These Purchasing Conditions apply to all deliveries and services concluded with companies of the Kuchler Group as buyer. Companies of the Kuchler Group include in particular:
S.A.M. KUCHLER Electronics GmbH
S.A.M. Kuchler electronics Deutschland GmbH
S.A.M. Kuchler Electronics Schweiz GmbH
S.A.M. Innovations GmbH & Co KG
S.A.M. Innovations GmbH
Kuchler electronics (USA) Inc.
KUCHLER Holding International GmbH
I. Scope, rejection of third-party terms, form, interpretation
(1) Our purchase orders (for deliveries and services) and contracts are concluded exclusively on the basis of these Purchasing Conditions. The supplier’s general terms and conditions do not become part of the contract—even if we do not expressly object, including by silence or unconditional acceptance of the delivery.
(2) Our employees and representatives are not authorized to deviate from these conditions.
(3) Where these conditions refer to “delivery/ies”, “goods”, “delivery item” or “service(s)”, this shall—where relevant—also include work and services (including installation, commissioning, training, maintenance, software/firmware services and other ancillary services). Provisions relating to goods (in particular on shipping, transport, transfer of risk) apply mutatis mutandis to services; non-relevant parts do not apply.
(4) The contract language is German.
II. Offer and order
(5) Offers must correspond exactly to our inquiries; their preparation is free of charge.
(6) The supplier shall confirm our order in writing within 5 working days; otherwise the order is deemed accepted.
(7) Any additions or supplements by the supplier are deemed not to have been agreed unless we subsequently confirm them in writing.
(8) Until the start of dispatch/production, we may modify orders; objectively necessary extra/reduced costs and dates will be adjusted by mutual agreement.
III. Scope of supply, documentation
(1) The supplier owes a fully functional delivery item in accordance with our order, specification and the state of the art, including all ancillary services (assembly, instruction), packaging and documentation.
(2) The following must be provided, inter alia: Declarations of Conformity/CE/CoC, test/measurement reports, safety data sheets, operating manuals, proofs of origin; supplier’s declarations under EU preferential customs law no later than with the first delivery. As long as prescribed formal requirements (e.g., order number on documents) are not fulfilled, invoices are deemed not issued; payment periods do not run.
IV. Prices, shipping terms
(1) Prices are fixed, DDP our place of destination (Incoterms 2020), including all charges, duties, incidental costs, transport, insurance and packaging. In successive-delivery/call-off contracts, any price reductions occurring between order and delivery are to be passed on to us. Outside such contracts all prices are fixed.
V. Invoices and declarations of origin; formal requirements
(1) Invoices must not be enclosed with the delivery. They must state our order number.
(2) The supplier is obliged, at the latest with the first delivery, to provide the legally required supplier’s declarations under the applicable EU regulations on the origin status of the delivered goods (according to the applicable preferential rules of origin).
(3) As long as the formal requirements under (1) and (2) are not met, invoices are deemed not issued.
VI. Payment terms, set-off
(1) The supplier agrees that invoices are processed by data-processing systems. Payments are made once monthly. Invoices received during a month are paid on the 20th of the following month with a 3% cash discount, or on the 20th of the month thereafter net.
(2) Payment is made subject to invoice verification. Credits or debits resulting from the verification will be settled with the next payment and identified separately; a credit/debit advice with reasons will be issued. Any ambiguities extend the above deadlines such that payment periods begin only upon clarification.
(3) Any default interest equals the base rate plus a 2% surcharge. Higher default interest may not be claimed.
(4) We have rights of set-off and retention to the extent provided by law and also due to defects/claims arising from the same or connected legal relationships.
VII. Shipping, delivery documents, transfer of risk and title
(1) A delivery note in duplicate must accompany the shipment. Dispatch notice, delivery note, consignment note and other shipping documents must state our order number. For agreed non-prepaid shipments, any freight savings must be used. Additional freight and other costs caused by non-compliance are borne by the supplier.
(2) The supplier bears the transport risk and the risk of accidental loss—even if we bear transport and insurance costs. Transfer of risk and title occurs only after goods receipt and our acceptance at the destination.
VIII. Delivery dates, fixed-date transaction, delay, contractual penalty, cover purchase
(1) Compliance with the delivery time per the agreed date is determined by the receipt at the agreed place of delivery of the complete, defect-free delivery including the agreed documents. Early deliveries require our written consent; the agreed payment date remains unaffected.
(2) The supplier shall notify us without delay, at the latest within 48 hours, in writing of impending or actual delays, stating cause, duration and an action plan. Failure/late notification results in liability also for additional damages thereby caused.
(3) If the supplier’s confirmed delivery date is exceeded and/or proper notification under (2) is not made, we may set a reasonable grace period in writing. Upon receipt, the contract converts into a fixed-date transaction; the date stated then becomes a binding fixed date.
(4) If the fixed date is exceeded, we may—without further grace—(a) procure cover and charge all additional costs (in particular price differences, expediting, express/special freight, changeover, downtime, handling, inspection and sorting costs); (b) refuse acceptance of the late delivery in whole or in part and withdraw in whole or in part; and (c) claim further damages. A contractual penalty (liquidated damages) remains unaffected and is credited against the actual damage.
(5) Acceptance of a late delivery does not constitute a waiver of our rights to damages, penalty or rescission.
(6) In case of delay, the supplier owes a penalty of 0.5% of the net order value per commenced calendar week, capped at 10%. The penalty is due by set-off or separate claim and is credited against further claims.
IX. Inspection and notice of defects
(1) The duties to inspect and give notice of defects under §§ 377, 378 UGB are expressly waived. Our payment or provisional commissioning is not an acknowledgment of freedom from defects.
(2) If sampling reveals a defect rate above the applicable AQL, we may—after prior notice and at the supplier’s expense—inspect the entire delivery or return it to the supplier at its expense.
(3) Obvious and hidden defects may be asserted by us at any time within the warranty periods. Late notification does not forfeit warranty rights.
X. Quality and documentation, changes, audits
(1) The supplier guarantees product quality in line with the state of the art, applicable technical standards, statutory provisions and S.A.M. acceptance and quality specifications.
(2) The supplier shall inform us in good time of possible changes, improvements and further developments of the delivery item, highlighting in writing the key technical differences between the old and new versions.
(3) Any change to the delivery item requires our prior written consent. The first delivery after implementing the change must be specially marked.
(4) The supplier shall test according to our prescribed test methods and prepare test records. Records must be kept for at least 8 years from the last delivery and presented to us on request. Pre-suppliers must be bound accordingly.
(5) We may inspect the supplier’s control and test records. After prior notice, we may also review production and point out any defects.
XI. Compliance, REACH/RoHS/SCIP, export/sanctions, anti-corruption, ESG
(1) The supplier warrants compliance—with respect to procurement and/or manufacture of the delivery item (delivery and service)—with all relevant environmental laws and regulations (in particular waste, chemicals, water, air, packaging, batteries and hazardous substances) under the law applicable at the place of delivery and use, and supplies products conforming to the state of the art.
(2) The supplier will establish an appropriate environmental management system.
(3) All official and statutory provisions and requirements, the relevant hazardous-substances, dangerous-goods and accident-prevention regulations must be observed.
(4) The supplier ensures compliance with REACH obligations (incl. Art. 33 notifications of SVHC) and RoHS. Required SCIP notifications are made by the supplier; substances/articles must be appropriately labeled.
(5) The supplier observes the export-control and sanctions laws of the EU, USA and United Kingdom. Deliveries to listed persons, embargoed regions or prohibited end-uses are forbidden. Any necessary licenses must be obtained by the supplier in good time at its own cost.
(6) The supplier maintains an effective compliance system, in particular for anti-corruption and antitrust compliance. Breaches entitle us, at our discretion, to conduct audits and to terminate for cause.
(7) The supplier considers appropriate ESG standards in its supply chain and supports us in fulfilling statutory due-diligence obligations where reasonable.
XII. Warranty, subsequent performance, self-remedy, periods and damages
(1) The supplier shall remedy any defect without delay and free of charge or provide a replacement. Subsequent performance shall take place at the place of use or at a place designated by us. The supplier bears all associated incidental costs (in particular transport, packaging, removal and installation, disposal, travel and working time).
(2) If the supplier is in delay with replacement or repair, refuses it, or urgent action is required (e.g., to avoid production stoppages, recalls or safety risks), we may—after prior notice—remedy the defect ourselves or through third parties at the supplier’s cost and risk (self-remedy). Our statutory and contractual rights remain unaffected.
(3) The warranty period is 24 months from commissioning at our customer, but no later than 36 months from delivery to us. After defect remedy or replacement, the warranty period recommences for the affected scope. All periods are suspended as long as the delivery cannot be used due to a defect; for partial defects this applies to the affected part. Exclusion of recourse under § 933b ABGB is not accepted.
(4) Recoverable damage includes, in particular, downtime, changeover, inspection, sorting, recall, packaging and disposal costs, reasonable costs of legal pursuit, and adequate production-loss damages. Expedite and special-freight costs we incur to mitigate damage are borne by the supplier where it is responsible for the defect.
(5) Hidden defects first discovered during or after installation entitle us to claim the costs incurred in remedying them.
(6) Any return of non-conforming items is at the supplier’s expense and risk, irrespective of where the item is located.
(7) Exclusions of liability by our counterparties—particularly for warranty, damages, or exclusion of recourse under § 933b ABGB—are not accepted.
(8) In the event of defects we may choose between replacement, repair, price reduction or rescission.
XIII. Spare parts, availability and deadlines
(1) The supplier guarantees supply of spare and wear parts for at least 7 years after the last series delivery of the respective product (support period).
(2) Stocked spare parts are dispatched within 5 working days from our call-off. Non-stocked spare parts have a binding lead time of 30 working days. Discontinuations (EOL) must be announced in writing at least 12 months before the end of the support period; we are entitled to a last-time-buy. If a part is no longer available, the supplier will deliver functionally, form- and quality-equivalent or better parts at no additional cost.
(3) Spare-part prices may be adjusted no earlier than 12 months after contract commencement and at most once per year by no more than the change in the applicable Consumer Price Index published by Statistics Austria. The base month is the month of the first delivery. If the index falls, prices are to be adjusted downward accordingly. Retroactive adjustments are excluded.
XIV. Product liability, producer liability, indemnification and insurance
(1) The supplier ensures that its products meet product-safety requirements and performs appropriate incoming and final inspections. It is responsible for the defect-free condition of the delivery item. If a third party asserts claims against us for personal injury or property damage in connection with the deliveries, the supplier shall indemnify us insofar as the damage was caused by a defect in the deliveries, including reasonable costs of our legal defense.
(2) Where several suppliers are at fault, they are jointly and severally liable to us. Our rights under the Product Liability Act (PHG) and other statutes remain unaffected.
(3) The supplier maintains during the contractual relationship and for a reasonable period thereafter a business and product-liability insurance including recall-costs insurance with coverage adequate to the business. Upon request, current proof of insurance must be provided annually. This does not relieve the supplier of liability for damages not covered by insurance.
(4) Exclusion of our right of recourse under § 12 PHG is not accepted.
XV. Force majeure
(1) If force majeure occurs at the supplier or its sub-supplier, the supplier shall inform us without delay, at the latest within 48 hours, in writing of the nature, scope, expected duration and concrete mitigation measures; information shall be updated continuously.
(2) Extensions of deadlines apply only insofar as the supplier fulfills its notification and cooperation duties and takes all reasonable measures (alternative routes/carriers, extra shifts, second source, air freight if necessary).
(3) The following are not force majeure in particular: mere procurement problems, price increases, labor shortages or foreseeable/industry-typical strikes at the supplier/sub-supplier.
(4) If force majeure lasts longer than 45 calendar days or it is foreseeable that delivery cannot take place within an economically reasonable time, we may withdraw in whole or in part or terminate for cause. Usable partial performance will be remunerated appropriately.
(5) If events of force majeure affect us or our customers, our acceptance and payment periods are extended by the duration of the impairment; if performance becomes impossible, we may (partially) withdraw.
XVI. Supplier’s retention of title
(1) Only simple retention of title until full payment of the respective goods is permitted. Extended or expanded retention—especially resale, processing or group retention—is excluded.
XVII. Items provided, molds, samples, drawings, production equipment, tools and ownership
(1) Manufacturing means provided or financed by us—especially parts, molds, other production equipment, samples, prototypes, drawings, datasets, etc.—remain or become our property. They must be marked as our property, carefully stored, properly maintained and adequately insured. They may be used exclusively to fulfill our orders. Any use for own or third-party purposes—especially disclosure, duplication, publication or making available—is strictly prohibited. Processing of materials and assembly of parts is performed for us. The supplier grants us co-ownership of products manufactured using our supplied materials in proportion to the value of the supplied items to the total product value.
(2) All documents and production means must be returned to us free of charge without request as soon as they are no longer needed to perform the order or after contract end. We retain ownership and copyright therein. In the supplier’s insolvency we have an unconditional right to recover them. Our ownership and copyrights remain reserved.
(3) If the supplier creates any production means or documents for us, the effort therefor—unless otherwise agreed—is included in the fee agreed for the order itself. Only where a separate price is agreed for creating the production means/documents is separate remuneration owed. In any case—whether separately remunerated or included in the price of the products made using them—the production means/documents are created by the supplier exclusively for us and in our name. Ownership in such production means vests in us from the outset without restriction.
XVIII. Intellectual property, IP rights, software, open source and source-code escrow
(1) Where software, know-how or other intellectual property is delivered, the supplier grants us the exclusive, unrestricted, irrevocable, freely transferable (to any third party), worldwide and perpetual rights to use and modify all IP created within the scope of the respective delivery. For software, the supplier is also obliged to deliver the source code in an editable form. The supplier’s own use—except for performance of the order—is excluded, as is any disclosure to third parties. The transfer of rights regulated herein is compensated by payment of the agreed fee for the service. The exclusive right to acquire IP protection for such IP—subject to the so-called inventor’s moral right and limited to the legally permissible extent—lies exclusively with us. For standard software, delivery of source code is not required.
(2) For custom developments (work-for-hire), all copyright and related rights, including full source code, transfer to us upon creation free of third-party rights. The supplier prepares a Software Bill of Materials (SBOM), ensures compliance with all open-source licenses (including provision of required license texts and notices) and indemnifies us against all third-party claims.
(3) At our request the supplier enters into a source-code escrow agreement with a recognized escrow agent. Release conditions include, in particular, insolvency, discontinuation of support or material breach of contract.
(4) The supplier guarantees that the deliveries do not infringe third-party rights. If claims are nevertheless asserted, the supplier shall, at its own cost, procure a right of use or modify the performance so that no rights are infringed; our further rights remain unaffected.
(5) The supplier indemnifies us against claims arising from infringement of third-party IP rights.
XIX. Confidentiality and data protection
(1) All non-public information that we disclose or make accessible to the supplier in connection with the business relationship shall be treated as confidential by the supplier, kept secret without time limit, and not exploited; the supplier undertakes to take appropriate measures to ensure confidentiality. Disclosure is permitted only on a need-to-know basis and only to persons or subcontractors who are themselves bound to equivalent confidentiality.
(2) The supplier further undertakes to keep confidential any knowledge/information obtained from the business relationship vis-à-vis third parties.
(3) If the supplier processes personal data on our behalf, it warrants compliance with data-protection law (in particular the GDPR). The supplier implements appropriate technical and organizational measures. After contract end, all data must be returned or deleted.
(4) Security incidents that may affect the confidentiality, integrity or availability of our systems, data or delivery items must be reported to us without delay, but no later than within 24 hours of becoming known, in writing. The report must state the nature of the incident, the scope affected, measures already taken and an action plan.
XX. Termination and end of contract
(1) We may terminate for cause with immediate effect or withdraw from the contract. Good cause exists in particular in cases of repeated delivery delay, serious quality defects, breaches of compliance, data-protection or confidentiality duties, sustained inability to perform, or a force-majeure event under XV(4) lasting more than 45 days.
(2) Upon termination, the supplier shall immediately and fully return all items provided, documents, data carriers and confidential information. We may withhold outstanding payments until all defect and damage claims are clarified.
XXI. Governing law, venue, place of performance, severability
(1) Austrian law applies exclusively, excluding the UN Sales Convention (CISG) and conflict-of-laws rules.
(2) Place of performance for all deliveries/services of the supplier and for our payment obligations is Klagenfurt am Wörthersee, Austria.
(3) Exclusive place of jurisdiction for all disputes between the supplier and us is Klagenfurt am Wörthersee, Austria.
(4) If individual provisions of these Purchasing Conditions are wholly or partly invalid, the validity of the remaining provisions is not affected. The invalid provision shall be deemed replaced by the valid provision that most closely reflects the economic purpose.
