Company
Nonwoven
Paper
ANDRITZ GROUP

ANDRITZ PULP & PAPER

 

 

Standard Purchase Terms
ANDRITZ Küsters GmbH

(May 2006)

1. Scope
Unless otherwise agreed upon, any contract awarded or order placed by ANDRITZ Küsters GmbH, Krefeld, Germany (“the Buyer”) with any person (“the Seller”) for any products (“the Products”) and/or services (“the Services”) shall be subject to these Standard Purchase Terms. If the Buyer awards any such contract or places any such order in the name and for the ac­count of any third party, these Standard Purchase Terms shall apply to the relationship between said third party and the Seller.
TheseStandard Purchase Terms shall not apply unless the Seller is a business to which standard terms may be applicable pursuant to Section 310 of the German Civil Code (“the Civil Code”). These Standard Purchase Terms shall equally apply to all future contracts awarded to the Seller by the Buyer or any third party for which the Buyer acts.

2. Contracts
The Seller shall be under no obligation whatsoever to accept any Product or Service, unless the Seller has issued a written contract or order (“the Contract”) therefor and any oral contract or order shall be ineffective unless confirmed by the Seller in writing and the terms so confirmed shall apply to any such oral contract or order.
If any Product or Service specification or any other terms are specifically agreed for any Contract (“Special Terms”), the Spe­cial Terms shall take precedence over these Standard Pur­chase Terms in the event of any conflict between the Special Terms and these Standard Purchase Terms.
Any sales terms of the Seller in conflict with any Special Terms and/or these Standard Purchase Terms whether or not refer­enced by the Seller in any notice relating to the Contract shall be ineffective unless expressly accepted by the Buyer in writ­ing.
Unless the Seller expressly refuses to accept these Standard Purchase Terms or any other terms of the Buyer within one (1) week from the date on which the Seller receives the Buyer’s Contract, these Standard Purchase Terms or said other terms shall be deemed to have been accepted by the Seller upon the expiry of said one (1) week or upon the commencement of Contract performance whatever may be earlier provided that the Contract awarded shall expressly state the legal effect de­scribed hereinbefore.

3. Price and Payment
No price of any Product or Service (“the Price”) shall be valid unless expressly accepted by the Buyer in writing. Each Price shall be firm and shall not be altered by any increase in any Product or Service cost element such as, without limitation, any increase in the cost of materials or labor during the course of the performance of the Contract.
Each Price shall be final and shall be deemed to cover all costs, expenses or charges incurred by the Seller in connection with the performance of the Contract including, but not limited to the costs of ancillary services, the costs of Contract perform­ance in accordance with the state of the art and the costs of all parts and components necessary for Product completion and Product performance in accordance with the state of the art whether or not expressly specified in any proposal, offer or bid by the Seller or in the Contract.
Each Price shall be ex Buyer’s premises or ex place of delivery as specified by the Buyer and shall be inclusive of all costs, ex­penses and other charges incurred for inspection and accep­tance, packaging, any transportation insurance and site unloading and site handling.
If any Service is paid for by the Buyer in accordance with any schedule of rates, time spent by the Seller shall be reported by the submission of timesheets to the Buyer. Each such time­sheet shall require written approval by properly authorized Buyer personnel. All such timesheets shall be appended to the invoices by which the time reported therein is billed by the Seller to the Buyer.
The Seller shall forward to the Buyer two copies of a ship­ping advice for each Product shipment promptly upon the completion of all formalities in connection with forwarding said shipment to the Buyer. Each such shipping advice, all shipping documents, the confirmation of each Contract by the Seller and each invoice issued by the Seller to the Buyer shall quote the Contract date, the Contract number and the relevant item num­ber or numbers, the Buyer’s job number and the Buyer’s mate­rial number.
Each invoice issued by the Seller to the Buyer for any Product shall be accompanied by a delivery note for said Product showing times of departure and times of arrival as confirmed by signatures of properly authorized Buyer personnel.
The Buyer shall pay each Product and each Service upon the submission of a written invoice following (and not simultane­ously with) the delivery of the Product and/or the Service. A separate invoice shall be submitted by the Seller for delivery under each Contract and each such invoice shall quote the Contract date and the Contract number. Following the receipt of each such invoice, the Buyer shall make payment within one (1) month from the first day of the month following the month of the delivery of the Product or Service and shall if payment is so made be entitled to a cash discount of three percent (3%) of the Price or within sixty (60) days from the first day of the month following the month of the delivery of the Product or Service and shall if payment is so made not be en­titled to a discount always provided that the Buyer shall have the right to select the means of payment as the Buyer may deem fit.
The Seller shall not have the right to assign any title to pay­ment it may hold against the Buyer or to have any payment by the Buyer collected by any third party.

4. Dates Agreed for the Delivery of Products or Services
Each date agreed for the delivery of any Product or Service by the Seller shall be binding and any qualification of any such date by the Seller shall be ineffective unless expressly ac­cepted by the Buyer in writing.
Subject to any other right the Buyer may hold against the Seller, the Buyer shall, in the event of any late delivery, be en­titled to a penalty of zero decimal five percent (0.5%) of the Price agreed for any Product or Service the delivery of which is delayed for each week or fraction of a week of delay pro­vided however that the sum total of said penalty shall not ex­ceed five percent (5%) of said Price and further provided that the Buyer shall notify the Seller within ten (10) working days from receiving the Product or Service so delayed that it re­serves the right to claim said penalty.
The Seller shall give the Buyer prompt notice of any late deliv­ery of any Product or Service.
The Seller shall not deliver any Product or Service prior to the date agreed for the delivery of said Product or Service, unless the Seller has received the Buyer’s express written agreement and no such early delivery shall operate to alter any due date for payment which would apply in the event of the delivery of said product or Service exactly on the date agreed for said de­livery.

5. Transfer of Risk and Acceptance
The risks associated with any Product or Service shall be transferred from the Seller to the Buyer upon the proper deliv­ery of the Product to or the proper acceptance of the Service by the Buyer at the Buyer’s premises or any other place of de­livery designated by the Buyer. The acceptance of the delivery of any Product or Service by the Buyer shall be subject to the proviso that the Buyer shall retain all of its rights with respect to any latent defect if notice of any such latent defect is given by the Buyer to the Seller within four (4) weeks from the dis­covery of any such latent defect in accordance with Section 377, paragraph (3), of the German Commercial Code (“the Commercial Code”). The Buyer shall not be obligated to keep any Product or any asset for which any Service was rendered in custody if the acceptance of said Product or Service is re­fused by the Buyer and any such custodianship, if any, shall be at the cost and at the risk of the Seller.

6. Setoff and Refusal of Performance by the Seller
The Seller shall not have the right to set off any counterclaim it holds or allegedly holds against the Buyer against any claim or title of the Buyer unless said counterclaim has been accepted by the Buyer or awarded by a judgment from which no appeal can be sought. The Seller shall not have the right to refuse the performance of any Contract unless the Seller is able to de­monstrate grossly negligent breach of Contract by the Buyer or a counterclaim allowing refusal of performance that is undis­puted or has been awarded by a judgment from which no ap­peal can be sought or is overdue for decision.

7. Rights of the Buyer in the Event of Defects
The Seller warrants, by way of a fitness warranty under the Contract for the period of limitation provided for by law, that each Product will satisfy sound and reasonable quality stan­dards and will, without limitation, consist of materials fit for the purpose and function as intended and each Service will have been performed applying good workmanship. Each Product and each Service shall be in accordance with the state of the art, all applicable laws, rules and regulations including, but not limited to safety rules, requirements imposed by agencies and authorities, any codes and standards issued by standardization committees and the like such as, but not limited to European standards, German DIN standards and German VDE codes of practice and any specifications issued by the Buyer and shall be fit for the place of use and for the purpose intended by the Buyer provided that the Seller shall be obligated to establish said place of use and said purpose as may be necessary for the Seller to comply with its obligations under this warranty.
Any title of the Buyer with respect to any defect of any Product or Service shall be limited to two (2) years. Said period of limitation shall commence upon the delivery of the Product or the acceptance of the Service provided that in the event that the Seller delivers any Product or Service for integration into a facility, system or plant (“the Plant”) to be delivered by the Buyer to any customer of the Buyer (“the Customer”) said pe­riod of limitation shall commence upon the acceptance of the Plant by the Customer or thirty-six (36) months from the date of the delivery of the Product to or the acceptance of the Service by the Buyer whatever may be earlier.
During said period of limitation, the Buyer shall, in the event of any defect of any Product or Service, be entitled to the reme­dies granted by law with respect to sales contracts or work contracts as the case may be provided that even if work con­tract law applies the Buyer shall, notwithstanding any other rights the Buyer may be entitled to, have the right in the event of any defect to opt at its discretion for repair or replacement of the entire work within the limits of what may be reasonable in view of the circumstances of the case.
All costs incurred for removing any defect of any Product or Service such as, but not limited to disassembly and assembly costs shall be borne by the Seller.
Even where sales contract law applies to any Contract, the re­pair of any defect of any Product or Service by the Buyer shall be governed by work contract law.

8. Liability and Insurance
The liability of the Seller under Contract and at law shall be in accordance with the provisions of law provided that any person retained by the Seller for the performance of the Contract shall be deemed to be an employee or agent of the Seller.
The Seller shall indemnify the Buyer against and save the Buyer harmless from any claim or the like pursued by any third party against the Buyer in connection with the performance of the Contract by the Seller or any of the Seller’s agents or em­ployees, if the Seller is liable to said third party under the rule of law in as far as the Buyer has not contributed to any such loss.
The Seller shall cover its liability risks under the Contract by adequate liability insurance and shall, at the request of the Buyer, provide evidence of said coverage by submitting the li­ability insurance policy to the Buyer.

9. Third Party Rights
The Seller warrants that each Product and each Service shall be free from any lien, encumbrance, charge or other adverse third party right of any kind and, more particularly and without limitation, any resale, use or incorporation of any Product or Service by the Buyer will not violate any proprietary or other third party right. If any third party proprietary or other right is violated by any such resale, use or incorporation, then the Seller shall provide adequate compensation to each owner of each such proprietary or other right so that each such Product and Service will be free from all liens, encumbrances, charges and other adverse third party rights and shall indemnify the Buyer against and save the Buyer harmless from any claims or the like of said third party.

10. Confidentiality
The Seller undertakes to keep all technical, commercial, finan­cial and economic information it may become aware of in con­nection with the performance of the Contract including, but not limited to information on any Customer and the relationship between the Buyer and the Customer strictly confidential, not to release any such information to any person other than an em­ployee or agent directly involved in the performance of the Contract and to impose on each employee or agent to whom information is so released an obligation to keep such informa­tion strictly confidential even beyond the term of the contract between each such employee or agent and the Seller. Unless otherwise agreed upon in any specific case such as, without limitation, a confidentiality obligation not limited in time in the agreement between the Buyer and the Customer, the confiden­tiality obligation under the Contract shall continue in force for a period of two (2) years commencing on the date of the delivery of the Product to or the date of the acceptance of the Service by the Buyer.

11. Rights of Use and Proprietary Rights
Upon the full or partial delivery of any Product or Service by the Seller to the Buyer under the Contract, the Seller shall assign to the Buyer free of any charge to the Buyer an exclusive right unlimited in time or in scope or by region to use said Product or Service and shall deliver to the Buyer all drawings, specifica­tions or other documents prepared for said Product or Service and shall transfer the full title to all such drawings, specifica­tions or other documents to the Buyer.
Upon the request of the Buyer, the Seller shall, at the cost of the Buyer, apply for the protection of proprietary expertise de­veloped in connection with the performance of the Contract with patent or trademark offices in Germany and/or in any other country. Any rights thereupon acquired by the Seller shall be transferred by the Seller to the Buyer without delay.
The Seller undertakes at the request of the Buyer to claim any inventions or improvements developed by any of the Seller’s employees in connection with the Contract in accordance with legislation applicable to employee inventions and to transfer the title to any such inventions or improvements to the Buyer or to make such inventions or improvements otherwise available to the Buyer for exclusive use provided that any remuneration to be paid by the Seller to any such employee for any such inven­tion in accordance with employee invention legislation shall be reimbursed by the Buyer to the Seller.
The Seller shall notify the Buyer promptly by written notice of any expertise developed in connection with the performance of the Contract and any invention or improvement developed by any of its employees in connection with the Contract.

12. Publicity
No written, oral, sound or picture publication in connection with the Contract including, but not limited to publicity in connection therewith shall be made by the Seller or any of its agents or employees unless the express prior written consent of the Buyer has been obtained and the Seller agrees to impose the obligations in this Clause 12 on its agents and employees.

13. Place of Performance and Jurisdiction
Unless otherwise agreed upon between the parties, the place of performance with respect to Products and Services to be supplied by the Seller shall be the place of the registered office of the Buyer or the third party where the Contract has been awarded by the Buyer for a third party. The place of perform­ance for payments shall be Krefeld in Germany or the place of the third party where the Contract has been awarded by the Buyer for a third party.
Any dispute arising out of or in connection with the Contract shall be settled by the courts having jurisdiction at the regis­tered office of the Buyer, if the Seller is a business.

14. Amendments and Notices
All modifications of or amendments to the Contract and all no­tices given in connection with the Contract shall be ineffective unless made in writing.

15. Applicable Law
The Contract shall be governed by and construed and inter­preted in accordance with German law provided however that the United Nations Convention on International Contracts for the Sale of Goods shall not apply