General Terms and Conditions of Thermowhite GmbH

Head office: A-4582 Spital am Pyhrn, Pyhrn 3, Austria

1) Scope of application

1.1 The following General Terms and Conditions apply to all business relationships between Thermowhite GmbH and an entrepreneur or consumer within the meaning of the Consumer Protection Act (KSchG), hereinafter referred to as „Customer“.
The version valid at the time of the conclusion of the contract, which is published on our homepage www.thermowhite.com, is decisive.

1.2 We contract exclusively on the basis of our General Terms and Conditions. The customer's general terms and conditions shall not become part of the contract, even if we are aware of them, unless their validity is expressly confirmed by us in writing.

2) Offer / Conclusion of contract

2.1 Unless expressly stated otherwise, our offers and cost estimates are non-binding. The information contained in catalogs, brochures and the like shall only be authoritative if express reference is made to them in the order confirmation; otherwise such information shall be deemed to be an invitation to the customer to submit an offer. We reserve the right to accept orders in any case.

2.2 Only our written order confirmation shall be authoritative for the mutual contractual obligations. Promises, assurances and guarantees on our part or agreements deviating from these General Terms and Conditions in connection with the conclusion of the contract shall only become binding for customers upon our written confirmation. Verbal collateral agreements shall only become legally valid if they are confirmed by us in writing.

2.3 Coverage and consumption data are average values. No liability can be derived from them, as the consumption quantity depends on the nature of the substrate and the processing. Information on (material) consumption quantities determined by us or otherwise taken from our documents are non-binding.

3) Retention of title

3.1 We reserve title to delivered goods until the purchase price has been paid in full.

3.2 If the customer is in default of payment, we are entitled to collect the goods at the customer's expense, even without the customer's consent, after setting a reasonable grace period.

3.3 In the event of seizure or other claims by third parties, the customer is obliged to inform the third party of our ownership and to notify us immediately.

4) Withdrawal of the customer/cancellation

4.1 In the event of cancellation by the customer prior to delivery of the goods or provision of the service, we shall be entitled to demand a handling fee of 20 % of the gross order value from the customer. We expressly reserve the right to claim further damages.

4.2 We are not obliged to take back goods that have already been delivered or (partial) services that have already been provided. If, in individual cases, we agree to cancel after delivery or (partial) services have been provided, a cancellation fee of 20 % of the gross order value shall be deemed agreed. We expressly reserve the right to claim further damages.

5) Price and term of payment

5.1 All prices are exclusive of VAT, other price components, any shipping costs and customs or other import duties. Costs for travel, daily and overnight allowances shall be charged separately. Travel time is considered working time. Invoicing shall always be based on the actual quantity of material used and not on the area of application.

5.2 Should the prices change due to circumstances beyond our control (collective agreements, material prices, customs duties, taxes, levies, etc.) between order confirmation and provision of the service / delivery of the goods, we shall be entitled to adjust the price stated in the order confirmation until provision / delivery to the extent of the change, be it a reduction or increase in the price.

5.3 The amount shown on the invoice is due immediately. The customer is obliged to pay the invoice amount no later than 8 days after receipt of the goods or provision of the service, unless the invoice contains different payment terms. We are entitled to settle partial services with partial invoices. If the customer takes delivery of the goods in person, he has the option of paying in cash.

6) Obligation of the customer to cooperate

6.1 The customer shall be liable for ensuring that the necessary structural, technical and legal requirements for the work to be performed or the object of purchase are met, which were described in the contract or in information provided to the customer prior to the conclusion of the contract or which the customer should have known on the basis of relevant specialist knowledge or experience. Our obligation to perform shall commence at the earliest as soon as the customer has created all structural, technical and legal prerequisites for performance.

6.2 In particular, the customer has the following obligations to provide advance performance and cooperation:
- The customer must provide us with the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data in good time before the start of the work without being asked.
- The access road to the construction or unloading site must be suitable for vehicles with a total weight of up to 35 tons.
- The customer must obtain official permits in good time and provide evidence of their existence as well as implement any protective measures.
- The customer is responsible for creating sufficiently paved truck parking areas (10 m x 4 m) or silo parking areas (4 m x 4 m) and sufficient storage areas for our materials and debris containers as well as the removal of debris and residual materials.
- The interior of the construction site must be free of debris and building materials.
- The energy required for the provision of services, including trial operation (in any case a high-voltage connection with at least 32 ampere fuse protection, unless otherwise specified) and water quantities (in any case a water connection with ¾-inch and at least 2 bar water pressure, unless otherwise specified) shall be provided by the customer at the customer's expense.
- A washing area for cleaning the tools and pumps must be available.
- The customer must ensure that the room temperature in the affected rooms is at least 5 degrees Celsius.
- The customer must provide us with all relevant documents (in particular plans, expansion joint plan, etc.) in full.
- The customer is responsible for determining the starting point and confirming the horizontal plan for each floor.
- Shuttering must be prepared on site for recesses, stairways, doors, heavy ovens and garage end angles or any later installations.
- It is pointed out that (according to ÖNORM) a professional moisture seal must be applied to floor surfaces in contact with the ground.
- The customer must ensure that the road and sidewalks are cleaned as necessary after the service has been provided and bear the costs for this.

6.3 If these advance performance and cooperation obligations are not fulfilled by the customer, the customer shall be liable for all resulting damages.

7) Delivery and performance deadlines

7.1 Delivery and performance deadlines are only binding for us if they have been specified in writing. The delivery of goods to consumers shall take place within a reasonable period, but in any case within 30 days. The period for provision/delivery shall commence on the day following the conclusion of the contract. If the end of the period falls on a Saturday, Sunday or public holiday, the period shall end on the next working day.

7.2 The delivery period may be extended in the event of unforeseen circumstances or circumstances beyond the control of the parties, such as force majeure, transportation delays, strikes, official measures, etc.

7.3 If the start of the performance of services or the performance itself is delayed or interrupted due to circumstances attributable to the customer, in particular due to a breach of the obligations to cooperate in accordance with point 6, the performance deadlines shall be extended accordingly and completion dates shall be postponed accordingly.

8) Default by the customer

8.1 Interest on arrears shall be payable if the payment deadline is exceeded. The annual corporate default interest rate is 9.2 percentage points above the prime rate. For consumers, a default interest rate of 4% per annum applies.

8.2 In the event of default, we shall be entitled to demand a lump sum of EUR 40.00 from entrepreneurs for collection costs. For any additional costs of debt collection by us, a lawyer or a debt collection agency and vis-à-vis consumers, these costs shall be reimbursed insofar as they are necessary and reasonable for appropriate legal action.

8.3 If the customer is in default with a (partial) performance, we shall be entitled to withdraw from the contract after setting a reasonable grace period and, in the event of culpable default, to claim damages for non-performance.

8.4 In the event of a delay in advance performance, we shall be entitled to dispose of the equipment and materials specified for the performance of the service elsewhere, subject to setting a reasonable grace period. In the event that the performance of the service is continued, we shall procure these within a reasonable period of time.

8.5 In the event of default in advance performance, we shall also be entitled, but not obliged, to carry out the advance performance required for the fulfillment of the order ourselves or to have it carried out by authorized third parties, subject to setting a reasonable grace period. In this case, the customer shall be obliged to bear the reasonable costs incurred.

9) Transfer of risk

9.1 In the case of business customers, the risk of accidental loss and accidental deterioration of the goods shall pass as soon as we hold the object of purchase or the material ready for collection. In the case of sale by delivery to a place other than the place of performance, the risk shall pass to the entrepreneurial customer as soon as we notify the entrepreneurial customer that the goods are ready for shipment and delivery.

9.2 If the customer is a consumer, the transfer of risk shall only take place when the goods are handed over to the customer or to a third party designated by the customer who is not the carrier.

9.3 Our work services and trades shall be deemed to have been accepted by the customer at the time of written acceptance, but at the latest when the customer uses them.

10) Offsetting and retention

10.1 The right to offset against our claims is excluded. If the customer is a consumer, he shall have the right to set off his liabilities in the event of our insolvency or for counterclaims which are legally connected with the consumer's liability and which have been established by a court or recognized by us.
10.2 The customer shall only be entitled to a right of retention if he is a consumer.

11) Warranty

11.1 The warranty period for our services and new goods is two years for consumers and six months for entrepreneurs. For used goods, including demonstration and exhibition models, the warranty period for consumers is one year (§ 9 KSchG), for entrepreneurs the warranty is excluded.

11.2 If the customer is an entrepreneur, we shall provide a warranty for defects in the goods or the work performed at our discretion by repair or replacement.

11.3 A defect does not exist if faults occur due to improper use or use contrary to the intended purpose. The manufacturer's instructions in particular must be observed for proper and intended use. The mandatory liability according to § 9a KSchG remains unaffected.

11.4 In any case, the customer shall lose his warranty claims if he himself or unauthorized third parties interfere with the goods or the work and/or carry out repairs or attempted repairs.
11.5 In the event of improvement or replacement, we may demand that the customer sends us the defective goods at his own risk. If the customer is a consumer, we shall bear the risk of the shipment and this shall only apply insofar as a return shipment is feasible.

11.6 The necessary costs of improvement or replacement, in particular shipping, labor, travel and material costs, shall be borne by the customer. This does not apply if the customer is a consumer (§ 8 KSchG).

11.7 If the customer is an entrepreneur, he is obliged to inspect the goods in the ordinary course of business after delivery or the work upon acceptance for any defects. The customer must notify us in writing of any defects found immediately, but at the latest within 14 days of handover/acceptance, otherwise the delivered goods and work services shall be deemed to have been accepted and no further claims for warranty, compensation for damages due to the defect itself or due to error regarding the absence of defects can be asserted. If the customer discovers defects at a later date, he shall also be obliged to notify us of these in writing immediately, but at the latest within 14 days of becoming aware of them or of the time at which he should have become aware of them with due care, otherwise he shall lose the aforementioned claims. Sections 377, 378 UGB shall apply.

11.8 If the customer is an entrepreneur, the statutory reversal of the burden of proof for the defectiveness of the goods / work performance upon handover/acceptance pursuant to Section 924 ABGB and the right of recourse pursuant to Section 933b ABGB shall be excluded.

11.9 The consumer is entitled to withhold a maximum of five percent of the gross price if he asserts justified warranty claims.

11.10. Unless otherwise agreed in writing, we do not provide our customers with a guarantee for our goods and services. Manufacturer warranties remain unaffected by this.

12) Compensation and liability

12.1 If we are liable for damage, we shall only be liable for intent and gross negligence. If the customer is a consumer, we shall also be liable for simple gross negligence. Any further liability is excluded.

12.2 We are expressly not liable for damage due to slight negligence; this also applies to damage to items accepted for processing. This does not apply to personal injury.

12.3 In particular, we are not liable for indirect damages.

12.4 We assume no liability for the timeliness, accuracy, completeness and content of the information provided.

12.5 We accept no liability for late delivery resulting from circumstances beyond our control.

12.6 A right of recourse to which the entrepreneurial customer is entitled in accordance with the provisions of the Product Liability Act is excluded.

12.7 The reversal of the burden of proof according to § 1298 ABGB is excluded. This does not apply if the customer is a consumer.

13) Shortening by more than half

The right to rescind the contract due to a reduction of more than half in accordance with § 934 ABGB (laesio enormis) is excluded. This does not apply if the customer is a consumer.

14) Place of performance and jurisdiction

14.1 The place of performance is the registered office of Thermowhite GmbH.

14.2 The place of jurisdiction for disputes arising from or in connection with the contract between the customer and us or with these General Terms and Conditions is the competent court for our registered office, with the exception of the mandatory statutory places of jurisdiction for consumers.

15) Choice of law

Austrian law shall apply exclusively, excluding the conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods. In the case of consumers, this choice of law shall apply with the exception of the mandatory provisions of the law of the consumer's habitual residence.

16) Severability clause

Should a provision in these General Terms and Conditions be or become invalid, this shall not affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible in economic and legal terms to the provision to be replaced.

Status: March 2018 - Typesetting and printing errors reserved