Conditions of Purchase
1. SCOPE OF APPLICATION
The following Conditions of Purchase apply to our current and future business transactions with suppliers or other contractors (hereinafter referred to as “Supplier(s)”) and to all companies which are part of the RUBIG Group. The content of previous discussions, notes, correspondence and so forth by the Supplier does not constitute part of the contract that has come into effect due to our order. The content of the contract is the sole result of our order and our Conditions of Purchase. General terms and conditions or forms provided by the Supplier will in no case be recognized or part of the contract, irrespective of whether we are aware of them or not, whether we have objected to their validity or not, and regardless of whether they are in contradiction to the Conditions of Purchase or not. Also the unopposed acceptance of the delivery or performance activities by us shall not be construed to indicate a submission to such conditions. We hereby expressly contradict any deviations contained in the order confirmations, and particularly the Supplier's Terms and Conditions. An additional objection – pertaining specifically to the transaction in question – shall not be required. A specific written agreement pertaining to the relevant contract is required to ensure the validity of ancillary agreements, amendments or additions to our Conditions of Purchase. Offers and quotes are prepared free of charge and without obligation for us. They are valid for the time period specified in the offer, with a minimum period of validity of 3 months. Decisive for the interpretation of trade terms are the Incoterms in their respective valid version.
2. PURCHASE ORDERS
Only orders placed in writing and sent by fax or email are valid. Verbal and telephone orders are only valid if they are confirmed by us in writing. Each order is to be confirmed by the Supplier in writing. If confirmation is not dispatched within 14 days after the day of the order, we are no longer bound by the order. Any deviations from the order must be expressly emphasized and shall be binding for us only after our written acknowledgment. The delivered goods must conform to the presented documentation in every detail and be free from construction and production defects. By accepting the purchase order, the Supplier acknowledges that, by means of access to the existing documentation, he is aware of the type of performance and the scope of the service. We shall not be bound by any obvious errors, typographical or calculation mistakes in the documents presented to us. The Supplier shall be obligated to notify us of such errors so that our order can be corrected and replaced. This also applies in case of missing documents. Deviations from the existing documentation that have not been approved in writing shall entitle us to reject the delivery, to return delivered goods at the expense and risk of the Supplier, or to implement an appropriate price reduction. We shall be entitled to withdraw from orders that have already been placed, if the financial situation of the Supplier deteriorates or insolvency proceedings are instituted against his assets, leading us to expect deadline and delivery difficulties or a lack of cover of our liability or warranty claims.
3. QUALITY ASSURANCE/ENVIRONMENTAL MANAGEMENT
Regarding the manufacture of the goods to be delivered, the Supplier guarantees compliance with all statutory requirements (i.e. national and international regulations under public law) for the protection of consumers, employees and the environment, in particular those under the law of the place of destination, but at least the applicable EU standards. If the delivery item contains chemicals and these fall within the field of application of the REACH Directive (Regulation [EC] No. 1907/2006), the Supplier must prove to us their registration; the Supplier guarantees that use of the supplied goods for their intended purpose is covered by the registration and the Supplier must provide us with all of the information relevant to safety (Safety Data Sheet). The Supplier has to have in place the required permits for all processes and equipment. Material data sheets or EC safety data sheets for the products supplied are to be maintained by the Supplier and must be presented if so requested by the contractor. If the Supplier makes use of subcontractors, then we shall be informed accordingly. In the case of function-critical parts, the Supplier may only make use of subcontractors for manufacture or procurement that have been approved by us. For purchased parts and contract work carried out based on drawings, our technical delivery conditions apply. At the time of delivery, we (or our customers in the case of direct delivery) carry out an inspection solely regarding the identity, delivery quantity and any transport damage that is clearly visible from the outside of the packaging. Further statutory obligations of inspection and notification are hereby expressly excluded. We reserve the right, without prior notification, to carry out a systems, process or product audit at the Supplier’s premises during regular business hours. We are entitled to demand that primary materials, parts of the delivery item or entire delivery items which are procured from subcontractors be included in the Supplier’s quality assurance system. The Supplier must then ensure that the above audits can also be carried out at the premises of the subcontractors.
4. PRICING
If not otherwise expressly stated in the order, the agreed prices are fixed prices, insofar that the Supplier is not reducing their respective prices in general. If no prices are stipulated in the order form, they must be stated in the order confirmation, in which case we reserve the right to object or cancel. In the absence of other explicit agreements, the prices are including all taxes, duties and ancillary costs; ancillary costs are in particular the cost of packaging, loading, transport and obtaining export and import licenses. Also included in the prices – unless otherwise agreed – are the costs for taking back, proper recycling and disposal in accordance with the manufacturer’s take-back and disposal obligations, in particular with regard to electrical and electronic devices. In addition, the Supplier does not give us less favorable prices and conditions compared to other customers, if and to the extent that these offer the same or equivalent conditions in any concrete event. We shall not accept price escalation and similar clauses without signed agreement.
5. DELIVERY AND DELIVERY DATES
The Supplier, regardless of whether this is a manufacturer or retailer, shall be obligated to subject the goods to be delivered to a sufficient quality and quantity control prior to delivery. The Supplier may not invoke the provision of § 377 UGB (Austrian Commercial Code). Our delivery instructions are to be complied with. We will only accept claims made by transport carriers or forwarding agents expressly commissioned by us. We reserve the right to reject non-agreed partial deliveries and to cancel remaining quantities. Where a product is not accepted by us, the Supplier shall be obligated to collect it within 8 days of notification, otherwise we shall be entitled to return the goods at the expense and risk of the Supplier. If it becomes evident that a delivery date will be exceeded, the Supplier must inform us immediately in writing, stating the reason and the new expected delivery date. If the Supplier fails to meet this obligation, then they can no longer claim that they are not responsible for the delay; in such a case, we shall be entitled to withdraw from the contract without any grace period. If the delivery time is exceeded without an agreement, we shall be entitled, at our own discretion, to either demand subsequent deliveries within 8 days and damage compensation due to late delivery or to withdraw from the contract, subject to a reasonable period of grace, unless the delivery was expressly agreed for a specific date. In the latter case, we shall be entitled to withdraw without setting a period of grace. If we ordered accompanying documentation (factory reports, certificates, reports, descriptions, plans, etc.), this shall be considered as an integral component of the scope of delivery and services, and delivery shall only be considered as fulfilled once these documents have been supplied.
6. SHIPPING AND HANDLING
Unless otherwise agreed, the delivery is to be made free of freight and packing. If shipping costs are at our expense, then the most favorable (least expensive) shipping options are to be chosen, as long as no other means of transportation is expressly required by us. Shipping is at the risk of the Supplier. The Supplier is obliged to carefully package the goods in suitable packaging. The proper loading and securing of the load is the responsibility of the supplier. The packaging must be in line with environmental and transport considerations: the packaging and filling material must have varietal identity and purity and must be recyclable. If it has been expressly agreed in writing that we bear the transport risk, then the sender of the goods shall be obligated to address any claims for loss, reduction, damage of the goods and the like to the carrier without delay and to immediately cede these claims to us. If requested by us, a special insurance policy is required for the consignments of goods. The delivery documents must accompany each consignment, and a dispatch note is to be sent to us.
7. ACCEPTANCE, WARRANTY AND COMPENSATION FOR DAMAGES
The Supplier shall warrant and fully guarantee fault-free material, fault-free performance as well as the complete, fault-free and on-schedule rendering of the agreed delivery or service. The Supplier warrants that the delivery/service exhibits the usually expected and any explicitly assured properties. The warranty period ends twelve months after delivery and acceptance. The obligation of inspecting defective delivered goods in accordance with § 377 UGB (Austrian Commercial Code) is expressly waived. If a defect has been detected, we shall always be entitled to a six-week deadline for the notification of defects. If a defect occurs, we are entitled to choose between replacement, repair, price reduction, or redhibition. In the case of a certain product type, the random occurrence of defects shall entitle us to warranty and damage claims for the entire delivery. The warranty duty and obligation to compensate is not limited by treatment and processing nor by the resale of the goods.
8. PRODUCT LIABILITY
The Supplier is fully liable within the scope of the applicable product liability law. Exclusions of liability of any kind as well as limitations of liability of our contract partner – particularly from the title of the damage compensation or warranty – will not be accepted. In particular, there shall be no exclusion for property damage. The Supplier shall assume responsibility for the faults of their subcontractors or sub-contract manufacturers as though the fault was the Supplier’s own. Regardless of fault, the Supplier is to take responsibility for product defects, if and to the extent that the law so provides. The Supplier and their legal successors shall be obliged to fulfill product monitoring obligations. The Supplier must inform us without delay, if it is subsequently discovered that the product has hazardous properties. In the event that a claim is asserted against us, the Supplier shall be obligated to indemnify and hold us harmless.
9. INSURANCE
The Supplier shall maintain, at their own expense, commercial insurance with the usual scope of coverage with a renowned insurance company (and provide us upon request with a written confirmation of cover), including a general business liability insurance with extended product liability insurance. The product liability insurance must provide cover for a minimum of € 2,500,000 for any one claim, and it is to be maintained for at least eleven (11) years after fulfillment of the contract. We can demand that we are included in the insurance policy as “co-insured” .
10. INVOICING
In addition to legally required properties, invoices must contain our full order data and the order date, the VAT number and, if required, the ARA license number. Invoices must also indicate whether the shipment is carriage paid (DDP) or carriage forward (EXW). Furthermore, all invoices must list the type of shipping, the shipping agent (with any tracking numbers), parcel units and weight. All invoices shall be submitted immediately after a successful delivery and must never be included with the shipment, otherwise the Supplier assumes the full risk for the receipt of the shipment. In addition, if the invoice is included in the shipment, the Supplier does not acquire any rights, such as jurisdiction of the place of invoice and so forth. If billing according to actual expenses has been agreed, then the time statements confirmed by us must be included with the invoice. Invoices that do not meet our requirements or those stipulated by law (particularly customs and tax laws), shall not be considered submitted. Electronically submitted invoices can be accepted only after prior written approval by the accounting department of the respective Group company, and they must be sent only to the following email addresses:
Rübig Gesellschaft m.b.H. Co. KG: rechnungswesen[at]rubig[dot]com
Rübig Alu GmbH: rechnungswesen[at]rubig[dot]com
Rübig Technologie GmbH & Co KG: rechnungswesen[at]rubig[dot]com
Franz Rübig & Söhne GmbH & Co KG: st.buchhaltung[at]rubig[dot]com
11. ASSIGNMENT CLAUSE
The Supplier is not entitled to assign claims against us to third parties. Payments on our part will be effected exclusively to the Supplier.
12. PAYMENT TERMS
Payment periods, including cash discount periods, do not begin prior to receipt of the invoice. The payment is considered on time if the instruction to the bank is submitted on the last day of the payment period. The payment does not constitute acknowledgment of the regularity of deliveries or services and thus does not constitute a waiver of claims of any kind to which we might be entitled. We reserve the right to offset counter-claims, including those from Group companies. The assignment of payment claims is only permitted with our prior written consent.
13. RETENTION OF TITLE
We do not recognize any additional retention of title (current account reservation), in particular an extended retention of title. Regarding the possible rights of the Supplier to reservation of title, the Supplier’s conditions shall apply with the proviso that the ownership of the object of sale is transferred to us upon payment, and consequently the above-mentioned types of extension do not apply. On the basis of the retention of title, the Supplier may claim a return of the goods only if they have previously withdrawn from the contract.
14. FULFILLMENT, CLAIMS FOR COMPENSATION
The transfer of price and performance risks as well as the transfer of ownership is governed by the applicable Incoterm. However, where a formal acceptance takes place, the transfer of risk does not occur prior to this formal acceptance. Unless otherwise agreed, the place of risk transfer is also seen as place of fulfillment. If the Supplier violates their contractual obligations, we shall be entitled to levy a contractual penalty of up to 10% of the invoiced amount without further proof of damages or to make same such a deduction from the payment. This does not exclude putting forward a claim for damages in excess of this amount.
15. FORCE MAJEURE
In the case of force majeure (strike, lockout, war or natural events etc.), we shall be entitled to partially or completely withdraw from the contract or to demand fulfillment at a later point in time, with no claims of any kind arising from this for the seller, except the replacement of verifiable expenditures.
16. DRAWINGS, MODELS, PROPRIETARY RIGHTS
The Supplier may not use for any other purposes, reproduce or make accessible to third parties any drawings, models and so forth which we make available to the Supplier for the execution of the order nor any drawings and so forth produced by the Supplier in accordance with special instructions by the ordering party. Upon our request, these must be released to us without delay, including all copies and duplicates. In the case of non-delivery, the Supplier must voluntarily return them to the ordering party, and any work relating thereto must be considered as trade secrets and must be handled in confidence. The Supplier shall be liable for all damage arising from the violation of any of these obligations to the ordering party. By accepting the order, the Supplier consents to the IT-supported processing and storage of any data pertaining to this business relationship. Insofar as the Supplier did not produce the delivered goods or services in accordance with drawings, models and so forth provided by us and therefore does not or cannot know that this might cause violation of proprietary rights, the Supplier shall be liable for ensuring that no patent or other proprietary rights of third parties are infringed through the delivery and use of the purchased objects. In such cases, the Supplier shall indemnify us and our customers from all claims arising from the use of such proprietary rights.
17. FEES and CHARGES
Unless otherwise agreed or regulated by law, any fees and similar charges that incur from the order shall be payable by the Supplier.
18. CORPORATE ETHICS
The strict observance of the Code of Conduct as issued by any applicable laws, guidelines, directives and similar standards form the basis for all our business relationships. A violation of the provisions referred to in this paragraph will be deemed to be a serious breach of contract, which entitles us to rescind any unfulfilled orders with the Supplier as well as to put forward extensive claims for damages.
19. PLACE OF JURISDICTION, APPLICABLE LAW, PLACE OF FULFILLMENT
Our legal relationship with the Supplier is subject to Austrian substantive law, with the exclusion of the Conflict of Laws Code and UN Convention on Contracts for the International Sale of Goods. Any disputes and differences of opinion arising from this or from subsequent orders, including a dispute about the conclusion of a contract, are subject to the jurisdiction of the competent court of law in Wels, Austria. Regardless, we shall be entitled to bring proceedings against the Supplier at a competent court of law at the Supplier’s registered office location. The place of fulfillment for delivery and payment is our head office, even if the transfer takes place at a different location as per agreement.
20. MISCELLANEOUS
If special conditions have been agreed for a specific order, our Conditions of Purchase shall apply in a subsidiary and complementary manner. These provisions remain fully applicable even in the case of legal ineffectiveness of individual parts. The business partners shall undertake to replace any ineffective provision with an effective provision that aims to achieve economic success in a similar manner as possible to the ineffective provision. The RUBIG group will deem as irrelevant and invalid any changes and/or supplements to and/or other deviations from these Conditions of Purchase made by the Supplier.
