General Purchasing Conditions
for the procurement of goods and services by KNP Financial Services GmbH (GPC KNP)
- The present General Purchasing Conditions (“GPC KNP”) shall apply with respect to any procurement of goods and services respectively purchase contracts, contracts for production of a work, and contracts for services, concluded by KNP Financial Services GmbH, Hutweidengasse 22, A-1190 Vienna ("KNP"), regardless of their description in an individual case, unless otherwise agreed in writing. The term “Contractor” used hereafter shall mean the contracting party, with whom we have concluded an agreement with respect to the supply of goods (“Goods”) respectively the production of a work or the provision of services (“Services”; each described as “Subject Matter of the Agreement”).
- With the acceptance of an order, respectively conclusion of an agreement, the Contractor agrees to the application of the GPC KNP, as amended at the relevant time The GPC shall apply during the entire business relationship between KNP and a Contractor, even if same have not been expressly agreed in an individual case.
- General business conditions of the Contractor shall not apply, even if KNP does not expressly object to same. Acts in performance of the contract, payment for the subject matter of the agreement, or silence on the part of KNP, shall not lead to the recognition of the general business conditions of the Contractor.
- 4General business conditions of the Contractor, and conditions of the Contractor deviating from the order of KNP or the GPC KNP (in the order confirmation, for example) shall only become part of the contract if same are expressly confirmed by KNP in writing, and shall apply only in the individual case concerned.
- In the event that individual provisions of these GPC KNP shall be ineffective or unenforceable, the remaining provisions shall continue fully to remain in force. In such case, such effective and enforceable provision shall apply in the stead of the invalid or unenforceable provision, which commercially comes as close as possible to the ineffective or unenforceable provision.
- The GPC KNP may be viewed at www.knp-finance.at/aeb, and can be downloaded and printed.
- KNP shall be entitled at any time to correct obvious errors, such as spelling and calculation errors, in orders, acceptance of offers, and similar documents.
- Offers, estimates, plans, test certificates for technical devices, and the like, shall in all cases be prepared by the Contractor without charge, regardless of the preparatory work required for same.
- The goods/services offered by the Contractor must contain all required materials, supplementary work, equipment, and all other services and supply of goods required for the complete contractual performance of the offered services and goods.
- The Contractor declares with the submission of its offer that all prerequisites for the performance of its services and the supply of goods by the Contractor are in place, and shall be liable for same. With the submission of the offer, the supplier shall no longer be able to rely on the information submitted by KNP being unsuitable as a basis for the preparation of the offer, unclear, incomplete, or faulty.
CONCLUSION OF THE CONTRACT
- The contract shall be considered as concluded, when KNP confirms the offer of the Contractor by way of written order, and the contracting partner does not object to the order within ten working days from the date of the order, stating the specific ground of objection; an order confirmation of the Contractor with a reference to its general business conditions shall not fulfil the aforesaid preconditions for an objection.
- A deviating acceptance of an order of KNP shall be regarded as a new offer, and shall require the written confirmation of KNP.
- In principle, orders, the conclusion of a contract, and subsequent amendments of and supplements to a contract, shall be in writing in order to be valid. This shall apply as well to the waiver of the requirement of the written form. The order of KNP, respectively any bilateral contract countersigned by KNP, shall conclusively contain all agreements of the contracting parties with respect to the subject matter of the contract. No written or oral collateral agreements have been concluded, respectively same shall be void upon conclusion of this agreement. As an exception, oral agreements shall apply in the scope of business relationships, with the Contractor having to bear the burden of proof that the content of the agreement as alleged by KNP does not exist.
- All declarations of intent and declarations of the exercise of rights of the Contractor, in particular notice of termination, reminders, and the setting of a deadline or period of grace, shall be in writing in order to be valid, and shall be directed to the office address of KNP or by e-mail to firstname.lastname@example.org.
DATES/DEADLINES, DELIVERY, ACCEPTANCE
- Dates and deadlines announced by the Contractor, or agreed, shall be binding. The receipt by KNP, respectively the delivery of the services or the acceptance thereof (if agreed), shall be relevant for compliance with the date for the supply of goods/the performance of the services.
- If the Contractor foresees circumstances, which could prevent him from delivering the goods or services in time, or in the agreed quality, it shall forthwith notify KNP in writing directed to the business address of KNP, or by e-mail to email@example.com.
- In case of failure to comply with agreed dates or deadlines, or to supply the agreed kind, quality or number of the subject matter of the agreement, the legal provisions respecting default shall apply (even if the Contractor has given the required notice). In case of default with the delivery of goods or the provision of services, KNP shall be entitled to demand from the Contractor payment of a penalty, for each week of the default, in the amount of 1 % of the total order value, up to a maximum of 15 % of the value of the goods or services. KNP expressly reserves the right to claim damages exceeding the amount of the penalty.
- The acceptance, without reservation, of late or defective respectively incomplete deliveries of goods or services shall not amount to a waiver of rights to which KNP shall be entitled on this ground.
- Partial deliveries shall not be permissible in principle, unless KNP has expressly consented thereto in writing.
- The place of performance for delivery of goods/performance of services shall be deemed to be the seat of KNP Financial Services GmbH, Hutweidengasse 22, 1190 Vienna.
- Goods and services shall be accepted subject to the reservation that same are free of defects with respect to quality and quantity. It is expressly agreed that § 377 of the Austrian Commercial Code (UGB) shall not apply.
- If services are charged based on time spent, all claims to payment shall be forfeited three months after the provision of services, unless same have been asserted in writing a detailed invoice within the said time period.
TERM OF THE AGREEMENT / TERMINATION
- The order of KNP, respectively the agreement countersigned BY KNP shall govern the term of the agreement, an (automatic) extension, and the right of termination. Unless otherwise agreed, the agreements shall be concluded for an indefinite term, with both parties being entitled to terminate, with KNP having to provide two weeks notice of termination and the Contractor having to provide six weeks notice of termination.
- All prices shall be fixed prices, shall be understood without Turnover Tax, and include all claims of the Contractor for the supply of goods respectively provision of services as agreed, as well as costs of the Contractor, e.g. costs of delivery, quality management expenses, functional and quality tests, packaging and documentation, and any required approvals and insurance, and shall be understood “free place of destination”.
- Unless otherwise prescribed, a single original of invoices shall be delivered to KNP following delivery. In addition to the order number, all order dates, the mode of shipping and the delivery slip shall be noted on invoices. The invoices shall contain all details required by law in order to enable the claiming of input taxes and to comply with customs regulations. In addition, the BIC and IBAN shall be noted on the invoice.
- Invoices shall be structured so that the extent of the goods or services provided and the related costs and expenses can be deduced from the invoice.
- Only invoices complying with all of the aforesaid requirements shall be considered issued in conformity with the agreement. Payments may be withheld until objections based on defects have been completely processed.
- Unless otherwise agreed, payment for accepted goods or services shall be made within 14 days with a 3 % discount, or net within 30 days.
- Payment shall not be deemed acceptance of the delivery, and no acknowledgement that goods respectively services were delivered as contractually agreed. Payments in particular shall not be considered a waiver of the assertion of defects and (warranty respectively damage) claims.
- In cases in which there exists a “reverse charge” situation pursuant to § 19 of the Austrian Turnover Tax Act (UStG), invoices shall be submitted without showing Turnover Tax, and with a corresponding note in the invoice.
- The Contractor shall not be entitled to set off its claims against KNP with liabilities owed to KNP. Assignments of claims of the Contractor against KNP shall be impermissible without KNP’s written consent. All charges of the recipient bank shall be borne by the Contractor.
PASSING OF PROPERTY / RESERVATION OF TITLE
- Unless otherwise agreed between the Contractor and KNP, the agreements shall be deemed concluded with the Incoterms 2010 clause CIP, and shall be subject to the rules in this regard. Risk and property shall pass only upon complete acceptance by KNP.
- KNP expressly does not consent to a reservation of title in favour of the Contractor.
- The Contractor shall be liable for performance in conformity with the agreement, respectively the agreed and intended result of the goods respectively services, and compliance with all applicable legal provisions and norms. The goods and services shall conform with the normally expected and the agreed properties, as well as the properties contained in user manuals, product specifications, explanations, pamphlets, advertisings, and other publicly or to KNP accessible information media, and must be capable of being used in accordance with the nature of the business and the agreement made respectively the purpose sought by KNP.
- The warranty period shall amount to three years. It shall commence with the acceptance of the goods respectively the services, respectively after the agreed successful acceptance, in case of hidden defects only after discovery of the defect.
- There shall be a rebuttable presumption that defects discovered during the warranty period did exist already at delivery of goods respectively performance of the services. In case of defects, which were not already complained of at delivery, KNP shall give the contractor written or oral notice after discovery of the defect, at the latest within the agreed warranty period. The obligation in commercial law of giving notice of defects (§ 77 UGB) shall expressly not apply.
- In case of the occurrence of a warranty case, the contractor undertakes to remove the defect being the cause of the warranty matter, or, if the Contractor is unable to create the contractual condition at commercially reasonable expenses within a reasonable period of time, KNP shall be entitled to demand a price reduction respectively to terminate the agreement and to demand repayment of the price paid to the Contractor for the goods or services.
- If the Contractor fails to commence the removal of the defect forthwith after a demand to do so, then in urgent cases KNP shall be entitled, in particular in order to prevent acute danger or greater damages, to do this itself, or to have same done by third parties, at the Contractor’s expense.
- In case of removal of defects, exchange, or subsequent performance, the period of limitations with respect to the goods and services provided for the removal of defects shall begin anew.
- The Contractor shall bear the damages and costs of KNP occasioned by the defective goods or services.
- The Contractor shall be liable for all damage caused by it, and the consequences of such damages, and for costs occasioned to KNP.
- On demand of KNP, the Contractor, upon accepting the order, shall provide proof of liability insurance corresponding to the extent of possible liability, with a sufficient amount.
- The Contractor shall hold KNP harmless and indemnify KNP with respect to any third party claims arising from a breach of these GPC KNP.
- The Contractor shall be liable for the conduct of its subcontractors as it is for its own conduct.
SECRECY AND DATA PROTECTION
- The Contractor undertakes to treat the information received from KNP, and the content of the agreement, (“Confidential Information”) in confidence, not to make same accessible to any third parties, and to use same only in the scope of the contractual purpose.
- The Contractor undertakes to obligate its employees, and third parties resorted to for the performance of its contractual obligations, to maintain secrecy.
- The secrecy obligation shall remain in force even after the termination of the agreement.
- 4The Contractor undertakes to comply with applicable data protection law as amended at the relevant time. The Contractor in particular guarantees the performance of all data protection requirements.
- In case of force majeure, such as, for example, war, war-like events, natural catastrophes, and strikes at a level higher than the individual business, KNP shall be entitled, for the duration of the disturbance, to refuse acceptance of delivery, and shall also be entitled to rescind the agreement, and the Contractor shall not have any claims against KNP in this regard.
- Cases of force majeure preventing the Contractor from performing its obligations, shall be notified immediately to KNP and must be confirmed by the competent chamber of commerce. For the duration of such events, the essential contractual obligations shall be suspended.
PROPERTY, RIGHTS AND OTHER MATTER MADE AVAILABLE BY KNP
- Specifications, samples and other information, records and auxiliary means (together “Auxiliary Means”) shall remain the sole intellectual and physical property of KNP, unless otherwise notified in writing, and KNP reserves all rights in this regard. Auxiliary Means may be used only for the agreed purpose, shall not be duplicated nor made available to third parties, nor published, without the written consent of KNP, and shall always be treated in confidence.
- The Contractor shall forthwith advise KNP in writing in case Auxiliary Means are unsuitable or incomplete.
FREEDOM FROM THIRD PARTY RIGHTS
- The Contractor guarantees, that the goods to be delivered respectively the services to be provided by it are free of third party rights, in particular free of protective rights of third parties, which could impede or prevent the contractual use.
- If KNP is resorted to by third parties for violation or alleged violation of third party rights by reason of the contractual use of the goods or services, the Contractor shall have the following obligations:
The Contractor, in order to enable the further use, shall forthwith change or replace the goods respectively services concerned in such manner so that the protective right is not breached, with the contractually agreed properties still in place, or obtain the required licenses at the Contractor’s expense. If the Contractor is unable to do so, the Contractor, at the election of KNP, shall take the goods respectively services back and repay the consideration paid to it, or reduce the consideration by agreement with KNP, in an amount corresponding to the resulting reduced usability, in the latter case provided that the goods respectively services are still usable for KNP.
- The Contractor shall indemnify KNP and hold KNP harmless with respect to any third party claims based on breach of protective rights by reason of goods or services supplied, as well as all costs and expenses of KNP in connection with being resorted to by third parties, including the costs of any assertion of rights.
- In addition, KNP reserves the right to assert damages, in particular in view of the lack, or the reduced, usability.
- All agreements, subsequent supplements and amendments, and collateral agreements, need to be in the written form.
- Austrian law, with the exception of the UN law of the sale of goods, shall apply to this agreement. Legal norms referring to the law of other states shall not apply.
- The Contractor shall ensure that all legal provisions shall be observed, in particular those penalizing active and passive bribery, and accepting or providing an advantage.
- All legal disputes in connection with the business relationship, in particular those arising from or in connection with these GPC, shall be subject to the jurisdiction of the Commercial Court Vienna.
Supplemental Purchasing Conditions
for the procurement of software and IT services by KNP Financial Services GmbH (GPC SSW KNP)
SCOPE OF APPLICATION
The general purchasing conditions for the procurement of goods and services (“GPC KNP”) shall apply in principle to all procurement of goods and services by KNP Financial Services GmbH. In case of procurement of software respectively IT services, these are all deliveries of software by the Contractor (as a stand-alone product or as component of delivered hardware, software components (patches, fixes), as well as new versions or updates of the software above referred to, made available by the supplier in the scope of warranty services or as part of software maintenance), and all IT services (software maintenance, customizing, parameterization, development services, and other IT services) and related services of the Contractor (e.g. coordination services), the GPC KNP shall be supplemented by these supplemental purchasing conditions for procurement of software and IT services (“GPC SSW KNP”). In case of conflicts between the GPC KNP and the GPC SSW KNP in a specific case, the GPC SSW KNP shall prevail.
GRANT OF EXPLOITATION RIGHTS
The Contractor grants to KNP the compulsory free license pursuant to §§ 40 d, e of the Austrian Copyright Act (UrhG) with respect to the software, for its intended use. The extent of the intended use pursuant to § 40 d subsection 2 UrhG obtains from the order of KNP as well as these GPC SSW KNP, respectively from an agreement countersigned by KNP. Unless otherwise expressly agreed and confirmed in writing by KNP, the extent of intended use in the meaning of § 40d subsection 2 UrhG shall be defined as the exclusive, irrevocable, geographically unlimited, and unlimited in time and scope, right of use in the meaning of §§ 14 ff UrhG. In case of development services, the Contractor, without additional compensation, shall make the source code together with documentation available to KNP for unlimited use.
The Contractor warrants that the software functions as described in the corresponding documentation and, in case of online services respectively cloud services, that it additionally corresponds to the agreed SLAs.
The Contractor warrants that the IT services shall be provided professionally and in accordance with industry standards as well as the purpose striven for by KNP. In case of contracts for production of a work, the Contractor warrants a result in accordance with the agreed purpose respectively the purpose striven for by KNP. In case of the provision of IT services, the warranty period commences, except as otherwise agreed, with the acceptance of the software by KNP, i.e. with signing of a positive acceptance certificate by KNP.
In case of the letting of software for an unlimited period (e.g. subscriptions, cloud services), the payment obligation of KNP ceases for the duration and in the extent of the non-usability, in relation to the description of services with respect to the goods respectively services.