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GENERAL
TERMS AND CONDITIONS
for Trodat GmbH ,
valid from 28.03.2022
1.
General
1.1
These general terms and conditions (“GTC”) apply to
every contract (“Contract”) that is concluded between Trodat GmbH (Austria, 4600 Wels, Linzer Str. 156) (“TRODAT”) and the contractual
partner (“Customer”), excluding any business conditions of the Customer, unless
the contractual parties have expressly agreed otherwise in writing.
Hereinafter, the Customer and TRODAT are jointly referred to as “Parties”.
1.2
These GTC apply exclusively and only to transactions
with business enterprises; transactions that cannot be assigned to a
professional or commercial activity (“consumer transactions”) are expressly
excluded from the scope of these GTC. The Customer expressly declares to be an
entrepreneur and that business deals with TRODAT are made exclusively in
connection with their enterprise. If the Customer is not an entrepreneur, this
results in an error in an essential characteristic of their person.
1.3
Contracts can only be concluded under these GTC.
Deviating, conflicting, restrictive or supplementary terms and conditions and
regulations of the Customer must be expressly approved by TRODAT in order that
they become part of the Contract in individual cases. In particular, acts of
contract fulfilment by TRODAT do not constitute consent to any conditions that
deviate from these GTC.
2.
Conclusion of Contract
2.1
The Contract is concluded when the Customer places an
order and TRODAT accepts the order.
2.2
The order is accepted when TRODAT confirms it in
writing (possibly by e-mail) or sends the corresponding delivery to the Customer.
If provided for certain products, TRODAT can send an automated, electronic
order confirmation. Acceptance does not require a signature in any case.
2.3
In the event that TRODAT submits an offer, it is
always non-binding, subject to change and revocable.
2.4
The information contained in catalogues, brochures and
the like, as well as other written or oral statements, is only relevant if it
is expressly referred to in the order and in the order confirmation; otherwise,
such information is deemed to be an invitation to submit an offer. TRODAT is
entitled to reject such orders without further justification.
2.5
With the exception of the TRODAT web shop, the
Customer can submit an order in writing, by phone or – if provided for certain
products – electronically.
2.6
Based on European measures in the fight against money
laundering and the financing of terrorism, TRODAT reserves the right to
initiate a know-your-customer process.
2.7
TRODAT shall
not be liable for errors due to incorrect ordering of the Customer (in
particular when ordering by telephone), unclear writing or unclear fax
transmission. Orders that reach TRODAT by e-mail or data carrier (USB stick or
similar) shall be processed by TRODAT according to the files received. The Customer
shall be liable for any errors contained therein. TRODAT shall not be liable
for transmission errors that are demonstrably of a technical nature. If the
customer has third parties to send specifications for processing, the above
shall apply accordingly.
3.
Prices and Terms of Payment, Offsetting and Assignment
3.1
The prices are from the place of fulfilment, excluding
packaging, loading and VAT. If fees, taxes or other charges are levied in
relation to the delivery, they shall be borne by the Customer. If delivery to
the final destination is agreed, this and any transport insurance requested by
the Customer will be charged separately. The packaging will only be taken back
by express agreement.
3.2
Unless expressly agreed otherwise in writing, payment
must be made and received by TRODAT within 7 (seven) days of the invoice date,
exempt from charges and without deduction. TRODAT is also entitled to make the
acceptance of an order dependent on the provision of a security deposit or
advance payment (e.g. deposit, down payment, bank guarantee, etc.), in
particular, but not exclusively, if TRODAT becomes aware of circumstances
relating to the Customer’s economic situation, by which TRODAT doesn’t or no
longer appear to be sufficiently secured for the fulfilment of its claims, or if the Customer is in default of payment.
3.3
In order to settle the invoice, payments must be made
by bank transfer to the specified TRODAT bank account or – if provided for
certain products – by credit card.
3.4
If payment in instalments is agreed, the entire
outstanding amount will be due if even one instalment is not paid.
3.5
If a payment term is exceeded, the Customer is in
default without the need for a special notification from TRODAT. Unless
expressly agreed otherwise in writing, the Customer must pay default interest
of 12% in the event of default in payment of amounts due. EUR 40.00 will be
charged for the first reminder. The extrajudicial dunning and collection
charges including the involvement of a legal advisor or a debt collection
agency must be borne by the Customer.
3.6
In the event that the Customer is in default of
payment, TRODAT is entitled, even after accepting the order and without setting
a grace period, to refuse the agreed (partial) service or the (partial)
delivery until full payment has been made.
3.7
The enforcement of counterclaims by offsetting or by
exercising rights of retention by the Customer is excluded, unless the
counterclaim has been legally established or is undisputed by TRODAT.
3.8
Under no circumstances is the Customer authorised to
assign a claim to which the Customer is entitled against TRODAT to a third
party.
4.
Transfer of Risk and Place of Fulfilment
4.1
Shipping is always at the expense and risk of the
Customer (FCA Freilinger Straße 99, A-4614 Marchtrenk, Incoterms 2020).
4.2
Use and risk are transferred to the Customer when the
delivery is dispatched from the place of fulfilment. This also applies if it is
a partial delivery, if the delivery takes place as part of an assembly or if
the transport is carried out or organised and managed by TRODAT.
4.3
The place of fulfilment for delivery and payment is
TRODAT’s place of business, even if the handover takes place at a different
location as agreed.
5.
Delivery, Delay in Acceptance and Delivery
5.1
As a special customer service, TRODAT offers to
organise the transport on behalf of the Customer, at the Customer’s expense and
risk. Unless otherwise agreed in detail, the delivery and mode of delivery take
place exclusively at the discretion of TRODAT.
5.2
TRODAT shall only bear the costs of transport
packaging. Additional costs, such as insurance costs, special packaging,
additional costs for individual shipments, freight, etc., are exclusively borne
by the Customer.
5.3
The agreed delivery period begins on the date of the
written or electronic order confirmation by TRODAT. However, it is suspended
while and until all details of the execution are clarified (e.g. all commercial
or technical questions, provision of the necessary official certificates or
approvals by the Customer, payment of an agreed deposit or advance payment) or,
in the case of finishing measures to be carried out by TRODAT, until the
fault-free primary material arrives.
5.4
The delivery deadline is deemed to have been met with
the timely notification of readiness for shipment. Goods ready for collection must
be picked up immediately.
5.5
Delivery periods and dates are always subject to
change due to possible bottlenecks in production capacities or – carefully
selected – upstream suppliers.
5.6
If unforeseeable circumstances or circumstances
independent of the intention of a Party occur, such as all cases of force
majeure, which hinder compliance with the agreed delivery period, this shall in
any case be extended by the duration of these circumstances; this includes
natural disasters, armed conflicts, official interventions and bans, delayed
transport and customs clearance, transport damage, shortage of energy and raw
materials, labour disputes (in particular strikes and industrial disputes),
epidemics, pandemics and the failure of a major supplier that is difficult to
replace. The aforementioned circumstances also entitle the delivery period to
be extended if they occur with suppliers. TRODAT shall inform the Customer
of the aforementioned circumstances unless being obvious.
5.7
TRODAT is entitled to make partial and advance
deliveries.
5.8
The amount of compensation for any damage to the
Customer caused by a delay for which TRODAT is responsible and which has to be
specifically proven is limited to 0.5% for each completed week of delay, but
not more than 3%, of the value of that part of the overall delivery that cannot
be used on time or in accordance with the Contract as a result of the delay. This limitation of liability shall not apply in the event of gross
negligence on part of TRODAT.
5.9
If, in the event of a partial delay, a loss of interest does not exist
with regard to the entire contract, but only with regard to the remaining part,
the Customer cannot withdraw from the entire Contract, but rather reduce their
counter-performance in the ratio of the outstanding partial performance to the overall
performance.
5.10
Further claims relating to delay in delivery are
excluded.
5.11
If the shipment is delayed at the Customer’s request,
the Customer shall be charged for the costs incurred through storage, beginning
one month after notification of readiness for shipment, but at least 1.5% of
the invoice amount for storage on the TRODAT premises, for each month or part
thereof. The Customer reserves the right to prove that a lower
damage has occurred.
5.12
If the Customer is in default of acceptance or if the
Customer violates its duty to cooperate and the Customer is therefore
responsible for the circumstances of the delay in delivery, TRODAT is entitled
to demand compensation for the damage incurred, including any additional
expenses. In this case, the risk of price and performance as well as the risk
of accidental loss or accidental deterioration of the object of purchase are already
transferred to the Customer when the notification of readiness for shipment is
sent by TRODAT.
6.
Delivery to Third Parties
6.1
If, within the scope of an order the Customer has
placed, the Customer wishs for the delivery in question or parts thereof to be
delivered and invoiced to third parties (e.g. customer subsidiary, sales
partner, etc.), the Customer is still jointly and severally liable as a
contractual partner in addition to the third party. TRODAT is also entitled to
separately invoice any additional costs for packaging and transport.
6.2
The Customer must disclose his economic connection to
the third party.
6.3
In the event that the goods delivered by TRODAT are
transferred or sold to third parties, the Customer cannot transfer rights such
as installation, maintenance, etc. without the prior consent of TRODAT.
7.
Call Orders
7.1
In the case of call orders, TRODAT is entitled to
procure the material for the entire order and to produce the entire order
quantity immediately. Therefore, any change requests by the Customer cannot be
taken into account once the order has been placed. In addition, TRODAT has the
right to make orders that have not been called up on time due immediately,
subject to a grace period of 14 days. Call orders are considered called at the
latest one year after the date of the order confirmation.
8.
Warranty, Notification of Defects
8.1
TRODAT warrants that the goods are free from material
defects, manufacturing or assembly defects at the time of transfer of risk.
8.2
The warranty period is generally 12 months and begins
with the transfer of risk.
8.3
No warranty is provided for insignificant defects,
regardless of whether they can be remedied or repaired.
8.4
Obvious and hidden defects must be reported as soon as
they are detected, but no later than 14 days. Notifications of defects must
always be made in writing and must be specified. If the Customer fails to
notify us in time, the goods are considered approved.
8.5
The rejected goods must be properly stored and kept
available until the matter has been clarified. Alternatively, the rejected
goods can be returned at the expense and risk of the Customer after
consultation with TRODAT. If the complaint is justified, these costs will be
reimbursed by TRODAT. Warranty claims expire six months after written rejection
by TRODAT, but at the earliest 12 months after transfer of risk.
8.6
The Customer must always prove that the defect existed
at the time of delivery. If there is a defect that is subject to warranty,
TRODAT can choose between:
a)
repairing the defective goods on the premises;
b)
having the defective goods or defective parts returned
for the purpose of repair;
c)
replacing the defective parts of the goods with defect-free ones;
d)
replacing the defective goods;
e)
offering a reasonable purchase price reduction.
9.
Limits of Warranty
9.1 During
the warranty period and in case of material defects, the Customer is entitled
to restoration of the contractual condition free of charge. TRODAT must bear
the necessary costs of repair and replacement, in particular shipping, labour
and material costs.
9.2 Under no circumstances
does TRODAT provide warranty if changes to the goods were made by the Customer
or a third party without authorisation. Likewise, in so far and whenever the
Customer does not use original parts from TRODAT or parts recommended by TRODAT
or verifiably equivalent third-party products, claims for damages of any kind
are excluded.
9.3 Furthermore, TRODAT does not warrant and
is not liable for any defects and the lack of warranted specifications,
features and possible uses if the cause for this lies in the documents and
materials made available to TRODAT by the Customer or in the specifications for
a custom-made Product.
9.4 The legal presumption of deficiency in
§ 924 Austrian General Civil Code does not apply. Likewise, the
provisions of § 933b Austrian General Civil Code on special recourse
are excluded.
10.
Custom-made Products
10.1 Special
production requests from Customers shall only be processed in writing. The
Customer shall notify TRODAT in writing of their special request together with
the necessary documents for processing. A contract is only concluded, after TRODAT’s
written order confirmation. Due to
technical conditions at TRODAT's production facilities, the production of
custom-made products ordered by the Customer can only be guaranteed with
possible quantity deviations of plus / minus 10%. Within this quantity
fluctuation range of plus / minus 10 %, the Customer shall be obliged to accept
the produced goods at the agreed unit prices, unless otherwise individually
agreed in advance between the Parties.
11.
Compensation and Liability, Limitation of Liability
11.1 With the exception of personal injury and
to the extent permitted by law, TRODAT is only liable for all direct damage
incurred by the Customer in connection with the delivery and performance in the
event of wilful intent and gross
negligence. TRODAT’s liability for slight negligence is excluded. The
Customer must prove the existence of gross negligence and wilful intent – as
far as this is legally permissible. Unless otherwise
stipulated by law, TRODAT is only liable up to the amount of the respective
delivery or order total.
11.2 In any case, TRODAT’s liability for
collateral and indirect damage, particularly lost profit or consequential
damage due to defects is completely excluded. TRODAT is also not liable to third
parties; this shall not apply to personal injury to third
parties included in the scope of protection of the contract or in the case of
other damage to this group of persons caused by a grossly negligent breach of
duty on the part of TRODAT.
11.3 The instructions given by TRODAT, in
particular regarding the use, maintenance, storage and care of the delivered
goods, must always be followed.
11.4 If
the instructions from TRODAT or the respectively applicable regulations (e.g.
law, official notification, Austrian standard) for the use, maintenance,
storage and care of the delivered goods are disregarded, TRODAT’s liability is
excluded as far as this is legally permissible.
11.5 All claims for damages by the Customer
expire no later than three years from the occurrence of the damage.
11.6 In
the event of non-compliance with any operating and safety instructions or other
instructions given by TRODAT or the official approval requirements, any
compensation on the part of TRODAT is excluded.
11.7 If contractual penalties have been agreed,
further claims by the Customer from the respective title are excluded.
12.
Reservation of Title, Extended Reservation of Title
12.1 The
goods remain the property of TRODAT (“reserved goods”) until they have been
paid for in full (including interest and charges).
12.2 TRODAT retains ownership even if the item
is permanently connected to or installed in the Customer’s property. If the
item is inseparable from the property, this will result in joint ownership.
12.3 The Customer hereby assigns their claim
from the resale of reserved goods to TRODAT to secure their claims, even if the
goods have been processed, connected, transformed or mixed, and undertakes to
make a corresponding note in their books or invoices. Upon request, the
Customer must inform TRODAT of the assigned claim and its debtors and provide TRODAT
all information and documents required for the collection of claims and notify
the third party debtor of the assignment. In the event of seizure or other claims,
the Customer is obliged to point out TRODAT’s right of ownership and to notify
them immediately.
12.4 Pledging or assignment as security of the
goods delivered by TRODAT or an assignment of claims from the resale of these
goods to third parties is not permitted.
13.
Own and Third-party Copyright, Intellectual Property
13.1 TRODAT reserves all industrial property
rights and intellectual property rights, in particular to its products,
software, manufacturing processes, user manuals, technical documents, catalogues,
brochures, drawings, etc.
13.2 The Customer is not entitled to change the
appearance of the goods. Furthermore, the Customer is not entitled to amend the
brands or other trademarks of TRODAT, to detach them from the goods, packaging
or accompanying documents or to use them.
13.3 For goods that are designed by the
Customer or manufactured by TRODAT according to the Customer’s specifications,
the Customer guarantees freedom from third party rights or that the Customer
has all necessary rights, patents, designs or other intellectual property
rights. The same applies to all materials (for example, customization
specifications) that the Customer sends to TRODAT. The Customer must fully
support TRODAT in the event of a claim or legal action by third parties who
claim that their rights have been violated and indemnify TRODAT in full.
13.4 If, in the course of the provision of
services by TRODAT, doubts arise as to the existence of the necessary rights of
the Customer and the Customer is not able to prove the rights, TRODAT is
entitled to cancel the provision of services and refuse delivery. The Customer
must reimburse TRODAT for costs and expenses incurred up to this point in time.
14.
Confidentiality, Data
Protection
14.1 If the Parties exchange confidential
information and/or personal data that is subject to national or European data
protection regulations, they must conclude separate agreements.
14.2 TRODAT is entitled to save, send, revise
and delete personal data of the Customer in the course of business
transactions, insofar as this is necessary to fulfil the contractual
relationship. TRODAT will comply with the necessary data security measures and
confidentiality obligations according to §§ 32 GDPR or ensure compliance with
them. Separately concluded confidentiality agreements remain unaffected. Any questions about
data protection should be directed to data-protection@trogroup.com.
15.
Applicable Law, Place of
Jurisdiction
15.1 Only the substantive law of the Republic
of Austria shall apply to the Contract, excluding the conflict rules and the UN
sales law. This also applies to the question of conclusion of the Contract and
the legal consequences of its aftermath.
15.2 The Parties will endeavour to amicably
resolve any disputes arising from or about the implementation of the Contract.
If an amicable agreement cannot be reached, all disputes or claims that arise
from or in connection with the Contract, including disputes about its validity,
infringement, dissolution or nullity, shall be decided by the court responsible
for 4600 Wels (Austria) (place of jurisdiction). Regardless of this, however,
TRODAT optionally has the right to sue the Customer in their place of business.
16.
Final Provisions
16.1 Should individual provisions of the
Contract or these GTC be or become ineffective, the effectiveness of the
remaining provisions shall not be affected. The ineffective provision shall be
replaced by a valid one that comes as close as possible to the intended goal.
16.2 The Customer agrees that TRODAT may
transfer the contractual relationship as a whole to another company that is
directly or indirectly affiliated with TRODAT. From the written notification,
the affiliated company assumes all obligations and claims arising from this
legal relationship and assumes all design rights and other rights.
16.3 The Customer is not entitled, without a related written (license) agreement from TRODAT,
to use on its products, announcements, advertising and business documents etc.,
the company name or part of the TRODAT company name or any other reference to
the TRODAT company name or affiliated companies.
16.4 Amendments and additions to the Contract
or these GTC are only effective if they are recorded in writing, including by
e-mail. This requirement of form also applies to the amendment of this written
requirement of form.
16.5 Separately concluded agreements take
precedence over these GTC to the extent that they contradict them. Unaffected
clauses of these GTC remain in effect.
[1] For online transactions, separate
terms and conditions also apply, which can be found on the Trodat homepage
General Terms and Conditions Trodat English (pdf)
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