GENERAL CONDITIONS OF PURCHASE OF FRANZ BARTA GMBH, company number FN 277559a,
Pfeiffergasse 1, 1150 Vienna (as at March 2018)
1. Scope of Application
1.1 These General Conditions of Purchase (hereinafter referred to as "CP") apply to all engagements, orders and contracts (hereinafter referred to as "Order") of Franz Barta GmbH (hereinafter referred to as "Barta") of or with business persons, legal entities or corporations of public law (hereinafter referred to as "Suppliers") on the supply of goods as well as of services (hereinafter referred to as "Supplies"). Our General Conditions of Purchase thus apply to all Supplies. The application of general terms and conditions of Suppliers deviating from our CP is explicitly excluded. We hereby explicitly veto the general terms and conditions of our Suppliers deviating from or amending our CP, such general terms and conditions have no binding effect on us. Our CP also apply exclusively, if we do not veto the taking into consideration of the general terms and conditions of our Supplier in an individual case or accept services or goods of the Supplier without conditions in knowledge of deviating from or amending general terms and conditions.
1.2 These CP also apply to all future business transactions in the course of a permanent business relation with our Supplier, even if they have not been agreed upon explicitly again.
1.3 The invalidity of certain provisions of these CP does not affect the validity of the other provisions. A legally valid provision, which most closely reflects the economic purpose of the invalid provision, is deemed to be agreed instead of the invalid provision.
1.4 The rights of Barta mentioned in these CP do not exclude the claiming of other or further legal rights of Barta.
1.5 Changes or amendments of these CP, single orders, individual contracts or framework agreements as well as ancillary agreements, in which deviations from the CP are planned, require a written agreement between Barta and the Supplier. This form requirement may not be changed by way of either an oral or a conclusive agreement.
2. Conclusion of a Contract
2.1 All agreements between the Suppliers and Barta as well as all orders only become binding upon Barta, if they are in the written form. Written form means that the declaration is issued in writing and signed by the persons authorized to represent the company. Each change, amendment
or ancillary agreement before, upon or after the conclusion of a contract requires the explicit written confirmation of Barta. The written form requirement only may be changed in writing.
2.2 If a Supplier does not accept our order in writing within a time period of two (2) weeks after its receipt, Barta is entitled, insofar as the offer does not contain a shorter time period for the binding acceptance of the offer, to withdraw from the offer. Calls for delivery on the basis of an existing agreement become binding, if the Supplier does not object to it within three (3) working days as of the receipt of the call for delivery. Changes, amendments or other deviations from our orders only are effective, if the Supplier explicitly, separately and in writing refers to such and if Barta explicitly consents thereto.
3. Prices and Terms of Payment
3.1 The prices mentioned in the order are fixed prices. The prices contain the Supply according to DAP of the INCOTERMS 2010 as well as packaging, an adequate transport insurance to be entered into by the Supplier and all other costs of delivery, if no explicit other agreement in writing was reached. The legal VAT is not part of it. Insofar as no explicit other agreement was reached, all incoterms used by Barta refer to the Incoterms 2010 published by ICC.
3.2 If the Supplier in the course of the delivery is responsible for the installation, assembly or putting into operation and if no different agreement was reached in writing, the Supplier bears all necessary ancillary costs such as travel costs and costs for the supply of tools.
3.3 Invoices only will be processed, if they are sent to Barta by separate mail. Each order is to be invoiced separately. After Barta’s prior written consent also collective invoices or electronic invoices are permissible. The invoice has to contain the entire company details of the Supplier, the order number stated in our order and/or the delivery clearly specified and transparently calculated.
3.4 Invoices have to be issued in EUR; payments will be made in EUR, if not agreed differently. The Supplier needs to state the correct IBAN and the respective BIC as well as the VAT-ID, when stating his account details.
3.5 Payments will be made by transfer after acceptance of the delivery and receipt of an invoice which can be examined as well as submission of all documents forming part of the delivery. Insofar as no different agreement has been reached in writing, Barta will pay the invoices within 30 days
3.6 The Supplier is not entitled to transfer claims against Barta in whole or in part or dispose of such claims in any other way without the prior written consent of Barta.
3.7 Barta has the legally available set-off and retention rights against the Supplier.
4. Delivery dates and terms of delivery
4.1 Delivery dates mentioned in the order or agreed upon otherwise need to be observed bindingly and accurately. In case of a possible delay or violation of agreed terms and deadlines the Supplier has to notify Barta immediately and also needs to state the reasons and the estimated duration in writing.
4.2 Partial deliveries and early deliveries are only permissible, if Barta expressly declared its consent thereto. In any case, the payment claims at the earliest become due at the initially agreed delivery time.
4.3. The Supplier guarantees that all product and process related features and requirements are passed onto and fulfilled by his chain of suppliers.
4.4 If no other agreement has been reached, an inspection certificate 3.1 pursuant to EN 10204:2004 or an equivalent internationally accepted inspection certificate, in which the core data agreed with the Supplier needs to be mentioned, and a delivery note need to be attached to the delivery. In case of first deliveries a sampling in the process of the product release of raw materials or a first sample needs to be provided.
4.5 Deliveries only are possible during the business hours agreed in the order or otherwise during the ordinary business hours agreed in writing. All persons need to register themselves when driving onto the business premises of Barta. Having children or animals in vehicles, which enter the business premises, generally is prohibited. Safety shoes are obligatory at the place of loading and unloading. Orders of the Barta personnel shall be followed in any case.
4.6 In case of late delivery Barta is entitled to receive a contractual penalty for each beginning week pursuant to Section 1336 of the Austrian Civil Code § 1336 ABGB" in the amount of 5%, in total of a maximum of 50% of the net order value. Barta is entitled to claim damages exceeding the contractual penalty. Barta is obliged to provide notification of claiming a contractual penalty at the latest when paying the last invoice, which occurs when receiving the delayed delivery.
4.7 Events of force majeure, which make the delivery by the Supplier, the acceptance or use of the delivery in our operations or at our client impossible or substantially complicate such, defer our obligation of acceptance. In cases of force majeure concerning Barta or our Suppliers, Barta, in addition, is entitled to rescind from the contract in whole or in part.
4.8 Insofar as no other written agreement has been reached, the delivery shall be free home delivery at the cost of the Suppliers and upon attaching all required papers to the place of delivery named by Barta. The agreed delivery times are binding. In case of non-compliance with a delivery time the Supplier is in delay, without a warning or request being necessary. Barta is not obliged to accept early deliveries or partial deliveries that have not been agreed upon. The Supplier is obliged to ensure that all persons involved in the delivery were informed about their legal obligations.
5. Place of Delivery, Passing of Risk and Acquisition of Ownership
5.1 Insofar as no other written agreement has been reached, the company seat of Barta is the place of delivery: Pfeiffergasse 1, 1150 Vienna. The goods have to be delivered to such place and services have to be rendered there. The place for payments of Barta also is the company seat.
5.2 Under reference to the agreed delivery pursuant to DAP (delivered at place) according to the INCOTERMS 2010 at the cost and risk of the Supplier, the delivery shall be delivered DAP correctly, free of faults and with transport packaging to the place of delivery. The risk of accidental destruction or accidental deterioration of the Supply only passes to Barta upon the acceptance of the goods by Barta at the place of delivery, even if Barta has agreed to pay the transport costs.
5.3 Ownership of goods is transferred to Barta upon acceptance at the place of delivery without reservation of any rights for the Supplier.
6. Warranty, Guarantee and Liability for Defects
6.1 The Supplier warrants that the delivered goods are free from defects within the meaning of the relevant provisions of the Austrian Civil Code ("ABGB") (such as Sections 922 et seq.); this also includes that deliveries shall be in conformity with the latest state of the art upon complying with all national and international guidelines and provisions, the respective Austrian legal provisions, safety provisions, technical specifications and quality requirements mentioned in the order and shall be free from defects in construction, material and design.
6.2 In addition, the Supplier guarantees that no defects will come into existence within a guarantee period of 2 years starting with receipt; in this respect, it is not relevant whether the defect already existed upon acceptance of the goods or services.
6.3 The delivered goods are reviewed by Barta upon acceptance on the basis of the accompanying documents with regard to the identity and the quantity as well as with regard to transport damages which are outwardly apparent. Barta will immediately conduct a content- and substantial examination of the delivery in line with reasonable circumstances of the ordinary production and business procedures of Barta.
6.4 Barta is exempt from the obligation to notify defects pursuant to Sections 377 and 378 of the Austrian Commercial Code ("§§ 377 und 378 UGB").
6.5 In case of the occurrence of defects Barta benefits from the rights pursuant to Section 932 of the Austrian Civil Code ("§ 932 ABGB") the adequate time periods mentioned therein may at most be two weeks. Other rights or rights going further than Section 932 of the Austrian Civil Code ("§ 932 ABGB") of Barta which result from legal provisions or from the guarantees of the Supplier mentioned above remain unaffected.
6.6 The Supplier bears the burden of proof that a defect claimed by Barta does not constitute a defect of the Supply.
6.7 If raising claims against the Supplier requires a faulty behavior or a certain degree of fault vested in the Supplier, the burden of proof is reversed in that the Supplier bears the burden of proof that no faulty behavior or no certain degree of fault existed.
6.8 The Supplier shall, at the choice of Barta, perform its obligations following from a warranty or guarantee either at the place where the respective goods usually are located or where the goods were transferred to, insofar as this is not impossible or infeasible because of technical reasons. The costs for the fulfillment of warranty- or guarantee obligations such as the improvement or replacement, posting (including insurance), work and material costs, shall be borne by the Supplier, no matter whether there was any faulty behavior or not.
6.9 If, because of the Supply of defective goods, Barta has additional costs such as for example for the examination of the warehouse stock, product recalls, costs for installation or de-installation, the Supplier (irrespective of the existence of fault) shall reimburse such costs.
6.10 If in connection with the defective Supply the Supplier acted with fault, even if such fault was slight negligence, it has to reimburse Barta for all damages resulting therefrom, also for mere pecuniary losses.
7. Product Liability and Insurance
7.1 The Supplier guarantees that the products delivered by it are not faulty within the meaning of the product liability provisions; such guarantee is unlimited in time. The Supplier bears the responsibility for all damages, which are caused by itself, its representatives or auxiliary persons, with intent or negligently, which affect the Supplier or a third party or are based on or in connection with an inadequate or unprofessional rendering of the service. The Supplier holds Barta harmless from all costs (including legal costs) and any claims of third parties resulting from or in connection with defects, other violations of obligations, damages regarding persons, things and mere pecuniary damages, insofar as and if the cause lies in the sphere of responsibility and in the organizational sphere of the Supplier. In this connection, the Supplier also is obliged to reimburse all costs pursuant to this Agreement and to the legal provisions on actions performed without due authority to Barta, which result from or are connected to a product recall or other measures performed by us or our clients.
7.2 The Supplier shall enter into a business liability and product liability insurance (including extended cost coverage for product liability and product recall costs) with an insurance sum of at least EUR 5,000.000 (Euro five Million) as a lump sum for personal, material and product damages; our claims, however, are not limited to the insurance sum. The Supplier immediately has to provide us with proof of the existence and insurance sum of such insurances.
8. Obligatory Observance of Industrial Property Rights and Legal Provisions
8.1. The Supplier guarantees, also for its chain of suppliers, that its products and services comply with the valid legal and regulatory requirements of the exporting country, the importing country and, if explicitly mentioned by us, of the target country.
8.2 The Supplier guarantees that its delivery and the use of such neither infringes intellectual property rights nor other rights of third parties nor violates official regulations, of which kind whatsoever. The environmental standard ISO 14001:2015 shall be complied with. The Supplier shall, at the request of Barta, provide for free all relevant IMDS-data, REACH-, GHS- and other data relevant for export.
8.3 When supplying machinery and plants, which are covered by the EU-Directive 2006/42/EC on Machinery ("EU-Maschinenrichtlinie 2006/42/EG") or by the national laws and directives based on such directive, the Supplier shall also provide a danger analysis or risk analysis pursuant to DIN EN ISO 12100:2011 pursuant to EU-Directive 2006/42/EC on Machinery ("EU-Maschinenrichtlinie 2006/42/EG") free of cost.
8.4 The Supplier acknowledges that Barta, as producer of goods and items, is a so-called "downstream user" within the meaning of the European Regulation on Chemicals 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals ("REACH") ("europäischen Chemikalienverordnung Nr. 1907/2006 („REACH“)") and guarantees that it fulfills all provisions of REACH, in particular such provisions, that are necessary in order to process, sell or distribute goods within the EU, in particular: (a) to pre-register, register or obtain admission for chemical substances or processes, (b) to install internal organizational measures in order to document compliance with REACH, (c) to ensure that each and every use of chemical substances or processes in goods (including packaging material), which we or our clients mentioned or notified to our Supplier, is covered by the respective (pre-)registration or admission, (d) to inform us immediately whether a substance or a process which has been pre-registered, will not or cannot be finally registered during the transition period and (e) not to sell or supply any goods of whichever kind , which contain substances of very high concern (SVHC) ((a) through (e) together "REACH-conformity"). The Supplier acknowledges that breaches of the REACH-conformity under applicable law generally lead to a defect of the substance, the process or other goods or items and the Supplier will hold Barta harmless from all claims, liabilities, costs and damages, also mere pecuniary damages (together "claims"), which were caused by the Supplier based on a violation of the above mentioned REACH-conformity and will assist us in the protection of our rights against such claims at its own costs.
8.5 The Supplier shall produce a proof of origin, that means that the Supplier shall, on time, provide us with the required declarations on the origin of the goods in terms of commercial and preferential law and also immediately inform us about a change of origin without request. If needed, the Supplier shall prove its data on the origin of the goods by an information sheet confirmed by its customs authority. If the Supplier does not comply with such obligation, it is liable for all damages resulting therefrom, also for mere pecuniary damages.
9. Extended or Prolongated Retention of Title, Retention of Title and Tools
9.1 A so-called extended retention of title of the Supplier (which not only covers the time period until the payment of the price for the respective good or service but also the time period until the fulfillment of other liabilities towards the Supplier) as well as a so-called prolongated retention of title of the Supplier (which denies the re-selling of the affected goods by Barta or imposes conditions upon such re-sale) is not accepted by Barta and is impermissible and invalid.
9.2 Barta retains its title in goods provided by it (e.g., parts, components, semi-finished items).
9.3 Tools provided by Barta to the Supplier and tools produced by the Supplier at our request or tools ordered from third parties, of which Barta paid a part, remain in the ownership of Barta or become Barta’s property upon their production or purchase by the Supplier and are to be clearly marked as Barta’s property.
9.4 The Supplier is obliged to keep tools for Barta safely and clearly separately, free of cost, and to insure such tools. The Supplier shall use such tools exclusively for producing parts for Barta, insofar as no other agreement has been reached.
9.5 The Supplier shall repair and maintain tools it has been provided with at its own cost. Upon termination of the agreement the Supplier shall immediately hand out the tools upon request of Barta, without having any right of retention with regard thereto. When handing out the tools, they shall be in a proper technical and visual state, reflecting the use up until then. Costs of repair shall be borne by the Supplier. Under no circumstances the Supplier is entitled to destroy tools without the prior written consent of Barta.
10. Quality control
The Supplier shall, during the entire business relation, maintain a quality management system complying with the requirements of ISO 9001 et seqq., in the automotive area IATF 6949, and shall review such by way of internal audits regularly and, in case of deviations from it, shall immediately take the required measures in order to ensure the proper quality of all deliveries to Barta. Barta is entitled to review the quality control of the Supplier at any time without prior notification. The Supplier grants Barta access to certification and audit reports as well as to performed examination procedures including all examination records and documents concerning the delivery upon Barta’s demand.
11. Protective Rights, Intellectual Property, Confidentiality and Documents
11.1. The Supplier represents and guarantees that the products delivered by it are free from intellectual property rights of third parties (such as patent, trademark, design and copyrights), which would restrict the agreed use of such products by Barta or would restrict or impede a possible passing on or re-selling of such goods by Barta. The Supplier shall hold Barta harmless from all claims resulting from the violation of such intellectual property rights. This non-infringement obligation also is a represented and guaranteed quality within the meaning of Section 6. and ,therefore, Barta may irrespective of the aforesaid also claim rights resulting therefrom.
11.2 The Supplier shall treat all information, formulas, drawings, models, tools, technical records, process methods, software and other technical and business know-how as well as working results achieved from such, which Barta provided access to or which the Supplier found out (hereinafter referred to as "Confidential Information"), as confidential vis-à-vis third parties and may only disclose such Confidential Information within the operations of the Supplier for the carrying out of deliveries to Barta and may only grant such persons access to such information, who need to have knowledge of such Confidential Information within the framework of their business relation and who have been obliged to comply with the rules regarding confidentiality themselves. This remains in effect also if the business relation terminates, as long and insofar as the Supplier cannot prove that it already had knowledge of the Confidential Information at the time of obtaining such or that such information was public or at a later point in time became public without its fault. In case of an infringement Barta has the right to claim a penalty in the amount of 100% of the annual turnover of the Supplier. Provisions of tort law remain unaffected.
11.3 All documents (such as drawings, illustrations, test specifications), samples, models, etc. (including possible copies, excerpts and reproductions) which Barta has granted access to the Supplier within their business relations, remain the property of Barta and upon request, at the latest when the business relation is terminated, are to be handed over to Barta or to be destroyed at the cost of the Supplier. The Supplier has no retention right with regard to such documents.
11.4 The disclosure of Confidential Information by Barta does not constitute any rights with regard to intellectual property rights, know-how or copyrights to the benefit of the Supplier and shall not be deemed as a pre-release or right of prior use within the meaning of the applicable patent, design and utility model provisions. Each kind of license requires a written agreement with Barta.
12. Data Protection
The Supplier shall comply with the relevant provisions of data protection law, shall take all required technical and organizational measures to ensure that data stored by it is safe and shall oblige its employees and other third parties needed for the performance of the services to comply with such provisions and measures.
13. Place of Performance, Applicable Law and Jurisdiction
13.1. The company seat of Barta, insofar as the order does not mention a different place, shall be the place of performance for the deliveries of the Supplier. The company seat of Barta shall also be the place of delivery for the obligations of Barta.
13.2 Exclusively Austrian law, that is substantive law upon exclusion of the conflict of law rules, shall apply to these CP as well as to the framework and individual contracts entered into with the Supplier, also including the assessment of the coming into existence of such and the validity of these CP for such. The Convention on the International Sale of Goods ("Wiener UN Übereinkommen über den internationalen Warenkauf (CISG)") and other bilateral and multilateral agreements with the purpose of unifying international purchases do not apply.
13.3 The competent court in Vienna shall exclusively be entitled to settle all legal disputes out of or in connection with contracts entered into with the Supplier, including disputes relating to the contracts’ coming into existence. However, Barta shall be entitled to also file claims against the Supplier at the Supplier’s court venue.