General Conditions of Purchase
[1.] Scope of the Conditions of Purchase
[1.1.] These General Conditions of Purchase shall apply to all orders placed by the ordering party to the supplier, and for all deliveries to the ordering party, and shall become an integral part of the contracts between supplier and ordering party resulting from such orders or deliveries. The General Terms and Conditions or other conditions of the supplier shall only apply if they have been expressly acknowledged in writing by the ordering party. This applies also if the ordering party places an order after receiving the supplier's business conditions, or does not object upon receipt of the supplier's business conditions after placement of an order.
[1.2.] Modifications and amendments of these Conditions and of the contract concluded with the supplier require the written form to be valid. Any deviation from this written form requirement must also be made in writing.
[2.] Orders and Conclusion of Contract:
[2.1.] Orders must be placed in writing to be valid. This requirement is also met by transmission by fax, e-mail or in other electronic form. In the case of electronic transmission, the order does not have to be signed by the ordering party.
[2.2.] In the case that the ordering party has suffered damage due to a delay in the delivery on the part of the Supplier, the Buyer is be entitled to claim damages for this delay amounting to 5 % per week and a maximum of 30 % of the value of the corresponding part of the total delivery which as a result cannot be used in good time; this shall not affect the assertion of any further damage.
[2.3.] The ordering party uses paperless invoice processing. All invoices are to be sent to firstname.lastname@example.org. All paper invoices for merchandise orders received by post will be charged with a processing fee of €5.00 per paper invoice due to the significantly increased processing efforts. If the ordering party offers UN-EDIFACT or WEB_EDI, the supplier is obliged to take part in the paperless invoice process according to the specifications of the ordering party.
In addition to the EDIFACT-INVOICE transmission, the ordering party will offer Web-EDI on the supplier portal Neuhofer.com after the interim arrangement of three months. Web-EDI allows to issue online invoices for merchandise orders.
[3.] Delivery, delivery date, delay in delivery:
[3.1.] The delivery shall be made to the delivery address indicated on the order.
[3.2.] The supplier shall take out sufficient transport insurance at its expense.
[3.3.] Each order shall be delivered with a separate delivery note, on which at least the order number, the FN item number, the batch number and the date of order shall be indicated.
[3.4.] Performance of the order in partial deliveries is admissible only after express written agreement. In case of partial deliveries, the delivery note must contain the remark "outstanding delivery by …" and the delivery date according to the order must not be exceeded. If partial deliveries are invoiced with a total invoices, the due date and start of the payment period shall commence on the invoice date but at the earliest after receipt of the last partial delivery.
The ordering party is entitled to reject partial deliveries that have not been agreed. This shall also apply if one or several partial deliveries from an order have already been accepted.
The ordering party is also not obligated to accept early deliveries.
[3.5.] The ordering party has the unilateral right to introduce and request from the supplier dispatch notifications in order to guarantee proper delivery in case of need. The receipt of the goods at the place of the delivery address is of the essence for compliance with agreed delivery dates or deadlines.
[3.6.] If the supplier is unable to meet the agreed delivery date, this must be immediately notified to the ordering party, indicating the reasons and the expected duration of the delay. If supplier fails to give such notification although it had been aware of the imminent delay in delivery, it shall be liable to the ordering party for all resulting disadvantages and damages.
The ordering party shall have the rights indicated in sections [3.7.] to [3.10.] below already at the time when such notification is received (as if delay in delivery had already occurred).
[3.7.] In case of a delay in delivery, the ordering party is entitled after having granted a reasonable grace period (within 14 days at the latest) to withdraw from the contract and in case of withdrawal to assert the arising claims or to insist on performance. The ordering party shall be entitled to these rights even if it does not immediately use its right of withdrawal.
[3.8.] In case of a justified withdrawal, the ordering party shall be entitled to procure the goods from another supplier. The associated additional costs shall be borne by the supplier, if and to the extent that the supplier was not prevented by force majeure from performing its obligations. Supplier will be held liable for delays caused by default of its sub-suppliers, if they cannot invoke force majeure themselves. Force majeure within the meaning of these provisions are unforeseeable and inevitable events for which no provisions need to be made or can be made for their consequences, even with the diligence of a prudent businessperson (e.g.: storm, earthquake, flood, volcanic eruption, war, terrorist act as well as sabotage). Production disturbances due to machine breakdowns as well as strikes are not seen as force majeure. Supplier must prove that the event has been caused by force majeure.
[3.9.] In case of default of the supplier, the ordering party is entitled regardless of the supplier's fault (unless the supplier proves the occurrence of force majeure as defined above) to claim a contractual penalty in the amount of 5% of the delivery value affected by the delay for each started day of failure to observe the delivery date, which shall not exclude the assertion of any further damages (f. ex. penalty claims of customers of the ordering party, etc. [see also section [6.4.] of the General Conditions of Purchase]). If the delivery date is exceeded for more than 10 days or if the ordering party withdraws from the contract, the contractual penalty shall amount to 50% of the value mentioned above.
The calculation of the delivery value as the basis for assessing the contractual penalty shall be based on the agreed price including VAT.
[3.10.] The preceding provisions shall not affect the rights of the ordering party according to art. 918 et seq. of the Austrian Civil Code (ABGB). The supplier shall bear the burden of proof that it is not responsible for the delay or for non-performance.
The ordering party also reserves the right to claim damages exceeding the contractual penalty, including lost profit or other disadvantages suffered by the ordering party f. ex. because of claims by third parties as a result of the non-performance of obligations assumed towards them. The disadvantages to be compensated also include frustrated expenses, f. ex. for the advertising of goods that cannot be made available (in due time) as a result of the supplier's default, and costs resulting from possible claims under competition law of the ordering party for those reasons.
[3.11.] Each shipment shall be accompanied by all necessary freight documents such as customs documents, delivery notes, licenses, certificates, certificates of guarantee, etc. ("shipping documents"). Shipments without accompanying shipping documents may be rejected by the ordering party. If the supplier supplies the ordering party with goods across borders, it shall assure that they are legally imported, duly subjected to customs clearance and taxation, and that they comply with all relevant standards and statutory provisions, in particular with the security provisions. The supplier shall be liable for assuring that the shipping documents are complete and correct. In case that the shipments were not handed over in the agreed form at the agreed place of performance due to incorrect or incomplete accompanying documents, the ordering party is not liable in any form whatsoever. In such cases, the ordering party shall be entitled to declare withdrawal from the contract as defined in section [3.10.].
[4.] Place of performance and passage of risk:
[4.1.] Place of performance for the obligations of the supplier shall be the place of the delivery address.
[4.2.] The risk shall pass upon delivery at the place of performance. The transport risk shall be borne exclusively by the supplier.
[5.] Prices, invoicing and payment:
[5.1.] Unless agreed otherwise in writing, the prices indicated in the order are without VAT and include packaging, transport, transport insurance and costs of customs clearance (DDP [Incoterms] 2010]).
[5.2.] In the case of the paperless invoice processing, the invoice shall be sent to the e-mail address specified under [2.3.] or in the case of a paper invoice to the address indicated on the order, stating the delivery address. Each order must be shipped with a separate invoice.
[5.3.] The invoice must contain at least the delivery address, order number, FN item number and the order date. If these details are missing or incomplete, the payment shall not become due and the payment period will not commence.
[5.4] Payment by the ordering party shall be considered made in due time in any case if the ordering party transfers the payment on its due date.
[5.5.] The payment deadlines and discount regulations stated in the order shall apply. The cash discount period shall not apply in any case before ordered goods have been received by the ordering party (date of receipt stamp).
[5.6.] Possible credit notes of the supplier will settled net/net.
[5.7.] The ordering party is entitled to charge the supplier in case of claims of the ordering party against the supplier, irrespective of the legal title on which they are based.
[6.] Warranty and guarantees, property rights and product liability
[6.1.] Supplier warrants that the goods comply with the contract as defined by articles 922 and 923 of the Austrian Civil Code (ABGB). The statutory assumption period of art. 924 of the Austrian Civil Code shall be extended to 12 months. The statutory warranty period shall end upon resale of the goods by the ordering party, at the earliest 36 months after the ordering party has received a corresponding objection of the buyer.
[6.2.] The ordering party shall check within 14 days after receipt at the latest that the shipment corresponds to the ordered goods and the ordered amounts. In addition, the ordering party shall be exempt from the duty of inspection and notification of defects according to art. 377 of the Austrian Commercial Code (UGB).
[6.3.] In case of defects, the ordering party shall be entitled at its discretion to either claim replacement delivery free of charge (if the supplier is able to) or to request a price reduction or rescission of the contract; these rights are not limited by the provisions of art. 932 para. 2 to 4 of the Austrian Civil Code.
[6.4.] Supplier shall compensate all costs and disadvantages suffered by the ordering party as a result of the defectiveness of supplied goods, unless it proves that neither the supplier nor any of its sub-suppliers is responsible for the defectiveness.
This includes for example the indemnification of the ordering party for all claims made by a third party because of the defectiveness of any goods, the costs of a subsequent check of other stock that may be required, return shipments, inspections, appraisals, additional costs for the provision with substitute goods, etc.
[6.5.] In case of a replacement delivery, the supplier shall also take back the defective goods at its own expense (f. ex. customs clearance, handling, transport costs, etc.), and the supplier shall fully indemnify and hold the ordering party harmless to that extent.
[6.6.] The supplier is also obligated to indemnify and hold the ordering party harmless if claims are made to it due to the defectiveness of a supplied product put in circulation by it (f. ex. based on product liability or because of the violation of other regulations).
[6.7.] Supplier warrants that the supplied goods and in particular their labelling comply with all legal provisions under Austrian and Union law, and with the legal provisions of the country of destination according to the order. This includes in particular compliance with Regulation (EC) no. 1907/2006 of 18/12/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), and the supplier confirms that a registration required under the REACH-VO has been made, and undertakes immediately at the request of the ordering party to submit to the ordering party corresponding evidence associated with the registration under the REACH. Classification, labelling and packaging of dangerous substance products takes place from 01/11/2014 at the latest exclusively according to the provisions of Regulation (EC) no. 1272/2008. At the mentioned date, the supplier shall exchange all products supplied by it for products that are labelled accordingly. The supplier shall send to the ordering party all legally prescribed documents without the ordering party having to ask for them, f. ex. declaration of conformity, safety data sheet, etc. If the supplier distributes products on the basis of a license agreement, the license must be immediately proved to the ordering party at the latter's request. The supplier shall revise the safety data sheet on an annual basis and in case of product modifications, and submit it to the supplier or a third party nominated by the ordering party.
[6.8.] Supplier further warrants that the delivered goods are marketable without any restrictions in the European Union, within the EEA area and in the destination country as specified in the order, and that they are free from property rights of third parties (like patent rights, trademark rights, design rights or copyrights). If the goods are identified by a trademark,
the supplier guarantees that the delivered goods are genuine and have been put into circulation either by the owner of the trademark it bears and/or under which it is distributed, or with the approval of such trademark owner, and irrespective of that the unrestricted legal admissibility of the distribution of the goods using the trademark in Austria and in the destination country as specified in the order.
[6.9.] Supplier confirms with regard to the entire scope of business with the ordering party to participate in a collection and recycling system as defined by art. 11 of the Austrian Packaging Ordinance, and that it will ensure with regard to the packaging of all goods delivered to the ordering party that the obligations of the ordering party resulting from the Packaging Ordinance in its capacity as a distributor or final distributor are met. On its invoices it shall indicate the reference number and the date of the notice of approval for the collection and recycling system as defined by art. 11 of the Austrian Packaging Ordinance, and shall confirm in each case to duly comply with its contractual obligations to this collection and recycling system.
[6.10.] Notwithstanding any other or further rights, the supplier undertakes to indemnify and hold the ordering party harmless for all damages and disadvantages resulting from the non-applicability of the above guarantees, and to compensate the ordering party for all costs and consequential damages of any kind resulting from the full or even partial non-applicability of the above promises of guarantee. This also includes claims asserted by the trademark owner or other third parties. This obligation of the supplier shall further extend also to the compensation for penalties imposed against bodies or employees of the ordering party or of its customers, or against its customers due to the faulty quality or labelling of the goods; such compensation shall be made to the ordering party if the latter compensates the parties concerned, or otherwise to the party concerned.
[6.11.] The provisions of sec. [6.] shall not affect any other or further rights of the ordering party that the latter is entitled to against the supplier by virtue of the law or other agreements with the supplier.
[6.12] The supplier is to close an insurance policy against all risks resulting from operational and product liability including the risk regarding any official measures in accordance with the Product Safety Act in the amount of at least € 2,500,000.00 per case of liability and maintain it for at least ten years after the delivery of the goods to the ordering party. Upon request, the supplier shall provide the ordering party with a proof of the valid insurance by presenting the insurance policy.
[7.] Retention of title
The supplier is aware that the ordering party acquires the ordered goods for the purpose of resale. As a consequence, the supplier waives any retention of title to the supplied goods.
[8.] Assignment of claims and setoff
[8.1.] The assignment of claims of the supplier against the ordering party shall be unlawful and ineffective without the express written approval of the ordering party.
[8.2.] Supplier may set off its receivables from the delivery of goods against receivables of the ordering party only if the latter has expressly acknowledged these receivables in writing. Supplier has no right of retention for claims existing against the ordering party.
[9.] Confidentiality and non-disclosure agreement
[9.1.] Supplier warrants that during the term of the contract and beyond the contents of the contract and/or possible additional arrangements made, must not be disclosed to third parties.
[9.2] The obligation of confidentiality shall not apply in case that:
(i) an information was generally accessible to the public, with out this disclosure resulting from an information leakage of the Supplier; or
(ii) the information had been disclosed before by a third party without any confidentiality obligation;
(iii) provided that there is a statutory duty of disclosure.
[9.3.] Supplier undertakes to keep the contract concluded with the ordering party including its annexes and all documents that have resulted or will result during the performance of the contract confidential, and ensure confidential treatment by its staff. Supplier shall not disclose to third parties any technical and commercial information it has received in the course of its cooperation with the ordering party.
[9.4.] In case of a culpable breach of this confidentiality obligation, supplier is liable to pay to the ordering party a contractual penalty in the amount of80% of the net purchase price, but at least€ 150,000.00 per breach, without the obligation to prove the loss. Further claims (for damages) are expressly reserved.
[10.] Applicable law and place of jurisdiction:
The contractual relationship between the supplier and the ordering party, including the assessment of whether such relationship has come into existence, and these Conditions of Purchase shall be exclusively governed by Austrian law. The United Nations Convention on the International Sale of Goods (UN Sales Convention) shall not apply.
Exclusive place of jurisdiction for all disputes arising from or in connection with contracts concluded between ordering party and supplier, including those on whether such contracts have come into existence, shall be the court having jurisdiction with regard to the subject matter in each case in the provincial capital Salzburg. However, the ordering party shall be entitled at its choice to take legal action against the supplier also at its general place of jurisdiction.
In the case that there is no enforcement contract or agreement between Austria and the suppleir's country of residence, all disputes arising out of or in connection with these Terms and Conditions (Contract), including the question of the valid conclusion and their pre- and after-effects, shall be settled exclusively by the Salzburg Arbitration Court in 5020 Salzburg. The Arbitration Rules of the Salzburg Arbitration Court as amended shall apply. The place of arbitration is Salzburg. The language of the arbitration shall be German. Both the supplier and the ordering party waive the right to contest the arbitral award or otherwise oppose its legal validity and enforcement, insofar as such a waiver is effective under mandatory law.
[11.] Corporate Compliance
[11.1.] Supplier undertakes to take all necessary and reasonable measures to prevent corruption and bribery.
[11.2.] It is therefore forbidden that the supplier via its employees or the management and via third parties offers, promises or guarantees money or services in money's worth (expensive gifts, invitations, etc.) to the employees or the management of the ordering party and to persons who are close to the ordering party (relatives, etc.) ("prohibition of corruption").
[11.3.] The ordering party shall be entitled in any case of violation of the prohibition of corruption after a written warning to terminate all existing contracts with immediate effect and without notification. In case of a serious violation, no prior warning shall be required.
[11.4.] Security declaration.
The Supplier guarantees that the goods produced, stored, dispatched or transported by them are
(i) produced, stored, commissioned, loaded and unloaded in secure premises and at secure loading and unloading areas and areas of dispatch;
(ii) protected from unauthorised access during production, storage, commissioning, transport, loading and unloading;
The Supplier further guarantees that
(iii) the staff involved in the production, storage, commissioning, loading and unloading of such goods are trustworthy in terms of security; and
(iv) their agents and their trading partners acting on their behalf, including their subcontractors, in providing such services, are aware that the security of the supply chain under the same conditions as those set out above is to be ensured.
[12.] Data protection:
The customer explicitly points to the attached data protection declaration.
[13.1.] The passage of risk shall be governed by the provisions of the Incoterms, as amended (Incoterms 2010). For the performance of the contract including assembly and/or commissioning services, the date of acceptance (= takeover) shall apply.
[13.2.] Supplier undertakes not to entice employees of the ordering party away, neither for itself nor for others (f. ex. other customers). Any invitation to the employee of the ordering party to terminate his or her employment in favour of another employment or activity shall be considered as enticement. If this provision is violated, a contractual penalty in the amount of 50% of the annual salary of the concerned employee of the ordering party shall be due.
[13.3.] If any of the preceding provisions should be or become invalid, this shall not affect the other content. The invalid provision shall be replaced by a provision that comes as close as possible to the economic spirit and purpose of the invalid provision in a legally effective manner.
[13.4.] Unless any deviating arrangements have been made in these Conditions, the statutory provisions agreed in sec. [9.] shall apply. In addition, the rights of the ordering party mentioned in these Conditions of Purchase shall not exclude the assertion of other or further statutory or contractual rights of the ordering party. The assertion of further compensation claims is expressly reserved.
PRIVACY STATEMENT: 15.05.2019
[1.] Privacy statement
We exclusively process your personal data in compliance with the provisions of the General Data Protection Regulation (DSGVO) as well as the 2018 Data Protection Act. Below, we will inform you of the nature, scope and purpose of data collection and use thereof:
[2.] Who we are
The following party is the data processing controller
Neuhofer Holz GmbH
4893 Zell am Moos
[3.] Collection and processing of data
We process the personal data that you provide to us in connection with a request or order. The data is processed in order to process your request or your order.
The legal basis for the processing of data is your consent in accordance with Art 6 para. 1 lit a DSGVO, contract initiation and fulfilment in accordance with Art 6 para. 1 b DSGVO in order to be able to process your order or our overriding legitimate interest in accordance with Art 6 para. 1 lit f DSGVO in order to inform you, in a specific and up-to-date manner, as the interested party e.g. regarding our offering.
[4.] Use, sharing and deletion of personal data
To the extent you provide us with personal data, we only use it to respond to your requests and to process your order.
We only pass on or transfer personal data on to third parties if this is necessary in order to process the contract or for billing purposes or if you have consented to this. You have the right at any time to revoke the consent you have provided with effect for the future.
We will only keep your personal data as long as necessary in order to reach this purpose. In any case, we will save your personal data as long as statutory retention obligations apply or periods of limitation for potential legal claims have not yet expired.
The saved personal data will also be erased if you revoke your consent to the data being saved. Data for billing and accounting purposes is not affected by the retention requirements.
[5.] Your rights as a data subject
You have the right to revoke, at any time, any consent to the processing of your personal data. The lawfulness of the processing of your personal data up to revocation will not, however, be affected by the revocation.
Furthermore, you have the right, at any time, of access, rectification, erasure and restriction of processing and data transfer of your personal information by the controller. Please get in touch with the contact specified under [2.].
Furthermore, you have the right to object to the processing of your personal data; in this case, your personal data will no longer be processed.
Finally, you have the right of complaint to the data protection authority, Wickenburggasse 8-10, 1080 Vienna, e-mail: email@example.com.