I. General information


1. These General Terms and Conditions of Business and Delivery
(hereinafter shortened to ‘GTCBD’) are an integral part
of all the offers, deliveries and other contracts concluded by
any of the contracting parties from the Mayr-Melnhof Holz
Group (hereinafter briefly referred to as ‘Mayr-Melnhof’). However,
they shall only apply if the contracting partner is a
business, a legal entity or a special fund under public law.
Deliveries shall only be carried out in accordance with these
GTCBD, which shall be interpreted according to prevailing
practices in the trade, with which the customer is familiar
and which can be furnished by Mayr-Melnhof at any time following
a written request by the customer and are also available
at www.mm-holz.com. Provisions that differ from these
GTCBD shall only be binding for Mayr-Melnhof if they have
been explicitly acknowledged by the latter in writing. This
shall also apply if the ordering party refers to its own terms
and conditions of trade (‘battle-of-forms’) or if such provisions
are contained in invoices, order forms or delivery notes.
Any individual agreements concluded with the contracting
party in individual cases (including collateral agreements,
supplements and amendments) shall take priority over these
GTCBD in every case. The content of such agreements must
be set forth in writing in the form of a contract or confirmation
provided by Mayr-Melnhof.


2. These GTCBD shall also apply if Mayr-Melnhof unreservedly
accepts the contracting party’s order while being aware of
the existence of deviating written or oral provisions drafted
by the contracting party.


3. Documents, in particular drawings and descriptions of
the products and technical details or models belonging to
Mayr-Melnhof, merely constitute samples and are neither definitive
as regards the nature and properties nor binding, unless
such information is designated as binding beforehand,
separately, explicitly and in writing. Any information, technical
advice and other data of any nature whatsoever furnished
by Mayr-Melnhof is only provided on the basis of empirical
values. However, said information, technical advice and data
are also non-binding and are provided without any liability
or guarantee to the extent permitted under applicable law.
This also applies, mutatis mutandis, to contract negotiations
during the pre-contract phase.


4. If no written contract is made (for example, a contract concluded
by word of mouth), these GTCBD shall apply in each
case if the contracting party was already aware – or could
have been aware – of them from preceding, regular business
relations.


5. The contract is concluded on the condition that the contract
will not be performed or will only be partially performed if,
for reasons beyond the control of Mayr-Melnhof, Mayr-Melnhof’s
own suppliers do not carry out deliveries properly or
only do so in part (this refers to the supply of advance services
and raw materials to be supplied to Mayr-Melnhof). If
the contractual goods are not available or only partially available,
the contracting party shall be immediately informed.
Any consideration already paid shall be reimbursed without
delay. Any further claims asserted by the contracting party,
in particular claims for compensation, are excluded provided
this is legally admissible.


6. The dispatch of goods always takes place following receipt of
the properly countersigned reply letter sent by the contracting
party (e.g. returned and undersigned order confirmation).
If the goods are sent in the absence of a countersigned
reply letter and accepted by the contracting party without
any reservations, the GTCBD shall be deemed to have been
accepted by the contracting party.


II. Offer and order confirmation


1. Any offers or estimates prepared by Mayr-Melnhof are subject
to confirmation and are not binding. If an order is placed
following an offer made by Mayr-Melnhof, then the contract
is formed only after the order has been confirmed by
Mayr-Melnhof in writing.


2. Provided the intended purpose set down in writing is not altered,
Mayr-Melnhof reserves the right to make minor changes
to the scope of delivery described in the order. If production-
related reasons should force Mayr-Melnhof to carry out
more extensive changes, the contracting party shall agree
to such changes provided they are not to the contracting
party’s commercial disadvantage: the contracting party bears
the burden of proof regarding whether the changes are
commercially disadvantageous.


3. Mayr-Melnhof reserves the right to pass on the order to another
company within the Mayr-Melnhof Holz Group at any
time and to have the order executed by said company.


III. Prices


1. All prices shall be understood to refer to net prices. Statutory
value-added tax is shown separately in the invoice.


2. When calculating prices, reference shall be made to the
information in the order confirmation. The unit prices shall
apply to the agreed delivery schedule. However, in certain
cases, price adjustments may be agreed if the costs incurred
by Mayr-Melnhof within the period leading up to the delivery
shall vary. Invoicing shall be based on the actual dimensions
supplied.


IV. Dispatch and transport


1. The Incoterms shall apply in the version indicated in the order
confirmation sent by Mayr-Melnhof.


2. The place of delivery must be flat and sufficiently stable so
as to allow a heavy goods vehicle with a 10 t axle load to pull
up and drive away without any difficulties. Unloading shall be
carried out promptly and correctly; the use of a crane requires
a prior, written, separate agreement. Any waiting times
and idle times will be invoiced separately by Mayr-Melnhof
unless they are due to gross negligence on the part of
Mayr-Melnhof. The same applies to any required expenses
for warehousing goods, if unloading at the planned location
should not be possible.


V. Delivery and warehousing


1. Partial deliveries are expressly declared to be admissible.


2. The time of delivery of the goods remains unchanged regardless
of whether the contracting party delays the acceptance
of the delivered goods. Any warehousing costs incurred due
to a delay in accepting the goods shall be borne by the contracting
party.


3. In the case of a ‘call-off agreement’, if any call-off request
by the contracting party is not received by Mayr-Melnhof
in time, Mayr-Melnhof shall be free to insist on the delivery
and invoice the delivery at the end of the delivery period or
to completely or partially withdraw from the contract as it
deems fit. Any warehousing costs incurred shall be borne by
the contracting party.


4. If the goods cannot be delivered following manufacture due
to unforeseeable circumstances at the time the contract is
concluded and Mayr-Melnhof is not responsible for such circumstances,
the contracting party shall bear the risks from
this moment onwards. Any warehousing costs incurred shall
be borne by the contracting party.


5. Insignificant deviations in quantities customary in the trade
(of up to 10 percent) upwards or downwards upon delivery
are expressly permitted by Mayr-Melnhof.


6. If the delivery deadline cannot be met, Mayr-Melnhof reserves
the right to deliver the goods at another acceptable alternative
delivery date. This new delivery date will be set in
consultation with the contracting party. If Mayr-Melnhof fails
to adhere to this new delivery date, the contracting party
shall be entitled to demand the delivery be carried out after
setting a reasonable period of grace or, or otherwise to withdraw
from the contract. Any further claims asserted by the
contracting party in this respect are excluded provided this is
legally admissible. Mayr-Melnhof is only bound by its delivery
deadlines if the contracting party fulfils its contractual obligations
(e.g. timely release of schedule, down payments, etc.).


7. In case of force majeure or if important changes to parts of
the contract are or become necessary and such instances
are beyond the control of Mayr-Melnhof or whenever circumstances
arise that do not merely complicate deliveries on a
temporary basis or render deliveries partially or completely
impossible, Mayr-Melnhof shall be entitled to withdraw from
the contract without any additional claims becoming available
to the contracting party.


VI. Warranty and notifications of defects


1. The contracting party must examine the goods delivered
immediately, in any case within 7 calendar days following
receipt of the goods, for any defects and promptly notify
Mayr-Melnhof in writing about any defects. If defects that already
existed upon handover of the goods, and which could
not have been discovered in the course of a proper examination
following receipt of the goods (see VI. 1. 1. sentence 1),
only emerge during the warranty period, Mayr-Melnhof must
be notified in writing about such defects forthwith within the
warranty period as soon as they are discovered, in any case
before the goods are processed, transformed or resold. The
warranty period generally lasts one year. The burden of proof
in case of all circumstances justifying claims, in particular for
the presence of a defect at the time the goods are handed
over, the time the defect is detected and for notifying the defect
in good time always lies with the contracting party. In
case of defects, the contracting party is obliged to accept
the delivery in any case and to handle the goods with the
usual degree of due care. Notifications of defects shall always
be made in writing and include sufficient documentation
in accordance with prevailing practices in industry and
commerce (in particular, e.g. photographic documentation),
and the receipt of this documentation must be confirmed by
Mayr-Melnhof in writing. The defect shall be identified according
to its nature and scope in a way that allows Mayr-Melnhof
to clearly recognize the basis for the complaint. If these
provisions are not adhered to, any claims (warranty, damages,
error etc.) are considered invalid.


2. The contracting party shall submit any complaints concerning
damage during transportation to the carrier promptly
and in writing, in any case before the goods are processed,
transformed or resold. In this case, the contracting party also
bears the entire burden of proof in respect of any circumstances
justifying claims, in particular for the defect or damage
in question, the time the defect or damage is detected and
for notifying the defects or damage in good time. In addition,
clause VI. 1. shall apply accordingly.


3. Defects have no bearing on the agreed dates of payment.


4. Mayr-Melnhof is free to choose whether to rectify the defects
by repairing them or making a new delivery after transporting
the goods ‘carriage paid’ for the contracting party to the
place of delivery. Mayr-Melnhof is entitled to make several
rectifications. If even these rectifications should not satisfy
both parties, the contracting party shall be entitled either to
reduce the consideration payable provided the statutory preconditions
are satisfied or to rescind the contract.


5. Any goods returned by the contracting party shall become the
property of Mayr-Melnhof. Further claims such as reimbursement
for work, materials, loss of earnings, compensation for
non-performance etc. are excluded if this is legally admissible
and occurs to the extent permitted under the law.


6. In any case, warranty claims are excluded in case of natural
wear and tear and improper handling, excessive use and negligence
on the part of the contracting party.

 

VII. Limitations and waivers of liability


1. Mayr-Melnhof shall only be liable for damages in case of premeditation
and excessive, gross negligence. In case of slight
negligence, Mayr-Melnhof shall only be liable for personal injury.
The liability shall lapse 6 months after identification of
the damage and the damaging party. The amount of liability
shall be limited according to the liability insurance taken out
by Mayr-Melnhof.


VIII. Delays and withdrawal


1. If the contracting party delays payment, Mayr-Melnhof shall
be entitled to withdraw from the contract after granting a
period of grace of at least one week. In case of delays in
payment, Mayr-Melnhof shall be entitled to charge the contracting
party – without prejudice to any further claims for
compensation it may assert – the legal interest rate according
to section 456 UGB (Austrian Commercial Code).


2. In case of a delay in accepting the goods on the part of the
contracting party, Mayr-Melnhof shall be entitled to either:
a. insist upon performance of the contract and to delay fulfilment
of its own obligations until the outstanding payments
have been made by the contracting party, or
b. accept a reasonable extension of the delivery period or to
notify its withdrawal from the contract after granting a reasonable
period of grace.


In case of delayed acceptance on the part of the contracting
party, Mayr-Melnhof shall also be entitled to insist on fulfilment
of the contract or to withdraw from the contract after
having granted a reasonable period of grace and to use the
relevant goods otherwise.
In any case of delayed acceptance, the contracting party shall
be entitled to pay a contract penalty in the amount of ten
percent of the relevant net purchase price, without prejudice
to any higher claims for damages.


3. If the contracting party terminates the contract before it has
been fully performed for whatever reason, Mayr-Melnhof reserves
the right to assert claims against the contracting party
for reimbursement of any expenses already incurred and any
damage.


4. If the contracting party’s financial circumstances deteriorate
significantly or its creditworthiness is found to be wanting
after the contract has been concluded or the insurance limit
from the contracting party’s current orders has been exhausted,
Mayr-Melnhof shall be entitled to demand immediate
payment of all outstanding payments and of any invoices
not yet due and to completely or partially withdraw from any
agreements in force and orders already placed.


5. If there exists a judicial right to mitigate claims and this right
may be lawfully excluded, then this right is herewith excluded.
The right to assert further claims for compensation, in particular
in relation to warehousing, remains unaffected.


IX. Payment and prohibition of setoff


1. Unless otherwise stipulated in the order confirmation, the
purchase price indicated in section III of these GTCBD is payable
without deductions within the fourteen calendar days
following the invoice date and, in the absence of any differing
agreement, shall be effected by bank transfer.


2. In addition, Mayr-Melnhof shall be entitled to charge the contracting
party any expenses incurred through non-performance
of its contractual obligations and this includes, in particular,
the costs of taking appropriate legal action (collection
agency or legal representation).
Transfer fees and expenses (in particular from abroad) shall
be borne exclusively by the contracting party. Incoming payments
will be used first to cover any expenses and default
interests, any claims asserted under this section, section X,
and thereafter to pay off the purchase price.


3. The contracting party is not entitled to set off its own claims
against the claim for payment of the purchase price unless
setting off its own claims was agreed upon separately in writing
with Mayr-Melnhof and said claims have either been acknowledged
in writing by Mayr-Melnhof or legally established
in a judgement. The contracting party may not exercise any
rights of retention.


X. Reservation of title


1. Mayr-Melnhof shall reserve the title to the goods supplied until
all the payments deriving from the existing current account
relationship between the contracting parties including any
interests and costs, reminder charges and default interests
and the associated claims have been received in full. Until
full payment has been received for all claims the contracting
party shall be liable for any breakage, theft, fire or other acts
of God from the moment of transfer of risk. The contracting
party undertakes to abstain from pledging the goods or otherwise
assigning them by way of security. Their resale as part of
an ordinary business transaction is permitted.


2. If Mayr-Melnhof’s title to the goods is threatened by third parties,
Mayr-Melnhof shall be immediately notified about this.


3. If the goods are seized while the reservation of title is still
in force, Mayr-Melnhof shall be notified immediately in writing;
the contracting party shall bear the legal costs and
costs of representation during any action required to recover
the seized goods. If the goods already delivered are seized,
Mayr-Melnhof shall be entitled to withdraw from the contract.
In such cases Mayr-Melnhof shall be entitled to realize the
purchase items after they have been recovered. The proceeds
from realization shall be set off against the contracting party’s
debts after deducting a reasonable amount for the realization
of the goods.


4. If an agreement has been reached with the contracting party
regarding the payment of the purchase price owing by means
of a check or a bill of exchange, the reservation of title
shall extend until the moment the bill of exchange accepted
by Mayr-Melnhof from the contracting party has actually been
redeemed and does not expire when the bill of exchange or
check is credited to Mayr-Melnhof.


5. The contracting party undertakes to handle the goods with
care and to warehouse them until the entire purchase price
indicated in section X.1. has been received by Mayr-Melnhof.
In so doing, the contracting party shall exercise the due care
of a prudent businessperson.


6. If the contracting party sells the goods subject to reservation
of title, it shall assign all claims amounting to the final invoice
amount (including value-added tax) to Mayr-Melnhof with immediate
effect and regardless of whether the goods supplied
have been processed or not before their resale. The contracting
party remains entitled to collect this claim even after it
has been assigned. The right of Mayr¬-Melnhof to collect this
claim itself shall remain unaffected. However, Mayr-Melnhof
undertakes not to collect the claim if the contracting party
complies with its payment obligations from the proceeds collected,
is not in default of payment and, in particular, has not
lodged an application to initiate insolvency or reorganization
proceedings and no cessation of payments exists. Nevertheless,
if this is the case, Mayr-Melnhof, provided this is lawful,
may ask the contracting party to disclose the identities of the
claims assigned and their debtors, provide any information
required and useful for collecting the claim, hand over any associated
documentation and properly notify the debtor (third
party) about the assignment of the claim.


7. If the goods are processed or mixed with other items not belonging
to Mayr-Melnhof, Mayr-Melnhof shall acquire co-ownership
rights to the new object in the proportion represented
by the value of the goods with respect to the processed or
mixed item at the time it is processed or mixed. The contracting
party shall safeguard the resulting solely or jointly
owned object on behalf of Mayr-Melnhof with the due care of
a prudent businessperson.


8. Mayr-Melnhof, upon request, shall release the goods and the
4/5 objects or claims taking their place as it sees fit if their value
exceeds 50% of the secured claims and if this is mandatory
under the law.


XI. Delivery schedules


1. The delivery schedule shall be deemed to have been observed
if the goods are ready for delivery at the factory and – if collection
by the customer or the dispatch of the goods has been
agreed upon – readiness for dispatch has been advised.


2. The delivery schedule set by Mayr-Melnhof (including fixed
schedules, schedules for rectified or replaced goods etc.) will
be suspended in case of events not attributable to Mayr-Melnhof,
in particular force majeure, unforeseeable disruptions to
operations, supply problems affecting its own suppliers or
circumstances beyond the control of Mayr-Melnhof, in particular
during carriage or dispatch of the goods. The delivery
schedule shall be resumed once these events are no more.


3. Mayr-Melnhof is only obliged to adhere to delivery schedules
if the contracting party complies with its contractual duties.
In particular, this is conditional on compliance with payment
conditions, the timely receipt of all documents to be furnished
by the contracting party, any authorizations or approvals, the
timely clarification and approval of plans and the provision of
any other necessary cooperation. If the contracting party fails
to fulfil its obligations on time, the legal consequences of a
delay in accepting the goods shall take effect.


4. The foregoing provisions shall apply to any other performance
schedules adopted by Mayr-Melnhof mutatis mutandis.


XII. Protection of intellectual property, confidentiality


1. Mayr-Melnhof shall retain property rights, copyright and any
other industrial property rights pertaining to the illustrations,
drawings, calculations, models and any other documents furnished
by Mayr-Melnhof during the course of business; they
may not be made available to third parties without the written
consent of Mayr-Melnhof or used or exploited beyond the business
relationships with Mayr-Melnhof.


2. Any documents of relevance for the foregoing rights shall be
returned to Mayr-Melnhof upon request and whenever the
contract is not formed or terminated, regardless of the reason,
without delay together with any copies that have been
made.


3. The contracting party undertakes to treat all the business or
trade secrets related to the offer or the initiation or handling
of the contract that it learns of with strict confidentiality and
not to pass them on to third parties. This duty shall be imposed
by the contracting party on all its employees, agents,
advisors and any other persons and aids engaged by the contracting
party in order to fulfil its obligations.


XIII. Concluding provisions


1. The contracting party undertakes to communicate any change
in its address without delay to Mayr-Melnhof in writing.
Written declarations may be validly sent to the last address
provided by the contracting party.


2. Amendments and supplements to these GTCBD must be drafted
in writing in order to be legally valid. The same applies to
waiving the requirement of the written form.


3. If one or several provisions are or become invalid or impracticable,
this shall not affect the validity of the remaining provisions.
The contracting parties herewith agree to substitute a
valid and practicable provision for the invalid or impracticable
provision that comes closest to the economic purpose of the
invalid or impracticable provision. This shall apply mutatis
mutandis if it emerges that the present GTCBD turn out to
have gaps.


4. For the purpose of these GTCBD, in addition to a letter sent
by post, ‘written’ shall also be understood by the contracting
parties to refer to a fax or an e-mail unless otherwise stipulated
in these GTCBD.


5. The law of the country in which the seller company in the
Mayr-Melnhof Holz Group has its registered office shall apply
exclusively to all the contractual relationships between
Mayr-Melnhof and the contracting party, to the exclusion of
the provisions on the choice of the proper law for contracts
under private international law. The application of the United
Nations Convention on Contracts for the International Sale of
Goods (UN Sales Convention) is excluded.


6. The exclusive jurisdiction of the materially competent court
for A-8700 Leoben is herewith agreed as competent to decide
on any and all disputes regarding deliveries and services
directly or indirectly resulting from a contractual relationship
of the contracting parties referred to herein, including any
disputes on existence or non-existence.


7. If these GTCBD are also furnished in a foreign language, reference
shall be made exclusively to the German version in case
of questions regarding interpretation.


8. The following companies in the Mayr-Melnhof Holz Group are
also governed by the provisions of these GTCBD and accordingly,
the exclusive validity of these GTCBD in the relationship
between the contracting party and following companies
shall be deemed to have been agreed upon and confirmed:


Mayr-Melnhof Holz Holding AG, Turmgasse 67,
8700 Leoben, Austria
Mayr-Melnhof Holz Leoben GmbH, Turmgasse 67,
8700 Leoben, Austria
Mayr-Melnhof Holz Russland Beteiligung GmbH,
Turmgasse 67, 8700 Leoben, Austria
Mayr-Melnhof Pellets Paskov s.r.o., Staříč 544,
CZ-73943, Czech Republic
Mary-Melnhof Holz Paskov s.r.o., Staříč 544,
CZ-73943, Czech Republic
Mayr-Melnhof Kaufmann Holding GmbH, Turmgasse 67,
8700 Leoben, Austria
Mayr-Melnhof Holz Gaishorn GmbH, Gaishorn am See 182,
8783 Gaishorn am See, Austria
Mayr-Melnhof Holz Reuthe GmbH, HNr. 67,
6870 Reuthe, Austria
Mayr-Melnhof Holz Richen GmbH, Römerstraße 20,
75031 Eppingen, Germany


9. If the Mayr-Melnhof Holz Group expands to incorporate
further companies in addition to the aforementioned companies,
Mayr-Melnhof shall communicate the names of these
companies to the contracting party in writing. Thereafter, the
application of these GTCBD to the relationship between these
companies and the contracting party shall be deemed to have
been confirmed and agreed upon.