GENERAL TERMS AND CONDITIONS (“GTC”)

for Contractual Partners (“Contractual Partners”) of EUROMINERALS GMBH (“Company”) for the sale of packaged and unpackaged products and materials and, mutatis mutandis, for services

1. Binding nature of the conditions

1.1     Sales and deliveries shall be made exclusively on the basis of the following GTC, which shall be deemed to have been accepted and are binding when the order is placed or confirmed. Deviating agreements require the express written confirmation of the Company in order to be valid.

1.2     The following GTC shall apply to all legal transactions between the Company and the Contractual Partner, including future transactions. Conditions of purchase or general terms of business of the Contractual Partner shall not apply, even if the validity of the same is stated as an express condition.

1.3     These GTC apply in particular to legal transactions between companies. If they are used as a basis for legal transactions with consumers, they shall only apply insofar as they do not contradict mandatory statutory provisions.

2. Offers and order confirmations

2.1     All offers made by the Company are non-binding. Orders placed shall only become binding for the Company upon written order confirmation or upon dispatch of ordered products and materials.

2.2     Changes and cancellations of orders placed require the written consent of the Company.

2.3     Oral agreements are only binding for the Company if they have been confirmed by the Company in writing.

3. Warning notes

3.1     Each Contractual Partner is obliged to observe all warnings in accordance with the enclosed product information (e.g. delivery note or packaging imprint) and the applicable processing guidelines according to the current state of the art when handing over the products and materials to third parties.

3.2     The Contractual Partner is liable for full compliance with these warnings both when using the products and materials himself and when reselling or passing them on.

4. Object of delivery

4.1     Subject of the delivery are products and materials offered by the Company. Unless a specific quality has been agreed in writing in the course of the order or order confirmation, these products and materials shall not have any customary or special properties.

4.2     Details and information on the suitability and application of the Company’s products and materials are non-binding and do not exempt the Contractual Partner from carrying out its own tests and trials.

4.3     Information provided by the Company on the subject matter of the delivery or service (e.g. utility values, tolerances and technical data) are only approximate. They are not guaranteed characteristics, but descriptions or characteristics of the delivery or service. Customary deviations and deviations that occur due to legal regulations, deviations that represent improvements and unavoidable deviations are permissible.

4.4     Samples sent or approved by the Contractual Partner shall be deemed to be reference samples. The approval of a sample by the Contractual Partner shall be deemed to be an approval of existing properties or quality, even if these deviate from the description of the materials and products. Analyses, screen and fineness data specified by the Company shall be approximate and non-binding.

4.5     Certificates or confirmations issued by the Company in relation to products and materials offered shall be deemed to have been issued exclusively to the respective Contractual Partners and shall not establish any legal relationship with third parties.

5. Prices and quantity

5.1     Unless otherwise agreed, the prices offered by the Company shall be understood to be gross for net and before taxes and charges, ex the respective delivery works, wagon or lorry loaded.

5.2     Pricing shall be based using the cost components applicable on the day the offer is prepared. Should the prices change significantly, the Company shall be entitled to adjust them subsequently. The weight determined by the supplying plant shall be decisive for the price calculation.

5.3     Prices for packaging shall be invoiced separately and, unless otherwise agreed, shall be delivered in the Company’s standardized packaging materials. Used packaging materials cannot normally be taken back or reused.

6. Terms of payment

6.1     With the exception of special agreements, invoices are to be paid to the Company immediately upon receipt of the invoice, without any deductions, in the agreed currency in cash or free of charges by bank transfer.

6.2     If the factual delivery of an invoice is uncertain, the Contractual Partner must inform the Company of any missing invoice, or the Contractual Partner shall automatically be in default after five working days from delivery or performance by the Company.

6.3     In the event of default in payment or the opening of bankruptcy proceedings, rejection of a bankruptcy petition due to lack of assets to cover costs or the opening of reorganization proceedings at a Contractual Partner, discounts or other remuneration granted by the Company on outstanding invoices shall automatically be deemed not to have been granted retroactively and the corresponding claims shall be deemed due.

6.4     A Contractual Partner is not authorized to withhold or offset payments against the Company due to warranty claims or other counterclaims.

6.5     The Company shall be entitled to withdraw from a contract consisting of several partial deliveries if a partial delivery is not paid for or if the Company becomes aware of a deterioration in the financial circumstances of the Contractual Partner.

6.6     If the Contractual Partner is in arrears with the payment of an invoice, all earlier and later dated invoices shall become due for payment immediately, irrespective of the payment term agreed for these invoices.

7. Delay Interest and expenses

7.1     If the Contractual Partner is in delay with a payment, the Company shall charge the Contractual Partner the base interest rate of the Austrian National Bank plus a surcharge of 9.2% and collection costs of a flat rate of € 40.00 as well as the collection costs actually incurred (including legal intervention costs), plus VAT if applicable.

7.2     Any acceptance of cheques or bills of exchange shall be made on a case-by-case basis and always only on account of payment. All associated charges (such as collection or discount charges) shall be borne by the Contractual Partner.

8. Delivery time

8.1     Delivery dates or delivery periods agreed with the Company are made to the best of the Company’s knowledge and belief, but are legally subject to change. The Company shall only be in default if the Contractual Partner has set a reasonable grace period in writing.

8.2     Agreements on specific delivery period for each individual order or delivery is possible. The delivery period shall always be deemed approximate and non-binding. The Contractual Partner waives the right to claim interest on arrears or compensation for delayed deliveries.

8.3     If the goods are not collected by the Contractual Partner as agreed, the Company shall be entitled to demand compensation in this regard, to store the goods at the expense and risk of the Contractual Partner at its own discretion and to invoice them as delivered with immediate maturity.

9. Force majeure

9.1     All events and circumstances that are beyond the Company’s control to prevent (force majeure) shall release the Company from its contractual obligations for the duration of the disruption and to the extent of its effects.

9.2     In particular, cases of force majeure shall entitle the Company to suspend, restrict or delay the deliveries and contracts concluded, without the Contractual Partner being entitled to claim compensation for delayed deliveries; such claims for compensation against the Company are excluded. If the events and circumstances last longer than one month, the Company shall be entitled to withdraw from the contract without consequences. Partial deliveries are permissible.

9.3     Force majeure exists in particular in the event of natural disasters, war, transport or customs clearance delays, official measures, raw material and energy shortages, unavoidable traffic and operational disruptions, fire and explosion damage, operational disruptions and restrictions, strikes, machine damage, railway blockages, cyber-attacks, war, riots, pandemics, epidemics, shortages of packaging materials or operating materials and any acts of god – in each case irrespective of whether these events occur at the Company’s or Contractual Partner’s plant or elsewhere. Force majeure shall also be deemed to exist if the events and circumstances make the realization of the affected business sustainably uneconomical or if they affect upstream suppliers.

10. Transfer of risk at delivery

10.1   The risk is transferred to the Contractual Partner upon completion of loading, so that the Company accepts no liability        for loss of weight or other damage during transport, even in the case of carriage paid deliveries.

10.2   Dispatch and transport shall therefore be at the risk of the Contractual Partner; this shall also apply if the transport costs are included in the price for products and materials, furthermore irrespective of who carries out the transport. At the request of the Contractual Partner, the consignment will be insured at his expense to the extent to be specified.

10.3   Standstill times of the wagon or wagon idle times caused by delays for which the Contractual Partner is responsible shall be borne by the Contractual Partner.

10.4   The persons signing the delivery note shall be deemed to be authorised by the Company to accept and place the order. If there is no such authorisation, the signatory of the delivery note shall be personally liable. The records on the delivery note shall also be decisive if the delivery note is not signed due to the absence of the Contractual Partner, his authorised representative or one of his representatives.

10.5   Shortfalls of up to 3% cannot be objected to by the Contractual Partner and are considered agreed; the assertion of claims for larger shortfalls requires the presentation of a certificate from the carrier.

11. Consultancy

11.1   Processing and consulting instructions from the Company shall only be binding if these instructions are expressly given as binding, in writing and in relation to a specific project known to the Company in all details. In any case, however, the Contract Partner shall remain obliged to check the instructions given, taking into account the product descriptions, properties of the goods and the specific intended use and, in case of doubt, to consult a specialist if necessary.

11.2   Any dimensions, weights and quality specifications   contained on the Internet, in catalogues, technical data sheets, brochures and illustrations, as well as samples or specimens, are approximate values of the respective average production. All drawings, plans, quantity extracts and requirements analyses made available to the Contractual Partner are non-binding. They are the property of the partners and may not be made available to third parties unless otherwise agreed in writing.

12. Liability for defects

12.1   With the exception of transportation damage, for which any liability on the part of the Company is excluded, the Contractual Partner must report defects in products and materials in writing immediately (but no later than 14 calendar days) after receipt of the products and materials, failing which the complaint will not be considered. The Contractual Partner must therefore inspect the products and materials delivered by the Company prior to use or processing and notify the Company immediately, in full and in writing, of any defects, failing which any warranty and compensation claims shall be forfeited. In particular, the Company shall not be liable for damage caused by failure to comply with relevant standards or processing guidelines in accordance with the current state of the art.

12.2   The notification must be accompanied by a sample of the goods complained about and, for identification purposes, a copy of the labelling printed on the packaging, such as the type of designation. If the Contractual Partner fails to give such notice of defects, the products and materials shall be deemed to have been approved and accepted with their actual properties. This shall exclude any subsequent complaint unless the defects are hidden and not recognizable on delivery despite professional inspection and sampling. A defect does not exist if the delivered products and materials correspond to the order or a previously accepted sample or specimen but are not suitable for the intended purpose of the Contractual Partner.

12.3   In the event of rectifiable defects, the Company shall be free to fulfil either an appropriate reduction of the remuneration or the improvement or supplementation of the missing part. Returning the goods to the supplier’s works is associated with enormous freight costs and can only be undertaken with the express consent of the Company.

12.4   The warranty period for material defects and defects of title shall be limited to 12 (twelve) months from delivery. The Contractual Partner may only assert warranty rights within the warranty period specified above, after which they shall be time-barred. The existence of defects at the time of delivery of the products and materials must be proven by the Contractual Partner.

13. Indemnity and exclusion of liability

13.1   Any liability of the Company is limited or excluded to the extent permitted by law. The Company shall only be liable for damage caused if it is directly responsible for the occurrence of the damage and if an exclusion of liability would be legally inadmissible, for example because the Company is guilty of wilful intent or blatant gross negligence. Mandatory liabilities of the Company are capped at the respective order value of the underlying delivery or service.

13.2   Any liability of the Company for indirect damage, pure financial loss and consequential damage (in particular the aforementioned consequential damage caused by defects) – such as loss of profit, reorganisation costs, business interruptions, loss of data and information, costs arising from loss of production, unrealised savings, loss of interest and damage arising from third-party claims against the Contractual Partner – is excluded in all cases.

13.3   Liability for material damage resulting from a product defect is excluded – to the extent permitted by law – for all companies involved in production and distribution. The Contractual Partner undertakes to indemnify the Company vis-à-vis the next Contractual Partner or to include it in its indemnity clause with the next Contractual Partner. In the event of non-compliance, the Contractual Partner shall indemnify and hold the Company harmless.

13.4   Mandatory statutory claims for damages can only be asserted by the Contractual Partner within 6 (six) months of becoming aware of the damage and the damaging party. Thereafter, these shall be time-barred, and the Contractual Partner shall waive them accordingly. The Contractual Partner shall bear the sole burden of proof that the requirements for the claims asserted by it are met.

13.5   The Company has taken all organisational and technical measures to prevent cybercrime attacks as far as possible. The measures correspond to the current state of the art and are updated on an ongoing basis. In the event of disruption or failure of the IT systems, the Company excludes liability for any resulting negative consequences, in particular damages.

 

14. Retention of title

14.1   The Company retains title to all goods and materials supplied until all invoice amounts, including interest and costs, have been paid in full.

14.2   In the event of seizure or other utilization of the Company’s property, the Contractual Partner is obliged to draw attention to the Company’s ownership rights and to inform the Company immediately.

14.3   In the event of non-compliance with contractual obligations on the part of the Contractual Partner, the Company shall be entitled to remove goods subject to retention of title from the custody of the Contractual Partner itself and the Contractual Partner waives the right to sue for disturbance of possession under this title.

15. Choice of law, place of jurisdiction, miscellaneous

15.1   The provisions of Austrian civil law shall apply to all matters between the Company and the Contractual Partner, including individual contracts and deliveries and these GTC, to the exclusion of international reference norms and the UN Convention on Contracts for the International Sale of Goods. These GTC are an integral part of every contract concluded.

15.2   For the interpretation of trade terms agreed in individual cases, the version of the ICC lNCOTERMS current at the time of conclusion of the contract shall apply in the event of ambiguities.

15.3   The place of performance is always the Company’s registered office in Austria.

15.4   The exclusive place of jurisdiction between the Company and the Contractual Partners shall be the competent court in Austria, Wiener Neustadt. However, the Company shall be entitled to take legal action against Contractual Partners with establishments outside Austria at the registered office of the Contractual Partner.

15.5   If individual parts of these GTC or the individual contract are invalid or unenforceable, this shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by comparable effective provisions that correspond as closely as possible to the meaning, purpose and economic result of the ineffective provisions.