General Sales and Delivery Terms and Conditions

Ocolul Silvic Lignum S.R.L.

with seat in Str. Energiei, Nr. 415, Darmanesti, Cod 605300, Kreis Bacau, Rumänien

1. Scope of application

1.1 These general terms and conditions apply to current and future business relations of OCOLUL SILVIC LIG-NUMS.R.L., including any of its branches and sites, (hereinafter in short: ‘LIGNUM’) with businesses (in the meaning of the consumer protection laws; hereinafter in short: ‘Customer’) for the supply of goods and services by LIGNUM, including pre-contractual discussions and information. The relevant version valid at the time of the contract, or the version valid at the time of establishing contact, if a contract is not con-cluded, shall apply.

1.2 Deviating or supplementary general terms and conditions of the Customer shall, even if known to LIGNUM, not apply unless LIGNUM explicitly consents in writing to their applicability.

2. Offers, conclusion of contract,
content of performance obligation, conversation recording

2.1 Offers by LIGNUM are non-binding and subject to change without notice. Contractual declarations by LIGNUM, as well as any amendments and supplements thereto, are not binding until explicitly confirmed in writing or per email or actually performed by LIGNUM. LIGNUM shall be entitled to transmit documents relevant to the order of the Customer via e-mail or in any other electronic form. All transmissions to any e-mail-address or other electronic address advised or used by the Customer shall be deemed delivered to the Customer upon mailing. The Customer is obligated to use the technical means to receive electronic documents and he is responsible to secure the integrity of the content and the legibility of electronic documents.

2.2 Product and service characteristics (technical specifications), including suitability for specific uses, as well as standards (samples, models, advertising statements) are only binding, if explicitly agreed in writing. Nevertheless, LIGNUM reserves the right to technical and other modifications. onditions of the Customer shall, even if known to LIGNUM, not apply unless LIGNUM explicitly consents in writing to their applicability.

2.3 LIGNUM is entitled to refuse or reduce (further) deliveries – for example after an examination of the creditworthiness of the Customer or due to lack of availability of goods and services – without incurring any liability.

2.4 LIGNUM is entitled to automatically record and store all conversations with customers to prove the content of conversations in complaints cases as well as for internal quality assurance and training. The Customer can revoke this consent at any time.

3. Prices

3.1 The prices of LIGNUM are subject to change without notice and are understood – unless explicitly agreed otherwise in writing (in particular by way of INCOTERMS) – as immediately payable with no cash discount, excluding VAT, for deliveries ex works, and also excluding packaging, loading, transport, insurance and other incidental expenses, such as taxes, customs duties and fees; such incidental expenses will be charged in addition to the price.

3.2 Deductions granted to the Customer (cash or sales discounts, refunds etc.) and other terms more favorable for the Customer as compared to these general terms and conditions shall not apply in case of payment defaults, other breaches of contract or insolvency of the Customer.

3.3 Goods and services supplied after a period of six weeks starting from the order confirmation (e.g. successive deliveries, deliveries on demand) may be invoiced at current prices irrespective of a fixed price agreement, unless explicitly agreed otherwise in writing.

3.4 In the event of any increases in costs in connection with raw materials, transport, energy or labor amounting to or exceeding 3% in total occurring after conclusion of the contract, LIGNUM shall be entitled to increase the agreed prices accordingly and notify the Customer thereof. The increased prices shall apply 14 calendar days after such customer notification.

3.5 In case prices are agreed in another currency than the Euro and such currency devalues against the Euro by 3% or more after conclusion of the contract, LIGNUM shall be entitled to increase the agreed prices accordingly and notify the Customer thereof. The increased prices shall apply 14 calendar days after such customer notification.

3.6 The Customer may raise objections against any invoice within a term of five days after receipt of such invoice; thereafter the invoice shall be deemed accepted by the Customer.

4. Payments, payment defaults

4.1 Payments of the Customer shall be deemed made if and at the time and to the extent finally, unconditionally, irrevocably and uncontestably credited to the indicated bank account of LIGNUM. The payment term runs from the invoice date and is deemed complied with only if the LIGNUM bank account is credited by the specified due date.

4.2 The payment default interest rate for payment obligations in Romanian currency amounts to 10 percentage points above the reference rate published by the Romanian National Bank and for payment obligations in Euro or other currencies 10 percentage points above the 1-month-EURIBOR, unless LIGNUM is able to prove a higher damage due to the payment default. In case of a payment default the Customer is obligated to reimburse LIGNUM for any incurred collection expenses and legal expenses.

4.3 Payments of the Customer effected in another form or currency as agreed, if accepted by LIGNUM, shall be deemed to be made on account of and not in lieu of the payment obligation. Irrespective of any other dedication of a payment by the Customer, LIGNUM is entitled to offset payments at first against ancillary claims, interest, mature or not yet adjudicated claims and only thereafter against the principle payment obligation.

4.4 The Customer shall only be entitled to withhold payments or to compensate with counterclaims in legal interrelation to the payment obligation in the event of a binding and final determination or an explicit acceptance by LIGNUM.

4.5 In the event of a deterioration of the economic condition of the Customer LIGNUM shall be entitled, irrespective of any agreement to the contrary, to suspend the further supply of goods and services, to declare prematurely due any open receivables against the Customer, to request security or payment of the compensation (advance payment).

5. Deliveries, transfer of risk

5.1 Over- or underdeliveries up to 10 percent of the agreed quantity shall be accepted against proportional adjustment of the invoice amount – not unusual and minor dimensional tolerances even without adjustment of the invoice amount – and do thus not represent a defect. Partial deliveries are admissible and may be invoiced separately. Weight specifications are non-binding, unless deliveries were expressly charged to the Customer by weight.

5.2 In case of deliveries on demand, unless otherwise agreed in writing, the Customer is obligated to call the goods (or services) within a reasonable time period, at the latest within one month after the order confirmation in approximately equal monthly amounts (approx. +/- 10 percent).

5.3 Unless otherwise agreed by LIGNUM in writing (in particular by way of INCOTERMs), the risk of loss or deterioration (damage) of the goods or of delays in transportation passes to the Customer at the time when the goods are ready for collection or dispatch. If the Customer is in default of acceptance or payment, this shall also cause the transfer of risk.

5.4 Unless otherwise agreed, LIGNUM is free to choose the method of transportation at the costs of the Customer with no obligation to seek for the cheapest carriage. LIGNUM is not liable for loss or deterioration (damage) of the goods or for delays during transportation.

5.5 In the event of a delay in or refusal of acceptance of delivery, LIGNUM is in addition to its other rights (such as rescission and free sale at the expense of the Customer) entitled to store the respective goods at the expense and at the risk of the Customer (at customary storage costs or higher actual costs, however, at least at a minimum rate of € 1.00 per m³ per calendar day) and to treat such goods as duly delivered and accepted. In this event the purchase price becomes immediately due for payment.

6. Delivery times, obligation to accept delivery

6.1 The delivery and service times in offers of LIGNUM are non-binding and relate to the completion of works at the premises of LIGNUM. Agreements of binding delivery dates and deadlines shall be made explicitly in writing; nevertheless, this shall not be deemed a contract for delivery to be exclusively settled at the fixed date, unless explicitly agreed otherwise in writing.

6.2 Agreed and announced delivery and service times of LIGNUM are approximate estimates and may deviate from actual delivery and service times. Actual delivery within 15 days before or after the agreed or announced time is permissible and deemed to be on time. In case of further delays the Customer is obligated to grant a grace period of four weeks in writing.

6.3 LIGNUM is not liable for delays due to force majeure or events including planned or unplanned shutdown or interruption of operations, machinery breakage, strike, fire and the like, or that occur in the sphere of contractors of LIGNUM (e.g. suppliers, carriers etc.), even in case of binding dates and periods. Any such delays shall rather extend agreed and announced dates and periods and entitle LIGNUM, and in case of delays exceeding 3 months–after granting a reasonable period of grace – also the Customer, to entirely or partially withdraw from the contract with respect to unfulfilled part of the contract.

6.4 The customer is obligated to accept the goods; this shall not affect warranty claims of the Customer, however, the return of goods because of alleged deficiencies requires the prior written consent of LIGNUM to be granted in its sole discretion.

7. Limited warranty

7.1 The warranty period for defects of goods and services that already subsist at the time of transfer of risk (cf. §§ 5.3 and 5.4) extends to a maximum period of six months after transfer of risk. LIGNUM shall not be liable for any deficiencies which occur thereafter.

7.2 In order to avoid the forfeiture of his warranty claims (praeclusio), the Customer is obligated, in accordance with the wood trade usage, to immediately and properly examine incoming goods (goods inspection) and notify defects in writing (esp. with a note on the freight documents (CMR) to be immediately returned to LIGNUM, in advance via facsimile) and he bears the burden of proof that any deficiencies subsisted already at the time of transfer of risk. LIGNUM shall only be liable for not externally visible (hidden) deficiencies, if they were known, and nevertheless not notified to the Customer, or if LIGNUM was blatantly grossly negligently unaware of such defects.

7.3 In the event of a complaint by the Customer, upon request of LIGNUM, the Customer shall keep the goods accessible at no charge for the conduct of investigations, reasonably assist LIGNUM in any examinations and/or return the goods after the consent of LIGNUM. After utilization, further processing or resale of any goods by the Customer notifications of defects and raising of claims for warranty and consequential damage are excluded to such extent, if an immediate and proper goods inspection by the Customer had revealed any defects or LIGNUM could not investigate defects claimed by the Customer for reasons that are not attributable to LIGNUM.

7.4 In case of deficiencies LIGNUM is entitled to choose, at its sole discretion, to either effect an additional or replacement delivery free of charge, to remedy any defects, to compensate for the reduced value or to claim back against refund of the purchase price the goods that are subject to complaint. Any defects do not affect the obligation of the Customer to pay the purchase price. The cancellation of the contract by the customer is only admissible in case of a severe breach of contract not remedied within a reasonable period of time or in case of a delay in the remedy of defects and is limited to the deliveries affected by deficiencies.

7.5 The warranty claims of the Customer are herewith comprehensively stipulated; they exclusively inure to the benefit of the Customer and may not be assigned to third persons. Further and additional warranty rights and warranty recourse claims are excluded.

8. Limitation of liability

8.1 The liability of LIGNUM, its directors, employees and agents for any legal reason whatsoever (e.g. culpa in contrahendo, tort, non-performance or defective performance, other breach of contract) is limited – to the extent legally admissible – to deliberate and blatantly grossly negligent damaging acts and to the maximum amount of the value of the goods and services and shall be time-barred after one year after transfer of risk.

8.2 The liability of LIGNUM, its directors, employees and agents for slight negligence, the liability for indirect and consequential damage, including lost profits, pure economic loss, unrealized savings, loss of interest, unforeseeable damage, damage from improper use and damage from third party claims against the Customer, is excluded.

8.3 The burden of proof of a default by LIGNUM, its directors, employees and agents, including the proof of (gross or blatantly gross) negligence, rests with the Customer. In case of a violation of any instructions of LIGNUM regarding the subsequent use or further processing, the Customer bears the burden of proof that defects and damage were not caused by him and that they would have also occurred by following the instructions of LIGNUM, particularly by conducting immediate and proper examination of incoming goods.

8.4 In case of a liability of LIGNUM, its directors, employees and agents for deficiencies of goods or services, the limitations and options stipulated § 7 for the benefit of LIGNUM apply analogously.

9. Retention of title, other security arrangements

9.1 Until full and final payment of the purchase price the delivered goods remain the property of LIGNUM.

9.2 If the goods of LIGNUM are processed by the Customer or the goods of the Customer are processed by LIGNUM, LIGNUM acquires joint property of the processed goods according to the proportionate value. The same applies to an indistinguishable commingling of the goods of LIGNUM with other goods by the Customer.

9.3 To the extent admissible under the law of the state of the seat of the Customer or LIGNUM, LIGNUM retains the right of property also after full payment of the purchase price until the full and final discharge of any and all other claims of LIGNUM against the Customer.

9.4 The Customer is obligated to treat the goods during the period of retention of title with care and to properly store the goods distinguishable from other goods free of charge. Unless the Customer is in default, he has the right to process and resell the goods of LIGNUM in business transactions notwithstanding the rights of LIGNUM. Acts regarding the goods endangering the security interest of LIGNUM are not permitted, in particular pledges or security transfers.

9.5 The Customer already now assigns by way of security to LIGNUM up to the amount of the outstanding receivables of LIGNUM any and all of his outstanding receivables and further claims for repossession of the goods, which he acquires through the resale of the goods of LIGNUM or the provision of services to third parties, and is obligated to notify his customers, to apply respective annotations in his accounting records and invoices and to evidence such annotations via access to and statements (extracts) of books and accounts upon request of LIGNUM. Also after such assignment the Customer remains entitled to collect receivables and enforce claims, as long as he is not in default vis-à-vis LIGNUM. The Customer is obligated to keep a separate bank account for the collection of the receivables assigned to LIGNUM.

9.6 The Customer is obligated to immediately notify LIGNUM in writing of any attempts of third parties to seize the goods, in particular of any measures of compulsory enforcement, as well as of any damage to or destruction of the goods. Any change in ownership of the goods or a change of the address of the Customer must be immediately notified by the Customer. Third parties have to be adequately informed about the property rights of LIGNUM.

9.7 In case of a breach of contract by the Customer, especially in case of a payment default, LIGNUM is entitled to repossess the goods subject to retention of title or joint property or, if applicable, to enforce the claims for repossession of the Customer against third parties in its own name and/or to withdraw from the contract, preserving the legal claims acquired by LIGNUM. Reclaiming or seizing the goods subject to retention of title shall not constitute a withdrawal from the contract. Costs and losses arising from repossessing the goods or from the resale of the goods in the open market are to be borne by the Customer.

9.8 At the request of LIGNUM, the Customer is obligated to provide a detailed list of the receivables and claims assigned to LIGNUM pursuant to this provision, with names and addresses of the contractual counterparties of the Customer, to provide all information necessary to enforce the assigned rights and to provide any other necessary and useful assistance to LIGNUM.

10. Data protection

10.1 Purpose and categories of data: For the purpose of execution and performance of the contracts to which these General Sales and Delivery Terms and Conditions are attached, LIGNUM may collect, store and use several categories of personal data, including name, telephone number and e-mail address related to the Customer’s representatives, employees, agents or other persons representing the Customer. The data may be collected from the Customer or directly from the data subject.

10.2 Data retention: LIGNUM will retain the personal data for as longs as necessary to perform the contract, including for the purposes of satisfying any legal, accounting, or reporting requirements that may involve processing such data. To determine the appropriate retention period for personal data, LIGNUM considers the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorized use or disclosure of your personal data, the purposes for which LIGNUM processes your personal data and whether LIGNUM can achieve those purposes through other means, and the applicable legal requirements.

10.3 Recipients of data: LIGNUM might share the personal data with group companies and other entities/companies, such as legal authorities, other service providers, for the following purposes: fulfillment of legal reporting obligations, allowing the service provider to render certain services for the performance of the main contract.

10.4 Accuracy of data: It is important that the personal information processed by LIGNUM is accurate and current. The Customer will keep LIGNUM informed if there is any change regarding the personal data processed as per the above, to the extent the information is relevant for the contract to be executed between LIGNUM and the Customer.

10.5 The rights of the data subjects in connection with the personal data. Under certain circumstances, by law, the data subjects have the right to:

Request access to their personal information (commonly known as a data subject access request). This enables the data subjects to receive a copy of the personal information we hold about the data subject and to check that we are lawfully processing it.
Request correction of the personal information that we hold about the data subject. This enables the data subjects to have any incomplete or inaccurate information we hold about them corrected.
Request erasure of the personal data. This enables the data subjects to ask LIGNUM to delete or remove personal information where there is no good reason for us continuing to process it. The data subjects also have the right to ask LIGNUM to delete or remove the personal information where the data subjects have exercised their right to object to processing.
Request the restriction of processing of the personal information. This enables the data subjects to ask us to suspend the processing of personal information about the data subject, for example if they want us to establish its accuracy or the reason for processing it.

To review, verify, correct or request erasure of the personal information, object to the processing of the personal data, or exercise any of the above rights, LIGNUM may be contacted in writing at Str. Energiei, Nr. 415, Darmanesti, Cod 605300, Kreis Bacau, Rumänien e-mail address gdpr@lignum.ro.

The Customer is responsible that all data subjects whose data is processed for the execution and performance of the relevant contract are informed regarding the processing of their personal data and provided at least the information included in this Section 10.

10.6 No other data processing: For the execution and performance of the relevant contract, and if not agreed otherwise between LIGNUM and the Customer, LIGNUM shall not process any personal data in addition to the categories of data mentioned at item 10.1 above. If the Customer discloses any personal data to LIGNUM, these data shall be deleted as per the internal regulations of LIGNUM and LIGNUM will not assume any liability for this processing, while any unwanted disclosure or other incidents are in the sole responsibility of the Customer, who will also hold harmless of and indemnify LIGNUM for any damage.

10.7 Liability of the Customer regarding the processing of LIGNUM data: If the Customer processes personal data provided by LIGNUM, including data of the representatives or employees of LIGNUM, the Customer will take all necessary technical and organizational measures necessary for safeguarding such data and is responsible for compliance with the applicable data protection laws, including the GDPR.

11. Intellectual property and other rights of third parties

11.1 LIGNUM shall only be liable for the infringement of intellectual and industrial property rights, if committed by gross negligence and if such property right is protected under the laws of the state of the seat of LIGNUM. LIGNUM shall only be liable that delivered goods and services are free and clear of any third-party rights under other laws, if this was explicitly agreed in writing.

11.2 LIGNUM is not liable if and to the extent goods were produced according to the explicit instructions provided by the Customer. In this event the Customer is obligated to indemnify and hold harmless LIGNUM from and against any and all asserted or actual third-party claims of any kind.

11.3 The Customer is obligated to deliver any and all necessary information on asserted claims of third parties regarding the violation of rights of any kind in connection with the goods and services of LIGNUM and to reasonably assist LIGNUM in the defense of unjustified claims; furthermore, the limitations with regard to warranty and liability stipulated in §§ 7 and 8 apply analogously.

11.4 The rights and obligations of the business relationship between LIGNUM and the Customer shall exclusively inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Unless explicitly stipulated to the contrary, no other person or entity shall be deemed to be a third-party beneficiary and thus acquire any rights hereunder.

12. Final provisions

12.1 LIGNUM is entitled to assign and transfer, in whole or in part, any and all rights and obligations arising in connection with the business relationship with the Customer to another entity with discharging effect and shall inform the Customer thereof. The assignment or transfer of rights and obligations in connection with the business relationship by the Customer is subject to the prior explicit consent of LIGNUM in writing and shall not affect the further liability of the Customer for existing and future obligations arising out of the contract.

12.2 Austrian laws and Austrian wood trade usage apply to the business relationship with the Customer if he is seated outside of Romania, otherwise Romanian laws apply and the Austrian wood trade usage applies by analogy; the Convention on Contracts for the International Sale of Goods shall not apply. Place of performance for all mutual claims is, at the discretion of LIGNUM, either at the premises of LIGNUM or Vienna / Austria.

12.3 In the event a provision of these general terms and conditions or of an agreement with the Customer shall be or become ineffective under applicable mandatory law, this shall not affect the effectiveness of this provision under any other applicable laws and of any other provision. The ineffective provision shall be deemed to be replaced – if possible by partial choice of the law of the seat of the Customer or of LIGNUM – by mutual consent by such effective provision the economic effect of which comes as close as possible to the ineffective provision.

12.4 Agreements and their modifications or extensions are only binding on LIGNUM if made in writing or per email. Any explicit or implied consent or waiver by LIGNUM in connection with a breach of contract committed by the Customer shall not operate as consent or waiver to any other or future breach of contract and the Customer shall not rely on any implied consents or waivers of LIGNUM.

12.5 Any and all disputes arising out of or in connection with the business relationship with the Customer, including its violation, termination or nullity, shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules) in Vienna by one or more arbitrators appointed in accordance with these rules.

12.6 LIGNUM is also entitled, at its discretion, to refer any such dispute to the court in Austria (Vienna)F having subject-matter jurisdiction or to any other appropriate court of law, e.g. having jurisdiction at the seat of LIGNUM or the Customer.