General Terms and Conditions of Purchase (GTCP)

1st object

The following General Terms and Conditions of Purchase (hereinafter referred to as “GPC“) of Schoeller-Bleckmann Precision Technology GmbH, FN 152516p, Hauptstraße 2, 2630 Ternitz, Austria (hereinafter referred to as “SBPT“) apply, in the version valid at the time of the conclusion of the contract, to all business relations between SBPT and its suppliers (hereinafter referred to as “Supplier“), in particular with regard to the conclusion and fulfillment of the contract as well as all inquiries and orders. Deviations from these GPC in other agreements with the Supplier are only effective if they are approved by SBPT in writing.

The Supplier’s general terms and conditions shall be deemed waived and shall not apply unless they are expressly recognized by SBPT in the relevant contract. SBPT rejects the terms and conditions of the Supplier. The GPC of SBPT shall also apply if SBPT fulfills its obligations without reservation in the knowledge of deviating terms and conditions of the Supplier.

Should parts of these GPC be invalid, lose their validity due to later circumstances, gaps exist or the application of (certain provisions of) these GPC be judicially denied, the validity of the remaining provisions and the contracts based on them shall remain unaffected and the invalid provisions or gaps shall be replaced by provisions that best correspond to the industry standard in comparable cases or, subsidiarily, by statutory provisions.
These GPC shall also apply to future business relationships between SBPT and the Supplier, even if no express reference is made to them. The Supplier acknowledges that the GPC always apply in their current version, i.e. the version available at sbot.co.at/agb.

2 Formation of the contract and formal requirements

Unless expressly agreed otherwise, an offer from the Supplier is merely an invitation to SBPT to place an order with the Supplier. The contract is concluded with the confirmation of the order by SBPT within 5 (five) working days from receipt of the order. If the order is not confirmed or rejected by the Supplier within the 5-day period, SBPT may extend the period for confirmation or rejection by up to a further 3 (three) working days; otherwise the order shall be deemed to have been rejected by the Supplier after the expiry of this period.

Deviations in the order confirmation of the Supplier from the order of SBPT shall entitle SBPT to renew the order within 5 (five) working days from receipt of the order confirmation by another order which corresponds to the order confirmation; otherwise the order of SBPT shall be deemed rejected after expiry of the respective period. The new order shall be confirmed by the Supplier accordingly.

Offers, orders and confirmations must be submitted in writing or by EDI, e-mail or fax by an authorized representative of SBPT or the Supplier. The order confirmation must be clearly attributable to the order by stating an order number. These requirements also apply to all changes, additions and renewals.

Cost estimates are free of charge and binding for the supplier.

The Supplier confirms that the persons acting on its behalf in its sales department are duly authorized to make legally binding declarations and to effect internally the performance of the contract in accordance with the agreement with SBPT.

3 Contract fulfillment

3.1 Proper and complete fulfillment

The performance of the Contract is subject to the Products (Goods and Services) being provided and delivered properly, completely and in accordance with the Contract and/or these GTCP. The following conditions apply to both goods and services, whereby they apply to the latter mutatis mutandis, according to the nature of the products.

With the exception of standardized and standardized parts that meet the Supplier’s standards, the Supplier shall inform SBPT in good time of any intended subcontracting of production or products (or parts thereof) and obtain its approval in writing or by EDI, e-mail or fax.

For fulfillment to be considered proper, the products must be at least state of the art and carefully tested, taking into account the principles of efficiency, practicality and ease of maintenance as well as the legal requirements and technical standards applicable at the place of fulfillment and at the final location. A further prerequisite for proper performance is that all documentation for commissioning, repair, maintenance and replacement is available and provided, including technical specifications, records and documents (e.g. licenses, CE certificates (if required), markings or labels, technical and quality tests). The documentation must be written in German or English.

The supplier guarantees the legality of the products, including with regard to competition law, trademark law, copyright and administrative law. SBPT is not liable for violations of such rights and/or legislation. If SBPT is held liable for a violation of these rights and/or legal provisions, the Supplier shall fully indemnify and hold SBPT harmless and compensate SBPT for all damages incurred by SBPT as a result of claims by third parties.

The Supplier shall, at no additional cost to SBPT, take all (additional) steps necessary for the proper performance of the service, even if these are not explicitly stated in the contract or included by the Supplier in its original calculation. If the Products are machines for SBPT’s production facility, the Supplier shall provide spare parts for a reasonable useful life of the Products, which shall be at least 15 (fifteen) years.

Subsequent changes or additions to the products (e.g. changes to technical designs) which (i) are not attributable to the sphere of SBPT or (ii) have not been expressly requested by SBPT require the prior approval of SBPT. Prior approval is not required for minor changes or additions that are made in order to comply with the state of the art, e.g. if they become necessary due to changes in administration or law and do not impair SBPT’s interest in efficiency, expediency and ease of maintenance. Changes and additions within the meaning of this section do not justify any additional claims of the Supplier for remuneration.

Full performance includes that the Products are delivered in all parts and in full as agreed between SBPT and the Supplier together with all required documentation and, where applicable, that SBPT transfers ownership of the Products so that SBPT has full power of disposal and can put the Products into operation as intended. However, this does not prevent the Supplier from retaining intellectual property (IP) rights that are not required for the proper commissioning of the products.

If a delivery in installments or parts has been agreed, the service shall be deemed to have been rendered when the last installment or the last part has been duly and completely delivered. The acceptance of parts by SBPT does not constitute a waiver of rights arising from the contract and/or these GPC.

3.2 Delivery and transfer of risk

Unless otherwise agreed, the place of performance shall be SBPT’s plant in Ternitz, Austria, or the place of receipt of goods, if applicable. Delivery shall be “delivered duty paid” (DDP) in accordance with Incoterms® 2010 and during regular business hours. Except in cases of transfer of title pursuant to Section 4.1 of these GTCP, risk and title shall pass upon the first incoming inspection after unloading. Beyond this point, the supplier is not entitled to retain title to the products or parts thereof. Neither the acceptance of products delivered subject to retention of title nor the signing of invoices or delivery bills with a retention of title clause shall have any declaratory value in this respect and all deliveries must also be made without the validity of a retention of title.

If the service also includes erection, installation, assembly and/or commissioning in cooperation with or with the support of the Supplier, the risk shall pass at the earliest upon proper and complete delivery in accordance with the contractual agreement.

The Supplier shall assume all costs and risks associated with the transportation, e.g. in connection with customs duties, transportation fees and charges, transportation insurance, legally required export control permits, customs clearance, special and hazardous goods transportation, special shipping measures, etc. SBPT and the Supplier may agree that SBPT shall take out suitable transport insurance; however, the Supplier shall bear the costs thereof. Each shipment must be accompanied by the usual shipping documents, in particular the delivery bill with the order number shown. The invoice, on the other hand, is to be submitted to SBPT in accordance with section 4.2 of these GPC.

Delivery shall be made within the periods or on the date specified in the contract. In all other cases, delivery shall be made immediately, at the latest 30 (thirty) days after receipt of the order by the Supplier. Deadlines and dates are binding and fixed.

The Supplier must inform SBPT immediately if the delivery cannot be made on time for whatever reason.

Upon receipt of the notice, SBPT may, at its sole discretion, postpone delivery for a specified or “reasonable” period of time; otherwise, SBPT shall automatically withdraw from the contract for cause after a grace period of 5 (five) business days from receipt of the notice. A postponement can be declared several times. In order to be able to properly assess whether a postponement of the delivery is appropriate, SBPT may request further information from the Supplier about the delivery status and the reasons for the delay. The postponement and withdrawal do not limit SBPT’s right to claim damages for delay in delivery (or non-performance), including under section 5.2 of these GPC (contractual penalty), nor its right to perform the contract at the expense and risk of the Supplier itself or with the involvement of a third party.

3.3 Transportation and packaging

Transportation and packaging shall be provided and arranged by the Supplier in such a way that the Products are delivered safely, undamaged and in accordance with international norms and the requirements and standards applicable at the place of performance and at the final place of delivery. Additional costs due to non-compliance with this Section 3.3 shall be reimbursed or borne by the Supplier.

At the request of SBPT, the Supplier shall take back or dispose of the packaging material free of charge after delivery. If the Supplier does not comply with this request within a reasonable period of time, SBPT may dispose of the packaging material at the expense and risk of the Supplier. This applies in particular to all packaging materials that are considered hazardous waste according to a recognized definition.
Only proven freight forwarders specializing in international transport may be used for the execution of formalities and shipping as well as the corresponding support.

4. payment

4.1 Terms of payment

Unless otherwise agreed, the prices for Products are all-inclusive prices, including all taxes, fees and charges, but excluding VAT and Delivered Duty Paid (DDP) in accordance with Incoterms® 2010, including all packaging, transportation and documentation necessary for the proper and complete provision (and delivery) of the Products. Costs in excess of these flat rates may only be invoiced with the prior written consent of SBPT.

Payment shall be made within 60 (sixty) days of receipt of the invoice, but not before the proper and complete delivery of the products to SBPT, in accordance with section 4.2 of these GPC. SBPT is entitled to a discount of 3 (three) % of the total invoice amount (excluding value added tax (VAT)) if payment is made within 45 (forty-five) days. In the event of culpable default of payment by SBPT, default interest of 4 (four) % p.a. may be charged.

If SBPT has agreed to an advance payment above the threshold value of EUR 10,000, this must be secured by the Supplier until proper and complete delivery with a free, irrevocable and abstract bank guarantee issued by a first-class bank or insurance company acceptable to SBPT and domiciled in the European Union, Switzerland, Iceland or Norway. Insofar as SBPT has made a down payment, it acquires a (co-)ownership share in the products already produced in proportion of the amount paid to the total value of the items concerned. The Supplier shall ensure that products whose ownership has already passed to SBPT are kept separate and marked in such a way that SBPT’s ownership is clearly recognizable. The provisions on the transfer of risk remain unaffected.

Payments do not constitute recognition of the fulfillment of the respective contract and therefore do not constitute a waiver of claims under warranty, guarantee, damages, etc.

Invoicing

Invoices must be submitted to SBPT in electronic form in a separate e-mail to accounting@sbo.co.at. Invoices enclosed with the products are not deemed to have been duly received. In addition, the invoices must comply with all requirements of § 11 UStG as amended and contain the VAT, the order number, the order date, the shipment number, the delivery date and the VAT number of the supplier. SBPT is entitled to reject invoices that do not meet these requirements; these invoices do not constitute due dates until their agreed correction and entitle SBPT to withhold payment.

The Supplier is not entitled to offset its claims against counterclaims from the same transaction or other transactions, unless the counterclaims have either been legally established by a court of law or expressly recognized by SBPT.

5 Warranty and liability

5.1. Warranty

The Supplier warrants that the products are free from material defects and defects of title of any kind both at the time of delivery and throughout the entire warranty period and that they do not infringe any intellectual property rights and that they fully comply with the provisions expressly set out in the contract. In all other respects, the products shall be deemed to have the usually assumed and in particular the expressly described properties and to fulfill all requirements in accordance with Section 3.1 of these GPC, with the exception of normal wear and tear and damage caused by improper or incorrect use by SBPT. Declarations of the Supplier that limit its liability are invalid.

The warranty period is 24 (twenty-four) months for movable items and 36 (thirty-six) months for immovable items from delivery. For hidden defects and defects of title, the warranty period shall commence at the earliest upon knowledge thereof. If an improvement or replacement is made, the warranty period shall commence anew from delivery for the improved or replaced products or, if the defect significantly affects the entire delivery, for all products from the same transaction.

Defects occurring during the warranty period shall be remedied by the Supplier at SBPT’s discretion within a short but reasonable period of time, which may not exceed 15 (fifteen) days, free of charge and including transportation from or to the place of performance, by improvement or replacement. If the improvement or replacement cannot be carried out sufficiently or within this period, SBPT may carry out the improvement or replacement itself or with the involvement of a third party and demand reimbursement of the costs from the Supplier or cancel the contract if the defect significantly impairs the usability of the products. The other rights of SBPT remain unaffected by this.

Details regarding the material, function, equipment, quality and/or intended use of the products are deemed to be expressly warranted.

The burden of proof for the non-existence of a defect occurring during the warranty period lies with the supplier. SBPT is not obliged to inspect or complain about the products, neither upon delivery nor at a later point in time. Accordingly, the provisions of §§ 377 et seq. of the Austrian Commercial Code (UGB) shall not apply and the supplier waives the defense of delayed notification of defects.

In the event of complaints, SBPT is entitled to withhold payments.

5.2. Contractual penalty

The Supplier shall be liable within the scope of the statutory provisions (with regard to product liability provisions, irrespective of whether claims can be attributed in whole or in part to the delivered products) without limitation for damages, including financial losses, for compensation for consequential or subsequent damages, for loss of profit, for savings, interest or turnover not achieved, and for compensation for pure financial losses incurred by SBPT and caused directly or indirectly by the Supplier or persons attributable to him. This also applies to legal costs, lawyer’s fees, costs of publication of judgments and internal costs of SBPT as well as for any claims for damages or other claims of third parties; the Supplier shall indemnify and hold SBPT harmless in this respect.

The Supplier acknowledges that timely delivery is of paramount importance to SBPT and that the amount of loss or damage that may arise in the event of improper or incomplete performance cannot be precisely quantified. Therefore, he agrees to pay a contractual penalty of 0.5% per week or part thereof and up to a total of 5 (five) % of the total order value, or in case of non-performance 5 (five) % of the total order value upon first notification by SBPT, during the continuation of the delay; in this respect, reference is made to section 3.2 of these GPC. This penalty applies mutatis mutandis to Section 7 of these GTCP, in particular insofar as it relates to the Code of Conduct (Section 7.1), the EU Declaration of Conformity (Section 7.2) and Confidentiality and Intellectual Property (Section 7.5), and is not subject to judicial mitigation and does not exclude any claims in excess of the amounts claimed under this title.

6. termination and force majeure

In addition to the rights of withdrawal stipulated in these GPC, the contract and statutory provisions, SBPT expressly reserves the right to terminate the contract for good cause at any time with immediate effect. This applies in particular to

• serious breach of material contractual obligations by the supplier
• Failure to comply with the terms of delivery (in this or any other transaction between SBPT and the Supplier in its capacity as Supplier),
• The occurrence of circumstances that could give rise to justified doubts about the supplier’s creditworthiness or impair the realizability of claims, e.g. in the event of a significant reduction or complete cancellation of credit insurance limits by reputable insurers, in the event of restructuring, insolvency or other proceedings with a similar effect that are applied for or opened in relation to the supplier, or in the event of such proceedings not being opened due to a lack of cost-covering assets,
• significant changes in the ownership structure or the shareholding structure of the Supplier, which make the continuation of the fulfillment of the contract unreasonable for SBPT, for example due to the threat of damage to reputation or standing or (possible) serious effects on the relationship of SBPT with other suppliers or customers,
• significant negative changes in the technical, legal or economic conditions / circumstances that make it unreasonable for SBPT to adhere to the contract, or
• Impossibility of delivery of the products for reasons for which the supplier is responsible or in the event of continued delay.

If the fulfilment is hindered by events of force majeure, which are exclusively war, strike organized by a trade union, riot, forces of nature and fire, the right of withdrawal is limited insofar as the deadlines or dates for the fulfilment are extended or postponed by the duration of the disruptions due to force majeure. If a force majeure event lasts longer than 4 (four) weeks, SBPT and the Supplier shall negotiate an amicable solution to the problem. If no amicable solution can be reached, SBPT can withdraw from the contract in whole or in part after a total of 8 (eight) weeks.
The Supplier can only invoke force majeure if he informs SBPT immediately, but no later than 3 (three) working days after the occurrence of the event, of the beginning and the expected end of the disruption. The parties must make every effort to eliminate and/or minimize the disruption and expected damage caused by the force majeure event and keep the other party regularly informed of developments.

7 Compliance and Code of Conduct

7.1. Code of Conduct

SBPT undertakes to comply with the Code of Conduct of the SBO Group, the current version of which is available at www.sbo.at/compliance. In accordance with Section 1, the Code of Conduct also applies to persons working for or on behalf of SBPT.

The Supplier hereby acknowledges the Code of Conduct and agrees to comply with it mutatis mutandis.

7.2. EU Declaration of Conformity

The supplier confirms that it complies with all applicable EU directives and EU regulations, harmonized standards and Austrian laws in a manner that is comprehensible and verifiable at all times, including with regard to products imported from outside Europe.

He assures that he has prepared all technical documentation and the EU Declaration of Conformity in accordance with these rules and regulations and indemnifies SBPT in this respect. The CE marking and other relevant certifications must always be obtained by the supplier.

7.3. Taxes and customs duties

Unless otherwise agreed, all amounts quoted are in EUR. Value added tax shall be charged in accordance with the statutory provisions.

Pursuant to Section 3.2 of these GPC, the Supplier shall be responsible for the export and import of the Products. All taxes, duties and fees incurred upon export or import of the Products shall be borne by the Supplier; this also applies to all taxes, duties and fees incurred due to changes in the legal situation after SBPT has placed an order or the contract has been signed. SBPT and the Supplier may mutually agree on details.

7.4. Export control and sanctions

The supplier is obliged to comply with all applicable national and international export control regulations with regard to the products.

The fulfillment of the contract is subject to the proviso that the necessary export licenses are granted. Furthermore, it is subject to the express reservation that there is no conflict with applicable import or export control regulations, such as sanctions (primary and secondary sanctions), embargoes and other trade barriers. This applies regardless of whether these barriers apply directly to SBPT, to a company of the SBO Group or to the SBO Group as such, and regardless of whether there are any effects for SBPT.

The Supplier acknowledges that any erection of such trade barriers constitutes an event beyond the control of SBPT and therefore releases SBPT from its contractual obligations. This release shall not entitle the Supplier to any damages or other claims against SBPT, such as claims for reimbursement of direct or indirect costs or consequential damages incurred by the Supplier in connection with such release. However, SBPT and the Supplier may agree in good faith on legally compliant alternative delivery options.

7.5. Confidentiality and intellectual property

The Supplier shall respect the confidentiality of SBPT’s trade secrets. “Trade Secrets” shall be interpreted broadly to include trade secrets and intellectual property, business ideas, processes, forecasts and strategies, customer, supplier and product information including price lists and pricing mechanisms, capacity and production information, requests and orders from SBPT, machinery, information and development plans for research and development (R&D), records regarding executives and employees, etc. Any transfer, duplication, disclosure or publication of documents or information provided by SBPT to the Supplier is strictly prohibited and requires the approval of SBPT. The Supplier may use the disclosed information and documents exclusively for the submission of an offer and the fulfillment of the respective contract. In addition, the Supplier undertakes to retrieve and use the intellectual property of SBPT made available to him only within the scope of the fulfillment of the contract, but not to retrieve, use, appropriate or register it beyond that. The intellectual property rights remain with SBPT.

The above provisions shall apply for an indefinite period of time, which may also extend beyond the termination of the business relationship with SBPT. After termination, all documents and information received or created in the course of the business relationship must be returned or handed over to SBPT. If this is impossible or impracticable, they must be destroyed (deleted). If the destruction is omitted due to public law provisions or a separate agreement with SBPT, SBPT must be informed immediately.

If the Supplier provides products (including documentation) that are subject to intellectual property rights and if the transfer of these rights is not part of the service to SBPT for certain reasons, the Supplier undertakes to grant the unrestricted right of access and use for the intended purposes. If such rights are held by a third party, the Supplier shall ensure their corresponding transfer to SBPT and shall indemnify and hold SBPT harmless in this respect.

SBPT is entitled to name the Supplier as a reference on all advertising media and in all advertising and PR activities, in particular on the website, in publications and on reference lists of all kinds, to disclose the cooperation with him and to mention his name, show his logo and link to his website for an unlimited period of time, without this giving rise to a claim for payment by the Supplier; however, the Supplier has the right to revoke his consent at any time.

7.6. Data protection

Regulation (EU) No. 2016/679 (EU General Data Protection Regulation), which came into force on May 25, 2018, forms the basis for the protection of natural persons with regard to the processing of personal data by SBPT.

The supplier acknowledges that its personal data and that of its employees will be processed by SBPT as necessary for the purposes of the business relationship with the supplier. This does not restrict the processing of personal data for other purposes if these are compatible with the purpose for which they were collected, nor the processing by other companies of the SBO Group for these purposes.

Further information on the processing of personal data by SBO and the associated rights can be found at www.sbo.at/privacypolicy.

SBPT requires the Supplier to comply with its privacy policy and, as a result, to process data in a manner that ensures appropriate security of personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction and damage (integrity and confidentiality), using appropriate technical and organizational measures.

When processing personal data, the Supplier must comply with the principles of (a) lawfulness, processing in good faith, transparency, (b) purpose limitation, (c) data minimization, (d) accuracy and (e) storage limitation, in each case in accordance with the provisions of the EU General Data Protection Regulation, in addition to the obligation of integrity and confidentiality.

The processing of personal data – including the use and transfer to SBPT – must be based on a valid legal basis and the data subject must be duly informed in accordance with Article 13f of the EU General Data Protection Regulation. SBPT may require the Supplier to provide evidence necessary to comply with the EU General Data Protection Regulation.

The Supplier shall indemnify and hold SBPT harmless for any penalties or damages incurred by SBPT or its officers or employees as a result of the Supplier’s failure to comply with data protection obligations.

8. severability clause

Should provisions of these GTCP be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provisions shall automatically be replaced by valid, effective, lawful and enforceable provisions that come closest to the purpose of the provisions to be replaced. SBPT and the Supplier may expressly agree effective provisions that meet these requirements.

9 Place of jurisdiction and choice of law

All disputes arising out of or in connection with the business relationship, these GPC and the contract between SBPT and the Supplier, including questions of conclusion, validity, termination or nullity of the contract, shall be governed by Austrian law, excluding the international conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG) in the respective valid versions.

The place of jurisdiction is the court responsible for the subject matter of the contract at the registered office of SBPT.