipt of the goods by us during normal business hours. In case of incomplete or deficient deliveries we can reject acceptance altogether and return the goods at Supplier’s expense.
Supplier undertakes to inform us in writing immediately if a situation arises or becomes apparent which is likely to prevent timely delivery. Moreover, we shall be informed in good time of the earliest possible new delivery date.
In case of a delay due to Supplier, we shall have the right, beyond the claims resulting from the delay, to demand payment of a contract penalty in the amount of 1% of the net order sum per commenced working week, with 5% of the net order sum as a maximum contract penalty.
If Supplier is prevented from timely delivery due to reasons of force majeure, Supplier shall inform us to this effect immediately; otherwise Supplier shall not be able to claim force majeure.
If we are delayed in our deliveries to our customers, due to a circumstance attributable to Supplier, Supplier shall compensate us for any damage in this context. The foregoing shall also apply to additional costs incurred to avert a delay in delivery in case of forward deliveries to our customers (covering purchase, if required).
We reserve the right to withdraw from the contract, after unsuccessfully granting a reasonable respite, as well as to claim damages in the event that a delivery date is exceeded.
The following shall apply in the event that Supplier must provide information on the origin of the sold goods:
In case of complaints by the competent agency concerning the certificates of origin or other documents to be provided by Supplier, Supplier undertakes to compensate any damage as well as all expenses incurred on account of the deficient, delayed or omitted evidence.
Supplier undertakes to inform us of all approval and declaration obligations according to Austrian, European and US export and customs regulations in case of any (re-)export of the ordered goods. The foregoing shall apply, in particular, to dual-use goods.
Supplier undertakes to inform us in case the products supplied by him to us contain materials falling under the REACH Regulation.
Supplier guarantees that the goods supplied by him are free from defects and comply with the latest state of the art, the agreed properties/specifications, the relevant European as well as Austrian statutory provisions and all other requirements expressly stated for them in this context.
Supplier undertakes to perform in-process quality checks as well as to inspect outgoing goods, and Supplier shall consequently check in detail the quality of the parts to be supplied.
Unless otherwise agreed, Supplier undertakes to provide performances and deliveries in such a manner that, throughout the entire supply and/or performance chain, especially during development, design, production, packaging, transport, assembly, operation, cleaning, service, maintenance and disposal, there is full compliance with the applicable statutory and official regulations, rules, guidelines, ordinances and other legal standards, especially with regard to quality, environmental protection, industrial safety, transport safety and product safety in force both at the production site and in Austria as well as any location of use which we may indicate. Supplier undertakes to identify these sets of rules and to comply with them. Supplier shall inform us immediately of any changes in these sets of rules, which directly or indirectly have an impact on deliveries and performances.
The foregoing shall also apply if Supplier only acts as a distributor.
8.1. We inspect goods on arrival for compliance with the respective order concerning identity and completeness as well as for externally visible damage, especially transport damage. If we detect any deficiency in the course of these checks, we report them to Supplier. We also report to Supplier any deficiency that we detect at a later stage.
Notices of defects shall be sent within one months as of delivery or, if the defect is detected only during further sale, processing, handling or taking into operation, within one month of their identification. In case of large deliveries, we can check and inspect the delivered goods only on a random-sample basis. If no defects are identified when drawing random samples but appear at a later stage, such defects shall be regarded as non-detectable defects according to the § 377 (2) of the Austrian Commercial Law Code (UGB). Supplier shall be liable for such defects if we are informed of them within one month of their detection.
We shall have no further inspection and reporting obligations beyond the aforementioned ones.
8.2. In case of defective deliveries or performances, our claims shall preferentially be guided by the below conditions as well as, additionally, by the statutory provisions of the Austrian Commercial Law Code (UGB) and the Austrian General Civil Law Code (ABGB).
In case of material defects, Supplier shall be obliged to subsequent fulfillment. In this connection, we shall have the right in each case to choose between substitute delivery and re-working. Supplier cannot refuse substitute delivery claiming disproportionate costs. Any re-working shall be regarded as failure after the first unsuccessful attempt.
In case of an unsuccessful or dispensable respite for subsequent fulfillment, especially in case of refusal or failure of subsequent fulfillment, we shall have the right to terminate the contract (transformation of contract) or to claim damages for the entire performance, also in the event of a minor deviation from the agreed condition or a minor impairment of usability.
In the event of imminent danger or special urgency, we shall have the right to eliminate the defect ourselves at Supplier’s expense.
8.3. In any event, claims for defects shall become time-barred after 24 months, calculated as of the passing of risk. This period shall be extended if goods are sold to third parties and whenever we are seized by them under a title of warranty or damages (also for consequential damage, or on the basis of product or manufacturer’s liability). In such cases, Supplier shall fully indemnify us and keep us fully harmless (also for costs of disassembly and re-assembly as well as costs of business interruptions) provided that we inform Supplier of such instances within one month after a third party has submitted its claims, and we engage jointly in defending any legal claim. In such an event Supplier shall cooperate fully and immediately in establishing the facts as well as processing the matter.
If goods usually remain packaged as well as in the case of concealed defects, the period for claiming defects and the onset of time-barring only begins when such goods are taken from the package and/or the defect is detected.
Supplier undertakes to take out and maintain third-party liability insurance as well as extended product liability insurance in a sufficient amount.
Any retention of title by Supplier shall be precluded. Ordered goods shall always become our direct property when delivered to us.
Whenever deliveries and performances are defective, we shall have the right to detain payment until there is complete and flawless fulfillment. This right of detention also includes claims under other contracts.
We shall have the right of setoff, also for challenged and not finally enforceable counter-claims.
Any assignment of claims against us to third parties shall be precluded without our written consent.
With the proviso of other arrangements in specific contracts, payments shall be due within 14 days minus a discount of 3% and net within 60 days, after complete and flawless delivery as well as proper invoicing, receipt of invoice and transfer of all documents. Anticipated deliveries shall have no impact on payment deadlines.
Payment shall not constitute acknowledgement of absence of defects concerning any delivery and thus not a waiver of any claims arising to us from possible deficiencies in performance.
In case of defective or incomplete delivery we shall have the right to detain payment until there is proper and complete performance.
Supplier shall be responsible that no property rights of third parties are violated in Austria or abroad when putting the ordered goods to their intended use. Whenever we are seized by a third party in such a context, Supplier undertakes to indemnify us and keep us fully harmless from any claims upon our first written request.
Supplier undertakes to keep confidential as business secrets all commercial or technical details which are not obvious facts and come to his attention under the business relationship with us. The obligation to confidentiality shall continue to apply after contract performance. Any documents provided by us shall remain our exclusive property and must neither be used for other purposes, nor made available to third parties. They shall be returned to us after completion of the assignment.
We shall have the right to save data concerning Supplier in keeping with data-protection legislation, to process them by machine and to save them.
Our Suppliers’ Codex (accessible at www.mertl.com/compliance-en) constitutes an integral part of our purchase conditions. Supplier undertakes to comply with it.
Austrian law shall exclusively apply, precluding provisions on conflict of laws under private international law. The application of UNCITRAL sales law is excluded.
The principal seat of our company at Schwechat-Rannersdorf shall be the sole place of jurisdiction for any present and future claims under our business relationship. The foregoing shall also apply if Supplier does not have a general place of jurisdiction in Austria.
If any part of the present Purchase Conditions becomes ineffective, this shall not impair the effectiveness of the other parts. An ineffective provision shall be replaced by another provision that comes as close as possible to the intended commercial purpose.
Status: February 2018