Philip Morris Austria GmbH

Vorgartenstraße 206C/6. Stock 1020 Wien

General Terms and Conditions of Purchase
1.
1.1

1.2

1.3

1.4

2.
2.1

2.2

Scope
These General Terms and Conditions of Purchase will apply to our business relations withentrepreneurs, legal entities under public law, and special assets under public law (hereinafterreferred to as the “Seller” or the “Contractor”). To the extent that we may conclude
contracts with consumers for the purposes of the KSchG [the Austrian Consumer ProtectionAct), any mandatory provision of consumer-protection law will take precedence over these
General Terms and Conditions of Purchase.
Our General Terms and Conditions of Purchase will apply to all business relations existingwith us currently and in the future and involving legal transactions with regard to the purchaseof products except as otherwise provided for in writing in any individual case.
All contracts concluded by us for the purchase of products will be based exclusively on these
General Terms and Conditions of Purchase. Any diverging statements made, or terms andconditions specified, by Seller will place us under no obligation even if we shall have taken
cognizance of the same, or if the same may have been enclosed with an order form or otherdocument or if the same may be referenced in such order form or other document, or if we do
not object to the same, or if the same may be explicitly contrary to these General Terms andConditions of Purchase, except that, and only if, we shall have acknowledged the same inwriting. Any taking of delivery of services and goods will in no case imply consent to any otherconditions set by Contractor. These General Terms and Conditions of Purchase, once agreed,
will until their revocation or alteration on our part continue to apply also to all future contracts
concluded for the purchase of products.
Any individual arrangements made in any individual case with Contractor (including ancillaryagreements, supplements, and amendments) will take precedence over these General Terms
and Conditions of Purchase. In respect of the contents of any such arrangements, our written
confirmation shall be authoritative. Contractor will be at liberty to provide proof of any
individual arrangements stipulated with parties having a right of representation to that extent.
Orders and Conclusion of Contract
Except as otherwise provided, our orders shall be confirmed within 5 (five) days of receipt by
Contractor, such confirmation to include binding information on the mandatory delivery time
and the price. Any obvious error (e.g. typing errors and miscalculation) and incompleteness ofan order, including the order documents, shall be pointed out to us by Contractor prior toacceptance, for the purpose of correction or completion. In the event of permanent business
relations being in place and Contractor intending to refuse to accept an order, Contractor shallmake a statement to such effect immediately but not later than within 5 (five) days; otherwise,
an order will be deemed accepted. In other cases, we hereby reserve the right to cancel anorder in the event of Contractor failing to give written confirmation thereof within the set periodof time.
Even after having placed an order, we will be entitled to demand that alterations be made to
the subject matter of a contract in terms of execution and quantity, to the extent that the same
may be required due to operational reasons, and may be customary in the trade. In any suchprocess, the implications thereof for delivery dates and any additional or reduced costs shallbe agreed reasonably and by mutual consent. Any price increase or extension of the delivery
period, however, will be recognized only if such alteration actually and demonstrably entails
any additional cost or extension of the delivery period, and if Contractor shall have informed us
thereof in writing immediately upon such change of order.

GESCHÄFTSFÜHRER:
Werner Biebl, Christiane Schwall

Sitz: Wien
FN 375335 p Handelsgericht Wien

Philip Morris Austria GmbH, Vorgartenstraße 206 B-C 1020 Wien
Telefon 01 – 727861001 Fax 01 - 727861131

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3.6

Applicability of Safety Provisions under Austrian and European Law; Operating /Assembly Instructions
Any work materials delivered, particularly machinery, computers, and similar equipment, shallin all their parts conform to the relevant safety provisions of the European Union and theRepublic of Austria, particularly to the Machinery Safety Ordinance 2010 and the Product
Safety Act, the relevant EU Directives, as well as any and all amendments made thereto andthe national provisions into which they shall have been transposed. We shall be entitled at any
time to demand that Contractor provide proof of a product’s conformity with Austrian andEuropean safety requirements.
During manufacture, delivery, and installation, Contractor shall comply with all relevant
regulations, particularly EN1 standards, ON2 rules, as well as OVE3 and VDI4 guidelines.
Contractor hereby undertakes to hand over to us, upon our request, copies of all safety
regulations and technical codes relevant to the manufacture, delivery, and installation of thedelivery item; in particular, EN standards and ON rules as well as OVE and VDI guidelines. To
the extent that the manufacture, operation, and maintenance of a delivery item may require
any specification, plan, drawing, process information, sample, or design documentation, or any
data carriers and files, assembly or operating instructions, operating handbooks, or similar
explanatory aids, Contractor hereby undertakes to supply the same in German-language
versions. Unless otherwise provided, signage shall be in the German language.
To the extent that the manufacture or operation of a delivery item may require an EU
Declaration of Conformity including CE marking, an EU Manufacturer’s Declaration or acertification – e.g. type examination (“GS”) –, Contractor hereby undertakes to hand over to us
a German-language version of the documentation on which the same shall be based. The
undertaking as aforesaid will – as far as may be relevant – also include the provision of a copyof “Hazard Identification – Risk Estimation – Description of Precautionary Measures” pursuant
to ÖNORM5 EN ISO 14121-1 (“Safety of Machinery – Risk Assessment”. In the event of thedelivery of equipment parts being interconnected to one another, the scope of delivery shallalso include the complete instructions for operation, the EU Total Declaration of Conformity, as
well as EU individual declarations of conformity.
Contractor hereby undertakes to cooperate in utilizing as consistently as possible theequipment of electrical, information, and measuring technology in such manner that Contractor
will consult with us in advance with regard to the component and accessory parts to be codelivered by Contractor such as, for instance, computer operating systems, motors, or
switchgear and measuring devices.
Contractor hereby undertakes to observe our current standards applicable in each case totechnical equipment and documentation, of which we will inform Contractor prior to placing anorder.
Philip Morris Austria GmbH hereby expressly makes Contractor aware of Contractor’s
obligations pursuant to EU Regulations in connection with sanctions and embargoes on
individual states (http://www.bmeia.gv.at/index.php?id=65568&L=0). Furthermore, Philip
Morris Austria GmbH hereby makes Contractor aware of the obligations arising from
Regulations (EC) Nos. 881/2002 and EC 2580/2001 as amended, which mandate the taking ofrestrictive measures against certain persons, organizations, and enterprises, and include aprohibition on providing the same with funds and economic resources, as well as arequirement that the competent authorities be provided with all information facilitatingcompliance with those Regulations.

1

The European Committee for Standardization

2

The Austrian Standardization Institute

3

The Austrian Electrical Engineering Association

4

The Association of German Engineers

5

Indicates that the standard has been incorporated into the Austrian code of standards

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5.
5.1

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6.

Prices, and Terms of Payment
The prices agreed shall be firm prices; any subsequent price increase will not be recognized.
Price increases pursuant to Clause 2.2 above will remain unaffected.
Except as otherwise provided by express covenant, prices will be deemed to include the costof preparation for delivery, the cost of packaging, and shipping charges. Except as otherwise
agreed, the statutory value-added tax shall be added to the prices payable under a contract.
Commodity sales tax, freightage tax, customs duties, and other public levies will be atContractor’s expense to such extent as may be permitted by law. The foregoing will apply also
to any taxes and other levies accruing after the placement of an order.
The statutory value-added tax, as well as any other tax, charge, customs duty, or levy, if any,
shall be indicated separately in all invoices.
Contractor will be responsible for the collection and disposal of packaging. We hereby reserve
the right to return packaging material if Contractor upon request shall have failed to meet such
responsibility. We shall be entitled to reduce an invoice amount by any cost we may be
incurring for the shipping, or collection or disposal, of packaging.
Upon the purchase of a machine or installation, the price thereof will include – unless different
arrangements shall have been made expressly in writing – the complete operational machineor installation including all necessary safety devices required on the grounds of the industrialsafety and other safety regulations in place in the Republic of Austria. In the event of an
installation still to be assembled, the cost of assembly shall be included in the price as wellunless different arrangements shall have expressly been made. Any parts not listed
individually but required for operation and functioning will be included in the price. The same
will apply mutatis mutandis, in the event of assembly, to correct assembly instructions andnecessary consumables.
Payment will be effected net (i.e. without deduction of discount) within 60 days of the receipt of
the invoice, or of the receipt of goods if these arrive later.
Assignment; Subcontractors; Right of Retention; Setoff
Without our prior written consent – which shall not be unreasonably withheld –, Contractor will
not be entitled to assign his claims against us, or to commission third parties to collect thesame.
Without our prior written consent, Contractor will not be entitled to assign the performance of
his contractual duties, wholly or in part, to a subcontractor. In cases where we have given ourconsent to the award of subcontracts, copies of such subcontracts shall, at our request andimmediately upon their execution, be submitted to our department in charge of purchasing,and stated in each contract if and to the extent that such submittal may be required for theinspection of manufacture, for examining the terms and conditions of the order or themerchandise to be delivered, and / or for verifying compliance with statutory or regulatory
requirements. Contractor’s liability for the performance of his contractual obligations by asubcontractor shall remain unaffected.
Contractor may assert any right of setoff and / or right of retention only on the grounds ofcounterclaims that shall have been determined in a legally binding manner, or shall be
undisputed.
Insolvency
If Contractor shall have defaulted on his payments, or in the event of Contractor obviously
being able no longer to discharge his payment obligations, or in the event of any material
deterioration in Contractor’s financial and / or legal position which may be capable of having
an essentially adverse effect on the discharge of his payment and other performanceobligations, or in the event of an application for insolvency proceedings to be instituted overContractor’s assets, we shall be entitled to rescind the contract in respect of the part not
performed yet and, in case partial deliveries already made will be of no interest to us, we shallbe entitled to rescind the contract in its entirety. The foregoing, however, will be subject to theproviso that prior to any such rescission, Contractor shall have failed to perform within areasonable grace period set, despite our request for reciprocal and simultaneous
performance, or for provision of security.
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Delivery Period
Observance of a stipulated delivery date shall be a binding requirement. A delivery date will bedeemed observed in the event of a delivery or service being available on the agreed date in
the agreed place of performance. In the event of Contractor foreseeing any difficulties in termsof the on-time delivery of an order, he shall immediately notify us thereof in writing, stating thepotential date of delivery. Any consent by us to such new date of delivery will leave unaffected
any claim for damages for late delivery. Any extension of the delivery period pursuant toClause 2.2 will remain unaffected.
In the event of Contractor being in delay, Contractor will be required to comply at his own
expense with our request for special delivery (express freight or expressage, express courier,express handling parcel, airfreight, etc.).
In the event of Contractor being in delay, we will be entitled – in the event of a grace period ofat least 2 (two) weeks having expired without success – to rescind the contract and assert
damages.
No setting of a grace period will be required if the date of delivery shall have been ‘firmly’agreed, i.e. if we shall have expressed in the relevant contract that our interest in performanceis conditional upon on-time delivery, or if Contractor declares his inability to deliver even withinsuch grace period.
Neither of the Contracting Parties will be responsible for the non-performance of their
obligations from a contract insofar as such non-performance shall be the result of force
majeure such as war, act of God, fire, flood, explosion, earthquake, civil unrest, or
administrative measures. Contractor may invoke a case of force majeure if he shall havenotified us in writing of a case of force majeure not later than 24 (twenty-four) hours inadvance of the agreed delivery date, giving a concrete and detailed account thereof by fax orby e-mail message. In the event of such notification not being made by the point in time
mentioned in Sentence 1 of this Clause, Contractor may invoke a case of force majeure only ifsuch force majeure can be proved to have occurred within the 24-hour period, and to havebeen the cause of the delay in delivery.
In the event of Contractor’s culpable failure to deliver, we will be entitled – aside from any
further-reaching claims under statutory law – to demand payment of flat-rate damages fordelay at a rate of 0.5% of the net price per complete calendar week, but not more than a total
of 5% of the net price of the merchandise delivered late. We hereby reserve the right to provethat we have incurred higher losses. Contractor will remain entitled to prove that we haveincurred no loss at all, or a loss being substantially less significant.
In the event of Contractor falling into delay, we will be entitled to make purchases of goods in
replacement if and to the extent required to avoid any consequential loss resulting from suchdelay. Any additional costs arising therefrom shall be borne by Contractor.
We will be under no obligation to accept any delivery or service provided without our expressprior consent.
Shipping; Terms of Delivery; Retention of Title
Upon the receipt of merchandise delivered to a receiving station having been designated byus, the risk will pass to us. Unless different arrangements have expressly been made, delivery
to the receiving station shall be free of charge. Except as otherwise agreed, the mode of
freight transport will be decided by Contractor, who will also defray the cost associatedtherewith. Contractor shall, however, seek to secure such mode of transport as will be mostadvantageous to us in terms of time and cost, and will consult with us in cases of doubt.
The dispatch of each consignment, unless ‘firmly’ agreed (cf. Clause 7.4 above), shall be
notified to us separately so well in advance that we will be left with enough time, but 5
workdays at least, to prepare our taking of delivery; an invoice will not be considered advice of
shipment. In case that prior to the dispatch of a consignment we inform Contractor of our

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8.5
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9.
9.1
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9.3

9.4

10.
10.1

inability for the time being to grant release in respect of the same, Contractor hereby
undertakes to properly store the merchandise for up to three months, and to dispatch thesame only upon our call-off, to such extent as can reasonably be expected of Contractor. Any
price increases, however, will be recognized only in the event of such change in the delivery
period actually and demonstrably involving any extra storage cost, and in the event ofContractor having informed us thereof in writing immediately upon the change of order.
All notification relating to orders – in particular, advice of shipment, delivery notes, andinvoices – shall inter alia include the following: the order number, the call-off number, mode of
shipment, number of units, description of goods, gross and net weight and, in the event of any
delivery by installments as agreed with us, shall state the residual amount outstanding. In that
respect, the related provisions of § 11 of the Sales Tax Act shall be observed as well.
a)
The following shall apply to all contractors domiciled in Austria:
All goods shall be delivered with a delivery note and other necessary accompanying
documents if any.
b)
The following shall apply to all contractors domiciled abroad:All goods shall be delivered with the necessary export and import documents.
Contractor shall ensure that the merchandise be packed and labeled in accordance withregulations.
In the event of Contractor having reserved title to the objects delivered, such reservation will ineach case apply only until payment shall have been effected in respect of such objects unless
we have already become the owners of such objects on account of processing, combination,or intermixture. We do not recognize any current-account or extended reservation ofownership. Any assignment of our claims arising from our resale of such objects to Contractor
within the framework of a so-called extended reservation of ownership will also be ruled out.
We shall be under no obligation to safeguard any of Contractor’s rights whatsoever arisingfrom reservation of ownership as against third parties.
Auditing and Inspection; Data Security
Contractor will be required to provide us, at our request, with information about the current
manufacturing status.
We shall be entitled to audit Contractor at any time with regard to his qualifications for fulfilling
an order, and to the progress being made in manufacturing the goods ordered. Contractor
hereby undertakes to support such reviews and, in particular, to permit inspection visits to hisbusiness premises and manufacturing sites to such extent as may be required to check on
manufacturing, order-related conditions, the merchandise to be delivered, and / or compliancewith statutory or regulatory requirements.
Contractor shall be required to conduct his own bookkeeping, observing all accounting
principles prescribed by statute or being customary in the trade. We shall be entitled to
conduct operational audits and financial audits on Contractor’s business premises with respect
to the contractually agreed activities if and to the extent that this may be required for checking
on manufacturing, order-related conditions, the merchandise to be delivered, and / orcompliance with statutory or regulatory requirements. This will also include – to the extent
necessary in accordance with the foregoing – the related business accounts and documents
as well as related invoices. To such extent as may be required in accordance with theforegoing, the right of audit will also cover the electronic data-processing equipment used byContractor as per contract.
Contractor shall keep in safe custody any data received from us, in accordance with theproven state of the art in information technology. To the extent that the foregoing may relate topersonal data, Contractor will in particular comply with the provisions of the Data Protection
Act 2000.
Notification of Defects; Liability for Defects; Product Liability
Any quality inspection and verification of quantity at our incoming goods department in respectof merchandise delivered will in principle be carried out through sampling within 10 (ten)

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10.5

10.6
10.7

10.8

11.
11.1

11.2

12.
12.1

workdays following delivery. Any defect detected thereby will be deemed an obvious defect,and shall be notified by us immediately; any defect not detected will be deemed a hidden
defect unless detection would have been easy. Even small deviations from our order shall bedeemed a defect. Any delivery verification certificate and payment of the purchase price will
not constitute approval of the delivery.
Contractor will, upon agreement, enable our representatives to inspect merchandise at his
factory during usual business hours if and to the extent that this may be required for checking
on manufacturing, order-related conditions, the merchandise to be delivered, and / orcompliance with statutory or regulatory requirements. We shall have the right to refuse toaccept any merchandise not conforming to the terms and conditions of the contract. The
obligation to enable inspections as aforesaid will be imposed mutatis mutandis by Contractor
on a subcontractor. Such inspections will leave Contractor’s contractual obligations
unaffected. In no event will approval of the merchandise prior to delivery be implied by any
such inspection.
Contractor will provide us with manufacturing and delivery schedules for the merchandise to
the extent that we may require such information for awarding a contract, or checking on theexecution thereof.
In cases of particular urgency and in the event of Contractor failing to meet our demand for
replacement or subsequent delivery within a reasonable period of time, we will be entitled tocarry out ourselves, or cause to be carried out by third parties, any correction or replacement
delivery at Contractor’s expense in such manner as we may deem appropriate.
In addition, Contractor shall be responsible for ensuring that his deliveries and services will bein conformity with the recognized state of the art as well as with the relevant provisions relating
to security, occupational safety, accident prevention, and other regulations. If any court or
governmental agency finds in a legally binding or non-appealable decision, as against us or
our purchasers, that such deliveries and services are not in conformity with the requirements
as aforesaid, such finding will also apply as against Contractor, who will be required toindemnify us from any third-party claims based thereon, unless Contractor shall be able toprove that he and his subcontractors have not been at fault.
Our claims based on defects will become statute-barred within three years of the passage orrisk pursuant to Clause 8.1 above.
Contractor will furthermore be responsible for ensuring that his products shall be free fromdefects within the meaning of the Product Liability Act. Contractor will fully indemnify us andhold us harmless against any and all claims based on the defective condition or defectivenessof a product delivered unless Contractor shall be able to prove that he has not been at fault.
Except as otherwise provided, Contractor hereby undertakes to maintain such employer’s
liability and product-liability insurance as may be customary in the trade, with an amountinsured of EUR 4 million for damage to property and personal injury, or EUR 4 million forconsequential loss, and of EUR 100,000 for active and contributory loss or damage. Any
further-reaching claims for damages to which we may be entitled will remain unaffected
thereby.
Licenses
To the extent that Contractor may undertake to deliver computer software, Contractor shallensure that we will be granted the licenses required for the use of such software. Except asotherwise provided, such license will include the use of subsequent new versions, as well as
use on any number of computers used by us internally (central unit / peripheral equipment).
Software license fees will, unless different arrangements have expressly been made, be
included in the price.
Proprietary Rights
Contractor hereby represents and warrants to us that his deliveries and services will not
infringe any patents, utility models, trademarks, trade names, copyrights, or other industrial
property rights in Austria or any country which according to Contractor’s knowledge will be the

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12.4

12.5

destination of deliveries. In the event of any claim brought against us by third parties forinfringement of any such right, Contractor will hold us harmless and indemnify us fully inrespect of all such claims unless Contractor shall be able to prove that he has not been at
fault.
All specifications, plans, drawings, process information, samples, or design documents or datacarriers and files provided by us to Contractor in connection with the contract shall remain our
property, and all information derived therefrom or communicated in other ways to Contractor inconnection with the contract will be subject to an obligation to maintain secrecy, and may
without our prior written consent not be publicized or forwarded to third parties, or utilized byContractor for a purpose other than the performance of the contract. The foregoing will apply
also in the event of a transaction not being carried out, or carried out in full, or in the event of acontract being canceled prematurely. We shall be entitled at any time to demand that theobjects being our property be returned without Contractor being entitled to assert a right ofretention.
Any equipment ordered by us and / or manufactured on the grounds of our cooperation
pursuant to Paragraph 2 in connection with an order placed by us, its parts as well as the
documents provided to Contractor pursuant to 2, etc., will be our property. Contractor hereby
undertakes to take the necessary precautions to preclude such objects from being replicatedby third parties. Contractor will not himself replicate, or commission the replication of, theobjects ordered.
In the event of the contract covering design work, experimental development work, or
research, Contractor hereby undertakes to immediately communicate to us complete details
regarding all ideas, improvements, designs, or inventions made and developed in connection
with the performance of the contract.
Insofar as such results may not have already become our property, Contractor will upon ourrequest assign to us all transferable copyright and other authorizations with regard to the
publication, reproduction, and utilization of such ideas, improvements, designs, or inventions.
Contractor will perform all such acts and prepare all such documents as may be necessary interms of the application for, and implementation of, any industrial property rights on our behalf.

13.

Advertising
Without our prior express consent in writing, Contractor will not be entitled to use business
relations with us for advertising purposes.

14.
14.1

Secrecy
Contractor hereby assumes for himself, his employees, and vicarious agents the obligation tomaintain confidentiality even beyond the term of our business relations with regard to suchtransactions, data, and other facts as may become known to Contractor on the occasion of, orin connection with, cooperation with us unless we expressly discharge Contractor from suchobligation. In addition, Contractor hereby undertakes to impose such obligation to maintainsecrecy mutatis mutandis on Contractor’s employees and vicarious agents. Without our priorwritten consent, Contractor shall not publicize or forward to third parties, or use the information
to be kept confidential, for any purpose other than the performance of the contract. The
obligation to maintain secrecy will not apply if and to the extent that upon the conclusion of thecontract, the knowledge contained in the transactions, data, and other facts as communicated
was already in the public domain, or may become generally known during the term of thecontract without Contractor being in breach of such obligation to maintain secrecy, and will
apply neither in cases where information about the contents of the documents communicatedshall be provided on the grounds of a judicial order or administrative decision.
Philip Morris Austria GmbH shall be entitled to assign these General Terms and Conditions ofPurchase, and the contracts being the subject matter hereof, to other affiliates++/ companiesof the Philip Morris Group.

14.2

15.

Liability
Contractor’s liability will be governed by the relevant statutory provisions.

16.
16.1

Place of Performance; Legal Venue; Governing Law
For both Contracting Parties, the place of performance – unless specified otherwise in acontract – shall be our corporate domicile in Vienna.
The legal venue agreed hereby in respect of any dispute arising from our business relation(including actions for bills of exchange, or checks) shall be the competent court of jurisdiction
for Vienna, Innere Stadt. We do reserve the right, however, to have recourse against
Contractor also in the legal venues having jurisdiction over Contractor’s residential or
corporate domicile.
All legal relations and legal transactions as between us and Contractor will be governed
exclusively by the laws of the Republic of Austria, to the exclusion of the norms of privateinternational law. Application of the provisions of the United Nations Convention on theInternational Sale of Goods shall be ruled out.
Should any provision of these General Terms and Conditions of Purchase be or become
invalid, the validity of the remaining provisions of these General Terms and Conditions ofPurchase shall in other respects remain unaffected. The Contracting Parties will use their
good efforts to replace such invalid provision with a valid provision coming as close as
possible economically to the originally intended purpose. In the event of no agreement being
reached, the relevant statutory provisions will apply by way of supplement. The foregoing will
apply mutatis mutandis to any loophole contained in these General Terms and Conditions ofPurchase, or in the contract concluded with Contractor.

16.2

16.3

16.4

Philip Morris Austria GmbH
Valid as from August 2015