GENERAL TERMS AND CONDITIONS OF BUSINESS



1) General

* Our General Terms and Conditions of Business are an integral part of any agreement concluded between our Purchaser and us.

* They are also effective even if – in the context of an ongoing business relationship – we do not expressly refer to them for later agreements.

* Any departures from and additions to these Terms and Conditions of Business are only effective when they are confirmed by us in writing.

* If individual provisions of the General Terms and Conditions of Business should be ineffective, this shall not affect the binding force of the remaining provisions and agreements concluded on the basis thereof. The ineffective provision shall be replaced by such provision as comes closest to its meaning and purpose.

2) Quotations

* Our quotations are binding for the period stated in the quotation. Departures from the quotation are only binding on us when we have accepted them by a written order confirmation. If what is written in this order confirmation differs from what has been printed, the written version shall apply.

* Any cost estimates from our company for custom-made products are non-binding within the meaning of Section § 1170a (2) ABGB [Allgemeines Bürgerliches Gesetzbuch – Austrian Civil Code].

3) Delivery

* In order to ensure smooth order processing, a delivery schedule must be jointly agreed with us by the Purchaser and Consumer.

* The quantities described in our delivery note are decisive for charging.

* If only one pallet (one loading metre) is called off or ordered, the minimum quantity supplement valid in the current price list will be charged automatically.

* Acceptances of lower quantities than those ordered are not permitted unless a separate agreement on this has been reached between the Contractual Partners on an individual case basis. In any event we are entitled to charge the list prices for the quantities taken in the event of acceptances of lower quantities than those ordered.

* The quantities required can be called off by phone at the Purchaser’s risk, or in writing either by the Purchaser or by the agent instructed by him in writing, 3 days before the delivery order is issued.

* Deliveries in Austria generally take place “free to construction site, not unloaded”, i.e. the facilities for unloading on-site must be provided by the recipient of the goods. If necessary and provided we are notified of this in advance, we can send trucks with a lifting platform and fork-lift; the provision of an unloading crane (construction site or mobile crane) is solely the responsibility of the Recipient at its expense.

* Our delivery vehicles must be able to drive up to the unloading point on a good, sufficiently firm road surface. If this requirement is not met, the Purchaser shall be liable for all damages arising as a result. The risk for the condition of the access to construction sites is therefore borne by the Purchaser. It must be possible for the vehicle to approach and be emptied unhindered and without waiting time. Otherwise we have the right to charge our usual waiting charge for quantities which have been conveyed and accepted with delays, and to charge in full for quantities which have been conveyed and not accepted. The additional costs we incur through the non-acceptance shall be at the expense of the Purchaser.

* We are not bound by agreed delivery deadlines and performance periods in the event of strikes or lockouts at our premises or those of a company working for us, shortages of energy, traffic congestion, or on the orders of authorities, insofar as we can not be accused of either intent or gross negligence. In cases of force majeure we are also released from our delivery and performance obligations. In cases of such hindrances, the delivery period shall be extended by the duration of the hindrance and neither compensation nor contractual penalties can be requested unless intent or gross negligence exists on our side. If hindrances last for longer than 3 months, both Parties have the right to withdraw from the Agreement; in these cases compensation including contractual penalties can only be requested in the event of intent or gross negligence.

* The persons signing the delivery note are deemed by us to be authorised to accept the delivery and confirm receipt and inspection of the goods.

* We are entitled to attach advertising at the place of unloading to the appropriate extent without the Purchaser being entitled to claim remuneration for this.

4) Warranty

* Shortfall quantities of up to 1% do not count as defects.

* We are liable for all defects in the goods supplied by us insofar as the goods are unusable or the usability of our products has been substantially adversely affected as the result of circumstances existing before acceptance. The processing of our goods must take place in accordance with any processing guidelines prepared by us if need be, or as the case may be with the recognised rules of construction technology. (It is the responsibility of our purchasers to obtain the guidelines mentioned if need be). Requirements over and above this require written agreement. Written notifications of defects must be sent to us in writing immediately after acceptance and before any processing, otherwise claims under warranty and compensation shall be precluded. In the case of justified defects which are submitted in writing in sufficient time, Prottelith can within an appropriate period of time choose between replacement of the defective part, repair or issuing a credit note for this. The prerequisite for any liability is the fulfilment of the contractual duties incumbent upon the Purchaser. The goods must be stored at the premises of the complainant in such a way that further damage is ruled out until final clarification is received in writing or confirmed judicially, otherwise our liability shall be excluded. All warranty claims are limited in terms of their amount to the value of the defective product delivered by us.

5) Compensation

* Claims for damages, for example on account of delayed delivery, withdrawal from the Agreement, defective performance and also for any reasons whatsoever, finally also the remuneration for manufacturing and freight costs incurred as well as consequential damages arising in connection with such disruptions to performance, can only be asserted against us if we are responsible for gross negligence or intent. Equally other claims for damages, in particular also such claims on account of positive breach of contract or on account of fault during the conclusion of the Agreement are excluded, unless we are responsible for intent or gross negligence. In any event claims for damages comprise only the pure rectification of the damage, but not consequential damages and loss of profit. Unless the statute of limitations applies earlier, such claims expire at the latest three years after delivery took place.

6) Product liability

* To the legally permissible extent we are not liable to our Contractual Partner for material damage which is incurred in cases of product liability. In all matters relating to product liability law, the Purchaser is obliged to contribute to averting or reducing damage. This means that the Purchaser’s own perceptions, or perceptions or communications by third parties, which suggest causes relating to product liability law must be notified to us immediately. In the event of our deciding to recall a product, the Purchaser undertakes to cease selling or processing the goods described by us immediately, and to cooperate with us in exchanging the recalled goods for new ones. We will exchange the recalled goods as quickly as possible. Claims by the Purchaser arising from such recall actions are expressly excluded.

7 Retention of title

* The delivered goods remain our property until the payment of all our claims from the delivery (together with all auxiliary charges). Deliveries implemented for a particular construction project count as a single homogeneous order even if these have been ordered, dispatched and invoiced in sections. In this case, the retention of title to all the goods only expires when all our claims from this homogeneous delivery have been settled. Insofar as we take goods back in the course of exercising the retention of title, we credit our purchasers with the net value of the goods less losses due to breakage and a markdown of up to 50%. The amount of the markdown is set by us and is dependent on whether the goods involved are serial production goods or goods which were manufactured specially for the purposes of our Purchasers.

* Our Purchaser which resells and/or processes the delivered goods during the ordinary course of business hereby assigns to us its claims against third parties insofar as these arise through the resale or processing of our goods by way of security until all our claims against it have been settled. If the goods that are subject to retention of title are combined or mixed with other things, we are entitled to joint ownership of the new item in the ratio of the value of the goods that are subject to retention of title to the value of the other things at the time of combining or mixing. If the new item created in this way is resold, the Purchaser assigns to us the pro rata purchase price from the resale as defined by the previous provisions. If the goods that are subject to retention of title are processed in the context of a contract for work and services in such a way that a third party acquires ownership, our Purchaser assigns to us its claim to the pro rata compensation as defined by the previous provisions. All assignments take place by way of security.

The Purchaser is obliged to record such assignment in its books and at our request to provide us with the name of the third party debtor and the amounts of the claim. We are entitled to inform the third party debtor of the assignment that has taken place, and in the event of arrears of payment to assert the assigned claim in the amount of our receivables.

The Purchaser must inform us immediately of any access by third parties to the goods that remain subject to retention of title, otherwise it must provide us with compensation for damages.

8) Transfer of risk

* Dispatch takes place at the Purchaser’s risk, and this also applies when the transport costs are included in the price, irrespective of by whom the transport is executed.

In the event of default of acceptance we are entitled to take over the placement into storage of the goods at the Purchaser’s risk and costs, and only to release them to the Purchaser after the storage charge that has accumulated and other claims have been settled.

9) Brochures and documents

* Any dimensions and details of weight and quality contained in catalogues, technical data sheets, brochures or illustrations are guidance values for our respective average production, as are samples and test pieces. All drawings, plans, summaries of quantities and assessments of requirements which we make available to you are non-binding. They are our property and apart from written special agreements they may not be made accessible to third parties. Brochures, data sheets and other publications and documentation dating from before 2009 are invalid. The comparison values stated are based on the comparison by CCE Ziviltechniker GmbH dated 15.10.2009.

10) Resale

* Resale of our goods may only take place with the quality classification determined by us.

11) Prices

* Unless we make any offers to the contrary, our delivery terms are based on the prices in our published price list, whereby in the event of price changes we expressly reserve the right to charge the prices that are valid on the day the goods are delivered. Unless the classes of goods are expressly identified in the price list with the comment “free construction site, truck not unloaded”, the prices shown in the price list are “ex works, loaded on the vehicle”, taking account of the maximum kilometre limits, and are subject to the respective statutory VAT. Beyond the maximum distances, freight cost supplements are invoiced. When goods are collected by the Purchaser itself, the price list ex works applies.

* The respective remuneration rates specified by us apply.

* The respective pricing and terms issued by Prottelith in association with the price list apply.

Non-returnable pallets are included in the selling price; these must be disposed of at the construction site. A separate agreement needs to be made for any collection of the pallets.

12) Payments

* Payments are due as stated in the agreed payment terms and are always allocated against the oldest claim still outstanding. In the case of agreements which have partly or wholly not been fulfilled, in the event of payment arrears we are entitled to decline fulfilment or demand advance payment or adequate security.

Objections to the claims invoiced must be raised by the Purchaser in writing within 10 days of receipt of invoice, otherwise the claim shall be deemed to have been acknowledged.

* Interest on late payments is charged when payment deadlines are exceeded.

* In any event, all of our claims immediately become due for payment if the Purchaser falls into arrears with the fulfilment of its obligations towards us. The same applies if it ceases payment, is over indebted, if composition or insolvency proceedings are opened over its assets, or the opening of such proceedings is refused due to insufficiency of assets, or if circumstances become known which justify substantiated doubts as to the Purchaser’s creditworthiness.

* The offsetting of any counterclaims by the Purchaser is expressly excluded unless we have acknowledged the Purchaser’s claims in writing or the Purchaser’s claims have been established legally. In the case of payment arrears we charge interest on late payment from the time at which our claim falls due for payment in the amount of eight percentage points above bank base rate in accordance with Section 1333 ABGB. We must be reimbursed for all reminder and collection expenses accrued, including the solicitors’ costs we incur. Furthermore, in the event of payment difficulties or when the Purchaser has been declared insolvent we are entitled to dissolve agreements prematurely for these material reasons or to withdraw from the existing agreements.

* Every increase in wages and salaries adopted by the partners in collective agreements and every increase in the list of changes in construction costs announced by the BMwA [Austrian Federal Ministry of Economics and Labour] for special construction projects entitles us to increase our prices accordingly.

* We reserve the right to accept bills of exchange and cheques. Acceptance always takes place on account of payment. Discount charges, collection charges and all other costs are at the expense of the Purchaser and must be paid immediately. No obligation of presentation in good time, protest, etc, exists for us.

* The assignment of any of the Purchaser’s claims against us to third parties is excluded (prohibition of assignment).

Separate payment periods apply for cornices and special components:

50 % on order placement, 50 % prior to dispatch.

13) Place of performance and place of jurisdiction

* The place of performance is our company head office.

* Solely Austrian material law applies with the exclusion of rules regarding the conflict of laws and the UN Convention on Contracts for the International Sale of Goods.

* The ordinary court with competence for our company head office is authoritative for all disputes arising from this Agreement.

* The Purchaser is obliged to inform us of any change to its business address. Delivery for the purpose of serving process which takes place at the Purchaser’s business address which was last notified to us in writing is deemed to have been properly executed.

14) Cancellation

* An order cancellation requires our written agreement. In this case and also in the case of unjustified withdrawal by the Purchaser, as well as asserting statutory claims we are also entitled to request a cancellation charge of ten percent of the value of the order which has not come about. In the event of our prematurely dissolving an agreement with the Purchaser for material reasons or withdrawing from an agreement with justification, all the Purchaser’s payment obligations towards us fall due for payment and all the Purchaser’s additional claims expire.

15) Austrian Consumer Protection Act

* Consumers are informed that in the case of orders they have placed outside our business premises, they are entitled to withdraw from the Agreement under the terms of Sections 3 et seq. KSchG [Austrian Consumer Protection Act].