Terms and Conditions of Purchase

1. Purchase orders

The following terms and conditions shall apply to our purchase orders.

Other terms and conditions, additions, deletions or deviations resulting from letters issued by the Contractor shall be valid only if they have been acknowledged in writing by TÜCHLER.

 
It shall be understood that neither silence nor conclusive action shall be interpreted as consent to the amendment of TÜCHLER's terms and conditions of purchase or to the amendment of special provisions resulting from other documents designated by TÜCHLER as being contractually binding, such as purchase contracts, order letters, descriptions of technical requirements, specifications, etc.

 

In addition to the respective managing directors with sole signing authority, only the persons listed below, also having sole signing authority, shall be authorised to confirm in writing any amendments, restrictions or extensions to these General Terms and Conditions of Purchase or the aforementioned special provisions:

Michael Jirka, Einkauf jirka@tuechler.at

Confirmations of changes shall apply if they were sent from one of the aforementioned e-mail sender addresses. Confirmations shall also apply if they are sent by fax or post.

Confirmations of changes by persons other than those mentioned above shall have no effect.

 

2. Scope of delivery/and/or services, completeness
   The deliveries and/or services to be provided by you shall be made in accordance with the generally acknowledged state of the art and pertinent standards, international, national and regional statutory provisions such as EN, ÖNORM, DIN, UVV, BAGUV, BGV, GUV, ÖVE, VDE, SIL, as amended.
   The Contractor shall, in particular after having been informed about the final place of destination or use, comply with any and all provisions, standards, statutory regulations etc applicable there or provide an appropriate written warning immediately, but in any case before the contract is concluded.
   Such warning shall contain information on which standards are fulfilled and which are not. An exhaustive list of the standards, rules and legal principles complied with may be made if it is expressly stated that all other standards, rules and legal principles are not complied with.

Valid delivery addresses and persons for this warning notice shall be exclusively the members of management and the purchasing department referred to in Article 1.

3. Packaging:
   Packaging shall take into account the special features of the delivered product, ensure its reliable protection during transport and storage and shall be both weatherproof and suitable for transportation by forklift.
   The packaging obligations shall apply also in case of collection by our own assembly staff, courier service, forwarding agents or the like.
   
   Prices and obligation to provide own information
   Unless agreed otherwise, any and all prices shall be lump-sum fixed prices in accordance with INCOTERMS 2000, DDP place of fulfilment and shall cover any and all ancillary services and expenses including transport, unloading and necessary packaging. Any return of packaging material (except for release from obligation), packaging and transport aids shall be at the Contractor's expense.
   The Contractor shall guarantee completeness and functionality of the items ordered under the operating conditions disclosed to the Contractor, even if such delivery parts and ancillary services are not expressly specified in TÜCHLER's purchase order or the Contractor's offer.

The Contractor irrevocably declares to have gained a clear understanding of all details for the proper fulfilment in accordance with the deliveries and services stated in the purchase order. Price increases, guarantee restrictions, postponements or additional claims of any kind based on insufficient information shall be excluded.

4. Shipping, dangerous goods, places of fulfilment, transfer of risk
   Shipping
   Each consignment shall be accompanied by at least one copy of the delivery note, and the shipping documents shall clearly indicate the subject matter of the consignment to ensure its proper identification when the consignment arrives at its destination, and, in any case, always the purchase order number. Any and all costs incurred in connection with the failure to produce or properly issue the proof of origin as well as non-compliance with the shipping regulations, such as customs duties, demurrage charges, transfer fees, and the like shall be borne solely by the Contractor.
   
   Shipping address
   As stated in the purchase order.
   
   According to requirements of custom regulations:

Suppliers from the EU area shall, upon request of TÜCHLER, provide a legally binding global supplier declaration in accordance with Regulation (EC) No. 1207/2001 of 11 June 2001 free of charge.
For contractors from third countries: If a preferential agreement with the EU is in place for the delivered goods, all necessary documents such as EUR 1/ EUR 2, preferential certificate of origin, declaration of origin of the respective consignment shall be enclosed in the original in order to grant TÜCHLER duty-free or duty-reduced import. In case of missing or delayed subsequent delivery of such documentary evidence, TÜCHLER shall charge the Contractor the costs incurred (customs costs, administrative costs).

All contractors shall be subject to the following provision:
Should the ordering company be required, on the basis of customer contracts and/or their processing, to provide evidence of certain facts, in particular producers, address, country of origin as well as conformity with the DUAL USE regulation as well as embargo provisions as applicable, the supplier shall provide such evidence at the supplier's expense and without claim to reimbursement.

Hazardous goods
If goods subject to the pertinent provisions of the international dangerous goods regulations are delivered under this purchase order, the Contractor, by accepting the order, shall assume responsibility for full compliance with these regulations and/or for the legal consequences resulting from non-compliance with these regulations. A dangerous goods certificate duly signed by the Company shall accompany the goods.

Place of fulfilment
The destination specified by us in the purchase order shall apply to the delivery or service. You shall bear the risk until handover. For documentations and payments, the address stated in the purchase   order shall apply.

For final assembly inspection, commissioning, guarantee and warranty, the place where the item has been installed shall be the place of fulfilment.

5. Invoicing and payment
   The invoice shall be sent as a single copy for each purchase order separately, indicating the purchase order number, correctly indicated statutory value-added tax, after complete delivery or service, to our accounting department (rechnung@tuechler.at) in electronic form in .PDF format 300dpi. Invoices enclosed with the consignment will not be accepted. You shall ensure that your invoices formally comply with the relevant statutory regulations. The due date of payment on the basis of the agreed terms and conditions shall begin on the day of receipt of the invoice issued in conformity with the contract, but never before complete fulfilment. The Contractor shall further acknowledge that incorrectly issued or incomplete shipping documents or certificates or documentations shall defer payment. Transfer charges shall be borne by the customer.

Payment shall be made within 14 days of receipt of the goods in accordance with the contract and receipt of the proper and verifiable invoice, unless otherwise agreed, with 3% deduction or 30 days net. Invoices shall be deemed paid on the date on which they are debited from one of our bank accounts.
6.         Delivery date
All dates agreed in this contract shall be understood as fixed dates, i.e. it shall be expressly agreed that TÜCHLER is entitled to withdraw from the contract without setting a grace period should delivery not take place on the fixed date. If TÜCHLER does not make use of the right of withdrawal, this shall by no means release the Contractor from the Contractor's delivery and service obligations, nor shall claims for damages be restricted or excluded.

The Contractor shall immediately inform TÜCHLER of any and all circumstances that may prevent or hinder the timely fulfilment of the delivery and service obligations, otherwise the Contractor shall be liable to pay damages.
7.         Take-over of goods
The goods shall not be taken over until they are used as intended.

The Contractor therefore shall waive immediate inspection and objection of delayed notification of defects. Our payment shall mean neither unconditional acceptance of the goods nor confirmation of freedom from defects regarding quantity or quality.

Our written take-over shall only confirm arrival of the consignment, but shall make no statement about the quality and quantity of the delivered goods. This shall apply equally in the event of collection by our assembly personnel or by courier service, forwarding agency and the like.

8. Guarantee
   The Contractor shall provide a guarantee for the period of 36 months from commissioning; should installation be delayed, for a maximum of 36 months from delivery to the construction site. The Contractor shall also be liable for ensuring that the ordered item is suitable for the given purpose, uses new material of impeccable quality and is free of defects. The Contractor shall also guarantee for goods exclusively delivered but not produced by the Contractor as well as for faultless design and manufacture of items produced.

The Contractor undertakes to remedy defects within the periods specified by us by way of repair or replacement free of charge and free construction site or to bear the costs incurred for replacement, assembly or disassembly, etc.

9. Contractual penalty for delay

If the agreed delivery dates are exceeded, TÜCHLER shall be entitled, without providing evidence of damage, to deduct from the Contractor's invoice 1% of the order value per calendar day, but no more than 5% of the total order value, which is not subject to the judicial right of reduction. This shall not release the Contractor from the Contractor's obligation to deliver or perform, nor shall such contractual penalty exclude claims for damages in excess of said amount.

10. Termination of contract/cancellation/alteration of the scope of order

Termination by customer of TÜCHLER

TÜCHLER shall be entitled, in the event of termination of the contract with its end customer, to also terminate the order with the Contractor, irrespective of the reason for this termination of the contract. In such case, the Contractor shall be paid for all services and deliveries rendered up to that point. Any further claims, in particular for loss of profit and damages, shall not be recognised.

Suspension
TÜCHLER shall have the right to demand interruption or termination of further execution of the order at any time.
In the event of an interruption of more than 3 months, the Contractor shall provide TÜCHLER with a detailed description of the resulting costs, and the Contractor shall deduct any and all conceivable options for utilisation and savings. 
In case of custom-made products (specific obligation) TÜCHLER shall reimburse such costs as proven accordingly. Any further claims, in particular for loss of profit and damages, shall not be accepted. TÜCHLER shall not grant refunds for goods customary in the trade (indeterminate obligation).

In the event of interruptions of up to 3 months, the Contractor cannot make any further claims.

Force majeure

Furthermore, TÜCHLER's obligation to take over goods shall cease to apply as long as TÜCHLER is not in a position to take over the goods due to force majeure. Force majeure shall apply in particular in the event of natural disasters, unrest, official measures, strikes, lockouts and other serious operational disruptions.

Changes of volume

TÜCHLER shall have the right to extend or limit the scope of deliveries and services.

In that case, the Contractor shall be entitled to invoice the deliveries and services provided in addition or in modified form on the basis of the original price. Increases in the unit prices due to mass reductions shall be notified immediately to the purchasing department of TÜCHLER (see Article 2.) and may only be invoiced after release by the latter.

In case of mass increases, TÜCHLER may demand a reduced unit price on which TÜCHLER and the Contractor must agree by negotiation. In case of justified suspicion of undue calculation of the unit price in the course of the mass change, TÜCHLER shall have the right to inspect the calculation of the Contractor. If such calculation documents are not provided immediately, but at the latest within 5 working days, the original unit price shall be deemed agreed in the case of mass reduction.

In case of mass changes of up to plus/minus 10%, unit prices shall remain unchanged in any case.

11. No-assignment clause
    Rights and obligations from the delivery contract shall not be assigned to third parties without our express written consent, and such assignment shall also be ineffective vis-à-vis third parties. Likewise, any subcontracting shall require our consent.
12. Documents
    All documents, drawings, calculations etc. provided to the Contractor for the submission of offers or execution of orders shall remain the sole property of TÜCHLER. All documents shall be treated as confidential and shall only be used for their specific intended purpose. In the event of unauthorised use of the aforementioned documents, damages of € 100,000.00 shall be charged, excluding the right of judicial reduction. This contractual penalty shall have no influence on any claims for damages.
13. Retention of title
    By accepting our purchase order, the Contractor shall waive assertion of any retention of title for the items to be delivered.
14. Set-off
    TÜCHLER shall be entitled to set off payments due to the Contractor against claims of TÜCHLER or companies affiliated with TÜCHLER at any time.
15. Withholding
    Under no circumstances shall the Contractor be entitled to delay and/or withhold the Contractor's services, nor shall the Contractor have the right to withhold items provided by TÜCHLER.
16. Intellectual property rights
    The Contractor declares that no intellectual property rights of third parties are infringed by deliveries or services made on the basis of this purchase order. This shall include in particular trademark, patent, personal or industrial property rights. Should claims be made against TÜCHLER arising from the infringement of intellectual property rights in connection with this purchase order, the Contractor shall indemnify and hold TÜCHLER harmless.
17. Severability clause
    Should one of the provisions of our purchase order or these terms and conditions of purchase be or become invalid 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 whose economic purpose and result come as close as possible to the invalid provision.
18. Place of jurisdiction
    For all disputes arising from this Contract, an amicable settlement shall first be reached. The supplier's performance obligations shall remain fully valid during that period. The place of jurisdiction shall be the competent court in Vienna.

Austrian law shall apply exclusively. Any reference to the conflict or choice of law provisions of international private law as well as the UN Convention on Contracts for the International Sale of Goods shall be excluded.

19. Acceptance of the order
    As a sign of the unconditional acceptance of the order, the Contractor shall sign and return the order letter issued by TÜCHLER entitled "Purchase Order".

Corrections or additions made on the order letter shall be inadmissible and therefore invalid. Any  changes deemed necessary by the Contractor shall be subject to the provisions set forth in Article 1.