General Conditions of Purchase
General Conditions of Purchase for the Procurement of Plant.
| AN | Contractor |
|---|---|
| AG (here: CEMTEC) | Principal |
| Party(-ies) | Contractor and/or Principal |
| EKB | General Conditions of Purchase of the Principal |
| (Purchase) Order | Contract between Principal and Contractor regarding the supplies and/or services to be provided by the Contractor |
| Order Scope | Goods and/or Services ordered by the Principal from the Contractor |
| Client | Principal's Buyer of the Order Scope |
| Client Contract | Contract between Principal and Client |
| In writing, in written form | Letter, Email, Fax |
| Day | Calendar Day |
| Working Day | Days from Monday to Friday excluding national holidays at the place of the Contractor |
2.1. These General Conditions of Purchase shall apply exclusively for Orders by the Principal. This shall also apply if the Contractor indicates that he only supplies based on this own general terms and conditions. Any deviations in the General Conditions of Purchase of the Principal shall be governed solely by the applicable law.
2.2. Any general terms and conditions of the Contractor are explicitly excluded herewith. The Contractor's terms and conditions (such as but not limited to Offers, Sales Conditions, Order Acknowledgements) and any deviation from these GCP expressly require the Principal's approval in writing in order to be effective.
2.3. If the Principal's Order makes reference to the Contractor's quotation documents, this does not imply acceptance of the Contractor's terms and conditions in any kind.
2.4. At the latest with commencement of the Order execution by the Contractor the GCP shall be deemed as accepted by the Contractor. Any acceptance of deviating conditions by the Principal for previous contracts shall have no validity for this Order.
2.5. The following documents constitute the Contract between the Principal and the Contractor:
- Purchase Order of the Principal
- Attachments of the Principal that are referred to in the Purchase Order (e.g. technical specifications)
- the GCP of the Principal
2.6. In case of a discrepancy or conflict between the Contract documents they shall apply with the priority given above. Any documents of the Contractor (such as Offer, Order Acknowledgement) apply subordinately. General Terms of the Contractor are excluded in any case.
2.7. To ensure a proper execution of the contract, the Contractor is obliged to review the contents of the contract for completeness and absence of errors and, in case to immediately inform the Principal about any problems in this connection, e.g. inconsistencies in the specification, otherwise the Contractor later cannot claim additional costs or other disadvantages in this context from the Principal (for example, change in delivery date, price increases, etc.).
2.8. The following conditions in respect of the purchase of goods shall apply accordingly for the procurement of (work)services. The conditions shall apply equally to main and ancillary services.
2.9. The Contractor acknowledges by accepting the order of the Principal, in any case however by executing the order, that it has read, understood and agree to adhere to the standards set forth in the CEMTEC Supplier Code of Conduct, available at www.cemtec.at.
3.1. Offers and estimates of costs are binding and shall be issued free of charge. If the Contractor has submitted an offer, he shall be bound to the Principle in respect of the declarations made therein for 90 days.
3.2. Only Orders placed by the Principal in writing are legally binding. Verbal or telephone orders require confirmation by the Principal in writing in order to be effective.
3.3. The Order is usually issued by the Principal with an order number. This number shall be quoted by the Contractor in all correspondence relating to the Order.
3.4. If deadlines are stated on the Order, the date that appears on the written Order shall apply if in doubt.
4.1. The contractual relationship between the Parties shall become effective through the Principal's Order based on the Contractor's offer. With submission by email the Purchase Order is deemed legally effective.
4.2. In the event that the Contractor's written Order Acknowledgement has not been received by the Principal within 14 days from the date of the Order, the Principal reserves the right to withdraw the Order.
4.3. Later changes and addenda to the Order require the written confirmation from the Principal in order to be valid.
4.4. After conclusion of Contract, the Principal is entitled, within reasonable limits for the Contractor, to demand changes to the Order Scope in respect of design and volume, insofar as specific operational reasons require this and the change is within commercial practice. The impact on delivery dates and any surcharges or reductions in cost shall be agreed mutually in an appropriate and amicable manner. Price increases and extensions of delivery times shall only be accepted however, if not just minor additional charges or extensions of delivery times are linked to the change and if the Contractor has advised the Principal of these consequences in writing immediately after the Order has been amended.
5.1. The prices of the Purchase Order are fixed prices exclusive of Value-Added-Tax but including all expenses occurring for the Contractor in connection with the fulfillment of the Order. In particular, but not limited to, this includes transport, insurance, packaging, unloading and, if appropriate, assembly as well as documentation, technical testing, painting, corrosion protection, identification marking, labelling and any other condition and/or service agreed in the Purchase Order.
If charges, taxes, duties or other statutory fees are raised in connection with delivery, the Contractor shall bear those insofar as legal regulations allow this.
5.2. Unless stipulated otherwise in the Purchase Order, prices shall be agreed as DDP designated place according INCOTERMS 2020.
5.3. A later price increase shall not be accepted; prices increases according to Article 4.4 of the GCP (later changes) shall not be affected.
6.1. The Contractor shall not sub-contract, assign or transfer, wholly or partially, the execution of the Contract or any right or obligation under the Contract to another party without the prior written consent of the Principal.
6.2. The Contractor shall inform the Principal timely in advance about intended subcontracting agreements and shall seek the prior written approval of the Principal, insofar as the Contractor has not already notified the Principal demonstrably during the course of the contract negotiations about such subcontracting agreements. The Principal's approval of any subcontracting arrangements shall not in any way limit the Contractor's obligations under the Contract. The Contractor shall remain fully liable to the Principal for the fulfillment of the Contract.
6.3. In case of the Contractor's non-compliance with the provisions of this Article the Contractor shall indemnify the Principal for all consequences arising therefrom that may result in particular, but not limited to, from quality, delivery delays, compliance with subcontracting requirements of the Client of the Principal, technical cross-standardization, import or customs regulation, transport or others, as the case may be.
6.4. Notwithstanding any claims for damages of the Principal against the Contractor pursuant to Article 6.3 of the GCP, the Contractor shall pay a contractual penalty of EUR 3,000-- for each violation.
6.5. In case of an unauthorized subcontracting or assignment or any case of non-compliance with these provisions the Principal is entitled to immediately terminate the Contract according Article 21.1 of the GCP.
7.1. The documentation consists of all documents that accompany the fulfilment of the Purchase Order by the Contractor in written, graphic or whatever form, whether in relation to production, quality control, safety regulations, transport, export, customs clearance, storage, installation, commissioning, operation, repair, maintenance, procurement of spare parts or similar. The supplier declaration for goods with preferential origin status indicating the customs tariff numbers (Declaration according to EU-Regulation No. 2015/2447 Art. 62, Annex 22-15) is also part of the documentation and is due to be submitted by the Contractor to the Principal at the latest on the date of delivery.
7.2. The documentation shall be supplied to the Principal in the scope, quality and language all defined in the Purchase Order and at the time also defined therein. Unless stipulated otherwise in the Purchase Order the documentation shall be supplied DDP as per INCOTERMS 2020 to the PR's address.
7.3. The delivery of all documentation components conforming to the Order (incl. any agreed engineering documents, e.g. binding dimensional drawings, packing and pack lists, etc.) is a binding integral part of the contract fulfilment by the Contractor and to that effect is relevant for indemnity.
7.4. The Principal shall have an unlimited right of use to the documentation and shall be entitled inter alia to pass the documentation received from the Contractor or its subcontractors to his other contract partners and the client as required to fulfil the Client Contract.
8.1. The agreed delivery date shall be binding. It shall be deemed to have been met if the supply or service is provided in full and free of defects on the agreed date at the agreed place of delivery (according to agreed delivery term). For the documentation the delivery date shall be the date of receipt by the Principal, provided that the documentation has been completely and correctly submitted as per the terms of the Order.
8.2. If no calendar day is specified as the delivery date, but a delivery period is agreed, the delivery operation shall begin when the Contract is signed according to Article 4 of the GCP.
8.3. The risk of accidental loss and accidental deterioration of goods shall pass to the principal according the provisions of INCOTERMS 2020 at the time of delivery at designated place.
8.4. The principal's registered office shall be deemed the place of fulfilment for delivery and payment. If goods are to be handed over at a different place, as agreed, this shall be deemed to be the place of fulfilment for delivery.
8.5. If the Contractor anticipates difficulties in delivering on time, he shall immediately inform the Principal in writing, indicating the possible new delivery date. In the event that the Principle agrees to this new delivery date, which is otherwise only effective if given in writing, compensation claims due to late delivery and claims arising from liquidated damages agreed for the event of delay shall not be affected.
The Principal is also entitled without prior notice to the Contractor to take additional or further measures at the expense and risk of the Contractor in order to avert an impending delay by the Contractor. Compensation claims or claims for liquidated damages by the Principal for delay remain unaffected thereby.
8.6. In case the Order requires the Principal to fulfil certain obligations by a certain date towards the Contractor, the Contractor shall demonstrably and timely in advance request the Principal to do so; if the Contractor fails to send such request to the Principal he shall not be entitled to rely on any delay on the part of the Principal. If it is impossible for the Contractor to comply with the agreed delivery dates for reasons of a late performance by the Principal despite the Contractor's request, the agreed delivery dates and deadlines shall be extended by no more than the duration of the delay for which the Principal is responsible without additional costs for the Principal. Those new delivery dates shall then be relevant for liquidated damages as per Article 9 of the GCP.
8.7. In all cases of an impending or actual delay of delivery the Contractor shall independently from their respective cause minimize the delay as much as possible.
8.8. Any disputes between the parties do not entitle the Contractor to withhold or discontinue any deliveries and/or services due.
8.9. In case the Contractor is late with a delivery and/or service, irrespective of the reason, except for cases of force majeure, and for part deliveries in the event of a delay of one agreed part delivery alone, the Principal is entitled to withdraw from the entire Contract acc. Article 21 of the GCP, if the Contractor fails to fulfil the delivery and/or service within a reasonable grace period.
8.10. Contractually not agreed partial, short or advance deliveries shall only be permitted against prior written approval by the Principal. The Principal is not obliged to accept (part-) deliveries and services ahead of schedule without explicit prior written approval. If accepted, the Principal reserves the right to claim any associated costs from the Contractor. Deliveries ahead of schedule shall not affect contractual payment dates in any way, except in case the Parties agree otherwise.
"For detailed delivery terms and conditions, download the full document here"
9.1. In the event of late delivery of a delivery and/or service the Contractor shall pay liquidated damages to the Principal. Unless stipulated otherwise in the Purchase Order, the Contractor shall pay to the Principal liquidated damages in the amount of 1% of the total order value for each begun week of delay, but limited to a maximum of 10% of the total order value. No compensation shall be awarded for the first 7 days of delay.
9.2. Any other or further claims of the principal shall remain unaffected. Payment of liquidated damages shall not release the Contractor from its delivery obligations or any other contractual obligation.
9.3. In the event of late delivery of documentation or part of the documentation the Principal is entitled to liquidated damages from the Contract at the above %-rates, unless the Purchase Order stipulates otherwise.
9.4. The Principal can assert any claim due to delay of the Contractor within the statutory limitation period. A prior written notification or complaint regarding the delay by the Principal is not required for the assertion of the rights of the Principal.
10.1. None of the parties shall be responsible for non-fulfilment of their contractual obligations if non-fulfilment is due to force majeure.
10.2. An event of force majeure is an extraordinary event, that acts from outside, and that does not occur or is to be expected in a certain regularity, and that despite reasonable care can neither be prevented nor made harmless in its occurrence or consequences, for example, but not limited to, war, natural disasters, fire, flooding, explosions, earthquakes, unrest. Upon the Principal's request the Contractor shall provide a certificate from the competent Chamber of Commerce confirming force majeure.
10.3. If circumstances of this kind prevent the Contractor from adhering to the agreed delivery period, the latter shall be extended by the period for which the consequences of the force majeure event last.
10.4. The Contract can only claim force majeure if he has indicated the precise case of force majeure immediately to the Principal, but in any case not later than 3 days after the occurrence of force majeure, in writing and individually evidenced. Unless notified by the time referred herein, the Contractor shall be able to claim force majeure only if a case of force majeure has provably occurred within the 3-days-period and can be demonstrated as having caused the delay in delivery.
10.5. If the occurrence of force majeure persists for more than 4 weeks or the Contractor fails to notify the Principal in due time as indicated in this Article, the Principal is entitled to withdraw from the Contract in full or partially.
10.6. The Principal shall not be liable to the Contractor for adverse effects on the fulfilment of the Contract due to a case of Force Majeure.
11.1. Shipment of the goods is executed by the Contractor at his risk and expense, unless otherwise stipulated in the Purchase Order. The principal shall only bear transport insurance costs if this has been expressly agreed.
11.2. In case the shipment date of the goods is not agreed firmly in the Purchase Order, the Contractor shall in due time in advance notify the Principal in writing of the shipment date so that the Principal has sufficient time to prepare for acceptance, but in any case at least 10 days. The invoice shall not be regarded as an indication of shipment.
11.3. The dispatch documents shall be furnished with the order and project number of the Principal, both indicated on the Purchase Order. The dispatch note shall be sent to the Principal in duplicate immediately after dispatch and shall include the exact name, quantity, weight (gross and net), type and packaging of the goods or item. If the dispatch documents required for a delivery are not issued in time or the above details are missing on the dispatch documents and dispatch note, the Order Scope shall therefore be stored at the Contractor's risk and expense until the dispatch documents and/or full details arrive.
11.4. The Contractor shall ensure that the Order Scope is correctly packed for the transport method used. The Contractor shall comply with the Principal's shipping and packing instructions. Any additional costs or damages due to non-respect of those instructions by the Contractor shall be borne by the Contractor. Loading tackle shall pass into the Principal's ownership, unless otherwise agreed in writing by the Parties.
11.5. With implementation of the new SOLAS Regulation on 1st July 2016 (International Convention for the Safety of Life at Sea in its version of 01.07.2016) gross weights of container must be verified (verified gross mass). Thus the Contractor is obliged to correctly calculate the weight from each transported good, the packaging and filling material as well as empty weight of the container (for container stowage). The Contractor shall be liable to the Principal for the correct calculation and timely submission of weight data to the Principal. In case of failure by the Contractor to comply with this regulation, the Contractor shall be liable to the Principal for any damages or loss of the Principal resulting therefrom.
11.6. Unless separately agreed in writing by the parties, the following shall apply: Receiving of Goods at Principal's headquarter: only from Monday to Thursday between 07.00 and 15.00 o'clock (Fridays: no arrival/no delivery). Moreover the Principal's Delivery Conditions in the current valid edition that can be downloaded from www.cemtec.at shall apply. Confirmations of receipt of the Goods do not constitute a declaration by the Principal about the final or faultless acceptance of the delivered Goods.
11a. EU-Regulation CBAM
11.a.1. In implementation of European Union (EU) Regulation No. 2023/956 establishing a carbon border adjustment mechanism (CBAM) and EU Implementing Regulation No. 2023/1773, hereinafter jointly referred to as CBAM Regulation, the following applies to every Contractor seated outside the border of European Union, unless (a) the Contractor is seated in Liechtenstein, Switzerland, Norway; or (b) in the case of a delivery DDP Incoterms 2020 by the Contractor or (c) if goods are not delivered to the EU:
11.a.2. The Contractor shall check whether its goods fall within the scope of the CBAM Regulation before submitting an offer to the Principal. The regulations are available at https://eur-lex.europa.eu/. The Contractor is obliged to state the HS code of the goods and whether they are subject to CBAM in the offer. This information must also be included in any order confirmation issued by the Contractor.
11.a.3. If the goods are affected by CBAM, the Contractor has an obligation to document and provide information to the Principal regarding the CO2 emissions of its procurement process for the goods purchased by the Principal from the Contractor. The calculation and declaration of CO2 emissions shall be carried out in accordance with the current provisions of the CBAM Regulation.
11.a.4. The Contractor shall provide the Principal with the information and documents required under the CBAM Regulation without delay, but at the latest within 5 calendar days from the conclusion of the contract with the Principal. These documents shall be considered part of the documentation under the order.
11.a.5. The Contractor shall be liable to the Principal for the accuracy of the information. In the event of non-transmission, incorrect or incomplete transmission of the information and documents required to fulfil the currently valid EU requirements by the Principal, the Principal shall indemnify the Contractor.
12.1. If the Principal notifies the Contractor that release for shipment cannot yet be issued, the Contractor shall be obliged to store the goods appropriately for the Principal and to ship the goods only upon call by the Principal, however upon such call to ship the goods without delay.
12.2. An appropriate storage of the Order Scope up to 8 weeks from proven readiness of delivery shall be at the Contractor's expense and risk.
13.1. The Principal reserves the right to carry out by himself or by authorized third parties production and progress checks free of charge at any time at the Contractor's place. For this purpose the Contractor shall make available to the Principal the respective places and documents (such as but not limited to required inspection documentation) and shall keep the Principal informed about the actual order progress.
13.2. Above that, the Principal reserves the right to carry out acceptance testing. If not agreed otherwise between the Parties, acceptance testing shall be carried out free of charge at the Contractor's place or at a place defined by the Principal and during normal working hours.
13.3. Readiness for acceptance shall be announced in writing by the Contractor to the Principal timely in advance to readiness for delivery (i.e. at least 2 weeks beforehand). The Principal is entitled, within reasonable time, to be present at acceptance or (possibly also by implication) to refuse acceptance.
13.4. Any resources required for inspections respectively acceptance, such as but not limited to materials, skilled and unskilled manpower, suitable testing facilities or the like, shall be made available free of charge by the Contractor. Each party shall bear the costs for its own staff.
13.5. The execution of an inspection or acceptance nor the waiver of an inspection or acceptance by the Principal shall reduce the Contractors obligations in any way.
13.6. A defect detected during the inspection or acceptance testing shall be rectified immediately by the Contractor. Until all the defects are rectified in full, the Principal may refuse acceptance and may demand that testing is repeated at the expense of the Contractor.
13.7. All costs and expenses of the Principal in connection with a failed inspection or acceptance testing due to Contractor's reasons or in connection with the Contractor's wrong information about his readiness for acceptance shall be borne by the Contractor.
13.8. If acceptance cannot be executed within a reasonable period of time due to reasons attributable to the Contractor, especially in case a defect is not rectified in due time, the Principal shall have the option of either demanding a price reduction or shall be entitled in the event of one or more serious defects to withdraw from the Contract while maintaining any claims for compensation.
14.1. Upon complete delivery or performance of the Order Scope in accordance with the Purchase Order the Contractor shall send his invoice(s), that must respect the formal provisions of the relevant turnover tax legislation valid at the time, to the following email-address of the Principal: invoices@cemtec.at as well as in copy to the email address of the person placing the Order.
14.2. The Order and project number and the name of the individual placing the Order of the Principal must also be stated on the invoice.
14.3. Any invoicing that does not comply with these procedures shall authorise the Principal to return the invoice and any payment and discount deadlines shall thereby be deferred until receipt of a correct invoice.
15.1. Unless stipulated otherwise in the Purchase Order, payment shall only be made upon acceptance (if applicable) of a complete delivery (and/or service) free of defects, after receipt of the contractual documentation and an invoice that can be clearly attributed to the relevant Purchase Order. Any partial payments are only valid if stipulated in the Purchase Order.
15.2. Payment shall be made by the Principal, unless different payment terms have been stipulated in the Purchase Order, within 14 days with -3% discount, or within 90 days net. The due date for payment starts from the date of receipt of invoice and fulfilment of any other conditions stipulated in the Purchase Order, for example delivery of documentation or bank guarantee.
15.3. Any claims of the Contractor arising from or in connection with the Contract shall be reported in writing and sufficiently documented (in the form of, for example, documents, hourly records, work reports, invoices from subcontractors or the like) to the Principal no later than the final invoice. By submitting the final invoice on the Purchase Order the Contractor declares that any claims with respect to and in connection with the Contract and the fulfilment of the same have been put forward thereby and that no further claims will be raised.
15.4. If the Principal makes a payment prior to delivery or performance of the Order Scope, the Contractor is obliged to provide surety at the amount of payment. If the Purchase Order does not stipulate otherwise, the surety has to be in the form of an abstract bank guarantee upon first demand from a first class European bank. All costs for providing a surety shall be borne by the Contractor.
15.5. Payment by the Principal shall neither constitute a confirmation of proper delivery and performance nor a waiver of the Principal's claims in regards to fulfillment or any other right under Contract.
15.6. In the event of warranty or guarantee claims or any other claim of the Principal against the Contractor, independent of their legal cause and legal relationship, the Principal is entitled to withhold or offset payments. In this case the Contractor is not entitled to withhold outstanding payments or deliveries or to offset these.
16.1. Transfer of ownership to the Principal shall take place at the time of transfer of risk of the Order Scope.
16.2. If the Contractor has retained title to the items delivered, this retention shall only then apply until payment is made for these items, insofar as the Principal has not already become the owner of these items by conversion, incorporation or amalgamation.
16.3. Retention on an open-item basis and corporate retentions of title (extended retention of title) shall not be accepted.
16.4. Claims arising from the resale of goods under retention of title shall not be assigned to the Contractor to cover his purchase price claim, if allowed by law. The Principal is not obliged to protect the Contractor's rights arising from retentions of ownership of any kind in respect of third parties.
17.1. The obligation for a due fulfillment of Contract also includes the Contractor's obligation to appropriately handle and reply to the Principal's requests in connection with the fulfillment of Contract within due time. The reply shall be made in writing, unless otherwise agreed between the Parties.
17.2. There are three categories of requests: very urgent, urgent, normal.
18.1. Without prejudice to the Principal's rights under applicable law, the Contractor expressly guarantees that the Order Scope is free from defects during the entire warranty period.
18.2.The Contractor guarantees that the Order Scope and related documents comply with the requirements of the Contract, including underlying drawings, specifications, tolerances, functions, and all agreed attributes or those typically assumed in the ordinary course of business. The design and execution must align with the current state of the art.
18.3. A defect exists if the Order Scope does not meet the contractually agreed specifications.
18.4.A defect also includes any deviation from national standards (e.g., ÖNORM, DIN), international standards (e.g., EN), or details in catalogues, brochures, or other public statements deemed contractually binding, regardless of whether referenced during negotiations.
18.5.Unless otherwise stipulated, the warranty period is:
- 24 months after successful commissioning, or
- 36 months after actual, complete delivery or service, whichever occurs first.
The warranty period is extended by the duration of any non-compliance with the Contract.
18.6. The Principal must notify the Contractor of defects within a reasonable period. The Contractor waives the defense of delayed notification.
18.7.If a defect occurs, the Principal may request:
- Rectification (repair or replacement), or
- A price reduction.
18.8. The Contractor must rectify defects at their own expense without delay, preferably on-site.
18.9. All costs related to rectification (e.g., dispatch, labor, materials, customs, dismantling, assembly) are borne by the Contractor.
18.10. If the Contractor delays or fails to rectify defects, the Principal may, after granting a reasonable grace period:
- Rectify the defect themselves, or
- Engage a third party,
18.11. For minor defects (≤ €5,000 per case) or urgent defects (e.g., to prevent greater damage or during critical phases), the Principal may rectify the defect without prior notice and charge the Contractor.
Key Points:
- Warranty Period: 24–36 months, extendable for non-compliance.
- Defect Definition: Non-compliance with Contract, standards, or public statements.
- Rectification: Contractor's obligation; Principal may act if delayed.
- Costs: Contractor bears all rectification expenses.
- Minor Defects: Principal may act immediately for defects ≤ €5,000 or urgent cases.
19.1 The Contractor shall be liable for all losses and damages caused by him, his assistants, sub-contractors or other third parties designated by him. In particular the Contractor shall indemnify the Principal from all losses and damages suffered by the Principal from third party claims on whatever legal basis that result from a breach of Contract by the Contractor.
19.2 The Contractor shall be liable for any defect rectification costs and extra costs incurred for the Principal in connection with a delivery or service that does not comply with the Contract. The Principal will charge an administration fee of 15% of the amount claimed that the Contractor shall pay.
19.3 This liability shall not absolve Contractor of its other contractual and legal obligations, such as warranty, guarantee or similar.
19.4 Neither an approval of the Contractor’s drawings and documents nor a quality control or supervision of the Contractor’s works by the Principal or any appointed company by the Principal shall relieve the Contractor of any of his obligations under the Contract, such as but not limited to warranty and guarantee obligations of the Contractor.
19.5 Neither party shall bear any liability to the other for loss of production, loss of profits, loss of business or consequential losses of any kind.
19.6 The limitation of liability shall not apply in case of a breach of confidentiality obligations of this Contract, in case of gross negligence or willful misconduct or personal damage.
20.1. The Contractor guarantees the availability of spare parts and wear parts for the Order Scope for a period of 10 years from delivery.
20.2. The Contractor shall not directly contract with the client or its agents on any follow-up Orders related to the Order Scope for a period of 10 years from delivery. The Contractor shall not provide whether direct or indirect any offers to the client, for example for spare parts or wear parts, without the prior consent of the Principal.
21.1 The principal shall be entitled to withdraw from the Contract in full or in part without setting a deadline in the event that:
(a) the Contractor commits a serious or reiterated breach of his obligations under the Contract; or
(b) the Contractor commits a breach of his obligations under the Contract, and he fails to remedy such breach at his own cost within a reasonable grace period; or
(c) in case of a substantial deterioration of Contractor’s financial situation or in case that the Contractor is subjected to an insolvency procedure, goes into liquidation or any other event occurs that under applicable law has a similar effect to any of the above events, and the Contractor fails to provide at the Principal’s request an adequate security (e.g. bank guarantee, insurance guarantee) for the fulfilment of its obligations under this contract; or
(d) other essential changes are made at the Contractor's enterprise, e.g. changes under company law.
The right of withdrawal of the Principal exists irrespective of whether the Principal has notified the Contractor in advance about a circumstance under Article 21.1. A-D of the GCP.
21.2 A serious breach of Contract is for example if the Order Scope shows a defect that threatens the fulfillment of the Client Contract by the Principal, or such a delay of delivery or reaction time acc. Article 17 of the GCP by the Contractor that the maximum amount of liquidated damages is reached.
21.3 Notice of withdrawal is to be sent in writing to the Contractor. The right of withdrawal of the Principal shall not be forfeited because the Principal does not immediately after becoming aware of one of the circumstances under Article 21.1. A-D of the GCP declare its withdrawal from the Contract to the Contractor.
21.4 Upon notice of withdrawal, the Contractor shall immediately discontinue any activities subject to the withdrawal, with no right to any further payment, except for the right of the Contractor to obtain payment for any Goods and Services already delivered that are not subject to the withdrawal. Prior to payment any claims of the Principal resulting from the withdrawal shall be compensated. The Contractor shall carry on the execution of any parts of the Contract which have not been terminated without delay.
21.5 The Principal shall obtain compensation for all damages incurred because of the withdrawal including, but not limited to, costs incurred to complete or have the contract actual activities completed by third parties (substitution measures). The provisions of Article ... of the GCP regarding substitution measures shall apply analogously.
22.1
The Principal is entitled at any time without prior written notice to the Contractor to terminate the Contract, entirely or in part, without the Contractor being at fault without setting a deadline. Up to 45 days after effective date of the Contract a termination is free of charge for the Principal. After 45 days from effective date of the Contract, the Principal is obliged to pay the Contractor the actual price pro rata to the deliveries and/or services already handed over, and in case, to refund direct operating costs related to deliveries and services under progress or costs related to the cancellation of sub-contracts, all against valid proof by the Contractor.
22.2. Upon notice of termination, the Contractor shall immediately discontinue any activities subject to termination and shall be obliged to make every effort to keep the costs to be refunded by the Principal as low as possible.
23.1 The Principal is entitled to request from the Contractor a suspension of the further fulfillment of Contract (withholding, break or adjournment) free of charge up to 3 months. During suspension the rights and obligations of the Contract are suspended. Delivery dates are postponed by the time of suspension. Any further extension of delivery times has to be announced by the Contractor at the earliest foreseeable and is to be kept as short as possible.
23.2. In case of a suspension for more than 3 months, the Contractor has to provide in detail the direct costs to the Principal, which result from the suspension beyond the 3 months, excluded however loss of profit or indirect cost. The Contractor may only claim compensation from the Principal for comprehensively proven costs. For costs which arise for the first 3 months of suspension the Contractor may not claim any compensation.
23.3. Upon termination of suspension by written notice of the Principal, the Contractor is obliged to continue the work on the Contract.
24.1 The Contractor shall guarantee that patents, industrial designs, trademarks, trade names, copyright or other industrial property rights of third parties in Austria or in a country into which deliveries shall be made as far as the Contractor is aware of, shall not be infringed by his own deliveries and services. Should a claim be made against the Principal due to infringement of these rights by third parties, the Contractor shall indemnify the Principal from all claims to the full extent and shall hold him free and harmless without evidence of blame.
24.2. Plans, sketches, drawings, engineering documents and other technical documentation from the Principal, as well as samples, catalogues, brochures, illustrations and similar shall always remain the intellectual property of the Principal, shall be treated confidentially and shall not be either reproduced or made accessible to third parties without the Principal’s approval in writing. They may be used by the Contractor without the Principal’s written approval only for the purpose of fulfilling the Contract.
24.3. Beyond that the relevant statutory provisions shall apply with regards to reproduction, forgery, competition, etc. The use of the Contract for advertising purposes is not allowed.
The Contractor shall take upon himself, his employees and assistants the obligation to maintain confidentiality in respect of all business transactions, data and other facts from the Principal’s field of business, which he becomes aware of due to or occasionally during the collaboration, and to maintain this confidentiality also beyond the period of the collaboration, unless the Principal expressly releases him from this obligation. This shall also cover secrecy in respect of the client-supplier relationship (references etc.). The Contractor is obliged to bind his employees and assistants to a corresponding secrecy obligation.
26.1 The Principal is entitled to process personal data received as part of the business relationship with the Contractor as well as other disclosed data in accordance with the applicable data protection law.
26.2. The Contractor agrees that the data will also be stored beyond the fulfillment of the contract and kept for the purpose of holding information about the service offer of the Contractor, for the fulfillment of legal requirements as well as for internal analysis and evaluation of the contract and business relationship(s) with the Principal. For this purpose alone, the data can also be passed to affiliated companies of the Principal. For the sake of completeness, it is mentioned that affiliated companies are those companies in which the Principal holds majority shares or demonstrably has a predominant influence on the business conduct.
26.3. The Contractor also has the right to request free of charge information on the personal data stored about him at the Principal. In addition, he has the right of correction of inaccurate data, restriction, revocation, opposition and deletion of personal data, as far as no legal duty of retention precludes. A revocation under this Article has no effect on an existing contractual relationship.
27.1 Samples, models and all documents issued to the Contractor in connection with the execution of the Contract, such as drawings, plans, charts etc. shall remain the Principal's property. The Contractor shall be obliged to return them unasked as soon as they are no longer required, but on delivery at the latest, if not agreed otherwise between the Parties. The Contractor shall not be entitled to a right of lien.
27.2 If the GCP or the Contract require the Principal to grant a grace period, this requirement is fulfilled if the Contractor has in fact been granted a period of grace, even if such a period was not expressly designated or communicated by the Principal as a grace period.
27.3 If individual provisions of the Contract or of this Article are or become invalid, the effectiveness of the other provisions shall not be affected. The invalid provision shall be replaced by a valid provision that is as close as possible to the objective pursued by the Parties. All provisions or obligations contained in the Contract which, by their nature or effect, are to be complied with after termination of the Contract, shall survive and remain binding between the parties and their legal successors and authorized assignees.
27.4 Without prejudice to the regulations in these GCP, any further legal rights by the Principal shall not be affected. Insofar as the GCP do not contain a regulation, the statutory provisions alone shall apply. No default of the Principal in exercising its rights under the Contract or the GCP nor any other act of the Principal, except an express written waiver, shall constitute a waiver of any provision of these GCP or the Contract.
27.5 If there is a conflict between the German and English version, the German version shall prevail.
27.6 Language of the contract is German or English as per the choice of the Parties. Any other language of the contract shall only be valid if agreed in written between the Parties.
27.7 Any different, verbal or telephone agreements must be in written form to be valid.
28.1 Applicable law shall be Austrian substantive law, with the exception of its collision and reference standards (in particular IPRG), as amended. The application of the United Nations Convention on the International Sale of Goods dated April 11, 1980 (in short: CISG) is expressly excluded.
28.2. For all disputes arising out of or in connection with these GCP, the Contract or any breach, termination or validity of the same, the following shall apply:
A) for Purchase Orders of the Principal to a Contractor seated within the European Union, Switzerland, Iceland or Norway, the competent court in Steyr, Austria, shall have jurisdiction.
B) for Purchase Orders of the Principal to a Contractor seated outside the European Union, Switzerland, Iceland or Norway, any dispute shall be finally settled by arbitration according the rules of arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with said rules. Place of arbitration shall be Vienna, Austria. Language in the Proceedings shall be German or English. For the sake of clarity: Great Brittan is not considered part of the European Union under this Article.
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