General terms and conditions of purchase
1. General provisions
All purchases and contracts between StM Waterjet GmbH (hereinafter referred to as “StM”) and our suppliers (hereinafter referred to as “contractor”) are subject exclusively to these general terms and conditions of purchase, unless they are expressly amended by separate written agreement.
General terms and conditions (GTC) of the contractor and/or provisions deviating from these general terms and conditions of purchase shall not become part of the contract and shall have no legal and contractual effect. The terms of the contractor and its general terms and conditions are hereby expressly contradicted.
Amendments and supplements to these terms and/or its enclosures each require the written form in order to be legally effective. This also applies to the derogation from this provision itself.
Through a request from StM, the Supplier is requested to submit a free offer, including the general terms and conditions of purchase of StM. In the offer, the supplier must adhere to the specifications and descriptions of StM and must expressly point out any deviations. The supplier must expressly specify in detail in his offer all incidental costs incurred by StM for taxes, fees, duties, packaging, transport, license fees, etc.
Orders, changes and supplements are legally binding only if they have been issued in writing by the StM purchasing department. This is generally done via e-mail. The contractor may invoke agreements with other persons only if the contractor informs the responsible purchasing department immediately by e-mail (firstname.lastname@example.org) and if the written confirmation of the latter is available.
These terms and conditions of purchase shall be deemed to have been accepted at the latest when the contractor starts executing the order. Verbal agreements require written confirmation by the responsible purchasing department to be legally effective.
As long as the order has not been accepted by an order confirmation, with which the order is accepted in full, StM shall be entitled to withdraw from the order free of charge without stating reasons.
The date of the order shall be deemed to be the order date. If the supplier does not accept the order within two weeks of receipt, StM shall be entitled to cancel the order.
Delivery call-offs within the framework of order and call-off planning must be confirmed by the supplier and become fully binding if the supplier does not expressly object within two working days of transmission. The StM order number as well as the article number must be quoted in all relevant documents.
Deviations from orders must be clearly emphasized and require the express written consent of StM to be effective. Unconditional acceptance of order confirmations or deliveries does not constitute recognition of the contractor’s general terms and conditions.
StM may at any time demand changes to the order or the delivery item in design and execution. If this means that the agreed delivery deadlines can no longer be met, or if it is necessary to raise the agreed prices, then the contractor must inform StM immediately and submit an appropriate proposal in writing regarding the delivery deadline and/or price increase. Otherwise, the originally agreed delivery periods and prices shall also apply to the modified order.
The agreed prices are fixed prices including all taxes (excluding value added tax) and duties. Unless the order contains other provisions, the price shall be “DDP” according to the INCOTERMS 2020. In the case of deliveries abroad, the contractor’s services include export customs clearance including the assumption of all associated costs.
If prices have not been agreed in advance in exceptional cases, they must be stated bindingly in the order confirmation in any case. StM expressly reserves the right to object or withdraw in this case.
The agreed prices include the costs of functional and quality tests, technical inspection, packaging, painting, corrosion protection, marking, acceptance certificates, documentation etc.
StM must be notified in writing of any price increases at least three months before they come into effect. For current orders, price increases are possible only in justified cases and only with the consent of StM.
5. Delivery date/delayed delivery
The delivery dates or delivery periods specified in the order must be observed without fail. Early deliveries are only permitted with the express written consent of StM. The acceptance of partial deliveries or late deliveries shall not be deemed a waiver of claims for compensation for additional expenses or other claims for damages on the part of StM.
If an agreed delivery date is not met or is met only in the form of a partial delivery, StM shall be entitled to further claims or to withdraw from the contract in its entirety without setting a grace period and to claim damages for non-performance.
All additional costs and claims for damages from end customers incurred by StM as a result of non-compliance with the delivery dates must be compensated by the contractor, even if the contractor is not at fault.
If the contractor exceeds the delivery dates and delivery periods agreed in the contract documents and if warranted characteristics are not fulfilled, the contractor shall bear the following contractual penalties, each calculated from the total contract value. Failure to achieve the warranted characteristics or delay in delivery of goods and services, documentation, etc. of 1 % per commenced week of delay per individual date, max. 10 % of the total order value. The amounts will be deducted from the current invoices or from the contractor’s claims. Deviating changes to this regulation will be agreed separately and jointly.
The obligation to pay a contractual penalty shall arise for the contractor upon the occurrence of the default. Reservations made by StM at the time of acceptance of the delivery, even in the case of delay, are not necessary to maintain the contractual penalty. Payment of the contractual penalty will not release the contractor from the fulfilment of its contractual, liability and guarantee obligations.
If required by StM, the contractor must provide a valid proof of preference (such as a movement certificate, certificate of origin, etc.). Special instructions of StM are to be observed.
Costs for transport insurance shall be borne by StM only if this has been agreed in writing. In the event of non-compliance with the shipping, packaging, customs clearance or documentation regulations, all resulting risks, damages and costs shall be borne by the contractor.
The delivery of goods to our factory in 5531 Eben im Pongau, Austria, must be carried out exclusively during the valid goods acceptance times (Monday – Thursday from 7:30 am – 3:30 pm, Friday from 7:30 – 11:30 am).
Alternative goods delivery addresses (further processing, etc.) will be communicated by StM in the order and will be agreed in advance with the supplier with regard to the delivery costs.
Unless otherwise agreed, StM will make the payments within 14 days with a 3 % discount or 30 days net from the date of receipt of the invoice and after fulfilment of all the conditions stated in the order.
Complaints about delivery and performance entitle StM to withhold due payments. Payments do not imply any acknowledgement of the correctness of the deliveries and services and thus no waiver by StM of performance, warranty, guarantee, damages, contractual penalties, etc. In case of a notice of defects or complaint, the purchase price can be retained in full.
Invoices are to be issued by StM with the order number and delivery note number as well as the UID. The value added tax must be shown separately. Invoices must not be enclosed with the shipments.
In the case of personnel being deployed for assembly, repair or maintenance work, the contractor’s personnel must report to our responsible person named in the order before commencing work. Invoices shall be accompanied by the original service and material certificates signed by our responsible person. Services and materials that have not been confirmed by our responsible person will not be remunerated.
The contractor must provide StM with proper documentation, in particular regarding the characteristics of the product, its use, operation, further processing or installation, etc., such as product descriptions, storage, operating and maintenance instructions, installation instructions, spare and wearing parts lists in German and in writing upon the delivery and guarantee their completeness and correctness.
9. Subcontractors/suppliers/third parties
The contractor is entitled to commission subcontractors, suppliers or third parties, but undertakes to use only such subcontractors, suppliers or third parties who offer sufficient guarantee for technically perfect and timely performance of the contract. Notwithstanding the above, all obligations of the contractors shall remain unchanged even in the event of approved use.
The contractor is therefore liable to the same extent (also with regard to the fault of each subcontractor, supplier or third party) if it uses subcontractors, suppliers or third parties of any kind in the performance of the contract or otherwise makes use of their products or services, as if the contractor had provided these services himself.
10. Warranty/exclusion of the obligation to claim defects
The contractor guarantees and assures that all specified deliveries and services also comply with the latest state of the art (e.g. in terms of design, properties, construction, suitability, production technology, material, quality, etc.) and the legal provisions and regulations of the authorities.
The contractor guarantees for a period of at least 24 months after delivery that its deliveries and services are free from defects and shall indemnify StM for all resulting disadvantages. The warranty period starts with the acceptance of the deliveries and services by the end customer of StM, or in case of use in the factory of StM on the occasion of the first use.
The duration of the warranty or guarantee shall be extended by mutual agreement, if necessary, to the point in time at which it has expired for our customer. An obligation to inspect as well as the obligation to report defects in accordance with § 377 ff of the Austrian Commercial Code by StM with regard to deliveries is expressly excluded, without StM losing any legal claims (especially claims from warranty and compensation for damages and avoidance of errors). In the event of replacement or repair, the warranty period shall start anew.
The contractor guarantees the performance of training, maintenance, repair and overhaul services in relation to the products supplied as well as the supply of spare and wearing parts for a period of at least 10 years from the date of performance of the contract.
11. Warranty/compensation/product liability
In case of defects of the delivered goods or services, the contractor shall be obligated to provide warranty at the free choice of StM either by improvement, replacement or price reduction. If the defect is not minor, StM shall also be entitled to demand cancellation of the contract instead of the warranty remedies mentioned.
StM is at any time entitled to remedy the defect itself or have it remedied by a third party. Any costs arising from this shall be borne by the contractor. Until the contractor proves the contrary, it shall be assumed that the defect was already present at the time of delivery; this shall also apply if the defect does not become apparent until 6 months after delivery.
The contractor shall indemnify and hold harmless StM for all disadvantages of any kind that StM suffers directly or indirectly as a result of a defective delivery or performance, due to violation of official safety regulations, due to violation of the agreed delivery times, dates and deadlines, underdelivery or for any other legal reasons attributable to the contractor.
The contractor is obligated to compensate in full for all damages that occur in this connection. This shall apply in particular to any expenses incurred by us or third parties (including material and personnel expenses) in connection with the identification or rectification of defects, as well as to any material and personnel expenses and other costs caused by defects. Subcontractors and suppliers of the contractor are in any case considered to be its performing agents, so that the contractor shall be liable for their fault as for its own.
In the event that a claim is made against StM on the basis of product liability, the contractor shall be obligated to indemnify us from such claims if the damage was caused by a defect in the object of the contract delivered by the contractor. In such cases, the contractor shall assume all costs and expenses, including the costs for any legal action and recall campaigns.
12. Place of performance/transfer of risk/transfer of ownership
Place of performance is our plant in 5531 Eben im Pongau in Austria or the delivery address specified in our order.
The risk is transferred to StM upon delivery of the goods to StM or to the recipient designated by StM. If the contractor is obliged to deliver, erection or assembly, commissioning, etc., then the risk is transferred to StM only upon commissioning.
The transfer of ownership is analogous to the transfer of risk. Place of performance is our plant in 5531 Eben im Pongau in Austria or the recipient specified in our order.
In the case of serious breaches of contract, StM is entitled to withdraw from the contract by setting a reasonable deadline. Serious breaches of contract are in particular the non-observance of delivery dates as well as defects that may endanger the fulfilment of the contract with the end customer of StM.
In this case, StM has the right, without prejudice to our other legal possibilities, to remedy or provide the defects or unperformed services at the place of use of the ordered item itself or through third parties at the expense and risk of the contractor. The obligations of the contractual partner remain unaffected by this.
In the event of insolvency proceedings of the contractor or a change in the ownership structure, StM shall be entitled to withdraw from the contract in whole or in part, without prejudice to the consequences under procedural law. The contractor is obliged to inform StM of such circumstances immediately
14. Provided documents/materials/tools
The ownership and exclusive right of use of the documents, drawings, records, specifications, information, know-how, models, samples, production equipment, devices, other aids, etc. provided by StM to the contractor remain with StM and must be confirmed by the client by signing the StM NDA. The contractor acknowledges that these are copyrighted exclusively for StM.
Provided material or tools remain our property and must be marked as such and stored separately. The contractor is liable for loss and/or damage. Upon termination of the order, provided material must be returned to StM immediately. Passing on to third parties must be approved in advance in writing by StM.
Storage, maintenance and repair were carried out at the expense and risk of the contractor. Use by the contractor for its own purposes and in particular for third parties is generally not permitted.
15. Third-party copyrights
The contractor assures that the rights of third parties do not conflict with the intended use of the purchased goods, in particular that no patents or other industrial property rights of third parties are infringed.
Should such impairments or infringements of rights be claimed, the contractor undertakes to indemnify and hold StM and/or the end user completely harmless, without limitation, against claims from third parties.
All documents, drawings, records, information, samples, other aids, etc., which are made accessible to the contractor for the purpose of fulfilling his order, as well as all experience and the entire know-how, which is developed in the course of the execution of the order (“confidential information” according to the non-disclosure agreement), shall remain or become the exclusive property of StM. These are to be treated confidentially and may not be used, reproduced, analysed or used in any other way without the written consent of StM, nor may they be communicated or made available to third parties.
After fulfilment of the contract, the confidential information that StM has provided must be returned to StM. The passing on of confidential information to third parties, in particular to builders and operators of equal or similar installations, is expressly prohibited.
A breach of the non-disclosure agreement shall entitle StM to withhold the payments due for the order concerned and to claim damages. The non-disclosure agreement shall continue to apply even after completion of the order in question and shall apply to all employees, subcontractors and vicarious agents of the contractor.
The contractor agrees that StM may store, modify, transmit or otherwise process and use all data of the contractor and the contracts concluded with the contractor that are passed on to StM via EDP within the scope of the business relationship. Further agreements on data protection will be regulated in separate agreements if necessary.
17. Compliance/occupational safety/environmental protection
The supplier undertakes to ensure by means of appropriate control systems that the supplier and its employees comply with applicable anti-corruption regulations and the applicable antitrust laws. Furthermore, the supplier is obligated to comply with all legal regulations concerning the treatment of employees, environmental protection and occupational safety.
In the event of serious violations of the law by the supplier and in the event of violations by the supplier of the obligations under this section, StM shall be entitled to withdraw from all existing agreements/orders with the supplier without notice.
In the event of an invalidity of individual contractual provisions, the remaining provisions shall remain binding (severability clause).
Unless otherwise stated in the general terms and conditions of purchase, any declarations by StM are legally binding only if they are made explicitly and in writing. Insofar as these general terms and conditions of purchase provide for compliance with the written form, this cannot be replaced by electronic form within the meaning of Signature Act (BGBl I 1999/190).
The contractor is allowed to use the existing business relationship with StM – especially orders, names, logos, brands, equipment, product names or company logos – for advertising purposes only with the express written permission of StM.
Version – 03/2020