General Terms and Conditions of Purchase (GTCP)

of astebo gmbh | Status 01.02.2020 | Download as .pdf

1. scope and general

For business transactions between astebo gmbh (FN 276813d) and the supplier, these General Terms and Conditions of Purchase (GTCP) shall apply exclusively in connection with orders for goods and other services for which astebo gmbh is the principal/purchaser.

By concluding the contract (the order), the Supplier fully agrees to the validity of our General Terms and Conditions of Purchase in the latest valid version, also for future transactions. Our General Terms and Conditions of Purchase are available online at so that the Supplier can inform itself about the current status before each conclusion of a contract.

Provisions deviating from these Terms and Conditions of Purchase – in particular the general terms and conditions of the Supplier – as well as supplements shall only become part of the contract if this has been confirmed by us in writing.

If an agreed clause violates mandatory law, the remaining provisions of this contract shall remain fully valid and binding. Any ineffective contractual provision shall be replaced by a provision that comes as close as possible to its economic content. This also applies mutatis mutandis to gaps.

Verbal collateral agreements are invalid.

2 Offer and conclusion of contract

Cost estimates and offers on the part of the Supplier are free of charge. The Supplier shall be bound to its offer for eight weeks without indexation.

Orders shall only become binding for us upon transmission of the written order confirmation in accordance with the astebo template including signature by the authorised signatory management.

The Supplier shall confirm receipt of our letter of acceptance within 3 working days of receipt by means of a written order confirmation.

The information contained in price lists, catalogues and advertising media of the Supplier shall in any case constitute offers of the Supplier and can be retrieved by us at any time at the conditions stated therein.

All media directly or indirectly related to the concluded contract, such as sketches, plans, samples, brochures and the like, shall remain our intellectual property without exception and require our prior written consent before any transmission or transfer to third parties.

The order number shall be quoted by the Supplier in all documents relating to the order.

Our silence in response to proposals, demands, amendments or other correspondence from the Supplier shall in no case be deemed to constitute consent.

We reserve the right to make changes to the delivery or service even after conclusion of the contract, insofar as this is reasonable for the supplier or customary in the industry.

If the Supplier uses data, primary materials, tools or manufacturing processes other than those approved by us, it must obtain our express written consent in advance. The Supplier may not make any changes to the data, design or construction without our prior written consent. Relocation of the production site to locations or subcontractors other than those specified in the offer shall only be permissible with our prior, express and written consent.

3. delivery time, delivery period, delay

Delivery periods are always stated by the Supplier in such a way that it is assumed that the transaction is a fixed transaction. Agreed delivery periods shall commence on the date of our written declaration of acceptance.

If it is recognisable to the Supplier that it will be in default with the delivery and/or service, we must be informed immediately of the impending default and its expected duration. The notification shall not result in any exemption from the following contractual penalty.

If the supplier is in default, we are entitled to charge a price reduction of 2.5 % of the order amount including VAT for each month of default in delivery that has begun.

The Supplier is obliged to compensate any damage caused by the delay. This includes, but is not limited to, the costs for special transports, production losses due to machine downtime and additional expenses for cover purchases as well as lost profits and other financial losses of any kind.

4. transfer of danger

The Supplier shall bear the costs as well as the risk of transport until defect-free acceptance at the agreed destination. The risk of damage or loss shall only pass to us upon handover. The Supplier shall take out transport insurance for the goods and pack them properly. Damage resulting from improper packaging prior to acceptance by us shall be borne by the supplier. DDP according to incoterms in latest version.

5. prices

Prices communicated to us are to be understood as fixed prices, including all services required for the performance of the contract, in particular therefore all taxes (including VAT) and duties, packaging, transport and insurance costs, guarantees, sureties, freight and assembly costs, contract fees, export fees, import fees, implementation fees, escort interest, customs fees and charges, official commission fees, transfer fees and all other fees/ancillary costs.

Claims of the Supplier pursuant to § 1168 ABGB are excluded.

In the event of an exchange rate difference between the currency shown on the invoice and the euro, the calculation of the purchase price shall be based on the ratio of the values of the two currencies on the date of conclusion of the contract and thus represents the agreed purchase price. In this context, amounts on account, advance payments and instalments are recalculated and offset in the same way, adjusted for exchange rate fluctuations.

Invoices may only be issued by the Supplier after complete provision of the delivery or service or complete and defect-free handover of the documentation. In principle, invoices shall be sent by post, the costs of which shall be borne by the Supplier. At the request of the Purchaser, the invoice may be sent digitally by e-mail.

6. terms of payment and default in payment

We shall pay the invoice amount, less any agreed liability discount, in the agreed currency within 90 days of the invoice date to the Supplier’s account stated on the invoice.

If the invoice is paid within 60 working days of receipt of the invoice, a 4% discount is hereby agreed.

Compensation for any reminder or court fees, interest on arrears, collection or lawyer’s fees of any kind incurred by the Supplier vis-à-vis us is excluded; any costs incurred in this regard shall therefore be borne in full by the Supplier.

7. cancellation option

Cancellation of the order is not possible on either side – irrespective of the possibility of withdrawal on our part due to default on the part of the Supplier.

As soon as a provisional insolvency administrator is appointed for the Supplier’s affairs or insolvency proceedings are opened against the Supplier’s assets or are dismissed for lack of assets to cover costs, we shall be entitled to withdraw from the contract in whole or in part.

8. reservation of ownership

All products and merchandise become our full property at the time of transfer of risk. Retention of title to the delivered goods is therefore excluded. The intellectual property of the item is already transferred to astebo gmbh in the offer phase.

9. warranty claims

The Supplier shall assume the warranty for defects of all kinds for delivered products. The Supplier shall be responsible for compliance with all laws, standards and other relevant provisions concerning the goods or services in force at the place of delivery.

§ Section 377 UGB shall not apply.

The Supplier undertakes to keep suitable spare parts in stock and to carry out repairs for a period of 10 years from the date of takeover.

Exclusions of liability as well as limitations of liability of the Supplier, in particular under the title of warranty or damages, are not accepted.

The warranty period shall be 10 years from the date of handover, whereby it shall be presumed during the entire warranty period that there is a defect, that the delivered item was already defective at the time of handover and that the Supplier is at fault.

Parts replaced under warranty shall remain our property. The Supplier shall bear all direct and indirect costs associated with the fulfilment of its obligations under warranty law. The warranty shall be provided on site at the Supplier’s expense.

The Supplier shall have a maximum of three working days after commissioning to remedy the defect, failing which we shall be entitled to have the defect remedied by a competent third party or to withdraw from the contract due to default. The associated direct and indirect costs shall be borne in full by the Supplier.

10. right of retention and set-off

We are entitled to retain payments to secure claims against the Supplier or to offset them against justified claims on our part against the Supplier.

In the event of defective delivery, the term of payment shall be extended by the time until complete rectification or delivery in conformity with the contract.

Offsetting against our claims with counterclaims of any kind whatsoever is excluded.

Payment does not constitute an acknowledgement that the delivery is complete, correct or free of defects.

A liability discount of 10% of the total order value excluding VAT shall be retained for orders of € 10,000 net or more, in any case for a period of two years. This liability waiver can also be redeemed by the Supplier by means of a guarantee from an insurance company or bank, provided that we declare our consent to this in writing in advance.

11 Compensation and liability

The Supplier shall be liable for slight negligence, gross negligence as well as wilful misconduct, whereby any such misconduct on the part of the Supplier shall be presumed in the event of damage.

Exclusions of liability as well as limitations of liability of the Supplier are not accepted.

The statutory limitation periods shall apply; a shortening of the limitation period is excluded.

The Supplier shall be liable even in the case of slight negligence for all direct and indirect damage incurred by us or third parties. The Supplier shall therefore be liable for damages to persons as well as to assets of all kinds (financial losses), such as in particular consequential harm caused by a defect, loss of profit, loss of earning opportunities as well as compensation for frustrated expenses, etc.

The supplier shall indemnify and hold us or our customers harmless in the event of direct claims by third parties.

The Supplier shall take out product liability and recall insurance or provide corresponding guarantees to cover the risks associated with the goods and/or services.

The Supplier undertakes to use only such workers for all work (in particular assembly, commissioning and repair work) whose employment is permissible in accordance with the applicable statutory or contractual provisions. The Supplier undertakes to ensure that the posted workers are authorised to perform the work to be performed under the contract in the respective country of performance. If we suffer any disadvantages as a result of a breach of this provision by the Supplier, the Supplier shall be obliged to compensate us for these disadvantages in full (including any consequential damages and penalties) within 14 days of being requested to do so.

The Supplier warrants and represents that all deliveries made by it are free from third party industrial property rights and, in particular, that the delivery and use of the delivery items do not infringe any patents, licences or other third party industrial property rights. The supplier shall indemnify us or our customers against direct claims by third parties.

12. continuing obligations

In the case of continuing obligations, we may terminate with effect from the end of the month subject to 14 days’ notice.

We may terminate this contract at any time without notice for good cause. Important reasons are in particular: The opening of insolvency proceedings, or the rejection of the application for lack of assets to cover costs, The violation of legal, official or contractual regulations as well as the setting of disadvantageous agreements contrary to good morals or the principle of competition.

13. software

We are free to use the number of purchased standard software licences spatially, factually and without further restrictions within the scope of the business purpose.

For software developed individually for us, the Supplier shall transfer all transferable copyright and other exploitation rights to the services rendered for all exploitation possibilities known at that time and only becoming known later exclusively from us upon their creation without separate remuneration. The transfer shall apply to all rights of use without limitation as to time, place, purpose of use and in any other way and shall also apply after termination of the contractual relationship for any reason whatsoever. It includes in particular the right to edit and to transfer the rights to third parties. When subcontracting orders to third parties, the Supplier shall ensure that we also acquire the aforementioned rights exclusively to any third-party services.

14 Confidentiality

The Supplier undertakes to treat as business secrets all commercial and technical details which are not in the public domain and which become known to it through the business relationship. Protected information includes, in particular, technical data, personal data, purchase quantities, prices as well as information on products and product developments, manufacturing methods, on current and future research and development projects, customer data and all company data.

The Supplier is furthermore obliged to keep secret all illustrations, drawings, calculations and other documents received and to disclose them to third parties only with our express prior written consent, unless the information contained therein is already generally known. General awareness must be proven by the supplier.

The Supplier undertakes to impose the above confidentiality obligations also on its employees, sub-suppliers and other natural persons or legal entities commissioned by it.

The obligation to maintain confidentiality exists until the respective confidential information becomes public knowledge without breach of the confidentiality obligation, irrespective of whether the contractual relationship was terminated beforehand.

In the event of a breach of this confidentiality provision, we shall be entitled to demand from the Supplier liquidated damages in the amount of EUR 50,000.00, which cannot be reduced by a court and which shall be due for payment within 14 days of the demand. Compensation for any further damage shall remain unaffected.

15. data protection

The personal data of the supplier, which is disclosed to us in the context of the respective conclusion of the contract, is processed by us for the purpose of fulfilling the contract as well as for advertising our products to the contractual partner; the legal basis for this is Article 6 (1) (b), (c) and (f) of the General Data Protection Regulation. Our legitimate interest lies in advertising our products directly to the supplier.

The use of our data, in particular use under trademark law by the Supplier, shall only be permitted with prior express written consent, otherwise an appropriate reimbursement of costs shall be made.

In connection with data protection, the Supplier guarantees the integrity, authenticity, availability, confidentiality and security of all data of the legal transaction.

The Supplier undertakes to comply fully with all statutory regulations and to indemnify and hold us harmless in this connection.

16 Place of performance, place of jurisdiction and applicable law

Our head office in Machtrenk shall be deemed agreed as the place of performance for delivery and payment, even if the handover takes place at another location as agreed.

Exclusive jurisdiction for all disputes arising out of or in connection with this Agreement or in connection with its breach, termination or invalidity shall lie with the court having subject matter jurisdiction at our principal place of business.

For all disputes arising out of or in connection with this contract or in connection with its breach, termination or invalidity, the applicability of Austrian law is agreed to the exclusion of its conflict of law rules as well as to the exclusion of the UN Sales Convention.

However, we are also entitled to assert our rights before any other court of jurisdiction possible under Austrian law.