General Purchasing Terms and Conditions
1. Each purchase order placed with the Supplier by us, Lecapell GmbH, shall be governed exclusively by the terms and conditions set forth herein, and any terms and conditions of the Supplier or other conditions do not apply unless expressly confirmed by us in writing. The Supplier explicitly acknowledges that we object to all provisions contained in its order confirmation and that de facto acceptance of delivery does not imply acceptance of the provisions contained in the order confirmation; the Supplier is aware that delivery is considered implied acceptance of our Purchasing Terms and Conditions.
2. Purchase orders and contracts shall only be legally binding if effected in writing by duly authorized representatives; orders by email or telefax are also considered written orders; oral orders or orders by telephone without subsequent written confirmation shall be ineffective.
3. For each purchase order, we request an order confirmation within 3 working days of receipt, including binding prices, unless prices are already set out in the purchase order. Where we were not able to set the prices, the prices set forth in the order confirmation are subject to our written confirmation. If the order confirmation is not provided within 3 working days of receipt of the purchase order, we shall be entitled to cancel our order at any time. Acceptance of delivery without a written confirmation of the prices shall not imply acceptance of those prices; all prices quoted are invariably fixed prices not subject to change detrimental to us, even in case of foreign currency translation adjustments in cross-border contracts.
4. The Supplier must adhere to fixed delivery dates in any event; the delivery period is counted from the day the order has been sent; if the Supplier is unable to adhere to a deadline or a delivery period agreed upon, the Supplier shall forthwith give notice. Notwithstanding such notice we shall be entitled, at our discretion, to rescind the contract or claim damages for non-performance without prejudice to further claims; in such case we shall also be entitled to recover from the Supplier the cost of the difference in price incurred in obtaining substitute goods or services from a third party without the Supplier having the right to raise objections to the purchase price of the substitute goods or services. Where accelerated delivery for a shipment is required for reasons attributable to the Supplier, the additional costs incurred as a result shall be borne by the Supplier. Acceptance of a delayed delivery or performance does not imply a waiver of claims for compensation to which we are entitled due to delayed delivery or performance.
5. Shipment shall be free of freight and packing charges; all costs and expenses involved are included in the sales price. Legal title does not pass to us until we have received and accepted the goods. The shipper bears the transportation risk; where we expressly agree in writing to assume the transportation risk in individual cases, the shipper of the goods will be obligated to raise all claims vis-à-vis the carrier for compensation due to loss or damage to the goods and the like forthwith and immediately assign these claims to us. In such cases the shipper must take out shipping insurance at its own cost unless we forgo such insurance or take out appropriate insurance ourselves in individual cases. Wrappings and other packaging materials are included in the purchase price and may be returned by us; the total charge will be deducted; we will not be charged for normal wear and tear. Each delivery is only accepted if it is accompanied by a proper delivery note which shows our item numbers.
6. The goods will be checked as defined by § 377 UGB (Austrian Commercial Code) at the delivery location focusing on externally discernible damage, e.g. faulty packing, shipping damage, wrong deliveries, excess or short deliveries. Such deficiencies will be reported by us to the Supplier within 14 days of the date of delivery. Beyond that there is no obligation to immediately check the Goods/Services upon delivery and give relevant notice of defect, unless otherwise required by law.
7. The payment period starts when the complete goods or services have been delivered and we have received the invoice. In the case of delivery before the agreed date the payment period starts on the originally agreed date at the earliest. Unless otherwise agreed we shall pay the accepted Goods/ Services within 30 days minus 3% cash discount or within 60 days net. Should we be in arrears with due payments – regardless of the reasons – the Supplier may charge us interest of up to 4% p.a. on the overdue amount. The Supplier shall not be entitled to claim any additional interest on whatever legal ground. The Supplier shall not be entitled to offset purported claims against any amounts owed to us or assign to third parties any claims against us without our prior consent. We shall be entitled, however, to offset any counterclaims against amounts owed to the Supplier in any case.
8. Unless otherwise specified in the individual contract with the Supplier, the Supplier guarantees provision of the Goods/Services as stipulated in the order, compliance with all relevant statutory and regulatory requirements, consistence with the state of the art, use of flawless material, compliance with the Supplier Quality Manual and the Supplier Code of Conduct, all the characteristics guaranteed and non-infringement of the rights of third parties and grants a warranty period of 24 months for movable items and 36 months for immovable items or items designed for integration into or use in combination with immovable items.
9. In a warranty case we shall have the right to provide or return to the Supplier, at the Supplier’s expense, any shipment that does not comply with these Terms and Conditions or to request replacement free of charge and/or assert any other warranty claims to which we are entitled by law, including, but not limited to, price reduction and cancellation of contract, without prejudice to our other rights and remedies; in the event of a claim for damages the burden of proof that the Supplier is without fault shall be exclusively on the Supplier.
10. Unless the law stipulates no-fault liability, the Supplier will be liable to pay damages when the Supplier is responsible for any damage caused by the Supplier. Moreover, the Supplier shall be liable for any damage attributable to its subcontractors and the latters’ subcontractors as for the Supplier’s own fault.
11. Samples, models, punches, tools, norms and other devices shall remain our property that we, in our sole discretion, may use as we see fit at any time. These devices may be used solely for the execution of our orders and shall not be made accessible or available to third parties.
12. We do not accept a retention of title by the Supplier.
13. Claim of voidability due to error or laesio enormis by the Supplier is excluded.
14. The Supplier undertakes to treat our deliveries as strictly confidential and to take appropriate technical and organizational measures to ensure data security in accordance with Article 32 of the General Data Protection Regulation to establish a level of protection adequate to the risk; in case of a breach we shall be entitled to rescind the contract without prejudice to further claims.
16. The place of performance and payment is our company address in Waizenkirchen unless the purchase order states otherwise.
17. The provisions of these Purchasing Terms and Conditions and/or the contract concluded between the Supplier and us shall be governed by and construed in accordance with the laws of Austria, excluding the application of the UN Convention on Contracts for the International Sale of Goods.
18. The place of jurisdiction is Grieskirchen.