TRIPAN Leichtbauteile GmbH & Co KG
1.1 These General Terms and Conditions of Sale (hereinafter referred to as: “GTCS”) shall apply to any and all contracts and other legal transactions between TRIPAN Leichtbauteile GmbH & Co KG, registered office in Hörsching and the business address at 4063 Hörsching, Am Kirchenholz 2, registered in the Business Register [Firmenbuch] of Regional Court [Landesgericht] Wels (hereinafter referred to as: “TRIPAN”), on the one hand, and all customers, on the other hand, irrespective of whether the customer is a natural or legal person.
1.2 For customers who are entrepreneurs as defined in the Austrian Business Code [Unternehmensgesetzbuch/UGB] (hereinafter referred to as: “Business Customers”) these GTCS shall also apply to all future transactions, even if in a specific case no express reference has been made to these GTCS, especially in the case of future supplementary orders or follow-up orders.
1.3 For Business Customers the version of the GTCS which is retrievable from the website of TRIPAN (www.tripan.at) at the time of conclusion of the contract shall apply.
1.4 TRIPAN shall make deliveries and render other services exclusively on the basis of these GTCS. General terms and conditions of the customer or conditions of purchase of the customer shall apply only if expressly acknowledged by TRIPAN in writing. Reference to attached general terms and conditions of the customer or to general terms and conditions which are retrievable from or available on a certain site or to general terms and conditions of purchase of the customer shall not be deemed an express written acknowledgement. General terms and conditions of the customer or general terms and conditions of purchase of the customer shall be deemed excluded and expressly objected to by reference to these GTCS. This Clause 1.4 shall only apply vis-à-vis Business Customers.
1.5 The following terms and conditions on the delivery of goods also apply to services mutatis mutandis.
2.1 Any and all documents referred to as “offers”, “quotations”, “cost estimates” or the like by TRIPAN shall at first be non-binding and subject to change; they shall be understood as an invitation to the customer to tender and shall only become binding through a written acknowledgement of order (acceptance of the customer’s offer) by TRIPAN. “Purchase orders” shall be deemed binding offers of the customer to TRIPAN.
2.2 Covenants, representations and warranties by TRIPAN or any agreements in connection with the conclusion of the contract that derogate from these GTCS shall only become binding vis-à-vis Business Customers if confirmed in writing.
2.3 Where the customer bases its decision to place an order on information about products or services of TRIPAN which is stated in catalogues, price lists, brochures, advertising material at exhibitions booths, circulars, promotional mailings or other media (information material) which are not attributable to TRIPAN, the customer shall present the same to TRIPAN. In this case, TRIPAN may comment on its accuracy. If the customer fails to comply with this obligation, such information shall be non-binding unless expressly declared to be part of the contract in writing vis-à-vis Business Customers.
2.4 Any and all quotations prepared by TRIPAN shall be subject to a charge. Consumers as defined in the Austrian Consumer Protection Act [Konsumentenschutzgesetz] shall be informed of the obligation to pay the costs before preparation of the quotation.
2.5 The language of the contract and of handling the contract shall be German. TRIPAN shall be entitled to have any and all documents and records related to conclusion and/or handling of the contract which are made available to TRIPAN by the customer (or on behalf of the customer) in a language other than German translated into German. The customer shall be required to reimburse reasonable translation costs. A respite shall be granted for any and all deadlines for deliveries or services of TRIPAN for the duration of the translation process.
2.6 The Business Customers themselves shall ensure that the products ordered from TRIPAN serve the customer’s purpose or are suitable for the use envisaged by the customer. In particular the customer shall ensure (and verify) that the products ordered by him/her conform to and are suitable for the use intended by the customer in regard to statics and compliance with laws and regulations (e.g.: building codes, trade codes, etc.) and/or technical standards (ÖNORM, DIN, etc.). In that regard TRIPAN shall not be subject to any obligation to inspect, warn or provide information, unless a specific fitness or quality is expressly promised in writing. The mention or description of a product name or use shall change nothing regarding the aforementioned obligation of the Business Customer.
2.7 The customer shall be exclusively responsible for compliance with any public-law obligations to notify or obtain permits.
3.1 Any and all prices shall be ex works Hörsching pursuant to the INCOTERMS 2010 and exclusive of VAT or similar taxes and exclusive of packaging.
3.2 Any and all prices shall be exclusive of sampling costs and exclusive of any and all costs for testing and processing equipment or for modifications requested by the customer, if any. For services requested by the customer which are not expressly covered by the original order or constitute modifications of the original order there shall be an entitlement to reasonable remuneration. Quantity changes by the customer shall entitle TRIPAN to adjust the price per unit, where applicable, or to rescind the contract (order) at its sole discretion.
3.3 The customer shall be responsible for proper and environmentally sound disposal of waste material. If TRIPAN is instructed to carry out the disposal or is required to take on the same due to statutory provisions, the customer shall pay additional remuneration in the amount agreed or, in the absence of an agreement, in a reasonable amount.
3.4 Vis-à-vis Business Customers TRIPAN shall on its own account be authorised and at the customer’s request be obliged to adjust the contractually agreed prices if changes of at least 5% occur regarding (a) payroll costs effected by law, regulation, collective bargaining agreement, plant agreements or (b) other costs factors necessary for rendering the service, such as cost of material due to recommendations of joint commissions, or due to changes in the national or global market prices for raw materials, changes in the relevant exchange rates, etc. which have occurred since the date the contract was concluded. Unless TRIPAN is in default, the adjustment shall be made in the amount in which the actual manufacturing costs have changed between the time of conclusion of the contract and the time of the actual provision of the service.
3.5 The price for continuous obligations shall be kept stable in accordance with the Consumer Price Index 2010, so that an adjustment of the prices shall be made. The basis of calculation shall be the month in which the contract was concluded.
4.1 Delivery dates and completion deadlines shall only be binding vis-à-vis Business Customers if observance of the same has expressly been promised in writing as a “binding delivery date”. Any and all other delivery dates advised shall only be non-binding estimates.
4.2 If the start of execution of the service or its performance is delayed or interrupted due to circumstances which are attributable to the customer, in particular due to a violation of the duties to cooperate as defined in Section 13 of these GTCS or because agreed down payments have not been made or agreed provisions of material have not taken place in time, deadlines for deliveries or services shall be extended accordingly and agreed completion dates shall be postponed accordingly.
4.3 Deadlines and dates shall be postponed in cases of force majeure, strike, delays by suppliers of TRIPAN which are not foreseeable and not caused by TRIPAN or other comparable events which are beyond the control of TRIPAN while the relevant event continues.
4.4 In the case of a delay in the performance of the contract by TRIPAN of more than 8 weeks the customer shall be entitled to rescind the contract after having granted a reasonable grace period of at least two weeks. Granting of the grace period shall be done in writing (by Business Customers by registered letter) including a simultaneous threat to rescind the contract. Any services rendered by then shall be paid by the customer.
4.5 Minor changes in the execution of the service by TRIPAN which may be asked of the customer and objectively justified shall be deemed approved in advance. Vis-à-vis consumers as defined in the Austrian Consumer Protection Act this right shall only apply if agreed on a case-by-case basis.
4.6 Objectively justified or agreed partial deliveries or services shall be admissible and may be invoiced separately and shall be paid within the agreed payment period.
4.7 Deviations from the ordered quantity shall be admissible up to +/- 10%. TRIPAN shall be entitled to withhold follow-up deliveries if instalments have not been paid.
4.8 TRIPAN shall not be required to accept follow-up orders, not even if moulds, tools or equipment of the customer are still TRIPAN’s property or in its custody.
5.1 The risk shall pass to the customer when it leaves the plant, even if the delivery is effected free of charge. In the case of delays for which the customer is responsible (also if not necessarily culpably) the risk shall pass as early as upon notification of readiness for shipping. Then the goods shall be deemed delivered and TRIPAN shall be entitled to issue invoices and request payment within the agreed period of time.
5.2 Unless otherwise agreed, TRIPAN shall choose packaging and the mode of shipping at its best discretion. The goods shall be insured against breakage, transportation damage and damage caused by fire only upon the customer’s written request.
5.3 The customer shall bear the risk of material and equipment delivered by TRIPAN and stored at the place of performance.
6.1 If the customer is late in accepting or rendering advance services (refusal of acceptance, late advance services or other) by more than seven (7) days and has not ensured that the circumstances for which it is responsible and which delay or prevent rendering of the service be removed despite having been granted a reasonable grace period, TRIPAN may otherwise dispose of the equipment and materials specific to the performance of the service, provided that TRIPAN can obtain the same again within a deadline reasonable for the respective opportunities in the case that performance will be continued.
6.2 In the case of default in acceptance or rendering advance services by the customer TRIPAN shall be entitled, if the customer insists on performance of the contract, to store the goods at TRIPAN’s or in a nearby warehouse, for which TRIPAN shall be entitled to a weekly storage fee in the amount of the costs incurred by TRIPAN and in any case in the amount of 10% of the order value.
6.3 TRIPAN’s right to call for immediate payment of the remuneration for services rendered or to rescind the contract after a reasonable grace period shall remain unaffected thereby.
6.4 In the case of a justified rescission of contract by TRIPAN TRIPAN shall be entitled to claim liquidated damages in the amount of 95% of the order value plus VAT from Business Customers without proving the actual damage. A Business Customer’s obligation to pay damages shall be independent of fault. Claiming higher damages shall be permitted.
7.1 Title to the goods delivered, assembled or otherwise handed over by TRIPAN shall remain with TRIPAN until full payment.
7.2 If TRIPAN agrees, the purchase price receivable shall be deemed assigned to TRIPAN already at this point. The legal transaction fees payable for such assignment, if any, shall be borne by the customer and it shall fully indemnify and hold harmless TRIPAN in this respect.
7.3 If the customer is late in paying after having been granted a reasonable grace period, TRIPAN shall be entitled to ask for surrender of the goods title to which has been retained. TRIPAN shall be allowed to exercise this right vis-à-vis customers who are consumers as defined in the Austrian Consumer Protection Act only if at least one outstanding service of the consumer has been due for at least six weeks and TRIPAN has unsuccessfully reminded it by threatening this legal consequence and granting a grace period of at least two weeks.
7.4 The customer shall immediately notify TRIPAN of the opening of insolvency proceedings over its assets or of attachment of the goods title to which has been retained by TRIPAN.
7.5 In order to assert its retained title TRIPAN shall be entitled to enter the site where the goods are, to the extent that the customer can be asked to do so upon reasonable notice.
7.6 Reasonable costs which are necessary for an appropriate pursuit of rights shall be borne by the customer.
7.7 Claiming retention of title shall only constitute a rescission of the contract if expressly declared.
7.8 Vis-à-vis Business Customers TRIPAN shall be entitled to realise goods title to which had been retained in the open market as best as possible.
8.1 Any and all payments shall exclusively be made in euros.
8.2 Unless otherwise agreed, the purchase price shall be paid within 30 days of the invoice date. Any granting of a cash discount that may have been agreed shall be subject to settlement of all outstanding invoices.
8.3 The statutory rate of interest for late payment shall apply to late payments, irrespective of reminder or fault of the customer.
8.4 Claiming additional damages on account of late payment remains reserved; however, this shall only apply vis-à-vis customers who are consumers as defined in the Austrian Consumer Protection Act if agreed in a specific case.
8.5 If the Business Customer is late in paying under other contractual relationships with TRIPAN TRIPAN shall be entitled to discontinue performance of its obligations under this contract until performance by the customer. In this case TRIPAN shall also be entitled to call for immediate payment of all claims resulting from services under the current business relationship with the customer that have been rendered already. This shall only apply vis-à-vis customers who are consumers as defined in the Austrian Consumer Protection Act in the event that an outstanding service of the consumer has been due for at least six weeks and TRIPAN has unsuccessfully warned the customer including threatening this consequence and granting a grace period of at least two weeks.
8.6 The customer shall be entitled to offset payments only to the extent that counterclaims have been ascertained by a court or accepted by TRIPAN. Customers who are consumers as defined in the Austrian Consumer Protection Act shall also be entitled to offset payments to the extent that counterclaims are legally related to the customer’s account payable and in the case of insolvency of TRIPAN.
9.1 If materials are provided by the customer as agreed, they shall be delivered on time and in accordance with the agreement and the purpose of the provision of material at its costs and risk at a reasonable quantity surcharge of at least 5%. If these requirements are not fulfilled, the delivery period shall be extended reasonably and in any case at least until the next capacity window at TRIPAN’s plant, and the customer shall compensate TRIPAN for the damage incurred, including damage resulting from interruptions to manufacturing, except in cases of force majeure.
9.2 TRIPAN assumes no liability or warranty for equipment or materials provided by the customer or for any defects or malperformances caused by such equipment or material.
10.1 If deliveries or services which are to be made or rendered by TRIPAN vis-à-vis a certain customer are intended to be forwarded to or rendered for a third party (the third party hereinafter referred to as: “End Customer”) and the customer breaches the contract vis-à-vis TRIPAN (including but not limited to late payment or delay in acceptance), TRIPAN shall be entitled due to such breach of contract to directly deliver or provide the service to the End Customer and to bypass TRIPAN’s customer, notwithstanding the rights defined in Clause 6 of this contract and notwithstanding any other claims of TRIPAN (including but not limited to claims for damages).
10.2 In this case the delivery or service shall be deemed made or rendered to the customer if it has been made or rendered to the End Customer.
11.1 Unless expressly agreed, TRIPAN does not warrant that the products delivered by TRIPAN serve the customer’s purpose or are suitable for the use intended by the customer. Mention of an application example expressly shall not mean that a certain product is suitable for such application. Reference is made to Clause 2.6.
11.2 Unless expressly agreed, TRIPAN does not warrant that the products delivered by TRIPAN comply with the requirements or provisions of a certain technical standard such as, e.g., ÖNORM or DIN or a certain law or regulation (e.g. building codes, trade code). The provisions of this Clause 11.1 shall only apply vis-à-vis Business Customers.
11.3 Unless expressly agreed, TRIPAN does not warrant that surfaces possess a certain optical appearance. The customer acknowledges that even if due care is exercised wave appearances on the surface of the products manufactured by TRIPAN cannot be avoided from a technical point of view.
11.4 In general, only qualities which have been expressly agreed in writing shall be deemed agreed qualities for the purposes of Section 922 (1) of the Austrian Civil Code [ABGB]. Availability of other qualities shall be excluded to the extent permitted by law. The provision of this Clause 11.3 shall only apply vis-à-vis Business Customers.
11.5 Any warranty for usually assumed qualities as defined in Section 922 (1) ABGB shall be excluded to the extent permitted by law. The provision of this Clause 11.5 shall only apply vis-à-vis Business Customers.
11.6 Unless expressly agreed, TRIPAN shall assume no liability or warranty for a certain useful life of products delivered. The provision of this Clause 11.6 shall only apply vis-à-vis Business Customers.
11.7 Unless otherwise agreed, material of a medium quality shall be used in processing; the customer shall be responsible for specifying better materials or processing methods and tolerances for particularly stressed parts.
11.8 Vis-à-vis Business Customers warranty shall generally require the fulfilment of the customer’s contractual obligations vis-à-vis TRIPAN under relating contracts and other contracts.
11.9 The warranty period vis-à-vis Business Customers is six (6) months from the time of delivery.
11.10 Unless otherwise agreed (e.g. in the case that formal acceptance has been agreed), the time of delivery shall be the time of completion, which shall be no later than the time at which the customer has taken the service into its control or has refused acceptance without stating reasons.
11.11 Repairs of a defect claimed by the customer shall constitute no acknowledgement of the defect claimed by the customer.
11.12 The Business Customer shall grant TRIPAN at least two attempts to repair the defect.
11.13 If the defects claimed by the customer are not justified, the customer shall reimburse TRIPAN the expenses incurred by it in ascertaining the freedom from defects or repair of defects.
11.14 The Business Customer shall always prove that the defect existed at the time of delivery.
11.15 The Business Customer shall carefully inspect any and all deliveries and services rendered by TRIPAN for defects immediately after delivery. Defects in a delivery item or service item which have been detected by the Business Customer in the ordinary course of business through examination upon acceptance or delivery or which it should have detected shall be reported to TRIPAN in writing without delay and no later than two days after delivery. Hidden defects must also be reported within this reasonable period after detection. If a notification of defects is not made in time, the goods or services shall be deemed accepted.
11.16 The customer shall immediately discontinue the use or processing of a defective service item which might cause further damage or may make investigation of the cause more difficult or prevent the same, provided that this can be asked of it.
11.17 The Business Customer shall return the defective delivery or samples thereof to TRIPAN, provided that this is economically reasonable. The costs of the return transport of the defective items to TRIPAN shall be borne by the customer in full.
11.18 The customer shall be under an obligation to allow for an immediate identification of defects by TRIPAN.
11.19 Warranty shall be excluded where the customer’s technical facilities, such as supply lines, cabling and the like, are not in technically perfect and operable condition or are not compatible with the items delivered, provided that this fact constitutes the cause for the defect.
12.1 In the case of pecuniary damage TRIPAN shall be liable on account of breach of contractual or pre-contractual duties, including but not limited to impossibility, default, etc., only in cases of wilful intent.
12.2 Vis-à-vis Business Customers the periods of statutory limitation as defined in Section 1489 ABGB shall be reduced to the effect that claims for damages vis-à-vis TRIPAN must be asserted in court within six months of knowledge of the damage and the party who caused the damage and in any case no later than two years after conclusion of the contract; otherwise the claims shall be time-barred.
12.3 Irrespective of the legal ground for liability (contract, tort, strict liability or a different legal ground), liability vis-à-vis Business Customers shall be limited to the lower of the following two amounts to the extent permitted by law: (a) the actual amount covered by third-party liability insurance taken out by TRIPAN, if any, and (b) the contract value of the contract the obligations of which TRIPAN has breached. This limitation shall also apply to damage to an item which has been taken on by TRIPAN for processing.
12.4 Unless otherwise agreed in these GTCS, any liability of TRIPAN vis-à-vis the customer for production downtime, lost profit, loss of use, lost contracts or any other consequential damage shall be excluded.
12.5 Liability for claims vis-à-vis staff of TRIPAN, representatives or agents [translator’s note: Erfüllungsgehilfe as defined in Section 1313a ABGB] on account of damage which they cause the customer with no relation to a contract they may have concluded with the customer shall also be excluded.
12.6 TRIPAN’s liability shall be excluded for damage caused by improper handling or storage; excessive use; non-observance of operating or installation instructions; faulty assembly, putting into operation or maintenance by the customer or third parties who were not authorised by TRIPAN; or natural wear and tear to the extent that the event was the cause for the damage. Likewise, liability shall be excluded where necessary maintenance is not carried out, unless TRIPAN has taken on a maintenance obligation by contract.
12.7 If and to the extent that the customer may claim insurance benefits under an indemnity insurance contract (e.g. third-party liability insurance, hull, transport, fire, business interruption and others) taken out by himself/herself or for its benefit for damage for which TRIPAN is liable, the customer undertakes to claim the insurance benefits and in this regard TRIPAN’s liability shall be limited to the disadvantages suffered by the customer in connection with claiming the insurance benefit (e.g. higher insurance premiums).
13.1 TRIPAN’s duty to render performance shall commence not earlier than at the time the customer has met the structural, technical and legal requirements for performance which are stated in the contract or described in information provided to the customer prior to conclusion of the contract or which the customer had to be aware of due to its professional knowledge or experience.
13.2 If the customer does not fulfil this duty to cooperate, TRIPAN’s performance shall not be deemed insufficient (exclusively with regard to incomplete performance due to incorrect information from the customer).
13.3 The customer shall arrange for the necessary approvals by third parties as well as for reports to or permits from public authorities.
14.1 Any plans, sketches, quotations and other documents furnished by TRIPAN or developed on the basis of TRIPAN’s contribution shall remain TRIPAN’s intellectual property.
14.2 The use of such documents other than for the designated use, in particular any disclosure, reproduction, publication or provision, including but not limited to copying, even if only of parts thereof, shall require TRIPAN’s express approval.
14.3 In addition, the customer undertakes to keep secret vis-à-vis third parties any knowledge it has received in connection with the business relationship.
15.1 The customer shall be liable vis-à-vis TRIPAN for freedom of the ordered deliveries or services from proprietary rights of third parties. If the customer contributes intellectual creations or documents and if proprietary rights of third parties are claimed for such creations, TRIPAN shall be entitled to discontinue production of the delivery item at the customer’s risk until the third-party rights have been clarified and to claim reimbursement of the necessary and expedient costs incurred by TRIPAN, unless it is obvious that the claims are unjustified.
15.2 The customer shall indemnify and hold harmless TRIPAN in this respect.
15.3 TRIPAN shall be entitled to ask for reasonable advances on costs from Business Customers for costs of proceedings, if any.
16.1 Where import licences, export licences, exchange control permits or similar permits are required for performance of the contract concluded with the customer, the customer shall use all reasonable efforts to obtain the required licences and permits in time.
16.2 If any parts of these GTCS are ineffective, the validity of the remaining parts shall not be affected thereby. Already at this point TRIPAN and the Business Customer undertake, based on the assumption of fair contracting parties, to agree on a substitute regulation that comes as close as possible to the business result of the ineffective provision.
16.3 Austrian law shall apply and the conflict of laws rules of private international law and UN Sales Law shall be excluded. The place of performance shall be the registered office of TRIPAN.
16.4 The exclusive place of jurisdiction for all disputes arising out of (or in connection with) this contractual relationship or future contracts between TRIPAN and the Business Customer shall be the court having jurisdiction over the subject-matter and over Linz.