General Terms of Sale and Delivery

General Terms of Sale and Delivery COGNOR Stahlhandel Sp.z.o.o.
 

I. General
All the current and future deliveries, services and offers of our company shall be exclusively subject to these General Terms of Sale and Delivery. Deviations from these terms as well as a deviation from written form shall be subject to prior express written agreement. Any terms of purchase or general terms and conditions of the customer are expressly rejected and shall not constitute content of the agreement. Actions of fulfillment shall not constitute approval of deviating conditions.

II. Agreement
a)    Offers shall be without obligation. Figures, drawings and brands shall be non-binding.
b)    Agreements shall be binding in the event the customer’s order has been confirmed by us in writing or fulfillment of the order is carried out by our actually sending the goods to the customer. Oral side agreements are subject to written form in order for them to be binding.
c)    Official agency approvals required for fulfillment of the agreement shall be provided by the customer in a timely manner. The customer shall bear any consequences arising from delays.
d)    Statements made in advertising materials, brochures, product information materials, price lists and other informative materials are generally non-binding.

III. Prices
a)    Prices shall be payable in full without any deductions. Costs arising from special packaging materials, delivery, assembly or installation shall be separately agreed upon or calculated according to the price list. Merchant bars are invoiced gross for net.
b)    Orders without explicit price agreements shall be subject to the prices applicable on the day of delivery. Deliveries ex works shall be subject to the published works prices. Consignment warehouse deliveries shall be subject to our published warehouse prices. Additional charges, taxes and duties, new tax charges, freight costs and price increases directly or indirectly pertaining to the delivery shall be borne by the customer.
c)    Polish value-added tax shall be charged for goods picked up for delivery to destinations not in the European Union and may be refunded by the customer upon presentation of documentation proving that the goods are delivered outside the European Union.

IV. Delivery, Transport, Delay of Acceptance
a)    As a matter of principle, deliveries are ex-works or ex consignment warehouse. Goods released for dispatch shall be called off immediately. Partial deliveries shall be permitted. From the time the goods are made available for dispatch in the works or the consignment warehouse, the costs and risks shall be borne by the customer. As a rule, goods are delivered without packaging.
b)    Deliveries ex consignment warehouse shall be carried out according to commercial conventions without warranty of properties for specific applications or specific processing qualities. The technical norms of the manufacturer’s country shall apply in the event of delivery according to conventional standards. Minor changes or alterations otherwise reasonably acceptable to the customer with respect to our service and delivery obligation shall be permitted as a general rule. This applies in particular to naturally occurring deviations.
c)    The full cost for transport and delivery, including applicable service surcharges, shall be invoiced. In any case, the freight and forwarding charges applicable on the date of delivery and incurred by the selected type of transport shall be invoiced. Deviating provisions shall be agreed upon based on the INCOTERMS in their currently applicable version. Shipping routes, means of transportation, means of protection as well as covered cars and derrick cars shall be charged separately and left at our discretion. We shall carry no liability whatever. We shall not assume liability for on-time forwarding, twisting or turning, rust film or other effects of the weather on the delivered goods.
d)    In the event of delayed acceptance, we shall reserve the right to invoice the value of the goods and to store the goods at a cost amounting to 0.1% of the gross invoice value for each calendar day of delay at our warehouse at the risk and expense of the customer or at an authorized commercial warehouse at the risk and expense of the customer. In the event of delayed acceptance, we shall be held liable solely for gross negligence for extinction or deterioration in quality of the purchased goods.

V. Delivery Time
a)    As a matter of principle, delivery times shall be without obligation. Claims to damages resulting from a delay in delivery shall be excluded. Notwithstanding the first sentence, delivery times shall begin on the work day following our acceptance of the order, however not prior to our clarification of all details pertaining to fulfillment of the order. In the event of delivery times counted in days, only work days shall be counted. In the event the customer is obligated to meet preconditions (such as the supply of documentation, permits, etc.), the delivery time shall not commence until the preconditions are met in full. This shall also apply in the event delivery times and deadlines have been specifically agreed upon.
b)    As a matter of principle, deliveries are completed at the time the goods are declared ready for dispatch.

VI. Right to Return Goods
In all cases, the return of goods is subject to express agreement. We shall invoice the manipulation costs for returned goods at a rate of 20% of the value of the goods, pick-up costs at a lump-sum price of 26 euros or at a freight price mutually agreed upon. The return of processed materials shall be excluded in all cases.
VII. Terms of Payment, Interest on Payments in Arrears, Set-off, Prohibition of Assignment
a)    In the event no special terms of payment are agreed upon, payment of the full sale price shall be made within 30 days of receipt of the invoice. Payment shall be made in full without any deduction and without any bank fees incurred by us. Discounts applicable for immediate payment shall be subject to special prior agreement. All discount agreements shall be null and void in the event of delayed payment in a partial amount.
b)    Discountable bills shall be accepted by us only upon special prior agreement and as payment only. Discount costs, expenses and miscellaneous cash payments shall be invoiced by us and shall be due immediately.
c)    In the event of delayed payment, we shall reserve the right to charge interest on arrears in the amount of 1% per month or portion of a month unless the actual bank interest rate is higher. The dunning charges incurred by us as a result of the delayed payment shall be invoiced in the amount of a lump sum of 11 euros per reminder. After a third reminder with unsuccessful results, we shall reserve the right to commission a collection agency or legal counsel, the expenses for which the customer shall reimburse us at the highest rates stipulated in the Ordinance of the Federal Ministry for the Economy.
d)   Non-observance of the terms of payment or circumstances which are apt to reduce customer’s credit-worthiness shall result in the maturity of all our remaining claims. Moreover, these claims entitle us to effect outstanding deliveries only on advance payment or to effect securities or to withdraw from the contract and claim damage as applicable for non-performance without granting a grace period. In the event of delayed payment, the customer shall be obligated to secure all our open claims through assignment or to issue a lien or to supply other appropriate securities to our account.
e)    In the event of payment in installments, two missed payments in succession shall constitute forfeiture. All outstanding payment installments shall become due immediately without any grace period.
f)    The customer shall entitle us to set off customer claims, regardless of absent reciprocity and/or an undefined due date, with claims entitled to us or to companies with which we have a parent, subsidiary or sister relationship, or to companies established from one of the said companies. Our claims shall not be countered by way of setting off or retention unless the customer exerts due claims of the same nature and these claims have not been rejected by us.    
g)    The customer shall not have the right to assign claims arising from contractual relationships of any kind to any third party.

VIII. Reservation of Title
a)    The goods shall remain our property until the sale price has been paid in full, and the goods shall be held as security against all our claims or the claims of companies with which we have a parent, subsidiary or sister relationship, or of companies established from one of the said companies. All goods delivered by us shall be held as security against all open claims.
b)    In the event of access by third parties to goods held under reservation of title, the customer shall indicate our ownership to the property and shall inform us immediately of any access by third parties. Until open claims are settled in full, the customer shall bear the full risk of extinction, deterioration in quality or loss of the goods.
c)    In the event the customer acquires claims against a third party by means of selling, mingling, consolidating or processing our goods, we shall reserve the right to demand assignment of these claims for the purpose of payment. The customer is obligated to inform the purchaser in a timely manner of the assignment, to inform us who the purchaser is at our request and to provide us with all the information required to assert our prolonged reservation of title. The buyer shall not have the right to any other disposal such as pledging or securing the conditional goods.
d)    In the event the customer sells, mingles, consolidates or processes our goods, the customer shall be obligated to transfer to us the resulting share of co-ownership in order to secure the remaining price of sale.

IX. Warranty, Requirement to Report Defects, Compensation for Damages
a)    The condition of the goods at the time risk is transferred shall apply. Reports of defects shall be immediate, at the latest within fourteen days after transfer of the goods, and shall be in written form. Defects that even upon most careful inspection cannot be detected within this period shall be promptly reported in written form as soon as they are detected, at the latest six weeks after receipt of the goods. In the event of defects, processing of the material shall be immediately stopped. The customer shall grant us ample opportunity to inspect the goods or shall immediately provide us with samples upon our request. Should the customer fail to do so, all warranty claims shall be null and void. In the event of defects are substantiated and reported in a timely manner, the defective goods shall be replaced with defect-free goods or repaired within a reasonable period of time.
b)    Second-class (IIa) material and special items sold at discount prices shall not be subject to any warranty.
c)    Solely the external properties of the delivered goods are warrantied for all deliveries from our stocks.
d)    Rights arising from the warranty and all claims of the customer arising from business relationships, including any recourse liabilities, shall fall under the statute of limitations within six months from the time the goods are transferred and shall be limited to the value of the goods. Liability for any damages above and beyond this, particularly for consequential damages or damages resulting from defects, manufacturing costs, etc., and all liability in cases of slight negligence shall be excluded. The customer shall be obligated to prove any cases of gross negligence.
e)    The foregoing provisions shall also apply in the event of delivery other than contractual goods.X. Product LiabilityTo the extent that damages are claimed in accordance with Product Liability Law , we shall be obligated within a period of three months to inform the manufacturer or the entity that imported the goods into the European Union. Protective effects in favor of third parties shall be excluded.

XI. Data Protection, Change of Address, Copyright
a)    The customer hereby permits us to use all data transferred to us in the course of our business activities. Changes to private and business addresses shall be communicated to us immediately. Information sent to the Customer by us shall be deemed as received as long as it was sent to the address most recently made available to us.
b)    Drawings, sketches and other technical documentation, samples, catalogues, brochures, figures, diagrams and similar materials shall remain our property. The customer shall have neither usufructuary nor exploitation rights to these materials.

XII. Impossibility, Contractual Penalty
a)    In the event that performance becomes either completely or partially impossible for us and/or our preliminary suppliers after we have entered the agreement, particularly for reasons attributed to force majeure, including strikes and major interruptions to operations, our liability shall expire. In the event we are temporarily incapacitated in fulfilling our obligation, we shall be entitled to withdraw from the agreement with respect to the portion of the agreement not yet fulfilled.
b)    In the event the customer withdraws from the agreement without entitlement or demands termination of the agreement, we shall reserve the right to either insist on fulfillment of the agreement or agree to termination of the agreement. In the latter case, the customer shall be obligated to pay a lump-sum compensation of damages in the amount of 15% of the gross invoice amount or the amount of actual damages. This provision shall apply even in the event that no actual damage has occurred or no fault has been ascribed to the customer.

XIII. Place of Fulfillment, Choice of Law, Competent Court
a)    The place of fulfillment shall be the headquarters of our company.
b)    This agreement is subject to Austrian law. The applicability of the UN Conventions Relating to a Uniform Law on the International Sale of Goods is explicitly excluded. The language of the agreement is Polish.
c)    The parties to the agreement shall be subject to Austrian domestic jurisdiction. The place of jurisdiction shall be the legally competent court at the headquarters of our company.XIV. SeverabilityIn the event any one or more of the provisions, in whole or in part, become invalid, all other provisions shall remain in full force. The parties to the agreement shall mutually agree on a provision to most effectively replace the ineffective provision.
 
COGNOR Stahlhandel Sp.z.o.o.