GCP

General Terms and Conditions of Purchase

1. General terms

1. The following terms and conditions of purchase apply exclusively for all business relations with suppliers or other contractors (hereinafter referred to jointly as “Supplier”). Any conflicting terms and conditions whatsoever are excluded, even for ongoing business relations, without special allusion or reference to this. Furthermore, any general or contractual terms, agreed individually and in writing, apply and take precedence over these terms and conditions in the event of confliction. We do not recognise the Supplier’s conflicting terms and conditions of sale or delivery even if we do not expressly contradict these terms.
2. These terms and conditions of purchase also apply if the Supplier refers to his own terms and conditions of business, especially when accepting or confirming orders, unless we expressly agree to this.
3. These terms and conditions of purchase also apply for subsequent orders, given in writing or verbally, without the need for us to refer to them separately.

2. Contracts/Conclusion of contract/Changes to the contract/Required form of contract

1. Supply and service agreements, as well as work agreements (contracts, orders, delivery plans and schedules, quantity contracts and JIT delivery schedules, hereinafter referred to as “contracts”), as well as their amendments and extensions are only deemed binding if they are placed and confirmed by us in writing. An order is also deemed to comply with the written form when made by fax or by electronic data transmission (email etc.).
2. Acceptance of the contract shall only be deemed valid if the Supplier returns the order confirmation sent by us, legally signed within 3 days of receiving it.
3. Changes and extensions must be notified in writing by the Supplier within three working days.
4. Orders that have been placed may not be passed on to sub-contractors, either fully or partly, without our written consent.
5. Our order number must be supplied on all documents relating to the contracts, especially delivery notes and invoices. Otherwise we are entitled to hold the document in abeyance without processing it. In case of doubt, this document is deemed to have not been received by us. With orders made by telephone (without an order number), the first and last name of the orderer shall be supplied on the document.

3. Prices

1. Prices are fixed prices insofar as no special agreements are made, including delivery free to destination, as well as all packaging, insurance and other delivery costs.
2. Offers shall solely be made to our Purchasing Division and will not be remunerated, regardless of the preliminary work required.

4. Delivery

1. Agreed dates and deadlines are binding. The delivery dates contained in our contracts (delivery day) refer to the arrival at the agreed delivery location.
2. All deliveries shall be accompanied by respective shipping documents (especially exact details of the contents), otherwise we are entitled to refuse the delivery.
3. If the Supplier is in default, we are entitled to demand payment of a contract penalty at 0.5% of the net order value per week or commenced week from the agreed delivery date onwards, for orders having a fixed delivery date or otherwise, after issuing a reminder, up to a maximum of 5% of the net order value and/or the value of the delivery, and/or we are entitled to withdraw from the contract without setting a new deadline. The contractual penalties agreed in this contract shall not be subject to reduction by judgment. We reserve the right to claim additional damages. Contractual penalties paid will be set off against a claim for compensation. If the Supplier recognises, prior to the agreed delivery date, that timely delivery cannot be made in full, he shall notify us immediately of this giving the reasons and the estimated duration of the delay. In this case as well, we are entitled to withdraw from the contract without waiting until the agreed delivery date and without setting a new deadline.
4. Deliveries to us shall not be subject to retention of title.
5. Part deliveries or premature deliveries are not permitted without our approval.
6. Place of fulfilment is the location to which the goods are to be delivered, in accordance with our contract.

5. Payment

1. Payment will only be made if a faultless delivery is received and, for work contracts or work supply contracts, the service in accordance with the order is fulfilled and the final acceptance is completed, and upon subsequent presentation of the invoice consistent with the order.
2. Insofar as no special agreement is made, payment is made within 14 days deducting 3% cash discount, or net within 30 days.
3. The payment period starts with the date on which we receive the invoice and the requirements according to item 5.1 are fulfilled. Invoices received before the payment requirements are fulfilled will be returned to the Supplier.
4. The date of the credit transfer, electronically prepared by us, is decisive for the fulfilment of the payment.
5. Claims against us on the part of the Supplier may only be ceded to third parties with our permission. Payments are only made to the Supplier. The Supplier’s rights and obligations arising from contracts with us are not transferable unless we give our written permission.

6. Claims for defects/Liability for defects/Handling defects

1. The legal stipulations regarding the Supplier’s liability for defects shall apply, unless other provisions regarding this are made below or in separate agreements and contracts.
2. The Supplier commits himself to comply fully with our specifications, especially order documents for our contracts, thereby satisfying the agreed properties of the delivery items.
3. The deliveries and services of the Supplier shall be made and/or provided according to the recognised technical rules and complying with any EN, ÖVE, DVGW or equivalent standards that may apply. Furthermore, the deliveries and services of the Supplier on the day of delivery shall comply with all statutory and official provisions, including those regarding the protection of machines and protection of the environment and shall satisfy the prevailing accident prevention provisions.
4. The Supplier shall guarantee that the delivery/service has been executed in accordance with the order and in compliance with the provisions according to item 6.3 for a period of 5 years, subject to longer statutory periods. The guarantee period starts with the delivery or after the final acceptance if no other written agreements exist.
5. We are not committed to checking the delivery/service immediately upon transfer or to complaining about visible defects (notification of defects). Rather, we are entitled to make warranty claims at any time for defects arising within the guarantee period as given in item 6.4.
6. In the event of a warranty claim, we are entitled to demand free rectification or exchange, as we wish, of the faulty delivery/service, to rectify the fault ourselves or have it rectified by another party at the Supplier’s expense, to obtain replacement from a third party while charging the Supplier for the additional costs, to change the contract immediately or to request a reduction in price. In the event that defects are rectified by the Supplier, the guarantee period for the entire delivery/service affected by the defect begins after final acceptance of the rectification by us.
7. We always charge the return of rejected goods against the value of the goods. Rectified and redelivered goods approved by us or replacement deliveries are to be invoiced anew.
8. Goods rejected during the guarantee period that are built into our products or that are already in the possession of our customers or their customers (field failures), will normally be removed by our service technicians or by our customer’s specialist personnel (heating engineers) without prior agreement with the Supplier, and returned to the Supplier making a charge amounting to the value of the goods. Furthermore, we are entitled to charge the Supplier for all expenditures necessary for this type of subsequent fulfilment and to pass on justified claims for expenses by our customers, directly related to the defective vendor goods, to the Supplier. Return deliveries of subsequently improved goods that have failed in the field may not be made to us. In the event that the Supplier wishes to carry out the subsequent fulfilment of rejected field goods with our customers or with the end customers himself, this must be agreed with us.
9. The Supplier shall guarantee the traceability of his deliveries and pledges himself to supply us with all information regarding this.

7. Confidentiality

1. The Supplier shall be committed to keep confidential all information about our business processes and operating procedures that may become known to him or to his employees during the execution of the order. He shall expressly inform the employees deployed by him about the commitment to confidentiality.
2. Documents (drawings, technical specifications, BOMs etc.), other papers and specimens of any type made available by us to the Supplier shall be treated strictly confidentially, shall only be used for purposes of fulfilling the order, shall be protected from misuse and, without the right of retention, shall be given back, unsolicited, at the end of the contract.
3. Information that becomes known due to the execution of contracts with us may not be used for own account or passed on to third parties. Contravention justifies claims for compensation made by TiSUN against the Supplier.

8. Manufacturer’s liability

The Supplier shall be committed to take out sufficient product liability insurance and to maintain cover. On demand, he must provide proof that possible third party claims for product liability due to faults in the delivered items are covered by this product liability insurance. The Supplier shall indemnify us from product liability arising from faults for which he is responsible to the extent to which he would also be directly liable.

9. Industrial property rights

The Supplier shall be liable for ensuring that no patents or other third party industrial property rights, both inland and abroad, are violated by his delivery and its usage. He shall indemnify us and our customers from all claims arising from the use of such property rights.

10. Acts of God

War, civil war, export restrictions or trading restrictions due to changes in political relations, as well as industrial disputes, lock-outs, operational disruptions, operational restrictions and events making the fulfilment of the contract impossible or unreasonable for us are Acts of God and release us from the obligation to timely acceptance as long as they exist. The contract partners are committed to inform one another about this and to adjust their obligations according to the changed circumstances, in good faith. The Supplier is obliged to inform us immediately about all circumstances that make it impossible for him to keep to the delivery date.

11. Withdrawal

In case of a significant deterioration of the Supplier’s economic or financial circumstances, particularly in the event that equalisation or insolvency proceedings are opened for his assets, we shall be entitled to withdraw from the contract if processing of the contract appears to be at risk because of the aforementioned circumstances. Accepting part deliveries and part services after one of the aforementioned circumstances arises does not prejudice the right to terminate the contract for the rest.

12. Place of jurisdiction/applicable law

For all legal disputes arising from this contract, the sole competent court is the district court of Kufstein, regardless of the amount in dispute in accordance with § 104 JN (Austrian Code of Judicial Organisation) or item 17 of the 1968 convention (EuGVÜ) or the Lugano convention (LGVÜ). Austrian law applies, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

13. Severability clause

If individual terms or provisions of the contract should be or become ineffective, the other provisions and the contract as a whole are not affected by this.

Version 02/2009 - © TiSUN GmbH