General Business Terms and Conditions – GTC
1.Validity of General Business Terms and Conditions
The following General Business Terms and Conditions shall exclusively apply to the business of the company TRUMEX Austria FlexKapG, Stublerfeld 25, A-6123 Terfens, FN 628466 s (hereinafter referred to as: “TRUMEX“, the “Transferor”, “we” or “us”). Our contractual
partner shall hereinafter be referred to as the “Customer” (“Purchaser”, “Transferee” or “Contractual Partner”). These General Business Terms and Conditions shall be binding for all present, as well as future, business relations with us, even if no express reference hereto is made.
Any provisions deviating from or supplemental to these General Business Terms and Conditions, especially general business or purchase terms and conditions of the Purchaser may become a part of the contract only with TRUMEX’s express written consent.
2. Offer and Contract Conclusion, Cost Estimate
2.1 Offer
TRUMEX’s offers shall be non-binding unless expressly designated as binding. The Contractual Partner’s order shall only then be considered accepted when GTE has issued an order confirmation, whereupon a contract shall have been concluded.
2.2 Cost Estimate
TRUMEX shall issue cost estimates in accordance with its best expertise; however, TRUMEX does not assume any liability for the accuracy of such estimates. Should a cost increase exceeding 15% occur after the placement of the order, GTE shall notify the Contractual Partner without delay. If an unavoidable cost increase exceeding the cost estimate by less than 15% occurs, a separate notification shall not be necessary and such increased costs may be invoiced without further notice. Unless agreed otherwise, changes in the order or additional orders shall be invoiced at a fair price. Price estimates shall be issued against payment.
3. Confidentiality
The Customer hereby irrevocably undertakes to observe confidentiality with respect to any and all operational or business secrets made available or provided to it by TRUMEX or otherwise acquired in connection with or on the basis of its business relationship or contact with TRUMEX, and not to make such secrets available to third parties in any way whatsoever without TRUMEX’s consent. The Customer furthermore undertakes to use the information solely on a “need to know” basis and only in the framework of the concluded contract.
This confidentiality duty shall remain valid for a period of 3 years after termination of the business relationship with TRUMEX or, independent of the existence of a business relationship, for a period of 3 years from the moment TRUMEX made an offer.
4. Prices and Terms of Payment
Our prices are in EUROs. Statutory VAT at the relevant applicable rate shall be added to the amounts invoiced. Any charges shall be borne by the Purchaser. The specified prices are “ex works” INCOTERMS 2020 and do not include the costs of packaging, transportation, assembly, and installation.
Services including instruction and training of the Contractual Partner’s staff shall be invoiced in accordance with the valid Service Price List. A surcharge as specified in Section 10 (1)(item 2) of the Austrian Working Hours Act shall be invoiced for services performed on Saturdays/Sundays or at other times outside regular working hours (Monday – Thursday from 7.30 a.m. to 4.30 p.m., Friday from 7.30 a.m. to 12 a.m.), as well as on public holidays, calculated on the basis of a standard hourly rate specified in the price list.
Any travel and subsistence expenses incurred during the execution of the order shall be borne by the Customer in addition to the agreed price.
Economic Price Adjustment: Stable value of receivables and ancillary claims is hereby expressly agreed. To calculate such stable value, the consumer price index announced monthly by the Austrian Statistical Central Office (CPI 2015 = 100) or another index replacing such consumer price index shall be used. The index number for the month of the contract conclusion shall serve as the reference value for this contract. Fluctuations of such index value, up or down, of less than 3 % shall be disregarded. Any fluctuations exceeding this margin, up or down, shall require recalculation whereby always the first index value outside the respective margin shall become the basis both for re-establishing the amount of the claim and calculation of a new margin. The amounts resulting from such calculation shall be rounded up to one decimal.
Partial invoices for partial deliveries shall always be possible.
If partial payments are agreed upon and even just a single partial payment is not paid punctually or in full, the Purchaser shall be in default with its payments and the total outstanding amount shall become due and payable immediately. In such event, TRUMEX shall be entitled to take into custody goods delivered with a reservation of title, irrespective of the purchase contract, until the entire receivable, including ancillary costs, has been paid up in full.
5. Place of Performance and Risk Assumption
The place of performance shall be at TRUMEX Austria FlexKapG, Stublerfeld 25, A-6123 Terfens. The transportation costs and risks shall be borne by the purchaser. The risk of loss or change of data during download and delivery via the internet shall pass to the Contractual Partner once the data crosses TRUMEX’s network interface.
6. Reservation of Title, Rights of Use
The goods remain in TRUMEX’s ownership until paid in full. License provisions concluded directly between the Contractual Partner and the relevant software producer (e.g. Microsoft, SAP or other providers) shall apply to any standard software supplied with the delivery.
7. Acceptance and Partial Delivery
The Contractual Partner shall be obliged to accept deliveries and services made available to it by TRUMEX. Where goods are delivered “ex works” INCOTERMS 2010, such goods (or software) shall be considered accepted.
Where installation services are agreed upon, such services shall be considered accepted at the earliest of the following points in time: when acceptance by the Purchaser or its end customer is confirmed; when the installed goods or services have been put in operation by the Purchaser or its end customer; or no later than 4 weeks after installation.
Provision of services and general coordination work shall be considered accepted when performed.
Where the Contractual Partner discovers, after accepting the delivery, serious defects, it shall be entitled to demand their removal by TRUMEX in the framework of warranty.
TRUMEX’s deliveries and services can always be divided into parts. In the event of partial deliveries, partial acceptance is possible, too.
The Contractual Partner shall provide TRUMEX support during the provision of advice and services. The Contractual Partner shall supply TRUMEX with all necessary information and make its staff, entrusted with programs and work processes, available for necessary discussions.
The Contractual Partner shall grant TRUMEX, or a third party representing TRUMEX, access to systems, premises, work stations, computer time (incl. operations and system support), test data, communication facilities, and other technical assistance, underlying documents, and/or information in a sufficient extent.
If the Contractual Partner fails, despite a written warning, to comply with its cooperation obligations, it shall be in default with acceptance.
TRUMEX shall be free to decide which and how many members of staff or sub-suppliers it shall use to provide its services.
8. Default
8.1 Default in Delivery
Delivery periods and deadlines shall be observed by TRUMEX in as far as possible: unless expressly agreed upon as a binding, they shall be non-binding and represent estimated dates of delivery and hand over to the Customer.
The Purchaser may withdraw from the contract on the grounds of TRUMEX’s default in delivery only after a reasonable, but at least 4-weeks’, the additional period has been granted. Such withdrawal shall be effected by a registered letter. The right of withdrawal shall apply only to the partial delivery or service affected by TRUMEX’s default.
8.2 Default in Acceptance
Goods not collected as of the agreed date shall be stored by TRUMEX for a period of 6 weeks at the Customer’s risk and cost and for a storage charge of EUR 500 per each commenced week. At the same time, TRUMEX shall be entitled to either insist on due performance of the contract or to withdraw from the contract after the expiry of a reasonable additional period and to utilize the goods otherwise. In such an event, the Customer shall pay a contractual penalty of 5 % of the invoiced amount, excl. VAT.
9. Warranty
The warranty period shall be 6 months from acceptation pursuant to article 7 of these GTCs. Any defects must be evidenced by the Contractual Partner. Section 924 of the Austrian Civil Code (ABGB) shall not apply. The Contractual Partner shall specify any defects in writing without delay.
TRUMEX shall be entitled to choose, at its own discretion, the manner of handling the warranty claim (improvement, exchange, price reduction, or conversion).
In as far as defects are removed by TRUMEX or other services or general cooperation work provided outside a warranty procedure, such work or services shall be invoiced at a cost in accordance with TRUMEX’s valid price list.
Section 933b of ABGB shall not apply.
10. Compensation for Damage
TRUMEX shall be obliged to provide compensation for damage only if such damage has been caused by its deliberate act or gross negligence. In the event of ordinary negligence, TRUMEX shall be liable solely for personal injuries. Liability shall be time-barred after 6 months from the day on which the Customer learns of such damage and the party liable.
TRUMEX’s liability per one case of damage shall be limited to 10% of the total order value (net, VAT excl. and without packaging, transportation, assembly and installation costs).
TRUMEX shall not be liable for indirect loss, lost profit, loss of interest, foregone savings, consequential and pecuniary damage, damage based on third party claims, or loss of data and programs and their recovery and restoration.
In as far as, and in whatever the case, a contractual penalty has been agreed upon, such penalty shall be subject to the right of judicial moderation. Damages exceeding the amount of such contractual penalty may not be claimed.
11. Data Protection – Communications Addressed to Customer
Customer data shall be electronically stored and processed within the extent permitted under the General Data Protection Regulation [EU] 2016/679 of April 27, 2016, GDPR. TRUMEX does not use / process data available to it for any purposes other than the purpose of the relevant order, contract, the data owner’s consent, or otherwise pursuant to legal provisions in accordance with the GDPR. This does not apply to the use of data for statistical purposes in as far as the data available for such use has been anonymized. TRUMEXc refers to the attached Data Protection Declaration.
To guarantee due performance of a business transaction, the Customer hereby grants its consent in the sense of Section 107 of the Austrian Telecommunications Act of 2003 (TKG) to enable TRUMEX to contact it by using telecommunication facilities or e-mail at any time without limitation. TRUMEX shall not be liable for any loss or distortion of data along the way during the use of telecommunication facilities and e-mail.
12. Jurisdiction and Choice of Law
In the event of any disputes arising from the contract, including disputes regarding the existence and non-existence of the contract, the exclusive jurisdiction of the competent court of law at TRUMEX’s principal place of business has been agreed. The contract shall be governed exclusively by the laws of the Republic of Austria, excluding the application of the UN Sales Convention.
13. Other Provisions
13.1 Severability
Should any provision of these General Business Terms and Conditions be or become legally ineffective or unenforceable, in full or in part, such circumstance shall not affect the legal effect of the remaining provisions hereof. The contractual parties shall replace the legally ineffective or unenforceable provision with an effective and enforceable one the content and purpose of which best reflects that of the legally ineffective or unenforceable provision.
13.2 Written Form Requirement
Any amendments or supplements to the contract must be in writing. The same shall apply also to any changes to this written form requirement.
13.3Set-Off Exclusion
Setting off counterclaims of any kind against GTE’s claims is excluded.
13.4 Subcontractors
Subcontractors may always be used.
13.5 Data Protection Declaration (General Data Protection Regulation [EU] 2016/679 of April 27, 2016, GDPR:
The Contractual Partner hereby confirms that it has been informed of the attached information sheet regarding data protection containing all the required information on the processing of data and the Contractual Partner’s rights, which is available on TRUMEX’s business premises and/or under www.trumex-austria.com at any time, or, as the case may be, during regular office hours, and a copy of which has been delivered to the Contractual Partner along with these General Business Terms and Conditions – GTC.