1. Purchase orders

The following terms and conditions shall apply to purchase orders placed by the customer ("Customer") unless expressly agreed otherwise in writing therein. Different terms or conditions or deviations will only become valid if expressly accepted by the Customer in writing. Silence on the Customer's part regarding documents sent by the contractor ("Contractor"), such as an order confirmation, invoices or other correspondence, shall imply neither the Customer's consent nor an implicit change of the Customer's Terms and Conditions of Purchase. Issuing of an order confirmation that is in line with the Customer's order shall be deemed an unconditional and full acceptance of the Customer's Terms and Conditions of Purchase.

 

2. Order Confirmation

The Contractor shall acknowledge the Customer's purchase order in writing by means of the enclosed acknowledgment of order form within three days. Deviations from the Customer's purchase orders shall be expressly stated and shall only be valid if confirmed by the Customer in writing. 

 

3. Deliveries and/or services

The deliveries to be effected and/or services to be rendered by the Contractor shall be provided completely and in such a way that they will be state-of-the-art, as new and of top quality, comply with all statutory provisions, relevant regulations, technical standards and requirements of trade associations, etc. applicable in Austria and at the place of performance at the time of the order and delivery. Excess or short deliveries cannot be accepted without the Customer's express prior written consent.

Deliveries and/or services shall include all usual ancillary services and other parts necessary to ensure the expressly agreed or usually expected properties, including but not limited to complete delivery of an ordered item in operable condition, even if the delivery parts and ancillary services necessary have not been expressly specified in the purchase order.

Prior to conclusion of a contract the Contractor shall inform the Customer in writing in the case that the goods to be delivered are not suitable without restriction for the type of use that has been known to the Contractor or is expected based on the contract, if the handling of the goods to be delivered requires observing special security regulations, or if the goods to be delivered can be connected to special health, security, or environmental risks, or atypical possibilities of damages or unusual amount of damages that are known or must be known to the Contractor.

 

4. Provisions by the Customer

The Customer reserves the right to provide material for the production of the deliverables. Materials provided shall remain the Customer's property and shall be stored by the Contractor free of charge. The provided goods shall be clearly marked as the Customer's property. In the case of damage to and any resulting impairment or loss the Contractor shall pay damages, provided that the damage is attributable to the Contractor's fault, even if caused by slight negligence only. The Contractor shall not be liable for damage to goods stored caused by force majeure. Upon receipt provided materials shall be checked by the Contractor for completeness and absence of defects and the shipping documents that have been marked accordingly shall immediately be sent to the Customer's purchasing department via email. The Customer shall at any time be entitled to check whether the materials provided are stored properly.

 

5. Prices

All prices are fixed lump-sum prices and include the costs defined in the specific INCOTERMS 2010 agreed and include all ancillary services and expenses inclusive of safe transport packaging, carriage (in accordance with the specific Incoterm agreed) and unloading (in accordance with the specific Incoterm agreed). The return of packaging material, containers and transport aids shall be effected at the Contractor's costs.  

 

6. Shipping; passing of risk

Irrespective of the agreed delivery term, the Contractor shall enclose three copies of a delivery note with every delivery, of which one copy shall be attached to the goods and two shall be handed to the transport service provider. For the purpose of proper identification of the shipment upon arrival at the destination the object of delivery shall be clearly indicated in the shipping documents; in any case the Customer's purchase order number and the project number shall be included.

All costs incurred in connection with the shipping documents and the proof of origin not being provided or properly issued and non-observance of the shipping regulations, such as customs duties, demurrage, transport charges and the like shall be borne fully by the Contractor.

The Customer reserves the right to ask the Contractor to use templates for shipping papers and delivery documents.

The delivery address stated in the purchase order shall be deemed the agreed shipping address.

Passing of risk shall be subject to the relevant Incoterms 2010 agreed between the Customer and the Contractor; in cases of doubt the risk will only pass upon the Customer's acceptance of the goods.

7. Origin of goods 

Unless otherwise agreed, the Customer shall consider the country in which the Contractor's head office is located the country of origin. In the case of a different origin of goods or a change in the goods' country of origin the Customer must be notified immediately and without request.

The Contractor shall obtain and hand over to the Customer the licences, permits, certificates of origin, movement and preference certificates and any other certificates and documents necessary for free export, transit and import of the goods and for the suspension of customs duties in the European Union and represents that the documents are genuine and of legal validity. Contractors from the European Union shall present the Customer with a long-term supplier declaration and certificates of conformity upon request. Stipulating other clauses, the Incoterms or other delivery clauses shall only result in a different regulation of the transport and the transport costs and shall not affect the regulations agreed in this paragraph.

 

8. Proof; Export licences 

In the case that the Customer is or will be put under an obligation to deliver proof of certain facts, particularly producers, address, country of origin or conformity with the DUAL USE regulation and embargo provisions applicable from time to time the Contractor shall do so autonomously, on its own responsibility, for its own account and on its own risk and without claim for refund.

Furthermore the Contractor shall obtain export licences that may be required for export to the relevant destination at its own costs.

 

9. Dangerous goods

The delivery items shall be marked by the Contractor in accordance with the provisions of the Austrian Dangerous Substances Regulation [Gefahrstoffverordnung] and the EU Directives on Dangerous Substances/Preparations, declared on the shipping documents and packaged accordingly.

For any dangerous goods delivered under this purchase order the Contractor shall send the Customer the relevant dangerous goods certificate duly signed by the company without request and timely before dispatch of the goods, irrespective of the delivery term agreed. Another duly signed copy shall be enclosed with the goods.

 

10. Place of performance

The place of performance stated in the Customer's purchase order shall apply to the delivery and/or service.

The supplier/service provider shall obtain written confirmation of receipt of shipments or the rendering of services from the advised receiving agent.

 

11. Invoicing and payment

Invoices shall be sent as pdf attachments separately for each purchase order upon complete delivery or provision of the service and shall include the purchase order number and the correct amount of statutory value added tax to the following email address: invoices50@waagner-biro.com. The Contractor shall ensure that the invoices are in compliance with the relevant statutory provisions. Due to the agreed terms and conditions the payment period shall commence on the day of receipt of an invoice that is in conformity with the contract.

The Contractor also acknowledges that shipping documents or certificates or documentations that have been issued incorrectly or incompletely will postpone the due date of the invoice amount until the Customer's receipt of complete and correct shipping documents, certificates or documentations.

12. Delivery date

Unless expressly agreed otherwise, all dates stated in the purchase order shall be fixed dates, i.e. the parties expressly agree that the Contractor will be in default if delivery is not effected by the date set in the purchase order.

In the case that even before the delivery date it becomes apparent that the Contractor will not be able to execute the purchase order properly and/or on time the Customer shall be entitled to execute deliveries and/or render services itself or have them executed or rendered by third parties, in which case the extra costs incurred by the Customer shall be borne by the Contractor; the Customer shall also have the right to rescind the contract. The Contractor shall immediately inform the Customer of all facts that are likely to impede or prevent timely fulfilment of its performance duties; otherwise the Contractor shall be liable for damages.

Delivery or performance before the agreed date shall require the Customer's prior written consent.

In the case of an impending delay in delivery or default the Contractor shall immediately notify the Customer and state the reasons for and the expected duration of the delay.

13. Storage / suspension

In the case of a suspension or other postponement for which the Contractor is not responsible it shall store the delivery items according to the Customer's direction for at least 4 months free of charge; any additional claims shall be excluded. In the case that the delivery items are damaged during storage by the Contractor due to the Contractor's fault or the fault of persons attributable to it the Contractor shall be liable vis-à-vis the Customer for any and all damages resulting therefrom, even if caused by slight negligence only. However, the Contractor shall not be liable for damage caused by force majeure.

 

14. Contractual penalty

If the agreed dates for deliveries and/or services are not met, the Customer shall be entitled to deduct from the Contractor's invoice a contractual penalty of 1% for every commenced week of delay, up to a maximum of 10% of the total contract value, with no obligation to provide evidence of the damage.

Deduction of a contractual penalty shall neither release the Contractor from its delivery and/or performance obligation nor exclude any other claims of the Customer for damages beyond the contractual penalty.

 

15. Receipt of goods

The Contractor warrants full inspection of outgoing goods to ensure that the shipment is free from defects. The Contractor acknowledges that it knows that the Customer is engaged in international plant engineering and that delivered goods and/or rendered services will therefore be inspected only in the ordinary course of business on the construction site when they are used according to their designated purpose.

In the case of late delivery by the Contractor the Customer shall be under no obligation to inspect the goods, provided that there is no reasonable time left for inspection due to the delay in delivery. If the Contractor renders subsequent performance due to notified defects in quality, the Customer shall be under no obligation to inspect the goods until he receives a written notification from the Contractor stating that subsequent performance has been completed.

The Contractor therefore waives the plea of late notification of defects. Payment by the Customer does not mean unconditional acceptance of the deliveries and/or services.

 

16. Guarantee / Warranty

The Contractor guarantees suitability of the goods and/or services for the designated purpose, perfect quality and the explicitly agreed and commonly expected properties for a period of three (3) years from commencement of use according to the designated purpose. Furthermore the Contractor undertakes to immediately repair all defects occurring within the said period at the place of use and to compensate the Customer for all damage related to the defect, including the cost of identifying and repairing the defects.

In cases when the Contractor fails to fulfil its statutory warranty obligations within a reasonable period of time, refuses to fulfil the same or if improvement of existing defects cannot be expected of the Customer due to reasons attributable to the person of the Contractor or if it were to lead to unreasonable inconvenience for the Customer, he shall be entitled to rescind the contract after having granted another reasonable grace period, unless the defects are merely minor ones. Alternatively, after having granted another reasonable grace period for the reasons stated above, the Customer shall be entitled, also in the case of minor defects, to repair the defects or, if this is impossible, to replace of the goods himself or through third parties at arm's length conditions and to charge the Contractor the costs.

The Contractor shall compensate the Customer for any damage and/or consequential damage suffered by the Customer due to defective deliveries also in the case of slight negligence only.

 

17. No assignment; Subcontracting

Rights and duties under the supply contract between the Customer and the Contractor shall not be assigned to third parties without the Customer's prior written consent and any such assignment shall be ineffective also vis-à-vis third parties.

 

18. Documents; Secrecy; Data protection

All documents, drawings, calculations, etc. made available to the Contractor for submission of offers or execution of purchase orders shall remain the sole property of the Customer. Those documents shall be treated as confidential and may only be used specifically in line with the designated purpose and as necessary for fulfilment of the contractual duties vis-à-vis the Customer.

Personal data transmitted by the Customer to the Contractor shall exclusively be processed and used by the Contractor in accordance with the statutory provisions (Austrian Data Protection Act [Datenschutzgesetz]).

19. Product liability; Insurance 

The Contractor undertakes to take out and provide evidence of business liability insurance with an insurer authorised in the EU, which includes damage related to extended product liability and recall costs. The sum insured shall be a minimum of EUR 5 million each for the areas of personal injury, property damage and extended product liability and recall costs.

Notwithstanding any other liability the Contractor assumes unlimited liability for damage that is attributable to delivery of defective products as defined in the applicable product liability provisions.

The Contractor shall fully indemnify and hold harmless the Customer from and against all product liability claims.

 

20. Quality assurance standards 

When executing deliveries and/or rendering services the Contractor undertakes and puts all of its subcontractors under an obligation to apply the principles of quality assurance, in any case those of the relevant standards EN ISO 9001:2000 and EN ISO 14001 as amended from time to time.

The Customer reserves the right when necessary to request evidence of the Contractor's quality assurance system and of the documentation of quality inspections and to carry out an audit in the Contractor's enterprise and/or an inspection of the Contractor's production facilities at any time.

The Customer shall be entitled to take photographs of the work commissioned by him at the Contractor's production sites.

 

21. CE marking  

CE marks shall be affixed to plants, systems and products delivered by the Contractor in accordance with EU directives and Austrian laws. Appropriate declarations of conformity including brief descriptions and, when applicable, assembly instructions and installation regulations shall be enclosed with the shipment.

 

22. Reference clause 

The Contractor may only publish photographs or other illustrations related to the delivery items or parts thereof upon prior written approval from the Customer. Furthermore also the use of the logo or word mark shall only be permitted upon the Customer's prior written approval. This shall apply to all types of publications in journals, magazines, newspapers, radio or television programmes and on the internet. 

 

23. Severability clause 

If any provisions of the purchase order or these General Terms and Conditions of Purchase of the Customer is/are or become(s) legally ineffective in whole or in part, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a provision the business purpose and business result of which comes as close as possible to the invalid provision.

 

24. Place of jurisdiction; Applicable law 

For all disputes arising out of the present contract an amicable resolution shall be sought in the first place. The supplier's duties to perform shall remain in full force and effect during that period. In the case that no amicable agreement can be reached within a reasonable period of time the court in Vienna having jurisdiction over the subject matter shall have exclusive jurisdiction and shall base its decision upon the Austrian substantive law; UN Sales Law shall be excluded.