TERMS AND CONDITONS OF PURCHASE OF AUSTIN POWDER GMBH AND AUSTIN POWDER VERTRIEBSGESELLSCHAFT MBH (hereinafter referred to as “AUSTIN”)

I. General Provisions

1. These Terms and Conditions of Purchase shall, without exception, be an integral part of all business relationships in which AUSTIN is a buyer, customer or otherwise the recipient of a delivery or performance; they form the basis for each purchase, contract or order made by AUSTIN. Upon acceptance of the contract and/or order by the seller and/or contractor (hereinafter referred to as “contractor”) by means of an order confirmation pursuant to para. 3 or by means of de facto acceptance by performing the delivery or service, any general terms and conditions of the contractor shall cease to be in force and AUSTIN hereby expressly objects to such general terms and conditions. Silence on the part of AUSTIN shall not be deemed its consent. Regulations deviating from these Terms and Conditions – including without being limited to general terms and conditions of the contractor – as well as supplements shall only become a part of the contract if this has been expressly confirmed in writing by AUSTIN, even if the contractor declares that it only intends to perform a delivery or service at its own terms and conditions. In the case of inconsistencies between the individual parts of the contract entered into between AUSTIN and the contractor they shall apply in the following order: (i) the order; (ii) the Annexes forming an integral part of the order, such as a negotiation record; (iii) these Terms and Conditions.

2. Neither the order nor these Terms and Conditions restrict any further statutory claims of AUSTIN.

3. An order shall only be entered into after AUSTIN has made a written order or requested delivery under a call order. Verbal promises made by employees of AUSTIN shall only become binding if confirmed in writing by AUSTIN. Every contract and the exclusive application of these Terms and Conditions of Purchase shall be confirmed to AUSTIN by the contractor in writing and without delay. If no such order confirmation is made within 8 days, AUSTIN shall no longer be bound by its order and/or contract.

4. Unless otherwise agreed upon, contracts for the performance of continuing obligations may be terminated in writing by either party with effect as of the last day of each month upon a notice period of 3 months.

5. Offers, cost estimates, visits, samplings, consultations and plans of the contractor shall always be free of charge and non-binding for AUSTIN, even if they have been prepared and/or submitted at the request of AUSTIN.

II. Scope of Services and Warranty

1. The contractor is obligated to take out itself, at its own expense, all insurance policies (for instance business liability insurance and financial loss liability insurance) required for the scope of its deliveries and services (to the extent reasonable and necessary and for an adequate sum insured). Taking out these or other insurance policies shall in no way limit the obligations and liability on the part of the contractor.

2. AUSTIN does not accept any retention of title on the part of the contractor, including extended retention of title. All goods shall become the unrestricted property of AUSTIN upon delivery to and/or acceptance by AUSTIN.

3. The scope of services shall, in general, result from the order and from all additional agreements pursuant to the contract. Within the scope of its deliveries and services, the contractor shall perform all deliveries and services required to achieve the agreed outcome, even if these deliveries or services are not included or mentioned in the inquiry made by AUSTIN, the technical documentation, the order or other documents of AUSTIN. The performance has to meet the agreed specifications and comply with all relevant laws, regulations, guidelines and standards including, without being limited to, those referring to technical safety, occupational health and safety, environmental protection and fire safety. Any proof of origin requested by AUSTIN shall include all necessary information and shall be provided by the contractor promptly, free of charge and duly signed. The same applies analogously to proof under value-added-tax law for deliveries abroad or within the European Union. The contractor shall inform AUSTIN without delay if a delivery or a part thereof is subject to export restrictions under Austrian law or any other law.

4. The signing of the delivery note by an employee of AUSTIN shall not be a confirmation and/or proof of proper delivery and/or freedom from defects but merely a confirmation of acceptance by AUSTIN.

5. The obligation to notify any defects pursuant to secs. 377 et seq. of the (Austrian) “UGB” (Commercial Code) is hereby expressly waived. AUSTIN shall inspect the goods received exclusively as to apparent defects as well as externally visible deviations in identity and quality. AUSTIN shall notify the contractor of such defects immediately. In this respect, the contractor waives any objections on ground of belated notification of defects. Defects may be notified at any time until the end of the warranty period. AUSTIN shall notify defects to the contractor in writing without delay as soon as they have been detected in the ordinary course of business. If defects have been ascertained, AUSTIN shall be entitled to return the entire delivery.

6. The contractor warrants in particular the complete and defect-free delivery and service provision as ordered, including without being limited to all properties that are usually assumed, might have been promised, have been mentioned in public statements and correspond to samples or specimens, compliance with all relevant provisions, both provided for by law or by public authorities, that are applicable for deliveries and services at the place of destination or for the sales markets indicated by AUSTIN, the quality of the goods, and the use of proper materials. The warranty period is 24 months from contractual delivery and/or service provision and/or putting into operation. In the case of warranty, AUSTIN shall be entitled to determine the type of warranty (rectification, exchange, reduction in price or rescission of contract). In urgent cases, AUSTIN shall be entitled to procure the required substitute goods/substitute items or other services itself at the expense of the contractor (substitute performance). A new warranty shall apply to any substitute delivery in the same manner as the warranty applied to the main delivery.

7. If AUSTIN or its customers suffer any damage due to a defective delivery or service, the contractor shall be obliged to compensate them for such damage. The contractor shall also be liable for consequential damage resulting from the use of its goods or its works. The contractor shall indemnify and hold harmless AUSTIN against all claims raised by third parties in connection with errors or non-contractual performance of its deliveries or services. The contractor shall also reimburse expenses incurred by the customers of AUSTIN or by AUSTIN itself, for measures taken ahead of or in connection with the events giving rise to liability for defects, in order to prevent, avert and mitigate the damage at an early stage (e.g. product recalls). The contractor shall also reimburse all expenses which AUSTIN is obliged to bear for its customers, either by law or by contract, and which can be traced back to defects of the delivery or the service received by AUSTIN. AUSTIN may assert such claims no later than 5 years from delivery or service provision.

8. Furthermore, the contractor shall fully indemnify and hold harmless AUSTIN against all claims resulting from any non-compliance with these Terms and Conditions and the obligations arising therefrom for AUSTIN. In addition, the statutory provisions on warranty and liability shall apply, which may only be deviated from in writing by mutual consent. The contractor shall also be liable that the goods delivered and/or services performed by it do not infringe any patents, trademarks, or similar rights of third parties and shall indemnify and hold harmless AUSTIN in this connection (including in respect of legal costs).

9. The contractor shall be liable that all products delivered by it have been produced according to the state of the technology at the time of production and that all permits for the use of such products by AUSTIN have been obtained.

10. The risk shall be deemed transferred upon due receipt and acceptance of the product and/or the service by AUSTIN, in the case of machinery and plants as well as software only upon a faultless test run by AUSTIN.

11. The place of performance for the contractor shall be the warehouse and/or plant location mentioned by AUSTIN in the order and/or contract.

12. The goods shall be packaged in a customary, expedient and flawless manner. If the packaging costs are borne by AUSTIN, only cost prices shall be charged. The Contractor undertakes to bear the costs of disposal of the packaging or to take back the packaging material free of charge.

13. The contractor shall make sure that it will be able to provide AUSTIN with the delivered items or parts thereof as well as spare parts at reasonable terms and conditions for a period of 10 years after termination of the delivery relationship.

14. AUSTIN shall not assume any liability or joint liability for its participation in the delivery of goods or the provision of services, including without limitation, accompanying quality monitoring, as well as the handing over of provisions and documentation to the contractor; the contractor waives its right to claim any contributory fault in this respect.

III. Delivery Dates

1. The periods of delivery and/or service provision agreed upon and/or indicated in the order/contract shall be observed strictly. Any extension or shortening shall require the written consent of AUSTIN. In the event that the periods of delivery and/or service provision are exceeded, AUSTIN shall be entitled, after a reasonable grace period set by AUSTIN in writing has been expired without appropriate action on the part of the contractor, either to a substitute delivery and/or a substitute performance at the expense of the contractor or to the rescission of the agreement and, in any case, to the assertion of claims for damages. As soon as it is recognizable for the contractor that the delivery and/or provision of services will be delayed, the contactor shall inform AUSTIN thereof without delay, indicating the expected duration of the delay. If there are substantiated indications that difficulties in meeting the performance date or delivery problems or a lack of cover for liability and warranty claims are to be expected, AUSTIN shall be entitled to withdraw, at any time, from contracts entered into and orders made. This shall apply in particular if the economic situation of the contractor deteriorates considerably or insolvency proceedings regarding the assets of the contractor are dismissed for lack of funds.

2. If acceptance of the product and/or service is impeded or delayed or even rendered impossible by circumstances beyond the influence of AUSTIN, e.g. events of force majeure, AUSTIN shall only be obligated to reimburse the production costs.

3. Partial deliveries shall only be admissible if agreed upon with AUSTIN in advance. AUSTIN is entitled to refuse acceptance of goods that are delivered prior to the delivery date indicated in the order and, at the expense and risk of the contractor, to return the goods delivered early to the contractor or store them at a third party’s premises.

4. AUSTIN is entitled, without having to prove that damage has occurred, to charge 5% of the total price of the order for each commenced week of the delay in delivery as a contractual penalty. The right to assert any additional damages is expressly reserved, even in the event that a delayed partial delivery has been accepted by AUSTIN without any reservations.

IV. Terms of Payment

1. The prices indicated by the contractor are fixed prices, which are not subject to any kind of escalation clause or price changes, free place of receipt indicated in the order and/or contract, including packaging, freight, insurance, customs, charges and all duties but exclusive of value added tax. The contractor bears the shipping risk in all cases. Any deviation therefrom, including subsequent changes in price and quantity, shall require the written approval of AUSTIN.

2. A packing slip and a delivery note indicating the order data of AUSTIN, such as supplier number, order number, item number and item designation, shall be added to all shipments.

3. Irrespective of the delivery address, the original invoices shall be sent to the corporate seat of AUSTIN (or via e-mail to erechnung@austinpowder.at). To guarantee contractual implementation as well as claims for warranty, guaranty or damages and all other claims of AUSTIN, AUSTIN shall, in the absence of any agreement to the contrary, be entitled to make a retention of 10% of the gross invoiced amount for a period of 30 days beyond the warranty and/or guarantee period provided for by contract (or by law whichever period is longer). The contractor is entitled to have the retention released against presentation of an irrevocable, abstract bank guarantee payable upon first demand, issued by a large Austrian bank, for the amount retained, which bank guarantee shall have a maturity of one month beyond the warranty or guarantee period. AUSTIN has the right, to keep the retention or the bank guarantee for as long as any dispute over warranty or guarantee claims has been settled; in such case, the bank guarantee has to be extended accordingly. The invoice shall be paid – notwithstanding any agreements to the contrary and taking account of the retention – within 14 days with a cash discount of 3% or within 30 days net. The agreed terms of payment shall begin to run upon the date of receipt of the invoice. Payment shall be deemed made upon issuing a payment instruction to the bank.

4. Should the invoiced goods and/or services be delivered or provided after receipt of the corresponding invoice, the period of payment shall only start to run on the date of delivery of the goods and/or acceptance of the services by AUSTIN.

5. AUSTIN shall make a down payment as agreed in the order only upon presentation of an invoice for such down payment and provided that all other prerequisites for full repayment security have been met by means of an irrevocable, abstract bank guarantee payable on first demand issued by a bank accepted by AUSTIN to be provided at the expense of the contractor.

6. AUSTIN shall make a partial payment as agreed in the order only against proof that the delivery or service relating to such partial payment has been provided by the contractor as agreed in the contract and has been received or accepted, and upon presentation of an auditable invoice for such partial payment.

7. The final invoice is to be designated as such if partial deliveries have been made before. Any partial payments already made have to be indicated in the final invoice.

8. The contractor may exercise its right to rescind the agreement including, without limitation, in the event of default on the part of AUSTIN only if the contractor has met all of its obligations and/or complied with the provisions of the agreement. AUSTIN shall only be deemed to be in default of performance after a written reminder has been made and a grace period of at least four weeks starting from receipt of the reminder, in which the grace period has been set, by AUSTIN. AUSTIN shall only be liable for damage incurred as a consequence of intent or gross negligence, which shall be proven by the contractor; AUSTIN shall be liable to pay interest on arrears in the amount of 2% above the base rate.

9. AUSTIN is entitled to retain payments because of warranty claims or other claims. AUSTIN is entitled to set off accounts receivable, for instance due to warranty claims, if any, or other claims against the contractor against the claims asserted by the contractor, even if the account receivable of AUSTIN has not yet become due. The contractor is not entitled to offset its own accounts receivable against accounts receivable of AUSTIN.

10. Payment by AUSTIN means neither the acknowledgement that the delivery and/or service has been performed properly or the invoice has been issued properly nor that AUSTIN waives any claims it may be entitled to on grounds of defects in performance due to warranty, guarantee or damages.

V. Data Protection and Declaration of Consent to Data Processing

Information of relevance under data protection law, including without being limited to personal data (such as name/company name, date of birth/registration number, address, data of the contact persons, account data) of which AUSTIN or an affiliated company obtains knowledge in the course of its business operations, the protection of which matters to AUSTIN, shall be processed exclusively in compliance with the respective applicable data protection provisions and shall be used exclusively to meet the respective contractual and statutory obligations of AUSTIN in connection with the business relationship with the contractor. No transfer of data to third parties (companies not affiliated with AUSTIN) shall take place except for account data in the course of the settlement of payments to the respective credit institutions and to the tax advisor or other consultants subject to a confidentiality obligation for the purpose of fulfilling their duties. The data shall be stored until the end of the storage period required under tax law or until the end of the product liability period. The contractor hereby gives its consent (which may be revoked at any time) to such data processing and is aware of its right of access to its personal data, right to rectification, right to erasure, right to restriction, right to data portability, right to withdraw the consent and right to object to processing.

VI. Final Provisions

1. Any advertising and publications about orders of AUSTIN, as well as any adding of AUSTIN to the list of credentials of the contractor, shall require the prior written approval of AUSTIN.

2. The contractor may transfer or pledge, either in full or in part, its rights under the contractual relationship with AUSTIN to third parties exclusively with the prior written approval of AUSTIN.

3. Contracts placed must not be passed on to subcontractors, neither in full nor in part, without the approval of AUSTIN.

4. The contractor hereby irrevocably undertakes to keep secret all company and business secrets that have been made accessible or disclosed to it by AUSTIN or that the contractor has otherwise obtained knowledge of in the course of or in connection with the business relationship or contact with AUSTIN, as well as all commercial and technical information and documents that are not publicly known, and not to make them accessible to third parties in any way whatsoever without the approval of AUSTIN and not to use them for any purposes other than the performance of the deliveries and services ordered. These obligations are to be imposed on any subcontractors as well. This secrecy obligation on the part of the contractor shall remain in force for a period of five years after termination of the business relationship with AUSTIN.

5. (Technical) documents, drafts, plans, sketches, illustrations, drawings, models, as well as other means of production and specimens handed over to the contractor by AUSTIN for the purposes of carrying out its order shall remain the property of AUSTIN and shall be returned in proper condition upon completion of the order. Any passing on, even if only for the purpose of inspection by third parties, shall be expressly prohibited.

6. Should any provision of these Terms and Conditions or of the remaining agreement between AUSTIN and the contractor be or become ineffective, invalid, or unenforceable, this shall not affect the effectiveness, validity, or enforceability of the remaining provisions. In the case of ineffectiveness, invalidity, or unenforceability a provision that comes as close a possible to the economic result of such provision shall apply.

7. Amendments and supplements to these Terms and Conditions and the remaining agreement between AUSTIN and the Contractor shall be made in writing. This requirement of written form may only be deviated from in writing.

8. The entire business relationship between AUSTIN and the contractor shall be subject to Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the conflict of law provisions. For legal disputes about the coming into existence or the legal effect of these Terms and Conditions and for contracts between AUSTIN and the contractor or disputes regarding their legal consequences, the exclusive jurisdiction of the court having subject matter jurisdiction at the corporate seat of AUSTIN is agreed upon. AUSTIN shall, however, be entitled to sue in the court at the corporate seat of the contractor.

The English translation of these Terms and Conditions of Purchase Is provided solely for convenience. Only the original German text is legally binding.

TERMS AND CONDITIONS OF SALE AND DELIVERY OF AUSTIN POWDER GMBH AND AUSTIN POWDER VERTRIEBSGESELLSCHAFT MBH (hereinafter referred to as “AUSTIN”)

I. Scope of Application of these Terms and Conditions

Deliveries, services (for instance technical services, blasting advice, the execution of blasting operations, logistics for construction sites above and below ground, and assistance during blasting operations) including proposals, consultations and other ancillary services, offers, unilateral declarations of AUSTIN and all agreements (the entire business relationship) between AUSTIN and its customers shall be exclusively subject to these Terms and Conditions (for the purposes of these Terms and Conditions, the term deliveries also includes services). Contracts, assurances, supplements, collateral agreements, deviating terms, and conditions to the contrary and changes including, without limitation, in the form of cancellations or conditions imposed by the customer, as well as verbal declarations, information and recommendations on the part of AUSTIN shall only be binding and valid if expressly recognized in writing by AUSTIN. Silence on the part of AUSTIN shall not be deemed its consent. These Terms and Conditions shall also apply to legal transactions with consumers, unless this is prevented by conflicting mandatory statutory provisions.

II. Offer and Entry into Contract

1. All offers made by AUSTIN are subject to confirmation unless they are expressly referred to as binding offers. Offers and orders by the customer may be accepted by AUSTIN within four weeks exclusively in writing or by means of direct delivery and/or service provision (de facto acceptance). The Incoterms as amended from time to time shall apply to all transactions entered into with AUSTIN.

2. AUSTIN will prepare a cost estimate to the best of its professional knowledge, but cannot warrant its correctness. Should the costs increase by more than 15% after the contract has been placed, AUSTIN shall inform the customer without delay. If an increase in costs is unavoidable and does not exceed 15%, no separate notification will be required and the extra costs may be invoiced without any further action being necessary. Unless otherwise agreed upon, order changes or additional orders may be invoiced at reasonable prices. As a rule, all cost estimates are subject to a charge.

3. Offers made by AUSTIN, together with all appurtenant annexes such as plans, sketches, drawings, technical documents, prototypes, blasting schemes and specimens shall remain the property of AUSTIN. The customer shall, in case no contract is placed with AUSTIN, return all such documents to AUSTIN without delay. All such implementation documents shall remain the intellectual property of AUSTIN and shall be subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. AUSTIN shall furthermore reserve all rights to proposals of improvements, ideas and suggested solutions, irrespective of the contract placed by the customer. The customer shall not pass on the content of offers, declarations, etc. made by AUSTIN to third parties without the approval of AUSTIN.

4. Application-relevant information and recommendations, suggestions and/or advice, blasting schemes, plans, sketches, technical documents, specimens and drawings of AUSTIN are non-binding and shall not release the customer from its obligation to convince itself of the properties of the goods and their appropriateness for the intended purpose, the expediency of the selected use and the required quantities of material and to examine the goods delivered by AUSTIN regarding their fitness for the intended processes and purposes. AUSTIN shall not be obligated to examine the documents provided by the customer for their correctness and completeness. Blasting suggestions shall be prepared exclusively on the basis of the information provided by the customer; they are only a non- binding service of assistance on the part of AUSTIN which does not give rise to any liability. The customer shall have the suggestions and recommendations of AUSTIN examined for their correctness and feasibility by its own authorized blasters. The customer may not assert any claims against AUSTIN on the basis of such suggestions and recommendations or the implementation thereof. When using the goods delivered by AUSTIN, the customer shall comply with the applicable provisions (for instance the [Austrian] “SprengarbeitenVO” [Regulation on Blasting Operations], the [Austrian] “SprengmittellagerVO” [Regulation on the Storage of Firing Agents] and the [Austrian] ”SprengmittelVO” [Regulation on Firing Agents]) and with all requirements imposed by public authorities; it shall be responsible for obtaining the relevant permits. AUSTIN shall not be responsible for the proper use of the goods delivered by it.

5. AUSTIN shall at all times be entitled to use subcontractors.

III. Prices and Terms of Payment

1. Unless otherwise agreed upon in writing, all prices shall be in euros and valid ex works and/or ex warehouse exclusive of packaging, value added tax, duties, customs and charges.

2. In the event that there is a period of more than 6 months between the entry into the agreement and the delivery of the goods and/or the provision of the service, AUSTIN shall reserve the right to increase the price to a reasonable extent including, without limitation, on the basis of changes in costs of material, power, or wages. The customer hereby expressly agrees that AUSTIN may also choose to issue and send invoices to it in electronic form.

3. Unless otherwise agreed upon, invoices issued by AUSTIN shall be paid by the customer upon acceptance of the goods without any deductions. Sec. 1333 of the (Austrian) “ABGB” (General Civil Code) and sec. 456 of the (Austrian) “UGB” (Commercial Code) (interest on arrears, bearing of costs in case of default) shall apply. In the case of delay in payment on the part of the customer, the customer undertakes to reimburse AUSTIN for any out-of- court pre-litigation costs incurred for collection. In the case of default on the part of the customer, AUSTIN may rescind the agreement after having set a reasonable grace period of not more than 14 days and demand surrender of the goods delivered under retention of title. If partial payments have been agreed upon, default on payment occurs even if only a single partial payment is not paid in time or not paid in full. In case of such default on payment, the entire remaining amount outstanding shall become due for payment immediately. In the case of default on payment, AUSTIN also has the right to take into custody the goods delivered under retention of title without having to rescind the purchase agreement until full payment of the outstanding amount, including ancillary costs, has been received. Payments received shall be credited towards the oldest outstanding receivable, starting with costs and other ancillary charges, followed by interest and then capital. Any dedications to the contrary of the payments shall be without effect. Any setoff or retention by the customer in connection with alleged counterclaims shall be excluded.

4. AUSTIN shall be entitled to set off its own accounts receivable against those of the customer. If the accounts receivable have different due dates, the accounts receivable of AUSTIN shall become due, at the latest, on their due date and shall be settled as of such value date. Moreover, all accounts receivable shall become due and payable immediately if the payment terms or deadlines are not met or if circumstances become known which AUSTIN reasonably deems to be able to substantially reduce the creditworthiness of the customer and/or to seriously jeopardize the realization of claims for payment (for instance substantial reduction or complete cancellation of insurance limits by renowned insurance companies). In such cases, AUSTIN shall also be entitled to make any further deliveries contingent on an advance payment or the provision of other reasonable and acceptable security and/or to rescind the agreement (or, if applicable, part thereof) after having set a reasonable grace period, and to claim damages, in particular on grounds of non- performance of the contractual obligation of acceptance.

IV. Return of Goods

AUSTIN shall neither take back nor exchange any delivered goods without its prior written approval. All returns of goods shall be made at the expense and risk of the customer.

V. Retention of Title

Until full payment of the purchase price, interest, and ancillary charges, the goods shall remain the property of AUSTIN. The customer shall inform AUSTIN without delay of any distraint or other legal steps taken or claims made by third parties regarding the goods. The resale, pledging or assignment as security of the goods under retention of title shall require the express written approval of AUSTIN and shall be admissible only against cash payment or transfer of the retention of title to the acquirer.

VI. Delivered Items and Terms of Delivery

1. The subject matter, quantity and quality of the goods delivered and/or services provided by AUSTIN are defined by the respective contractual agreements with the customer. Unless otherwise agreed upon, production-related deviations in terms of measurements, weights, technical features and specifications are admissible in any case if they are within the tolerance limits customary within the industry and/or permitted by the applicable technical standards (such as EN, DIN or ÖNORM standards). Unless otherwise agreed upon by contract, AUSTIN shall not promise any usability of the goods delivered and/or services provided for specific purposes and the customer shall bear the full risk of use and suitability for the intended purposes even if the customer has informed AUSTIN of such purposes.

2. The place of performance for AUSTIN as the seller shall be AUSTIN’s warehouse and/or plant location. Adequate partial deliveries as well as deviations from orders of up to +/- 10% shall be admissible. The goods shall be packaged by AUSTIN in accordance with statutory provisions. Packaging material and, where applicable, also waste products (such as detonators and shells) shall be taken back by AUSTIN, which is an ARA (Altstoff Recycling Austria) license partner, for an adequate fee (provided that they are in their original packaging compliant with the ADR treaty). AUSTIN is entitled to charge the customer for any disposal costs incurred.

3. Unless expressly agreed upon otherwise, AUSTIN does not engage in any transactions with a fixed delivery date. The dates and periods for delivery and/or service provision are non-binding guidelines which – provided that all details have been clarified – shall begin to run on the date of order confirmation by AUSTIN. In the event that the performance by AUSTIN depends on the supply by a pre-supplier AUSTIN shall be entitled to withdraw from the contract, without this giving rise to any claims on the part of the customer, if the pre-supplier fails to make delivery.

4. AUSTIN’s obligation to deliver shall also be deemed fulfilled if preparedness to dispatch or hand over the goods was notified in a timely manner and the goods were not dispatched in time without the fault of AUSTIN. The customer is obliged to accept the goods delivered and services provided by AUSTIN. If the customer is in default regarding acceptance or if, in the case of call orders, no call is made within 14 calendar days after the agreed call date, AUSTIN shall be entitled to put the goods in storage in whatsoever manner at the risk and expense of the customer. From this point in time onwards, the goods shall be deemed delivered in all aspects in accordance with the agreement and the risk shall pass to the customer, unless it has already been transferred before that point in time.

5. The customer may exercise its right to rescind the agreement including, without limitation, in the event of default on the part of AUSTIN, only if it has met all of its obligations and/or complied with the provisions of the agreement. AUSTIN shall only be deemed to be in default of performance after a written reminder has been made, setting a grace period of at least four weeks starting from receipt of such reminder by AUSTIN. AUSTIN shall only be liable for damage incurred as a consequence of intent or gross negligence, which shall be proven by the customer. The customer’s right to rescind refers exclusively to the part of the delivery and/or service provision in respect of which AUSTIN is in default.

6. The customer shall bear the risk of damage or loss of the goods starting from the time the goods were handed over to the forwarding agent, freight carrier or any other person or institution designated to transport the goods even if the transport is included in the price and irrespective of by whom the transport is to be carried out or to be organized and irrespective of at whose expense the transport is carried out. This shall also apply in case of deliveries free customer’s domicile. Unless otherwise agreed upon, AUSTIN shall choose the packaging and type of shipment using its best judgment. To the extent permitted by law, AUSTIN shall not assume any liability for the choice of the means of transport and/or the shipper. At the request and expense of the customer, AUSTIN may take out transport insurance suitable for the respective purpose in the name of the customer. Therefore, the goods shall always be dispatched at the risk of the customer, which gives its consent to any proper type of dispatching and transporting. The goods shall be deemed to have been in a proper state when dispatched. Damage to the goods shall be deemed incurred during transport until the contrary is proven.

7. If the customer withdraws from the agreement in an unjustified manner prior to the start of production, it shall pay lump-sum damages in the amount of 10% of the order sum plus all cash expenses already made, if any, to AUSTIN which lump-sum shall not be subject to the judge’s right to reduce the amount; the assertion of any additional damages shall not be excluded. If the customer withdraws from the agreement after the provision of the service or the production has started, AUSTIN shall be entitled to demand full compensation.

8. The customer undertakes, in connection with the transfer of deliveries and any services that may be related thereto, to third parties, to comply with all national and international export control provisions, in particular those under Community law. Performance of the contract by AUSTIN is therefore subject to the express reservation that any approvals required under export control law are obtained and that there are no other impediments based on national or international, in particular Community-wide, export control provisions preventing the performance.

VII. Force Majeure and Other Impediments to Delivery

Events of force majeure and other circumstances beyond the influence of AUSTIN, such as disruptions of operations or traffic, difficulties regarding the supply with power, raw materials, combustibles, and auxiliary materials, viruses and other types of third-party interference with the IT system of AUSTIN that occur even though protection measures have been taken with customary due diligence, other impediments regarding production and delivery, strike, lockout and other circumstances such as import and export bans imposed after entry into the agreement, permits that cannot be obtained in time, etc. that significantly impede the delivery or service provision or render it impossible, regardless of whether they occur at AUSTIN or at one of its sub-suppliers, shall exclude any claims for damages on the part of the customer and shall entitle AUSTIN to either extend the delivery period or to rescind the agreement in full or in part. AUSTIN shall, however, inform the customer without delay of the occurrence and termination of any such impediment to delivery.

VIII. Duty to Examine the Goods and Make an Immediate Complaint, Warranty

1. The customer shall examine the deliveries made and services provided by AUSTIN immediately upon receipt and inform AUSTIN in detail of any complaints including, without limitation, deviations from the order, in writing and without delay. This shall also apply to material defects, short deliveries, or deliveries of goods different from those ordered. Hidden defects and other deviations from the order that are not immediately recognizable shall be asserted in court within three months. The resale or use of the goods by the customer shall be deemed its acceptance that the goods are free of defects. In the event of violation of the obligation to examine the goods and make an immediate complaint and/or in the event of assertion after more than three months after delivery, any statutory rights to alter the legal relationship and any claims for damages of the customer arising from a deviation of the delivery from the order shall be excluded.

2. Notwithstanding justified warranty claims, the goods shall be deemed delivered in accordance with the contract upon delivery and/or the service shall be deemed provided in accordance with the contract upon service provision. The customer always bears the burden of proof that any defects already existed at the time of delivery. The warranty period is three months. Statutory warranty provisions shall only apply to the extent their application does not result in an extension of the obligations and liability of AUSTIN as laid down in these Terms and Conditions. The warranty claims of the customer shall be limited, at the selection of AUSTIN, to exchange, rectification or addition of the deficiency. If this is not possible, the customer shall only be entitled to rescind the agreement. Reductions in price and any exceeding warranty claims shall be expressly excluded. If the customer does not give AUSTIN any opportunity to verify the existence of the defect and if the customer fails to immediately make available the goods complained about or samples thereof, in particular after having been requested to do so, all claims arising from such defects shall be forfeited.

IX. Liability, Product Liability

1. Unless expressly agreed otherwise, AUSTIN shall, in particular, not assume any warranty or other liability for (i) any properties other than the ones expressly agreed upon and (ii) for a specific usability of the goods delivered and/or services provided for specific intended purposes (the risk of use and suitability lies with the customer). As a rule, technical consultations by AUSTIN constitute a service of informative character and therefore merely serve the purpose of technical orientation. Unless the content discussed at such consultations is not expressly declared to be a part of the agreement, no claims whatsoever may be derived therefrom.

2. The goods delivered by AUSTIN only provide the safety that can be expected on the basis of the provisions for admission, instructions of use, provisions of AUSTIN regarding the treatment of the goods, and other information provided. Any liability on the part of AUSTIN shall be excluded if the goods are not stored or used in accordance with the pertinent provisions, the state of the technology and the delivery description provided as well as in the case of changes to the goods that were not made by AUSTIN.

3. All claims for damages of the customer against AUSTIN or its vicarious agents on whatsoever ground, including, without limitation, on grounds of non-performance, defective performance, default, fault prior or upon entry into the agreement, illegal action or any other cause in law whatsoever, including, without being limited to, consequential damage caused by a defective product, indirect or direct damage and/or consequential damage (in particular caused by loss of production and/or interruption of operations) as well as actual harm and lost profits, for savings not made or interest lost, damage from third-party claims and for the loss of data or programs and their restoration and for the compensation of merely financial loss shall be excluded unless they are based on intent or gross negligence on the part of AUSTIN or its vicarious agents. The burden of proof that they acted with gross negligence or intent shall lie with the customer. If a contractual penalty has been agreed upon in any of such cases, such penalty shall be subject to the judge’s right to reduce the amount. Asserting any damages in excess of such penalty shall be excluded. The customer waives any claims to recourse that it might have against AUSTIN on the basis of its own liability. Claims for damages and recourse shall be asserted against AUSTIN in court within three months as otherwise they shall forfeit; liability on the part of AUSTIN thus becomes time-barred within three months from the date the customer obtains knowledge of the damage caused and the party having caused the damage. The customer shall indemnify and hold harmless AUSTIN against all claims by third parties that may be asserted against AUSTIN on grounds of warranty or damages in connection with the goods delivered to, or the services provided for, the customer by AUSTIN. The customer waives all claims for damages under the (Austrian) “Produkthaftungsgesetz” (Product Liability Act) for property damage that it incurs as an entrepreneur. It furthermore waives all claims for recourse that it has against AUSTIN on the basis of product liability or other no-fault liability. This does not affect any mandatory statutory claims.

4. By no means does the fulfillment or acknowledgement of claims by AUSTIN, for instance warranty claims, constitute an acknowledgement of other claims of whatsoever kind including, without being limited to, claims for damages.

5. All claims for damages of the customer against AUSTIN or its vicarious agents shall be limited to the amounts actually refunded to AUSTIN by its third-party liability insurance company or under other insurance policies or by way of recourse from liable third parties. AUSTIN shall not accept any lump-sum payments for complaints, damage caused and/or the sorting out of defective products.

6. The customer states to be aware of the true value of the goods and/or services; it hereby waives any avoidance of the agreement on grounds of laesio enormis and all claims for unjustified enrichment. The customer furthermore waives its right to avoid any agreement with AUSTIN on grounds of error.

X. Data Protection and Declaration of Consent to Data Processing

Information of relevance under data protection law, including without being limited to personal data (such as name/company name, date of birth/registration number, address, data of the contact persons, account data) of which AUSTIN or an affiliated company obtains knowledge in the course of its business operations, the protection of which matters to AUSTIN, shall be processed exclusively in compliance with the respective applicable data protection provisions and shall be used exclusively to meet the respective contractual and statutory obligations of AUSTIN in connection with the business relationship with the customer. No transfer of data to third parties (companies not affiliated with AUSTIN) shall take place except for account data in the course of the settlement of payments to the respective credit institutions, to the commissioned transport companies, and to the tax advisor or other consultants subject to a confidentiality obligation for the purpose of fulfilling their duties. The data shall be stored until the end of the storage period required under tax law or until the end of the product liability period. The customer hereby gives its consent (which may be revoked at any time) to such data processing and is aware of its right of access to its personal data, right to rectification, right to erasure, right to restriction, right to data portability, right to withdraw the consent and right to object to processing.

XI. Final Provisions

1. The customer hereby irrevocably undertakes to keep secret all company and business secrets that have been made accessible or disclosed to it by AUSTIN or that the customer has otherwise obtained knowledge of in the course of or in connection with the business relationship or contact with AUSTIN, as well as all commercial and technical information and documents that are not publicly known, and not to make them accessible to third parties in any way whatsoever without the approval of AUSTIN. This secrecy obligation on the part of the customer shall remain in force for a period of five years after termination of the business relationship with AUSTIN.

2. The customer may transfer or pledge, either in full or in part, its rights under the contractual relationship with AUSTIN to third parties exclusively with the prior written approval of AUSTIN (which must not be unreasonably withheld).

3. Should any provision of these Terms and Conditions or of the remaining agreement between AUSTIN and the customer be or become ineffective, invalid or unenforceable, this shall not affect the effectiveness, validity or enforceability of the remaining provisions. In the case of ineffectiveness, invalidity or unenforceability a provision that comes as close a possible to the economic result of such provision shall apply.

4. Amendments and supplements to these Terms and Conditions and the remaining agreement between AUSTIN and the customer shall be made in writing. This requirement of written form may only be deviated from in writing.

5. The place of performance for payments and service provision shall be St. Lambrecht, Austria.

6. The entire business relationship between AUSTIN and the customer shall be subject to Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the conflict of law provisions. For legal disputes about the coming into existence or the legal effect of these Terms and Conditions and for contracts between AUSTIN and the customer or disputes regarding their legal consequences, the exclusive jurisdiction of the court having subject matter jurisdiction at the corporate seat of AUSTIN is agreed upon. AUSTIN shall, however, be entitled to sue in the court at the corporate seat of the customer. The English translation of these Terms and Conditions of Sale and Delivery is provided solely for convenience. Only the original German text is legally binding.