Terms and conditions of purchase
KTM E-Technologies GmbH, Version 01/2018, 06.11.2018
General Terms, orders, acceptance, supply contract, delivery
These terms and conditions of purchase (‘TCP’) apply to all purchase contracts concluded by KTM Technologies GmbH (‘KTM Technologies’) (regardless of how they be named, e.g. ‘Supply Contract’) for the purchase of production material and spare parts as well as tools and appliances for the manufacturing of those, and regardless of whether or not this was explicitly pointed out in the purchase order.
Inasmuch the term ‘Supplier’ is being used below, it is to be understood that this term refers to the respective contracting party of KTM Technologies.
The contractual relationships between KTM Technologies and the Supplier conform exclusively to these TCP. General terms and conditions of the Supplier do not apply, even if KTM Technologies has not explicitly objected in particular cases.
Special contractual agreements departing from these TCP that are met with the Supplier have priority, provided they are in writing.
Departures from and amendments of contractual agreements and these TCP as well as other statements are valid only if in writing.
KTM Technologies places an order with the Supplier for the Delivery Items. All orders as well as amendments thereof are legally binding for KTM Technologies only if they have been issued by the KTM Technologies purchasing department in writing.
The Supplier will accept orders from KTM Technologies without delay and in writing. However, the order shall be regarded as accepted if the Supplier does not object in writing within 5 KTM Technologies working days (Monday through Friday, except KTM Technologies company holidays) after order date. Each accepted order constitutes a separate supply contract.
Provided it is economically reasonable for the Supplier, KTM Technologies is entitled to amend every aspect of an order, a delivery or a delivery schedule at any time (specifically with regard to specifications, plans, designs, time and place of delivery, packaging, quality/quantity of the mode of shipment). In the case of possible price changes due to an order amendment or a default in delivery the Supplier is obligated to inform KTM Technologies without delay. The specific cost responsibilities of amendments are to be settled amicably between the contract parties.
All correspondence regarding the delivery must show the order number issued by KTM Technologies as well as place and address of delivery.
Prices agreed upon include all costs of the Supplier for quality management, function and quality checks, packaging, documentation as well as possibly required permits and insurance.
The dates and periods of delivery as well as delivery quantities predetermined by KTM Technologies shall be deemed agreed upon unless the Supplier expressly objects within 5 KTM Technologies working days. The receipt of the delivery items at the delivery address specified by KTM Technologies governs the compliance with the dates agreed upon.
KTM Technologies reserves the right to reject a delivery or parts thereof and/or to return it to the Supplier at his own expense in the case that they were not carried out in accordance with the order and/or the delivery schedule agreed upon.
The complete fulfillment of the contract together with the implementation of a possible assembly, supply of documentation, instruction/orientation, commissioning andcompliance of other subjects agreed upon, govern the timeliness of a delivery.
Delay in delivery, deviation in quantity, penalty clause, noninfluenceable delay
The Supplier informs KTM Technologies without delay in writing and in detail upon the perception of the imminent risk of a scheduling delay and/or the risk of a deviation in quantity as well as the remedial actions taken by him.
Upon default by the Supplier due to his own fault, KTM Technologies is entitled to either demand fulfillment of the contract and compensation for damages occurred to delays, or resign from the contract upon setting of an adequate grace and demand compensation for damages occurred to nonperformance.
Upon default by the Supplier due to his own fault KTM Technologies reserves the right to assertion of any claim of damages.
Each of the contract parties is entitled to defer the compliance with a delivery or service contract upon the incidence of an inevitable delay on which he has no bearing. Any kind of delay that is not due to the default of the related party and thus is beyond his influence is being considered as inevitable (e.g., but not exclusively, cases of force majeure, restrictions and proscriptions on the part of public authorities, embargoes or natural disasters). In such cases KTM Technologies will be entitled to cancel orders and to purchase from alternative suppliers to avoid possible economic damages. In such a case the Supplier will be obliged to bear proportional costs up to the original foreseen quantity of delivery items.,. KTM Technologies will be obliged to prove such costs before issuing a debit note.
In case the Supplier attains knowledge of a circumstance that leads or could lead to an inevitable delay he immediately informs KTM Technologies thereof in writing and will make any effort to alleviate the adherent adverse consequences for KTM Technologies.
Upon default by KTM Technologies no derived claims or compensation payments can be demanded unless KTM Technologies has acted with gross negligence or intent.
The Supplier packages the delivery items either according to his own packaging method, which is accepted and released by KTM Technologies or according to the specifications of KTM Technologies . Packaging has to be appropriate, functional, faultless and of a quality that ensures the protection of the delivery items on their way to the agreed destination .
The Supplier is liable for an increase in freight charges and/or damages to the goods due to faulty packaging or invalid shipment.
Shipment, Supply Documentation, Passing of risk
The INCOTERMS 2010 apply to all shipments of the delivery items for transnational shipments as well as for national shipments correspondingly. The specific provision is to be agreed upon individually in writing. If no provisions have been agreed upon all costs and risks are on the account of the Supplier, including possible duties and taxes, up to the acceptance by KTM Technologies.
The Supplier informs the carrier timely on the readiness for dispatch of the delivery items so that the scheduled delivery date can be met.
The Supplier encloses a written delivery note stating the delivery data forwarded by KTM Technologies such as order number, order item number, part numbers, place and address of delivery as well as the detailed description of the contents. In order to avoid confusion with production material it is absolutely essential that the Supplier encloses also the exact indication of the maturity level (e.g. P3-parts, initial samples, samples etc). Upon absence of this data KTM Technologies is entitled to reject the delivery at the Supplier’s expense and risk. Joint delivery of several items from different orders and/or delivery calls and a joint delivery note / joint shipping documents shall only be permitted if the different orders and/or delivery calls and delivery items are clearly indicated. Regarding the shipping documents for the delivery items the Supplier adheres to the guidelines agreed upon. The Supplier provides KTM Technologies timely and at his own expense with the official documents and certifications required for the intended import or export disposition of the delivery items. The consignment note of deliveries originating outside the EU is particularly accompanied by a customs invoice (in triplicate) as well as a certificate of origin valid for a preferential import customs clearance free of charge.
Should the Supplier arrange for the shipment, he provides KTM Technologies in a timely manner and in writing a forwarding advice stating the time of delivery, the delivery note data, means of conveyance, and the names of the carrier/forwarding agent.
The delivery of goods to KTM Technologies facilities takes place exclusively to the incoming shipment office at the times agreed upon in writing.
In case of non-compliance with the provisions according to Article 6.1 through 6.5 due to his fault any damages, risks and costs shall be carried by the Supplier.
The time of the passage of risks is determined by the respective INCOTERMS 2010 agreed upon, both in the case of international and national transportation. Should no concrete INCOTERM 2010 have been agreed upon, the Supplier shall bear the risks up to the acceptance of shipment by KTM Technologies.
Should KTM Technologies or a third party provide components, the Supplier bears the risk for these components with respect to such components from the time of delivery or receipt by him. This applies accordingly for the return shipment to KTM Technologies or the forwarding of the components.
Payment, invoicing, offset
After successful delivery / service provision the invoice is sent by the supplier electronically to firstname.lastname@example.org.
All invoices have to be in conformity with the Austrian fiscal requirements according to § 11 Austrian VAT Act and have to include the following information in order to enable a comparison with the order and to perform the invoice verification in a precise manner:
- Order Number, KTM Technologies Article Number, KTM Technologies Part Description and Supplier Number
- Number of the Delivery Note of the Supplier
- Shipping Date, Delivery Address, Incoterms
- Additional Delivery Costs (customs duty, packaging, transport, insurance)
Invoices, which do not include the information mentioned above, including faults or mistakes or delay the process of invoice verification can be rejected by KTM Technologies and invoices will not become valid. The occurring costs, especially missed input tax deductions, have to be paid by the supplier. In this case the term of payment is based on a new properly issued invoice which is correct in content.
In case there are no separately agreed terms of payment in written form, the terms of payment are 30 days from the date of receipt of the invoice (workday, until 11:00 CET) and successful receipt of the delivery/service. Until the complete fulfillment of the contract KTM Technologies is allowed to retain the payment or conduct a reversal of the payment in case payment took already place.
If there is no separately written agreement the payment is made by bank transfer. Charges for the bank transfer are shared between KTM Technologies and the supplier (bank service charges as option „SHA“ – „shared“). The bank transfer takes place once a week on a workday defined by KTM Technologies and includes all faultless, released and due invoices. The bank transfer is made to the bank account of the supplier, which is registered in the KTM Technologies database. A change of the supplier’s bank account has to follow a specific process, which is predefined by KTM Technologies and will be communicated separately.
KTM Technologies is entitled to offset accounts towards the Supplier against liabilities if when the latter are not yet due or are to be paid in foreign currency.
The acceptance of the delivered goods and/or the payment by KTM Technologies is no indication for the waiver of assertion of claims for defects, damages or other claims against the supplier.
The supplier shall not assign claims against KTM Technologies to third parties without written agreement of KTM Technologies.
The Supplier and his subcontractors, upstream suppliers, and other representatives provide unlimited warranty for the contractual, complete and faultless execution of the delivery in a statutory extent. Supplier particularly warrants that the delivery is featuring the contractually assured characteristics and is corresponding to the underlying designs, in compliance with the accepted rules, the statutory provisions regarding safety and quality, as well as the technical data agreed upon.
The warranty period begins with the acceptance of the delivery item by KTM Technologies. The warranty period shall end however subject to the regulation in Article 8.5 within 36 months after the acceptance by KTM Technologies, at the latest.
The Supplier waives the objection of delayed notice of defects. KTM Technologies may file such notices of faulty or deviant deliveries within 14 (fourteen) KTM Technologies-working days. With obvious defects (such as damaged transport packaging, deviation of quantity) this period begins after receipt of the delivery, otherwise within 14 (fourteen) KTM Technologies-working days after obtaining knowledge of the defect. Examination and notice obligations or conditions do not exist prior to complete delivery.
Regarding warranty remedies the Supplier is able to accomplish the improvement or replacement, if necessary in multi-shift operations or with commitment to overtime and holiday works, provided this is essential due to reasons of KTM Technologies business operations and is reasonable towards the Supplier. KTM Technologies is not obliged to tolerate more than 1 (one) replacement or rectification attempt. If the Supplier does not forthwith comply with his rectification or replacement obligation, KTM Technologies is entitled to rectify defects or services not rendered herself or by third parties at risk and expense of the Supplier, to claim a price reduction or to return the delivery items to the Supplier on his expense and to declare annulment of the respective delivery contract.
In the case of repair of the delivery item – even by replacement of faulty parts – the warranty period is renewed.
KTM Technologies categorically reserves the right to assertion of any claim of damages. Insofar as KTM Technologies is entitled to compensation, its claim also extends to the compensation for all damages claimed by KTM Technologies’ end customers, regardless of the degree of fault of the Supplier or his subcontractors.
Insofar the Supplier is entitled to compensation KTM Technologies is liable to the Supplier for intentional or wantonly negligent performance, except personal injuries for which KTM Technologies is liable in cases of slight negligence as well.
In cases of deficiency in title as well as in case of a claim due to product liability (product liability law is regardless of culpability and cannot be limited or excluded by any agreements), the Supplier furthermore indemnifies and holds harmless KTM Technologies. In this case the Supplier also has to bear all accruing costs, particularly the costs of an inevitable litigation, and he commits himself to provide all expedient records.
Should KTM Technologies be held liable by reason of the product liability act by any third person, the Supplier is under the obligation of furnishing proof that the delivery item was faultless.
The contracting parties will strive towards the conclusion of a legal defense agreement.
The Supplier commits to treat all overt, commercial and technical circumstances that come to his knowledge through the business relationship with KTM Technologies, as trade secrets. This obligation extends beyond the termination of the business relationship. In this regard, the Supplier signs a separate Confidentiality Agreement.
Exploitation of the business relationship between KTM Technologies and the Supplier is permitted only with explicit written consent by and for both partners. The same goes for names, logos, trademarks, decors, product labeling, or company logotypes, respectively.
Place of performance, passage of title
Place of performance for deliveries of the Supplier to KTM Technologies is the delivery address stated in the order.
The passage of title regarding the delivery items takes place after full payment by KTM Technologies. Extended title retentions shall be accepted by KTM Technologies.
Third-party property rights, other rights
The Supplier has to ensure that the contractual usage of his delivery items (made by his drawings and/or his know how) does not infringe any immaterial property rights of third parties – even when their issuance, as the case may be, has only recently been applied for. He releases KTM Technologies and her subcontractors from all claims resulting from an infringement on such property rights and commits himself to provide KTM Technologies with the required permits (licenses) on his own expense. The contracting parties mutually inform each other about possible property right infringements or the risk thereof. Upon demand of KTM Technologies the Supplier informs about and discloses all property rights that are or will be in his ownership and that will be utilized in the research and development or manufacture of the delivery items or that pertain to them in another way.
Both partners are entitled to forward technical records of the other partner to public authorities to the extent required.
The Supplier grants KTM Technologies or its representatives access to all documents, instruments, accounts and records in relation to the respective Delivery Contract after an appropriate announcement given in advance. The Supplier commits to retain records for the period of a minimum 11 (eleven) years after the last delivery of the delivery items to KTM Technologies.
Should the direct cooperation in the business relationship with KTM Technologies generate new inventions or designs all property rights are due to KTM Technologies. Should the Supplier have contributed materially to the development he is entitled to the property right pro rata providing the non-existence of an agreement stating otherwise.
Development services, which are content of an agreement are always part of a superior project. The project management of projects and the development as well as technical and organizational control function of several subprojects and development stages always are in the responsibility of KTM Technologies. The awarding of such development services takes place under explicit standards defined by KTM Technologies. This is an indication for internal operating research achievements according to § 108c Abs. 2 Z.1 Austrian Income Tax Law and are therefore benefited research efforts for KTM Technologies.
Governing Law, Place of Jurisdiction
This agreement shall be governed by the Convention on Contracts for the International Sale of Goods (CISG) excluding the conflict rules of the private international law. Any and all disputes arising from or in connection with this TCP shall be settled by the court having jurisdiction over A-5081 Anif.
Written form, severability, conduct on company premises
All agreements, subsequent amendments and collateral agreements require written form, whereas statements made by FAX, EDI or email suffice this written form requirement.
Wholly or partially ineffective or unenforceable provisions in this TCP do not affect the effectuality and enforceability of all other provisions in any way.
The directives of the KTM Technologies plant security must be obeyed unconditionally. For the conduct on KTM Technologies premises and specifically the exceptional usage of KTM Technologies working fund, prior consultation with the responsible division manager is required. The rules of conduct declared by KTM Technologies must be obeyed.