1. Scope

1.1. These General Terms and Conditions of Purchase (“Terms and Conditions of Purchase”) apply to all contracts for the supply of goods and services by the Contractor (“Contractor” or “C”) to Steinbeis PolyVert GmbH as the Client (“C”). Once the Contractor has accepted them, they shall form an integral part of all future contracts between the Contractor and the Client, even if they are not expressly mentioned in subsequent contracts.
1.2. These Terms and Conditions of Purchase apply in relation to Contractors who are undertakings within the meaning of Sections 1 to 3 of the Austrian Commercial Code (UGB) and legal persons governed by public law.
1.3. The Client rejects the Contractor’s General Terms and Conditions. They shall not form part of the contract unless the Client has expressly agreed to their validity in writing. Acceptance of deliveries or services from the Contractor does not constitute the Client’s agreement to the Contractor’s General Terms and Conditions.

2. Orders, Conclusion of Contract, Written Form

2.1. Offers and quotations from the Contractor are free of charge, unless otherwise agreed in writing.
2.2. Deliveries and services provided by the Contractor for which a charge is made require an order from the Client. Orders and amendments to orders are only binding if they are placed by authorised representatives of the Client. Orders placed verbally, by telephone or using other means of distance communication must be confirmed in writing, quoting the order number.

3. Requirements for deliveries and services, dates and deadlines, Incoterms

3.1. Deliveries and services must, at the time of delivery or acceptance, correspond in design, scope and composition to the individually agreed terms, possess any other required quality characteristics and, insofar as the Contractor is to carry out installation, must comply with the installation requirements at the time of completion or acceptance thereof. If, whilst performing a contract, the Contractor realises that deviations from the originally agreed specification are necessary or appropriate, it must inform the Client without delay.
3.2. For the supply of goods under sales contracts, the delivery terms ‘Delivered Duty Paid (DDP) Incoterms® 2020’ to the destination shall apply; or, if no such destination has been agreed, to the point of receipt of the goods. If acceptance by the Client is required by law or has been agreed, the dates, place of performance and transfer of risk shall relate to the Client’s declaration of acceptance.
3.3 Agreed delivery and performance dates or deadlines are binding. Any delivery or performance prior to the agreed delivery or performance date requires the Client’s prior written consent. Acceptance of early deliveries does not affect the due date of the remuneration payable. The Contractor must immediately notify the Client in writing of any foreseeable delays in meeting the dates and deadlines for deliveries or services, stating the reasons and the expected duration of the delay. Notwithstanding this, the Client shall be entitled to the full statutory claims and rights in the event of default. Under these provisions, the Client is, amongst other things, entitled to claim compensation for any loss incurred as a result of the delay. Acceptance of a delayed delivery or service does not constitute a waiver of claims for damages.
3.4 Partial deliveries, as well as excess or short deliveries, are not permitted unless otherwise agreed. The Client reserves the right to accept them in individual cases.
3.5 The shipping documents required for the delivery, certificates of origin, and storage, assembly and operating instructions as well as safety data sheets issued in the official languages of the EU form part of the Contractor’s obligations to perform. This also applies to documents (or data carriers) to be provided in the official languages of the EU which are required for the maintenance and repair of the delivery as recommended by the manufacturer.
3.6 Where the Contractor has undertaken manufacturing obligations or services, it is not entitled, without the Client’s prior written consent—which shall not be refused without valid reasons—to transfer its obligations under the contract, either in whole or in part, to third parties (e.g. subcontractors) or to have the services and work entrusted to it carried out by third parties. Companies affiliated with the Client within the meaning of Section 189a of the Austrian Commercial Code (UGB) or group companies within the meaning of Section 15 of the Austrian Stock Corporation Act (AktG) shall also be regarded as third parties (subcontractors).
3.7 In order to fulfil the contract, the Contractor must ensure that the services covered by the contract comply with the agreed technical specifications. The Contractor is obliged to keep records of any tests initiated or carried out by it in this context and to archive all test, measurement and inspection results in digital form for at least 10 (ten) years. Upon prior request, the Client shall, where necessary—in particular in the event of damage—be granted access to these documents by the Contractor and shall be entitled to make copies.

4. Notice of defects, transfer of risk, dispatch, documents, packaging

4.1. Deliveries of goods shall be subject to an incoming goods inspection in accordance with the Client’s obligations to inspect and give notice of defects under Sections 377 and 378 of the Austrian Commercial Code (UGB), to the extent that this is customary. As a rule, a random check of the characteristics defining the goods is sufficient. A notice of defects regarding apparent defects identified during an inspection carried out in the ordinary course of business shall be given within 5 (five) working days of delivery; for latent defects, within 5 (five) working days of their discovery.
4.2. The Contractor shall bear the risk of accidental loss or accidental deterioration of the goods until their delivery in accordance with the contract. If acceptance by the Client has been agreed or is required by law, the risk shall pass upon acceptance; in the case of an agreed formal acceptance, this shall take place upon the signing of an acceptance certificate by a person authorised by the Client.
4.3. The Client’s order number must be stated on invoices and in dispatch documents. Each delivery must be accompanied by a delivery note containing the date (of issue and dispatch), order number and material number, a list of the batches delivered, the description of the goods, the quantity delivered and the weight. Delivery notes must be issued separately for each order to be delivered. If the delivery note is missing or incomplete, the Client shall not be held responsible for any resulting delay in processing and payment.
4.4 The Contractor must comply with the Client’s specifications regarding the dispatch of the goods. Regulations governing the transport of dangerous goods must be observed; dangerous goods must be clearly marked as such. Furthermore, the goods must be packaged in such a way as to comply with regulations for safe transport to the destination and to prevent damage in transit. Only environmentally friendly, recyclable packaging materials may be used. The Contractor must recycle or dispose of transport packaging at its own expense.

5. Specific obligations of the Contractor under the Waste Electrical and Electronic Equipment (WEEE) Regulation and the RoHS and REACH Regulations

5.1. Electrical equipment, appliances and machinery must, irrespective of any agreed quality characteristics, comply with the applicable standards, ÖNORM, OVE, CE and relevant statutory provisions. In particular, in the case of technical work equipment, the applicable, relevant accident prevention regulations as well as safety and occupational health regulations must be complied with in terms of design and construction. Where deliveries fall within the scope of the Waste Electrical and Electronic Equipment (WEEE) Regulation, the Contractor must comply with the current provisions (WEEE Regulation) – and, where the consequences also affect the Client, must support the Client in this regard.
5.2. The Contractor undertakes to comply with the requirements of Directive 2011/65/EU, Directive 2015/863 and subsequent directives on the restriction of the use of certain hazardous substances in electrical and electronic equipment (‘RoHS’), as well as the requirements of the national transpositions, in particular the Waste Electrical and Electronic Equipment Ordinance (EAG-VO). Electrical and electronic equipment must be provided with specific markings and information in accordance with Sections 12 to 14 of the EAG Regulation. Where necessary and permissible, equipment and products must bear a valid CE marking in accordance with Section 7 of the Product Safety Act (PSG).
5.3. If the goods to be supplied constitute ‘hazardous substances’ within the meaning of the Occupational Safety and Health Act, the Client must be notified in writing of the labelling, classification and rules for handling such substances no later than upon delivery. Substance bans must be taken into account.
5.4. Substances falling within the scope of Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (‘REACH Regulation’), as amended, must comply with the specified provisions. The Contractor shall provide the Client, at the latest upon delivery, with a safety data sheet in German, in both paper and electronic form, which complies with the current requirements.

6. Prices, Terms of Payment, Set-off, Right of Retention

6.1. Agreed prices are binding. The prices for the supply of goods include the seller’s obligations incumbent upon the Contractor in accordance with DDP destination, Incoterms® 2020. Prices are net prices; statutory value added tax must be shown separately on the invoice at the applicable rate. Invoicing for services to be remunerated on a time-and-materials basis shall only be accepted on the basis of records of working hours signed by an employee designated by the Client to the Contractor.
6.2. Invoices must be submitted separately from deliveries or services to the Client’s agreed invoicing address; unless otherwise agreed, they must be issued in EUR, preferably in PDF format, and must be verifiable. Order details (order number, order date, quantity and price), the number of each item or batch, and the delivery note number must be specified. Copies of invoices must be marked as duplicates.
6.3. Payment shall be made following the issue of the invoice, but not before complete and defect-free delivery and performance or acceptance, where such acceptance has been agreed or is required by law, within 30 days net or within 14 days with a 3 per cent discount. In the event of defects or incomplete performance, the Client is entitled to assert any defences to which it is entitled against the obligation to pay. In such cases, the running of the discount period shall be suspended accordingly.
6.4. Declarations of retention of title by the Contractor which go beyond a simple retention of title shall not be recognised.
6.5. The Contractor is entitled to set off against the Client’s claims if its claims have been legally established, acknowledged or are undisputed. The Contractor may only assert a right of retention if its counter-claim is undisputed or has been legally established and is based on the same contractual relationship. The Client is entitled to set off the Contractor’s claims against its own claims against the Contractor, provided that the conditions for set-off under Sections 1438 et seq. of the Austrian Civil Code (ABGB) are met.

7. Termination, Withdrawal

7.1 The Client and the Contractor are entitled, within the framework of the statutory provisions, to withdraw from the contract or to terminate the contract for good cause, e.g. in the case of continuing obligations or contracts for work and services. This shall not affect the Contractor’s claims for remuneration in accordance with Section 1168 of the ABGB.
7.2 The notice of withdrawal or termination must be given in writing; in the case of termination for good cause, the relevant grounds for termination must be stated. Upon termination, the Contractor shall immediately return to the Client any items, records or documentation provided by the Client in the same condition as they were received.
7.3 If the Contract is terminated by the Client for good cause, the Client shall remunerate the Contractor for the services rendered in accordance with the Contract up to the date of receipt of the notice of termination, on the basis of the agreed prices, in proportion to the partial delivery or partial service rendered. The Client’s claims for damages shall remain unaffected if the Contractor is responsible for the circumstances leading to termination for good cause.

8. Assignment, Attachment, Retention of Title

8.1. The Contractor shall not be entitled, without the Client’s prior consent—which may not be unreasonably withheld—to assign its claims against the Client to third parties or to have them collected by third parties. This shall also apply to the claim for performance of the contract. If the Contractor assigns claims to third parties without the Client’s consent or allows them to be collected by third parties, the Client may, at its discretion, make payment to either the Contractor or the third party, with such payment discharging the debt.
8.2. The Contractor must notify the Client without delay of any attachments, seizures or other measures taken by third parties in respect of the deliveries owed by the Contractor.

9. Provision of items by the Client

9.1 All samples, models, drawings, plans, sketches and other technical documents made available to the Contractor shall remain the property of the Client; copyright and other industrial property rights shall remain with the respective rights holders. The Client’s property must be handled with care; any new property belonging to the Client must be marked accordingly, stored separately from the Contractor’s other products and insured by the Contractor at its own expense against loss and other damage. Upon request by the Client, the Contractor shall surrender the models, tools and fixtures to the Client, free from any third-party rights.
9.2 Items manufactured by the Contractor which were developed and designed by the Contractor for the Client at the Client’s expense may only be sold to the Client. The Contractor undertakes not to use these items for advertising purposes either.
9.3 The Contractor shall carry out the processing or alteration of the items provided to it by the Client on the Client’s behalf. If such items are processed together with other items not belonging to the Client, the Client shall acquire co-ownership of the new item in proportion to the value of the Client’s item relative to the other processed items at the time of processing.
9.4 The Contractor shall store the materials provided by the Client with the care of a prudent businessman. The Contractor shall inform the Client immediately if any attachments or other security measures could affect the Client’s ownership.

10. Warranty, limitation period, contractual liability

10.1 Claims by the Client arising from material defects and defects of title, as well as the Contractor’s other contractual liability, shall generally be governed by the provisions of the following sections in clauses 10.2 and 10.3 below and the supplementary statutory provisions, unless otherwise provided for in a written contractual agreement between the Contractor and the Client.
10.2 The Contractor warrants that the delivery meets the agreed specifications (including, amongst other things, type, quantity, quality, functionality, compatibility, interoperability), is suitable for the use envisaged under the contract, and is handed over together with the agreed accessories and instructions, including assembly and installation conditions, upon delivery or acceptance, where such acceptance has been agreed. If no agreement on quality has been reached, the delivery must comply with the requirements within the meaning of Sections 922 et seq. of the Austrian Civil Code (ABGB). If the Contractor is obliged to provide the Client with a successful outcome of the work, this must be demonstrated upon acceptance. The Contractor must ensure compliance with the current state of the art, relevant legal provisions—including the regulations and guidelines of public authorities, the General Accident Insurance Institution (AUVA) and the relevant trade associations—in all deliveries and services.
10.3 In the event of defects, the Client is entitled to assert its statutory warranty claims without restriction. To this end, the Client may demand that the Contractor provide subsequent performance – in the case of deliveries, at the Client’s discretion – by rectification, replacement or, in the case of works, the creation of a new work. The Contractor shall bear the costs necessary for the purpose of subsequent performance. If the Client has incorporated a defective delivery into another item or attached it to such an item before the defect became apparent, the Contractor shall be obliged to reimburse the Client for the necessary costs of removing the defective item and of installing or attaching the rectified item or the defect-free item supplied.
10.4 The Client’s claims for damages and rights of recourse, regardless of their legal basis, shall be governed by the statutory provisions.
10.5 Warranty claims are subject to a limitation period of three years, unless a longer statutory period applies. The limitation period shall commence upon delivery or upon acceptance by the Client, if acceptance has been agreed or is required by law. Where the statutory limitation period applies, it shall commence in accordance with the statutory provisions set out in Section 1489 of the Austrian Civil Code (ABGB).

11. Product Liability, Product Liability Act, Insurance

11.1 Insofar as the Client is held liable by third parties due to a product defect in the item supplied by the Contractor, the Contractor shall indemnify and hold the Client harmless against all claims arising therefrom and shall assist the Client in defending against such claims, provided that the Contractor is liable under the Product Liability Act.
11.2 The Contractor shall retain all records and documentation relating to the delivery for a period of at least 10 (ten) years following the end of the contract and, upon conclusive written evidence of a legitimate interest on the part of the Client, shall make them available to the Client for the purpose of pursuing its rights. In the event of a product liability claim falling within the Contractor’s sphere of responsibility, the Client shall be entitled to claim compensation from the Contractor for the loss incurred by the Client as a result, including reasonable legal costs. Such loss shall also include the costs of a precautionary product recall, insofar as such a recall was legally required or ordered by the authorities, in accordance with the Client’s due diligence, taking into account the risk of imminent harm to the life or physical integrity of product users or third parties, as well as for the protection of the Client’s customers or external third parties.
11.3 The Contractor shall insure itself against all risks arising from Clauses 10 and 11 to an appropriate extent for personal injury, property damage and financial loss (if it falls within the group of responsible parties within the meaning of Clause 11.1), including insurance covering the costs of product recalls, at its own expense, and shall provide the Client with proof of insurance upon request. The insurance cover, including, where applicable, that arising from environmental liability insurance, must be maintained throughout the term of the contractual relationship with the Client.

12. Rights of Use, Third-Party Intellectual Property Rights

12.1 Insofar as the delivery or service comprises works protected by copyright or industrial property rights, the Contractor – unless expressly agreed otherwise in writing – shall grant the Client a non-exclusive, transferable right to use and exploit such works, unrestricted in terms of time, content and geographical scope, and the Client shall be entitled to use them for the contractual purposes.
12.2 Insofar as licence fees are incurred for the use or exploitation in accordance with the contract, the Contractor must notify the Client of this in writing in good time before the contract is concluded, at the latest upon submission of the quotation. Otherwise, should subsequent licensing by the Client be required, the Contractor shall bear any additional costs incurred by the Client as a result.
12.3 The Contractor shall be liable to ensure that the goods supplied by it are free from third-party rights and that their supply or use in accordance with the contract, including in conjunction with or in combination with other items that may be expected, does not infringe any patents or other intellectual property rights of third parties within Austria or the European Union.
12.4 If, as a result of the Contractor’s delivery or service, and when used by the Client in accordance with the contract, any copyright, patents or other intellectual property rights of third parties, the Contractor shall be obliged, at its own expense, to ensure that the infringement ceases, either by obtaining the necessary rights of use, by modifying the delivered item, or by supplying a modified delivered item or services.
12.5 Should the circumstances described in the aforementioned sub-clauses of Clause 12 arise, the Contractor shall be obliged to indemnify and hold the Client harmless against any claims by third parties arising from the infringement of copyright, patents or other industrial property rights, and to bear the costs and damages incurred by the Client in connection with such claims, insofar as they are not remedied. The Contractor shall immediately make available to the Client, free of charge, all information and documents necessary for the defence, insofar as this is reasonable to expect of the Contractor. The Contractor shall immediately notify the Client of any risks of a legal infringement that come to its attention and shall, insofar as is reasonable, take steps to counter such claims.

13. Export Control and Customs

13.1 The Contractor undertakes to observe and comply with all relevant export control and customs regulations up to the destination of the goods.
13.2 If the Contractor breaches any such regulation and the Client is consequently unable to resell the goods, the Client shall be entitled to claim compensation for all losses incurred as a result, as well as to assert any further rights and claims to which it is legally entitled. This shall also apply if the Client is held liable by a third party for damages.

14. Social Responsibility and Environmental Protection, Compliance

14.1 The Client undertakes to protect human rights and environmental rights and shall take the necessary due diligence measures to this end, including in relation to its supply chain, in accordance with its published Code of Conduct. The Contractor must ensure that the requirements set out therein are met within its organisational structure and must establish a risk management system in relation to its supply chain.
14.2 Insofar as the Contractor falls within the scope of Austrian and European regulations on supply chain due diligence obligations, it shall establish an appropriate risk management system and fulfil the due diligence obligations relating to its own organisation and its supply chain.
14.3 The Contractor must take reasonable measures to ensure that its employees and the employees deployed by its subcontractors or suppliers receive remuneration in accordance with statutory/collective agreement minimum wage provisions and the Act on Combating Wage and Social Dumping (LSD-BG).

15. Activities on the Client’s premises

15.1 Insofar as the Contractor or the Contractor’s employees carry out work on the Client’s premises, they must comply with the assembly guidelines, site regulations and safety instructions made available to them.
15.2 In the event of serious breaches of health and safety regulations, the Client shall be entitled to terminate the contract if the Contractor fails to remedy the breaches without delay following a written warning.

16. Force majeure

16.1 Where a party to the contract is prevented from fulfilling its contractual obligations due to force majeure, it shall be released from its obligation to perform for the duration of the impediment and a reasonable start-up period, without being liable to the other party for damages. The same shall apply where a party’s performance of its obligations is rendered temporarily impossible by unforeseeable circumstances for which the Client is not responsible, in particular by official measures, official orders, measures or restrictions resulting from an epidemic (in particular the Covid-19 epidemic), energy shortages, power cuts, failures of telecommunications links or significant operational disruptions caused by external factors.
16.2 Force majeure shall be deemed to consist of unforeseeable obstacles arising independently of the will and influence of the party invoking it and external to its operations, such as natural disasters, terrorist attacks, political unrest, epidemics, official measures, blockades, sabotage, embargoes and strikes. The contracting party affected by force majeure shall inform the other party promptly of the occurrence of such an event.
16.3 Each contracting party shall be entitled to withdraw from the contract if an impediment caused by force majeure persists for more than 3 (three) consecutive months and, as a result of the impediment, the performance of the contract is no longer of interest to that party.

17. Quality Assurance and Quality Control

17.1 The Contractor shall, to the best of its ability, implement a certified quality assurance management system in accordance with ISO 9001 that is appropriate in nature and scope and corresponds to the current state of the art, and shall provide evidence of this to the Client upon request. The Contractor shall keep regular records of the quality inspections it carries out and shall make these available to the Client at short notice in the event of quality deviations. The provisions set out in a quality assurance agreement between the parties shall take precedence.
17.2 If the contract provides for a specific quality control inspection to be carried out in the presence of both contracting parties, each contracting party shall bear the costs incurred by it in this regard.

18. Confidentiality

Each party is obliged, irrespective of whether a confidentiality agreement has been concluded with it, to use all trade secrets, information, data, files, drawings, documents, know-how and other resources (“Confidential Information”) exclusively for the purpose of fulfilling its obligations, to treat such information as strictly confidential, to take appropriate security measures to protect it, and not to make it available to third parties without the other party’s consent, which must be given in writing, unless it is made generally accessible by authorised parties. The requirements of the German Act against Unfair Competition (UWG) regarding the protection of trade secrets must be complied with.

19. Place of performance, applicable law, jurisdiction

19.1 The place of performance for deliveries shall be the destination specified in the order/contract or the place of acceptance, if such a place has been agreed or is provided for by law.
19.2 Austrian law shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG, UN Sales Convention).
19.3 Provided that the Contractor is a trader within the meaning of Sections 1 to 3 of the Austrian Commercial Code (UGB) or a legal person governed by public law, the place of jurisdiction for all disputes arising directly or indirectly from or in connection with a contractual relationship shall be the Client’s registered office. The Client is, however, entitled to bring proceedings against the Contractor at the Contractor’s general place of jurisdiction or at any other permissible place of jurisdiction.

As at: November 2022