Purchase terms and conditions of
GKN Service Austria GmbH
Version: January 2012
The following terms apply insofar as no differing written agreements were concluded.
1. Orders
Only orders placed by mail or via electronic means by the Purchasing Department of the
Customer are legally binding.
The Supplier must confirm acceptance of all orders in writing.
Any amendments and supplements as well as covenants and collateral agreements shall
only apply if they were confirmed in writing by the Customer.
Any delivery terms of the Supplier shall only apply if they were explicitly acknowledged in
writing by the Customer.
2. Prices and packaging
In the absence of any other explicit agreements, agreed prices and/or contractually
agreed priced are net fixed prices, exclusive of VAT.
Unless otherwise agreed, these prices shall include any cost for packaging and transport
as well as for customs formalities.
The goods are to be packed appropriately according to custom and usage. Unless
otherwise agreed, packaging items and wrappings shall pass into our ownership.
The Supplier shall be liable for all damage occurring as a result of improper packaging.
Returns are at the risk and expense of the Supplier.
Unless otherwise agreed, the transfer of title shall occur at the same time as the passing
of the risk according to Incoterms 2000.
3. Delivery time
Agreed delivery dates are binding.
Agreed delivery dates shall only be deemed fulfilled if any necessary documentation (e.g.
technical, shipping, test documentation, etc.) is supplied completely.
In the case of earlier delivery, payment terms shall only begin to run as of the originally
agreed date. We reserve the right to charge any costs (warehouse rent, etc.) incurred in
connection with unauthorised premature delivery. In the event that the Supplier is not in a
position to keep the agreed deadlines and delivery times, he shall be liable to notify the
Customer in writing immediately upon stating the reason and the likely duration of the
delay.
In case of delay in delivery, the Customer reserves the right to cancel the contract upon
setting a reasonable additional time for performance and to execute substitute
performance at the expense of the Supplier. In case of imminent danger (periculum in
mora) or the threat of damage, the Customer is also entitled to execute substitute
performance at the expense of the Supplier without setting a reasonable additional
period of time.
4. Shipping and customs
For details on the terms of delivery and shipping regulations applicable to this purchase
order, please refer to your order documentation. This order is subject to INCOTERMS
2000.
Shipments from EU member states must include the following shipping documents:
delivery note, invoice (incl. customs tariff number), and a bill of consignment (CMR/CIM).
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Shipments from countries outside the EU must additionally include the following shipping
documents: proof of preferential status (like movement certificate, statement of origin on
the invoice), and the customs document (import declaration IMA or dispatch advice T1).
The complete order number and the indicated loading site are to be specified clearly in
the shipping documents, the dispatch documents intended for the recipient and on the
parcels themselves (lettering, stickers).
Total weight (gross net weight) must be indicated in all dispatch documents, invoices,
etc.
If a contract item number appears in the order, it must be quoted in all correspondence
and in all delivery documents.
Any additional costs in connection with the order execution, which are neither stipulated
in agreements nor in the INCOTERMS 2000, are to be carried by the Supplier.
In other respects, the dispatch and packaging guidelines and current customs
regulations applicable to each individual business transaction shall form an integral
element of the Purchase Terms and Conditions.
In the event of non-compliance with our regulations concerning shipment, packaging,
customs clearance or documentation, all resulting risks, damage and costs shall be at
the expense of the Supplier, and due payment of invoices shall be postponed
accordingly upon production of the missing documentation.
5. Warranty
The Supplier warrants proper and correct execution of all deliveries and services.
The warranty period is 2 years from commissioning of the plant and/or acceptance of the
goods.
In the event of the occurrence of defects, we shall have the choice between withdrawal,
exchange, repair, or price reduction.
If the Supplier does not fulfil his obligations under warranty law, the Customer shall be
entitled to remove the defects/damage or have the defects/damage removed by third
parties at the expense of the Supplier without imposing any additional obligations.
In the case of substitute delivery or repair, the warranty period shall start again and the
herein agreed warranty term shall apply.
If the Customer complains about defects within the warranty period, it shall be assumed
that these already existed at the time of delivery or performance until proof of the
contrary is furnished. Hence the presumption of defectiveness shall not be limited to the
first 6 months after surrender.
The duty to examine the defective goods/shipments under Sec. 377 UGB (Austrian
Corporation Code) is hereby expressly waived. If defects are detected, we are at any
rate entitled to file a complaint within a six-week period.
6. Liability
We do not accept any exclusions of liability nor any limitations of liability of the Customer,
especially out of warranty, damage, and product liability title, unless these were explicitly
negotiated in detail with us and set forth in writing.
7. Billing
Invoices must be submitted together with a copy of the delivery advice and/or delivery
note. The shipment must include clearly identifiable order numbers and partner numbers;
in addition, performance accounting must be documented with confirmations of
performance.
Notwithstanding the foregoing, Number 4 shall apply to customable consignments.
For domestic transactions, the submitted invoice must show the value added tax rate and
as a matter of principle, the VAT amount must be clearly stated. Furthermore, the VAT
ref. no. of the Customer must be indicated on the invoice. The invoice must be
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addressed to the Customer. In the case of a different delivery address, the invoice shall
be deemed received upon delivery to the Customer.
C.O.D. consignments shall not be accepted (with the exception of written special
agreements).
8. Payment, setoff
Unless otherwise agreed, payment is to be effected within 45 days with a 3% discount or
net within 90 days after receipt of invoice and proper delivery / performance.
Payment is not to be equated with acceptance of correct deliveries and performance and
therefore, shall not constitute a waiver with respect to fulfilment, warranty, claims for
damages, contractual penalty etc. to which the Customer is entitled.
Any complaints with respect to shipment/performance shall entitle the Customer to
withhold any due payments to the appropriate extent.
9. Prohibition of assignment
Any assignment of rights and obligations of the Supplier out of the contractual
relationship is only permitted upon prior written permission of the Customer.
Likewise, any subcontractors must be disclosed and approved by the Customer.
10. Confidentiality, enquiries, order documents
All documents enclosed to our enquiries or orders (e. g. plans, samples, models, etc.),
shall further remain our property and may not be used for any other purpose without our
written permission; original documents are to be returned to us with the offers and after
completed execution of the order. Any use of the order for advertising purposes is not
permitted.
In other respects, the Supplier undertakes to keep the content of the order as well as all
information, documents, data, etc. received from the Customer strictly confidential and to
adequately ensure that these data are neither supplied nor in any way made accessible
to third parties
Unless otherwise agreed, no remuneration shall be granted for the elaboration of offers,
plans, etc.
11. Withdrawal
In the event that the Customer fails to fulfil his cardinal contractual obligations in whole or
in part, the Customer, notwithstanding further rights and entitlements, may cancel the
contract in whole or in part upon setting a reasonable additional time for performance.
Additionally, the Customer is entitled to cancel the contract without setting an additional
time for performance in the event of periculum in mora or if insolvency or bankruptcy
proceedings are opened against the assets of the Supplier or his
suppliers/subcontractors, or if such proceedings are rejected for lack of assets.
In such cases, the Customer reserves the right to perform the omitted or not satisfactorily
executed product deliveries and services himself or via third parties at the expense of the
Supplier. Any additional reasonable costs incurred as a result are charged directly to the
Supplier.
12. Third-party rights
The Supplier is liable to ensure that the use of delivery items and services is not in any
way impaired by the assertion of third-party claims (trademarks, samples, patents,
samples, etc.) or infringes existing clauses, etc. In the event that such impairments or
infringements of rights are claimed, the Supplier shall indemnify the Customer in full and
him hold harmless in respect of legal proceedings and third-party claims.
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13. Requirements for suppression of bribery and corruption
The Supplier shall: comply with all applicable laws, statutes, regulations, and codes
relating to Anti-bribery and Anti-corruption; comply with obligations arising from the UK
Bribery Act 2010 which apply to us as a company of an English Group of Companies;
(the requirements hereinafter referred to as “relevant requirements”); comply with our
Ethics, Anti-bribery and Anti-corruption Policies that are set out in its website at:
http://www.gkn.com/corporateresponsibility/Pages/the-gkn-values.aspx, in each case as
being updated from time to time (hereinafter referred to as the “relevant policies”); have
and shall maintain in place throughout the term of this agreement its own policies and
procedures to ensure compliance with the relevant requirements and will enforce them
where appropriate; promptly report to us any request or demand for any undue financial
or other advantage of any kind received by the Supplier in connection with the
performance of this agreement; within one month of the date of this agreement, and
annually thereafter, certify to us in writing signed by a person authorized to sign on
behalf of the Supplier and all persons associated. The Supplier shall provide us with
such supporting evidence of compliance as we may reasonably request.
The supplier shall ensure that any natural person or legal entity that is entrusted with the
production and delivery or rendering of objects of performance for us by the Supplier
does so only on the basis of terms equivalent to those imposed on the Supplier
(hereinafter referred to as the “relevant terms”). The Supplier shall be responsible for the
observance and performance by such persons of the relevant terms, and shall be directly
liable to us for any breach by such persons of any of the relevant terms.
14. Miscellaneous
The Customer reserves the right to carry out inspections in the offices, production sites
and warehouses of the Supplier and his subcontractors at any time, e.g. during design,
planning, production and delivery preparation, delivery time checks as well as technical
intermediary and final inspections (also packaging controls) and to reject faulty
documentation as well as defective material. These controls and tests shall not relieve
the Supplier from his responsibility.
15. Place of jurisdiction
The legal venue shall be the court of law having jurisdiction as regards the subject matter
at the place of business of the Customer in the jurisdictional district of Vienna Regional
Court, or at his option, the competent court as regards the subject matter at the business
location of the Supplier.
16. Applicable law
This contract shall be subject to Austrian law to the exclusion of the UN Convention for
the International Sale of Goods.
17. Salvatory clause
Should one or several provisions of these General Terms and Conditions of Purchase be
legally invalid in whole or in part, this shall not affect the validity of the remaining
provisions. The invalid provision is to be replaced with a provision that comes closest to
the economic intent of this provision.
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