Terms & Conditions

1. Validity of the General Terms and Conditions ("GTC")

1.1 For the contracts concluded between Pohl & Co Metallwareerzeugung Gesellschaft m.b.H. & Co. KG (hereinafter also referred to as the "Supplier") and the customer, purchaser or client (hereinafter also referred to as the "Customer"), in particular purchase contracts, contracts for work and services or other services commissioned, shall be governed exclusively by the following GTC.

1.2 By signing the order confirmation, the Customer submits to the validity of these GTC. If the Supplier has a long-term business relationship with the Customer, these GTC shall apply even if no specific reference is made to their validity. The GTC shall also apply to subsequent orders, even if they are not agreed separately verbally or in writing. Verbal agreements with the supplier shall only be effective if they are confirmed in writing by the supplier.

1.3 Any provisions deviating from these GTC that are contained in the Supplier's order confirmation or in separately negotiated contracts shall take precedence over the GTC. The customer's general terms and conditions or forms shall under no circumstances become part of the contract.

2. Conclusion of contract

2.1 Communications from the Supplier - also at the Customer's request - are non-binding, even if they contain prices, dates and other technical specifications. Technical information provided by the Supplier is without guarantee, as are descriptions and samples.

2.2 The contract shall only be concluded upon receipt by the Supplier of the order confirmation signed by the Customer or upon fulfilment of the delivery.

2.3 If the order confirmation signed by the customer deviates from his order, the order confirmation shall prevail in case of doubt.

3. Delivery

3.1 If the order confirmation signed in writing by the customer does not contain any information, ex works delivery (ex works; in accordance with Incoterms 2000) shall be deemed agreed.

3.2 Even if the supplier contractually agrees to deliver the goods, the place of fulfilment shall remain the supplier's works.

3.3 Agreed delivery presupposes that the delivery route is passable for heavy goods vehicles. Even if the supplier accepts delivery as agreed, the customer shall bear all transport and packaging costs (delivery charge).

3.4 The goods shall also be deemed to have been delivered if they are not called off by the customer immediately after notification of readiness for dispatch by the supplier.

3.5 The goods shall only be insured against damage and loss in transit at the written request of the customer and at the customer's expense.

3.6 The customer is obliged to inspect the delivery immediately upon handover, but within 4 working days at the latest. The customer shall lose the right to invoke a lack of conformity of the delivery if he fails to carry out the inspection or if he does not give written notice of a lack of conformity immediately after the time at which he could have recognised it in the course of a proper inspection, stating the exact nature of the lack of conformity.

3.7 Externally recognisable transport damage must be reported immediately upon receipt of the goods and the nature and extent of such damage must be notified to the supplier in writing without delay or noted in detail on the delivery note or consignment note on site and countersigned by the supplier to confirm the complaint.

3.8 The risk of accidental loss and accidental damage shall pass to the customer upon notification of readiness for dispatch or in accordance with the applicable clause of Incoterms 2000.

4. Default of acceptance

4.1 The customer is obliged to accept the delivery at the place of fulfilment and, if applicable, in accordance with the Incoterms 2000 clause agreed in the contract. The assertion of claims for non-conforming delivery or the fact that the customer was not in a position to inspect the delivery shall not entitle him to refuse or postpone acceptance.

4.2 If the customer is in default of acceptance (in particular due to non-acceptance after notification of readiness for dispatch by the supplier), the goods shall either (I) be stored at the supplier's or a third party's premises or (II) be dispatched to the customer at the customer's expense and risk. If the goods are stored at the Supplier's premises, the Supplier shall be entitled to charge a fee corresponding to that of a public warehouse. The Supplier shall only be liable for the deterioration or destruction of the goods stored at its premises in the event of wilful intent or gross negligence. This shall not affect the rights of the supplier within the meaning of §§ 373 ff UGB.

4.3 If the customer does not accept the goods in whole or in part, the supplier may (I) withdraw from the contract after setting a grace period of 14 days and/or (II) claim damages for non-performance, whereby the supplier shall be entitled to claim 30% of the respective order amount and, in addition, compensation for the actual damage incurred without proof of damage or fault and waiving any judicial right of moderation. The same applies if the contract is cancelled for other reasons for which the supplier is not responsible.

5. Force majeure

Force majeure and other unforeseeable hindrances or hindrances that cannot be influenced by the supplier, such as labour disputes, traffic disruptions, interruption of energy supply, etc., as well as accidents for which the supplier or its sub-suppliers are not responsible, shall release the supplier from the obligation to deliver for the duration of their effects, even if they have occurred at one of the sub-suppliers; in this case, the supplier shall not be affected by any consequences of delay.

6. Delivery dates

6.1 All delivery dates and delivery periods are non-binding and are subject to unforeseeable events and hindrances. Delivery periods shall not commence before the date of receipt of the customer's written order confirmation by the supplier. If an agreed delivery date is exceeded by more than 6 weeks, the supplier shall be in default and the customer shall set a subsequent delivery period of at least 6 weeks. If this subsequent delivery period expires without result, the customer may withdraw from the contract if it has notified the supplier of its withdrawal by setting the subsequent delivery period.

6.2 Delivery periods set in motion in accordance with point 6.1 shall be interrupted by the following circumstances and shall only continue after the reason for interruption has ceased to exist: breach of the customer's duty to co-operate or other breaches of contract by the customer under this or another contract, suspension, interruption or delay by the upstream supplier in supplying the supplier, technical defects in production and transport facilities and all cases of force majeure in accordance with point 5.

6.3 If one of the reasons mentioned in point 6.2 lasts longer than two months, both the Supplier and the Customer shall be entitled to terminate the contract by unilateral written declaration. The Customer shall no longer have this right (a) if it is responsible for the interruption or (b) if the Supplier has notified the Customer of the cessation of the impediment and has announced the delivery within a reasonable period of time.

7. Partial deliveries

Unless expressly agreed otherwise, the Supplier is authorised to make partial deliveries, which are to be accepted and paid for by the Customer. Withdrawal from the contract or other cancellation of the contract shall not cancel the contract for the partial deliveries already made, unless the reason for withdrawal from the contract or cancellation of the contract also covers the partial deliveries already made.

8. Warranty

8.1 The supplier warrants that the delivery corresponds to the quality specified in the order confirmation.

8.2 If the signed order confirmation does not contain any information on the quality of the goods or if the delivery is made without an order confirmation, the supplier warrants that the goods have a quality or performance that is customary for goods of the same type at the place of manufacture and that can reasonably be expected by the customer.

8.3 Deviations in dimensions, weight or quality are permissible within the scope of the agreed standards or those existing in the supplier's country. The same applies to the usual tolerances in the determination of quantities according to mathematical principles.

8.4 No warranty is given for production and material-related deviations in the colour nuances of the goods.

8.5 For the determination of conformity with the contract and the beginning of the warranty period, the time of notification of readiness for dispatch or - in the case of dispatch - the time of handover to the first carrier shall be decisive. The warranty period is two years; rectification of defects does not lead to an extension of the warranty period.

8.6 If a timely notice of defects has been given and the non-conformity of the goods has been proven by the customer, the supplier shall be entitled to remedy the non-conformity within a reasonable period of time by remedying the defect in the delivery (improvement) or by replacement delivery (exchange). If improvement or replacement is impossible or involves a disproportionately high expense for the Supplier, the Customer may only demand cancellation of the contract. A claim to a reduction in price is excluded. The supplier is authorised to make several attempts at improvement. The customer is only entitled to return goods with the written authorisation of the supplier.

8.7 If the Supplier is responsible for the lack of conformity, the Customer may only demand compensation in the form of improvement or replacement. If such improvement of the delivery or replacement is impossible or involves a disproportionate effort, the customer may only claim monetary damages if the supplier itself is guilty of intent or gross negligence. Compensation for consequential damage caused by a defect is also only permissible subject to this restriction.

8.8 The warranty claim shall lapse in the event of modification, processing or improper handling of the delivered goods. The supplier shall not be liable for the costs of rectification of defects carried out by the customer himself or a third party commissioned by him without the prior written consent of the customer. The customer shall bear the transport costs incurred as well as the transport risk.

8.9 The application of the special right of recourse pursuant to § 933b ABGB is excluded.

9. Compensation for damages

9.1 The Supplier shall only be liable to pay damages for a breach of a contractual or statutory obligation if it is guilty of intent or gross negligence. The burden of proof lies with the customer; the same applies to compensation for consequential damages.

9.2 Claims for compensation for loss of profit and claims for compensation for indirect damages due to the delivery of goods not in conformity with the contract are excluded.

9.3 The contract concluded between the parties does not contain any protective obligations in favour of third parties. This shall also apply if it is foreseeable that a third party will be the recipient of the service or that a third party will come into contact with the goods.

9.4 The claim for damages shall expire in any case upon processing or treatment of the delivery or its resale without the supplier having been given the opportunity to examine the lack of conformity.

10. Product liability

10.1 Excluded from the limitations provided for under point 9 is the non-waivable liability for defective products, insofar as this results in injury, death or damage to health.

10.2 Liability for material damage resulting from a product defect is excluded for all companies involved in the manufacture, import and distribution. The customer undertakes to transfer this exclusion of liability to its customers. Recourse claims within the meaning of the statutory regulations specified in the preceding paragraph are excluded, unless the party entitled to recourse proves that the defect was caused in the sphere of the supplier and was at least due to gross negligence. Recourse claims of the customer against the supplier (in particular according to § 12 PHG) are excluded.

11. Prices and terms of payment

11.1 Unless otherwise agreed, the Supplier's prices are ex works, without packaging and without transport insurance. All prices are based on the date of the written order confirmation; if this is not issued or if it does not contain a price, the price shown in the Supplier's price list at the time of delivery shall apply.

11.2 The Supplier's invoices are due for payment at the time of delivery, but at the latest at the time of invoicing. The due date shall be irrespective of whether the customer has had the opportunity to inspect the delivery or whether it claims defects and damage to the delivery. If delivery is made in instalments, the Supplier shall be entitled to issue partial invoices. The Supplier shall be entitled to demand advance payments or security for payment if there are doubts as to the Customer's willingness or ability to pay. Payments may only be made with debt-discharging effect to the paying agent(s) specified in the invoice.

11.3 The customer shall only be entitled to cash discounts if these have been expressly agreed in writing.

11.4 If there are several claims due, payments by the customer shall be credited against the oldest claim. In relation to the individual claims, the costs associated with the collection of the claim shall be repaid first, then the interest and finally the capital. Any deviating dedication of the payment by the customer is ineffective.

11.5 In the event of default in payment, default interest of 8 percentage points above the base interest rate shall be payable. In addition, the Supplier shall be entitled to demand cancellation of the contract in whole or in part.

11.6 Without the written consent of the Supplier, the Customer shall not be authorised to discharge its payment obligation by offsetting it against other claims or to withhold payment for any reason whatsoever.

12. Retention of title

12.1 All goods and deliveries shall remain the property of the Supplier until they have been paid for in full. In addition, the Supplier retains title to its goods (even if these specific goods have been paid for) until all claims arising from the business relationship have been paid; the claims also include all ancillary claims.

12.2 If the claims arising from the delivery are included in a current invoice, the retention of title shall secure the highest outstanding balance in each case.

12.3 Should the retention of title expire, ownership of the goods shall be transferred to the supplier upon processing, blending or mixing, who shall accept the transfer of ownership. In this case, the customer shall remain the custodian free of charge.

12.4 If goods subject to retention of title are resold by the customer, the customer's claim to the purchase price shall take the place of the retained title. This is assigned to the supplier at the time it arises. The supplier shall acquire ownership of the monies received in the form of a title deed through the customer. The Customer shall note the fact of this assignment in its books and on the outgoing invoices and notify the recipient of the goods thereof.

12.5 The customer must adequately insure the goods subject to retention of title against fire, theft and damage by third parties. He shall assign the claim under the insurance contract to the Supplier and notify the insurer thereof. The customer is prohibited from creating contractual security interests in the goods subject to retention of title. If the goods subject to retention of title are subject to enforcement proceedings, the customer shall notify the enforcement body of the third-party ownership and inform the supplier thereof within 24 hours at the latest.

12.6 If the customer defaults on payment of the remuneration secured by the retention of title, the supplier shall be entitled to take possession of the goods subject to retention of title at any time, even if the contract has not yet been cancelled (right of repossession).

13. Place of fulfilment, place of jurisdiction, applicable law

13.1 The place of fulfilment for delivery and payment shall be the Supplier's registered office, even if the handover takes place at a different location as agreed.

13.2 In the event of disputes arising from these GTC or a contract concluded with the Supplier or relating to the breach, cancellation or nullity of the GTC or the contract, including disputes about the existence or non-existence of these GTC or a contract with the Supplier, the contracting parties agree that the court in Wels, Austria, with subject-matter jurisdiction shall have exclusive jurisdiction. Irrespective of this, the Supplier shall be entitled, at its discretion, to bring an action against the Customer before the ordinary court having subject-matter jurisdiction at the Customer's registered office or branch office.

13.3 All questions of interpretation of these GTC or all contracts concluded by the Supplier with the Customer shall be governed exclusively by formal and substantive Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and other conflict of law rules.

14. General

14.1 Should individual provisions of these GTC be invalid, this shall not affect the remaining content of the GTC. If gaps arise, the contracting parties undertake to agree on a provision that comes as close as possible to the economic result of the invalid provision.

14.2 The assignment of claims of the customer requires the written consent of the supplier to be effective. For its part, the Supplier is authorised to assign its claims.

14.3 The Customer consents to the automated storage and processing of its data by the Supplier.

Wels, January 2009