GENERAL TERMS OF SALE AND DELIVERY (STATUS 03/2009)

1. Scope
These General Terms of Sale and Delivery, and in the case of Schüco products the technical specifications contained in the Schüco product catalogues in the general information section apply to all our deliveries of goods. They also apply analo-gously to services provided by us, even if such deliveries or services are provided without explicit reference to these terms and conditions. The buyer accepts these terms and conditions when placing an order, or at the latest on receipt of such goods or services. Any amendments or supplemental agreements must be made in writing to be valid, and then shall apply only to a specific transaction in each case. Any of the buyer’s own contractual terms and conditions are expressly pre-cluded, even if they do not explicitly contradict the provisions set forth in these terms and conditions, but merely deviate from the legal regulations. Dispatch of an order confirmation by us does not constitute acceptance of the buyer’s con-tractual terms and conditions.
Our offers are all subject to change, including those for illustrations, drawings, and specifications of weights and dimensions. Any order from a buyer will be ac-cepted only with our written order confirmation or by delivery of goods or ser-vices. We reserve the right to accept only part of an order, or to reject an order completely without stating any reason.

2. Prices:
Our prices are quoted ex works exclusive of value-added tax, transportation costs and any ancillary services. Any additional expenses, such as packaging, loading, customs duties, levies and taxes, will be borne by the buyer.
Reductions on our list prices and discounts will be granted only subject to pay-ment of the purchase price in full. If the purchase price is not paid in full, espe-cially in the event of insolvency proceedings, we shall be entitled to apply our list prices.
The prices listed in our price lists are subject to alteration. We shall be entitled to apply any higher prices in effect on the delivery date if the factors underlying our calculation – such as suppliers’ prices, wages and material costs, customs duties, rates of exchange or other import levies and taxes – have increased since the agreement was concluded or by the agreed delivery date.
Custom-cut light metal profiles will be subject to a 50% surcharge.

3. Delivery, delivery time:
All delivery dates quoted are subject to alteration. However, if delivery dates are not met, the buyer can assert his legal rights only if we still fail to deliver the goods or services ordered after a period of grace of at least four weeks agreed upon in writing.
In the case of circumstances beyond the control of either party, the delivery time shall be extended by the period of any such delay. Such circumstances shall in-clude late delivery by an upstream supplier, forces majeures, unforeseen opera-tional disruptions, transportation and customs clearance delays, transportation damage, shortages of energy, materials and raw materials, rejection of important parts, and labour conflicts.
In the case of orders for light metal and plastic profiles entailing certain minimum quantities, a tolerance of plus or minus 10% will be permissible, and must be ac-cepted by the buyer.
The buyer is obliged to accept such goods or services immediately upon receipt of confirmation of their availability. In the case of delayed acceptance, the buyer will be responsible for storage costs – subject to any other rights to which we may be entitled. Where partial consignments are possible, they will be legally permissible. Any partial consignment will be regarded as a separate transaction, and may be invoiced separately by us.

4. Performance and transfer of risk:
The risk will be transferred to the buyer when the products are handed over to the forwarding agent or carrier, or at the latest when the products leave our works or warehouse. This will also apply in the case of delivery by us, free delivered, using our own or third-party vehicles. Deliveries on call will be considered to have been released no later than one year after the date of the order. In the absence of any specific instructions from the buyer, delivery will be made at our discretion, and without any liability for selecting the fastest and cheapest mode of transport. Packaging materials will be charged at cost price and are not returnable.

5. Notice of defects and guarantee:
Immediately on receipt, the buyer will be obliged to check the goods delivered or service performed for completeness, correctness and other defects. In the event of any shortcomings, the buyer will immediately send a written complaint, how-ever, no later than five working days after receipt of such goods or services. If products are sent directly to third parties, the period allowed for checking the consignment and sending a complaint will start when the third party receives the products.
Regardless of the legal grounds on which they are based (particularly guarantees, damages, special cancellation rights), claims for all products and services supplied will lapse six months after delivery.
We shall provide guarantees of suitability for specific applications only when we expressly agree to do so. Our guarantee will be limited to supplying replacement products of the same kind and quantity or rectifying any deficiency as we see fit. In the case of products and services based on the buyer’s specifications and in-structions, we shall only guarantee execution in accordance with such conditions. The guarantee period will not start anew with the delivery of replacement goods or rectification of any deficiencies.
Provided they are within the tolerances specified by the relevant standards, differ-ences in the colour of anodization, powder coatings or other coatings will not be regarded as deficiencies.
We shall provide a guarantee for the function of individual components and the technical specifications of products contained in our catalogues and drawings as-sembled from several components only if we have explicitly agreed to certain characteristics, and only if original parts are used exclusively.

6. Compensation
Claims for damages made by the buyer based on any legal grounds whatsoever, especially delay, inability to perform a service, positive violation of contractual ob-ligations, culpa in contrahendo, consequential damage or loss caused by a defect, deficiencies, or tortuous acts, are excluded, unless they are the result of a delib-erate act or gross negligence on our part.
Any instructions which we supply for the assembly, commissioning and operation (instructions for use) of the goods delivered or services provided must be strictly adhered to. We shall be exempt from any liability if such instructions are disre-garded, or if official licensing requirements are not met.
The buyer acknowledges that the existence of hairline cracks and other indiscerni-ble structural weaknesses cannot be precluded with steel products. The buyer therefore undertakes to test these products before use (e.g. endurance test, pres-sure test). If the products are to be installed in conduits, or if containers are made from them, these must at all events be subjected to proper testing – particularly pressure tests – before use. The buyer shall be liable for any disadvantages due to failure to fulfil these requirements.

7. Conditions of payment
Irrespective of the date of receipt of the products or the processing time, our in-voices shall be payable in full within 30 days of the invoice date. In the event of late payment, starting 31 days after the invoice date and unless we incur higher costs, we shall charge interest on arrears at the prevailing rate charged by banks for late payments, though this will be at least 12% p.a. All dunning costs, costs of information and other costs related to the appropriate legal measures necessary for collection shall be borne by the buyer.
Bills of exchange and checks will be accepted only for payment.
The buyer may offset only undisputed or legally established claims or make use of his right of retention.
In the event of late payment by the buyer, we shall be entitled – without preju-dice to our other rights – to withhold our deliveries or services without affecting the remaining delivery schedule until the agreed counter-performance has been made. Alternatively, after an appropriate period of grace, we shall be entitled to withdraw from the contract and claim damages for non-fulfilment. In the latter case, we shall be entitled to demand or retain the agreed down payment, or at least 15% of the price as a minimum penalty.

8. Retention of title
a) All goods delivered shall remain our property until payment – including future receivables – is made, or, in the case of an open account, of the balance from any delivery. This shall apply even if payments are made for specific receivables.
b) The buyer shall be entitled to further process the products delivered by us in the ordinary course of business. In the event of our products being processed, mixed, connected or combined with third party products, joint ownership of the resulting products shall be the proportion of the invoiced amount for the products in which title is retained to the value of the work performed or the other processed prod-ucts. Any products processed in this manner shall be products in which title is re-tained as specified in this contact, and shall be stored by the buyer at no charge.
c) The buyer shall be entitled to sell the products delivered by us to third parties in the ordinary course of business. On conclusion of the contract, the buyer shall as-sign to us all claims due to him from his purchaser, together with all ancillary rights, though he shall still be entitled seize any such products provided he is not in arrears with payments to us. We shall be entitled to inform the buyer’s custom-ers of any assignment of claims. The buyer shall be obliged to make a proper note of any such assignment in his accounts. The buyer shall be obliged to supply us with all documentation and information necessary to assert our rights. If an in-voiced amount assigned in this manner is paid to a third party, the buyer shall be obliged to demand this amount back from the third party and to transfer it to us.
d) The buyer shall guarantee us access to his premises at any time to inspect any products to which we have retained title. Should the buyer be in arrears with his payments, insolvency proceedings will be initiated on his assets, or if the buyer infringes other contractual obligations, we shall be entitled – at our discretion without infringing the contract – to demand that any products to which we have retained title be handed over, to collect them, and/or to collect receivables as-signed by way of security.

9. Applicable law, place of performance, legal venue
The legal relationship with the buyer shall be governed exclusively by Austrian law, to the exclusion of the UN Sales Convention. Vienna shall be the place of per-formance for all obligations arising out of this contract. It is agreed that the Aus-trian court with local and technical jurisdiction for our offices (1150 Vienna) will be the venue for any disputes arising directly or indirectly from this contract. How-ever, we shall be entitled to apply to another court with jurisdiction over the buyer.

10. Miscellaneous
Any rights arising from a contract concluded with ourselves may be assigned to third parties only with our written permission. Should any of the provisions of these general terms of sale and delivery become invalid, this shall not affect the validity of the remaining provisions. Any contracts concluded on the basis of these provisions shall also remain in effect. In this event, the parties shall agree a valid provision that most closely matches the purpose and intent of the invalid provi-sion.