Conditons of Purchase

General Conditions of Purchase of PENGG KABEL GmbH (Edition 06.10.2022)

1. Scope of application

These General Terms and Conditions of Purchase shall apply unless otherwise expressly agreed in writing between the contracting parties. General terms and conditions of the supplier shall not apply.

1.1. Verbal agreements shall only be legally valid if confirmed by us in writing.

1.2. These terms and conditions shall also apply to all future transactions with the purchaser insofar as they are legal transactions of a related nature.

2. Orders

All orders are to be made in writing and in electronic form. If no order confirmation is received within 5 days, Pengg Kabel GmbH has the right to cancel the order at any time and free of charge. We reserve the right to reject order confirmations that are received by us after the 5-day period has expired. If the supplier does not expressly reject the order within the 5-day period, or if the supplier begins with the corresponding deliveries, or execution actions in a manner recognizable to us, our order including these General Terms and Conditions of Purchase shall be deemed to have been accepted in full, unless we exercise the aforementioned right of rejection. Additions, restrictions or other deviations from the order or the associated documents require our written consent.

3. Sub-suppliers

The supplier is obliged to disclose his sub-suppliers to us. The passing on of essential parts of the order, production or deliveries to sub-suppliers is only permitted with our prior written consent. The passing on of orders by subcontractors to another third party also requires our prior written consent.

The supplier shall carefully select subcontractors and, before commissioning them, assure that they are capable of complying with all the obligations stipulated in the agreement with us. If the delivery is made by a subcontractor, the subcontractor shall also strictly comply with these Terms and Conditions of Purchase. The supplier undertakes to oblige the sub-supplier to do so contractually and in writing.  The supplier shall be liable for his subcontractors as for its own performance.

4. Prices, cost estimates and offers

The agreed prices are net and fixed prices and exclude subsequent claims of any kind. Unless separately stated, ancillary costs such as costs for packaging, surcharges for small quantities and other processing fees and flat rates as well as customs duties are included in the agreed prices. If no prices are stated in the order, the current list prices of the supplier with the customary deductions shall apply. Cost estimates and offers of the Supplier shall be binding and shall not be remunerated by Pengg Kabel GmbH, unless expressly agreed otherwise in writing.

5. Samples and confidentiality obligation

Models, samples, materials, tools, specifications, calculations, drawings, plans, drafts and other documents, illustrations, data, means of production or materials, etc., which we have provided to the supplier directly or indirectly for the purpose of submitting an offer or executing an order, shall remain our property and may not be used for other purposes, reproduced or made available to third parties. Unless otherwise agreed in writing, materials provided must be returned to us immediately after execution of the delivery or, in the event of non-execution of the delivery, without special request. The supplier shall regard the order and the work relating thereto and all information, data, documents and all other knowledge of our operational and business processes obtained in connection with the contractual cooperation as business secrets and treat them accordingly as confidential. The supplier shall be liable for all damages arising from the violation of one of these obligations.

6. Time of performance

The place of performance for the supplier's delivery/service performance is the place of receipt designated by us. The delivery must comply with our specifications in terms of type and scope and must have the agreed properties and guarantees. The delivery dates agreed with us must be complied with unconditionally and punctually. The supplier shall notify us without delay, stating the reasons and the expected duration of the delay, if circumstances occur or become apparent to him which indicate that the agreed delivery dates or the agreed specifications cannot be met. The date of receipt by us in the case of goods and the date of completion of work in the case of services shall be decisive for compliance with the delivery period or delivery date. The supplier is obliged to compensate us for the damage caused by the delay. Notwithstanding the foregoing, we shall be entitled - except in cases of force majeure - to claim 1% of the net remuneration for each commenced week of delay, up to a maximum of 10% of the net remuneration for the delayed deliveries or services, as compensation, unless a case of force majeure exists, and the supplier was not already in default at the time of its occurrence. The assertion of further claims for damages shall remain unaffected. The supplier may only invoke the absence of necessary provisions to be supplied by us (e.g. samples, specifications, documents) if the supplier has sent a written reminder for the provisions and has not received them within a reasonable period of time. Earlier delivery shall only be permissible with our express consent, but in such a case the payment periods shall not start to run until the originally agreed date. We reserve the right to reject deliveries before the agreed dates until they are due. Should we accept earlier deliveries, these shall be stored at the supplier's expense and risk until the agreed delivery date.

Partial deliveries will not be accepted unless expressly requested or approved by us.

7. Transport

Deliveries shall be made to us carriage and packaging paid and duty paid unless otherwise agreed (Incoterms DDP). We reserve the right to select the mode of shipment and the carrier. All shipments must be accompanied by a packing slip as well as a delivery bill stating our complete order data (order number, item number, details of the place of receipt and the recipient). Partial deliveries must be designated as such. The acknowledgement of receipt is only to be considered as recognition of the receipt of goods, not the proper fulfilment. In case of direct shipment to our customers, all agreements made with us as well as the present general terms and conditions of purchase shall apply.

8. Dangerous Goods & Hazard Notification

The supplier warrants that all deliveries, delivered products and packaging may be placed on the market in the member states of the EU without further precautions and that no ingredients are contained in such a concentration that would make placing on the market in the EU inadmissible. In particular, Supplier warrants that all supplies (i) comply with Regulation (EC) 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals of the European Community ("REACH"), as amended; (ii) fully comply with the requirements of Directive 2011/65/EU ("RoHS"), as amended, and the national regulations adopted within the European Union in implementation of this Directive, and are suitable for RoHS-compliant manufacturing processes; and (iii) comply with Regulation (EC) No. 1272/2008 ("CLP Regulation") as amended for the classification, packaging and labelling of hazardous substances.

In this context, the supplier is obliged to provide all necessary information and all registration confirmations.

In the event that the supplier violates any of the aforementioned obligations, the supplier shall indemnify both us and our customers against all costs, claims of third parties (in particular direct or indirect claims for damages) as well as other disadvantages (e.g. fines) resulting from the violation of the aforementioned provisions. Furthermore, we shall be entitled at any time to cancel the corresponding order without delay and to refuse acceptance of the corresponding delivery without incurring any costs. Any existing claims for damages shall remain unaffected. Cancellation or refusal of acceptance shall not constitute a waiver of any claims for damages.

9. Proof of origin & export restrictions

The supplier is obliged to inform us in writing as early as possible before the delivery date of any approval requirements for its goods under applicable Austrian, European (EU), US or other applicable export, customs and foreign trade law as well as under export, customs and foreign trade law of the country of origin of its goods and to provide all necessary proofs of origin with all information required in this respect in signed form at its own expense as well as to notify a change of origin without delay and without being requested to do so.

The supplier shall inform us without delay if a delivery is subject in whole or in part to export restrictions under Austrian law, EU law, US law or any other applicable law. If the delivery to us requires the issuance of an export or import license, the supplier shall be responsible for obtaining such license.

10. Quality management

The supplier must set up an appropriate certified quality assurance management system which is suitable in terms of type and scope and which complies with the latest state of the art and must provide us with evidence of this upon request (at least ISO 9001). Irrespective of this, the supplier must check the quality of the delivery items himself and subject them to an outgoing inspection.

The supplier shall inform us in good time in writing of any changes in manufacturing processes, changes in materials or supplier parts for products or services, relocation of production sites, and also before any changes in procedures or equipment for testing the parts or in other quality assurance measures. We shall be entitled to verify to the extent necessary whether the changes could have an adverse effect on the product.

11. Audits

The supplier shall grant us the right to inspect the business premises and production sites of the supplier and its sub-suppliers (and their sub-suppliers etc.), in which the contractual services are prepared or performed, during the normal business hours of the supplier or the sub-supplier, either ourselves, through a commissioned third party or - if our customers demand inspections or audits of the supply chain - through one of our customers to audit the proper and complete performance of all services and compliance with the statutory/official and other applicable requirements as well as these Terms and Conditions (in particular, but not exclusively, the implementation of standards on quality management, quality assurance measures, confidentiality, security, information security and data protection) in the relevant areas. Such verification may also include inspection of internal policies, processes, and procedures as well as inspection of books, documents and other records. The supplier or sub-supplier shall support the audit in an appropriate manner to be able to achieve the respective audit purpose and shall provide all necessary or appropriate information. The supplier is obliged to pass on the provisions of this clause in writing to his sub-suppliers and to contractually oblige its sub-suppliers accordingly in order to enable us, third parties commissioned by us, or our customers to audit and check all sub-suppliers (and their sub-suppliers etc.).

12. Takeover of Goods & Transfer of Ownership

The risk shall only pass to us upon proper takeover at the place of delivery specified in the order, even if carriage paid delivery has not been agreed. Ownership shall unconditionally pass to us upon handover of the delivery. The supplier guarantees that no rights of retention of title or rights of third parties exist to the delivery item.

13. Defects & Warranty

The supplier owes to us that the deliveries and services are free from quality defects and defects of title, comply with the agreed qualities and guarantees, that they are suitable for the intended purpose, correspond to the state of the art, legal regulations, official requirements (in particular the generally recognized technical safety regulations of authorities and trade associations) and are suitable for the contractually presupposed use.

We shall notify the supplier in writing of any defects as soon as they have been detected by us in the ordinary course of business, which may include, but not limited to, the situation, that defects can only be detected in production at our customer. The supplier agrees that no immediate quality control may be carried out. The supplier waives the objection of late notification of defects. Acknowledgement of receipt and/or payment shall not be deemed as recognition that the goods are free of defects. If random samples reveal defects, we shall be entitled to warranty rights and claims for damages for the entire delivery. We shall have the right to choose between rectification of defects or exchange with on-defect goods, parts or services in any case. If rectification is required, the rectification shall be deemed to have failed after the first unsuccessful attempt at rectification. For repaired or newly delivered parts, an independent limitation period shall run for claims for defects, calculated from the time of complete fulfilment of the claim for subsequent performance. The supplier shall ensure that the use of the supplies and services in accordance with the contract does not infringe the intellectual property rights of third parties.

The supplier is obliged to notify us immediately of any defects in the product discovered after delivery. If the product delivered to us proves to be defective due to new findings, in particular in connection with our design, so that it can or may no longer be processed or put into circulation by us, the supplier shall be obliged to take back our remaining stocks at the purchase value on his part.

14. Liability & Product Liability

Should we be liable under product liability law with regard to the end product, the statutory provisions of the applicable law shall apply in all other respects. In urgent cases, we shall be entitled, without prejudice to our other claims, to remedy defects at the supplier's expense and risk after notifying the supplier.

Should we, as importer or manufacturer of the end product, be liable under product liability law provisions due to defects in the product delivered by the supplier or its sub-suppliers, the supplier shall provide us with full recourse, including legal costs, irrespective of fault. The supplier waives the objection that the supplier itself is not the manufacturer of the product delivered to us and that the supplier is exempt from liability as a dealer. Insofar as the cause of the damage lies in the sphere of responsibility of the supplier or its sub-suppliers, the supplier shall bear the burden of proof in this respect.

If the deliveries do not comply with the legal regulations and official requirements, the supplier shall indemnify and hold us harmless.

15. Invoicing and payment

Invoices are to be sent to us by PDF file to the email stating the order number.

Invoices shall be issued exclusively to the following address: Pengg Kabel GmbH, Mariazeller Strasse 125, 8605 Kapfenberg, Austria.

Unless otherwise agreed, payment shall be made 60 days after proper acceptance of the goods and correctness of the invoice, according to the terms of the order. In the case of bank transfer, payment shall be deemed to have been made in time if the transfer order from us is received by our bank before the expiry of the payment deadline. We waive any responsibility for any delays caused by banks involved in the payment process. If the delivery necessitates a notice of defects, payment shall be made only after satisfactory remedy. The supplier is not entitled to assign the claim to third parties without our prior written consent, unless we agree in writing. We are entitled to set-off as well as to exercise a right to refuse performance due to counterclaims, also from another legal transaction.

16. Industrial property rights and intellectual property rights

The supplier shall assume unconditional liability for the non-infringement of existing industrial property rights and intellectual property rights (including copyrights, patents or protected trademarks, logos, etc.) by the goods delivered by the supplier. The supplier undertakes to indemnify and hold us harmless for all claims made against us for infringement of industrial property rights and intellectual property rights arising from the use of delivered goods or services. License fees, expenses or costs incurred by us for the avoidance or elimination of infringements of property rights shall be borne by the supplier.

17. Withdrawal/Cancellation

We shall be entitled to cancel the order in whole or in part at any time and without giving reasons. In this case, we shall pay an appropriate, proportionate part of the agreed price for the deliveries already duly fulfilled and handed over or ready for handover at the time of the declaration of cancellation by the supplier step by step against handover and transfer of unrestricted ownership, if they are usable and can be used by us. Any further claims of the supplier are excluded.

18. Jurisdiction and applicable law

In addition to these General Terms and Conditions of Purchase, the relevant statutory provisions shall apply. The law of the Republic of Austria shall exclusively apply, excluding its choice of law principles. The court with subject-matter jurisdiction in 8700 Leoben, Austria is agreed as the place of jurisdiction for all legal disputes.

19. Language

In case of differences between the German and the English version or for the purpose of interpretation of these Terms and Conditions of Purchase, the German language version shall prevail.

20. Severability clause

Should any provision of these terms and conditions or of further agreements be or become invalid, the validity of the remaining terms and conditions as well as the validity of the contract based thereon shall not be affected thereby. The contracting parties shall be obliged to replace the invalid provision by a provision that comes as close as possible to it in terms of economic success.


Editon October 2022