GCB

     1.1. These general conditions of business, delivery and payment (GCB) form an integral part of every offer and every contract unless expressly agreed otherwise in individual cases in writing. Any conditions of the party to the contract worded otherwise shall be ineffective.
    1.2. Any arrangements made verbally require the written confirmation of TM to be effective.
    1.3. Offers of TM are provisional unless expressly agreed otherwise. The contract is concluded after the order confirmation of TM.
    1.4. TM expressly reserves the right to deviate from the technical or visual design or in technical or visual details without informing the party to the contract beforehand provided such deviations do not change the technically relevant characteristics of the TM products.

     2.1. Prices of TM always consist of two parts: The product price and – additionally – a material surcharge.
    In all offers, catalogues, written documents, etc. always the product price is submitted. The material surcharge depends on the copper weight of the product and is calculated as follows: If the copper price is cheaper than 1,53 EUR/kg no material surcharge will be charged. If the copper price is higher than 1,53 EUR/kg, TM will charge the material surcharge according to the average of the copper quote of the previous month. The copper weight will be announced by TM. The due date for the fixing of the copper price is the day of the order acknowledgement of TM.

    Material surcharge = (average MK-copper price in EUR/kg – 1,53 EUR/kg) * Cu-factor

    2.2. Unless agreed otherwise the agreed prices shall be fixed prices.
    2.3. The prices apply ex works or ex store of TM in Hornstein including packaging, loading (EXW, Incoterms 2000) but excluding tax on turnover. If charges, taxes or other duties are levied in connection with the delivery such shall be borne by the party to the contract. If the delivery includes transport under the agreement such plus transport insurance if requested by the buyer shall be charged separately, but does not include unloading and carrying. Packaging shall be taken back only by way of express agreement.
    2.4. Should the order deviate from the general offer TM reserves the right to appropriate price adjustment.
    2.5. The prices are based on the costs at the time of the first quotation. Should charges and other external costs included in the agreed price change after the contract has been concluded or should such newly arise, TM shall be entitled to appropriate price adjustment. Such charges and external cost could for instance be an updated collective agreement or other costs such as ma-terial, energy, transport, external work, financing, etc. required to render the service.

    3.1. In the absence of any deviating written agreement invoices of TM shall be payable within 30 days net after date of invoice.
    3.2. Payment shall be made so that TM is able to dispose of the amount by the due date. The costs of the payment transaction shall be borne by the buyer. Offsetting is only permissible in the presence of an effective offsetting declaration, i.e. when claim and counterclaim are valid, of the same kind and due at the offsetting date. Moreover, no special offsetting prohibition must exist. The party to the contract may claim a retention right only if the performance offered does not correspond to the contract in terms of quantity or quality or if the party to the contract should demand improvement after the delivery of a defective matter.
    3.3 Discounts must be agreed with TM in advance in written form. Agreed discounts are printed on the invoice of TM. Other agreements than in written form are invalid (e.g. verbally). The cash discount period (if agreed) is given on the TM invoice in calender days (not in working days!). It is agreed that the invoice date is the only valid date of the start of the discount period. In order to profit from the discount, the payment needs to be done explicitly cashless by bank transfer so that TM can use the money on due date. If other ways of payment than cashless bank transfer are used (e.g. cash, check), no discount will be accepted.
    3.4. If the buyer is in arrears with an agreed payment or other performance TM can
    a) Postpone the fulfilment of its own obligations until such payment or other performance has been effected.
    b) Declare due all outstanding claims from this or other transactions. The buyer will be charged interest on arrears to the legal amount (§ 352 UGB, General Civil Code Austria). Apart from the legal interest TM is also entitled to claim compensation for other damages caused by the debtor and incurred by TM, especially the costs necessary for out-of-court collection measures to suit the purpose provided such are appropriate for the claim pursued, irrespective of other rights.
    3.5. Should the buyer get into payment arrears or should he fail to honour a bill when due, TM shall be entitled to take back the goods and, if applicable, to enter the buyer’s operations and seize the goods. In addition to this TM shall be able to forbid the resale and the relocation of the delivered goods. Taking back the goods shall not constitute a withdrawal from the contract. In this case TM will only deliver the products again if the invoice is balanced completely in advance and all other costs are paid by the buyer in advance.

     4.1. The term of delivery starts with the date of the order confirmation of TM and is valid only provided that all details of the order are timely clarified and all obli-gations of the buyer (e.g. provision of material, etc.) are timely fulfilled.
    4.2. The delivery obligation is subject to the reservation of correct and timely selfdelivery unless such incorrect or delayed delivery was caused by TM.
    4.3. Events of acts of God entitle TM to postpone the deliveries by the duration of the impediment and an appropriate starting period. This applies also if such events occur in the presence of any delay. Acts of God include currency, trade, political and other sovereign measures, strikes, lockouts, operating interferences not caused by TM (e.g. fire, machine failures, lack of raw material or energy), obstruction of traffic routes, delays with import/customs clearance, as well as any other circumstances not caused by TM which considerably impede or render impossible the deliveries and performances. In this context it is immaterial whether such circumstances occur at TM or a subsupplier. Should the fulfilment of the contract become unacceptable to TM as a result of the aforementioned events, TM can declare the annulment of the contract.
    4.4. TM is entitled to perform and charge part deliveries or advance deliveries. If delivery on call is agreed the goods shall be considered as having been called not later than 1 year after the order. Advance deliveries shall be accepted by the buyer within acceptable limits.
    4.5. The time of despatch ex works or store shall be decisive for the adherence to dates and terms of delivery. Such shall be considered adhered to upon notifi-cation of readiness for despatch if the goods cannot be despatched timely through no fault of TM.
    4.6. If the buyer is in acceptance arrears and should the goods go under accidentally, TM shall be released of its performance obligation but retain the right to counter performance. In addition to this the care owed to the matter by TM is reduced from the occurrence of the acceptance delay so that TM shall henceforth be liable only for gross negligence. As a consequence of the delay of the creditor TM shall be entitled to bailment at the expense of the buyer (10 Euro per started calendar day) which has a debt-discharging effect. In such cases where continued readiness would particularly burden TM, TM can withdraw from the contract after setting an appropriate additional period and utilise the goods elsewhere; in such a case a conventional penalty of 0.5 % of the invoice amount per day shall be considered agreed. The maximum conventional pen-alty amounts to 20 % of the invoice amount.

     5.1. TM always supplies ex works (Incoterms 2000: EXW)! Should a deviating regulation have been agreed, TM shall determine the dispatch route and means as well as forwarding agent and carrier.
    5.2. Should the transport via the intended route or to the intended place be impossible in the intended time through no fault of TM, TM shall be entitled to deliver by way of another route or to another place; the additional costs incurred shall be borne by the buyer. The buyer will be given opportunity to respond beforehand.
    5.3. Utilisation and risk pass to the buyer with the departure of the consignment ex works or ex store, regardless of the pricing agreed for the consignment (e.g. delivered free, DIF, CPT, DDP, etc.). The regulation described in Incoterms 2000 can not be applied in this sense, even if they were agreed in written form. This applies also when the delivery takes place as part of an installation or when the transport is performed or organised and managed by TM.

     6.1. The buyer must not claim that TM takes back goods which were bought by the buyer before. This possibility is especially eliminated for customer specific goods.
    6.2. If TM exceptionally agrees to take back goods for fair dealing (e.g. in case of standard products, which TM can use elsewhere), TM will refund 80 % of the product price and TM will charge 20 % of the product price (but at least 20.00 EUR) to cover the administrative costs.

     TM reserves ownership in all goods supplied by TM pending complete payment of the invoice amounts plus interest and costs.
    The buyer herewith cedes to TM his claim from any resale of reservation goods to safeguard his purchase price claim, even if these were processed, and undertakes to make an appropriate note in his books or on his invoices. Upon request the buyer shall inform TM of the ceded claim including its debtor and to make available all information and documents required for his claim collection and inform the third-party debtor of such cession. In the event of distraint of property or other utilisation the buyer shall be obligated to point out the ownership right of TM and to inform the latter immediately.

     8.1. No warranty claims can be derived from information in catalogues, brochures, advertising publications and written or verbal comments which have not been included in the contract. Only the written offer and the written order acknowledgement are valid.
    8.2. TM is obligated in accordance with the following provisions to rectify any defect impairing the workability that exists at the time of the handover, which is due to a defect in the design, the material or the execution.
    a) Defects of the goods must be reported in writing immediately, but not later than 14 days following delivery. Failure to immediately report in writing the defects incurred will render the warranty claims void. Defects that are not discovered within this period despite utmost care in inspection shall be reported in writing immediately after discovery, immediately ceasing possible processing.
    b) Upon justified timely notification of defect TM shall improve the goods subject to the complaint or replace the goods with goods free from defect. If improvement is impossible or TM should get in arrears with the improvement/replacement the buyer is entitled to demand a price reduction or – if the defect is not minor – cancellation of the contract.
    c) TM shall provide warranty for the improvement and replacement delivery in the same manner as for the original delivery or performance.
    8.3. Should the defect manifest itself within three months following the handover of the goods TM shall have to furnish proof of the handover of the matter free from defect. After expiration of the period of three months the buyer shall have to furnish proof that the defect was present at the time of the handover.
    8.4. The warranty period is 12 months unless special warranty periods are agreed for individual supply items. This applies also to supply and performance items which are permanently joined to a building or which were otherwise further processed. The warranty period shall commence with the time of the transfer of risk according to clause 5.3 of the GCB. Claims according to §933b ABGB (Austrian Civil Code) always fall under the statute of limitations upon expiration of the period mentioned in this clause.
    8.5. All overheads (such as for installation and removal, transport, disposal, time for travelling and on the road) shall be for the expense of the buyer. Help per-sonnel, lifting equipment, scaffolding and incidental materials etc. shall be provided free of charge for warranty operations in the operation of the buyer. Replaced parts become the property of TM. If goods are made by TM based on design information, drawings, models or other specifications of the buyer, the liability of TM shall only cover the operational execution.
    8.6. Excluded from the warranty are such defects as do not result from arrangement and installation effected by TM, insufficient facility, failure to observe installation requirements and utilisation conditions, overloading of the parts beyond the capacity specified by TM, negligent or incorrect treatment and utilisa-tion of unsuitable operating materials; this applies also to defects which are due to material furnished by the buyer. TM shall not be liable either for damages resulting from actions of third parties, atmospheric discharges, overvoltages and chemical effects. The warranty does not cover the replacement of parts subject to natural wear. TM shall not accept any liability upon the sale of used goods.
    8.7. The warranty will cease to exist immediately if the buyer himself or a third party not expressly authorised by TM should perform changes or repairs to the supplied objects without the written approval of TM.
    8.8. These provisions apply mutatis mutandis also to every responsibility for defects for other legal reasons.

     9.1. TM shall be liable for damages outside the field of application of the Product Liability Act only if TM has been proven to have acted deliberately or grossly negligently, within the scope of the legal regulations. Liability for minor negligence, the compensation for consequential damages and financial damages, savings not achieved, loss of interest and of damages from third-party claims against the buyer shall be excluded. Provided that legal provisions do not provide for shorter periods, all claims of the buyer shall be judicially exercised within 3 years from the transfer of risk, otherwise any claims shall be waived.
    9.2. Austrian product liability law shall apply.

     10.1. If goods of TM are made based on design, details, models or other specifications of the buyer, the buyer shall indemnify TM for possible violations of intellectual property rights.
    10.2. Execution documentation such as drawings, sketches and other technical documents as well as samples, catalogues, brochures, depictions etc. always remain the intellectual property of TM and are subject to the applicable legal regulations in terms of reproduction, copying, competition.
    10.3. All offer and project documentation, drawings and drafts and sample pieces, models as well as blocks and other help material remain the property of TM and may not be used without the written permission of TM; these can be demanded back at any time and must be returned to TM immediately if the order is placed elsewhere. The order and all information, documentation etc. regarding the order constitute our business secrets and must be treated confiden-tially. If required all documents and data and copies of these documents and data must be given back to TM or must be abolished and must be erased from any hardware.

     11.1. TM uses a modern data processing system, where company data of the (potential) business partners are stored as from the very early contact phase. When mentioning „company data“ TM will potentially store all kinds of contact persons, company name, addresses and other contact data all well as acting persons and company organs (managing director, heading employees, etc.) and other relevant company data (VAT-number, ARA license number etc.). The contact persons communicating with TM herewith agree that TM stores this data and uses this data for internal use like analyses and marketing purposes without his prior approval.
    11.2. TM ensures the confidentiality of this stored data regardless on which way TM got knowledge of this confidential data. TM guarantees that confidential data will not be used for other purposes that described above, as far TM can influence the usage of the concerned data.

     12.1. Should individual provisions of the contract or these provisions be ineffective, such shall not affect the effectiveness of the remaining provisions. Such ineffective provision shall be replaced with a valid provision that comes as close as possible to the aspired objective.
    12.2. All agreements, subsequent changes, amendments, additional verbal agreements etc. require the written form to be valid, consequently also the original signature or the secure signature. A fax also fulfils this required form. Emails are only valid if there is not only one email, but if there is a series of a two-way emails traffic which proves the existence of agreements.

     13.1. Unless otherwise agreed place of performance shall be the plant TM in Hornstein. The substantially responsible court at the main seat of TM (currently A-7000 Eisenstadt) shall have exclusive competent jurisdiction to decide all disputes arising from the contract.
    13.2. Austrian law applies subject to the exclusion of the referral standards. The application of the UNCITRAL treaty of the United Nations concerning contracts of international goods sale is excluded. The language used in the correspondence shall be agreed as contractual language, while German shall be considered the contractual language if in doubt.

Hornstein, in March 2011