General Terms & Conditions for Deliveries

General Terms & Conditions for Deliveries by EDUARD WILLE GmbH & Co. KG, Wuppertal (in transactions with legal entities) 07.09.2010

Section 1 Applicability

(1) All deliveries, services and quotations by the Seller are subject exclusively to these General Terms & Conditions. These are an integral part of all contracts concluded by the Seller with its contractual parties (hereinafter also referred to as the "ordering party or parties") and covering the deliveries and services provided by the Seller. They are deemed to apply to all future deliveries, services and quotations to the ordering party even if they are not explicitly repeated.

(2) Terms & Conditions of the ordering party or Third Parties shall not apply even if the Seller has failed to reject them explicitly. Even where the Seller makes reference to a communication containing or referring to Terms & Conditions of the ordering party or Third Parties this does not constitute agreement with the applicability of those Terms & Conditions.

Section 2 Quotation and conclusion of the contract

(1) All quotations communicated by the Seller are deemed to be subject to availability and non-binding on either party unless explicitly marked as being binding or containing a defined period of validity. The Seller reserves the right to accept orders within a fortnight of receipt.

(2) The legal relationship between the Seller and ordering party is defined exclusively by the Contract of Sale in written form of which these General Terms & Conditions are an integral part. That Contract contains the agreements in their entirety between the Parties to the Agreement relating to the goods subject of the contract. Oral promises expressed by the Seller before conclusion of this contract are deemed to be non-binding on either party and any oral agreements between the Parties to the Agreement are replaced in their entirety by the written version of the contract unless the content of those agreements includes an explicit confirmation that they are to continue as binding.

(3)All and any addenda or amendments to the agreed conditions including the present General Terms & Conditions shall be in writing if they are to have any legally binding effect. With the exception of the Managing Directors and signing executives, no employees of the Seller are entitled to make any oral agreements that deviate from these provisions. The term "written form" or "in writing" is deemed to include communication by fax but other telecommunication media, in particular email, are deemed not to be valid.

(4) Details provided by the Seller relating to the subject matter of the delivery or service (such as weights, dimensions, usage values, load capacities, tolerances and technical specifications) and our representations of the same (e.g. drawings and illustrations) are deemed to be only approximate unless the use for a particular purpose is contractually agreed. These are not guaranteed features but merely descriptions or markings of the delivery or service. Standard deviations and those resulting from legal provisions or technical improvements and the replacement of components by other parts of equivalent quality are permissible provided they do not impair the applicability of the product for the contractually agreed purpose.

(5) The Seller reserves the right of property or copyright in all quotations and estimates and all and any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the ordering party. The ordering party is not permitted to make these available to Third Parties, publicise them or exploit them or allow them to be exploited by Third Parties in their original form or in terms of their content or reproduce or store them in any form without the express consent of the Seller. On first request by the Seller, the ordering party shall return all these objects to the Seller and destroy any copies in its possession as long as they are no longer required in the normal course of business or if the negotiations do not end in conclusion of a contract.

Section 3 Prices and payment

(1) Prices apply to the deliveries and services given in the confirmation of order. Additional or special services shall be charged separately. Prices are quoted in euros ex works excluding packaging and VAT and, for export orders, customs duties and any other fees or charges charged by the authorities. For orders in excess of € 5,000.00 net, our prices include packaging and delivery to the destination or franco frontier Germany.

Where the agreed prices are based on the Seller's list prices and the delivery is not to take place until more than four months after conclusion of the contract of sale, the Seller's list prices valid on the date of delivery are deemed to apply (less any agreed percentage or fixed discount).

(3)Invoiced amounts are payable without deduction within thirty days unless otherwise agreed in writing. The date of receipt by the Seller shall be deemed to be decisive as the date of payment. Cheques are not deemed to constitute payment until receipt of funds by the bank. Where the ordering party does not make payment by the due date, all and any outstanding amounts become subject to interest of 5% p.a. from the due date; the right to apply higher rates of interest and to claim additional damages in the event of default remains unaffected.

(4) It is only permitted to offset or retain outstanding amounts against counterclaims by the ordering party if those counterclaims are non-contentious or legally enforceable.

(5) The Seller reserves the right not to perform deliveries or services until prepayment or collateral has been provided if, after conclusion of the contract, circumstances come to its notice which might seriously impair the creditworthiness of the ordering party and which may endanger payment by the ordering party of open claims by the Seller resulting from the current contractual agreement (including claims from other individual orders placed under the same blanket agreement).

(6) Unless certain prices have been specifically agreed, the Seller will supply goods at the list prices valid on the date of shipment. Where, after conclusion of a contract for delivery, the Seller's costs, e.g. for raw materials, power, wages or transport, increase, the Seller reserves the right to adjust the prices of the goods supplied appropriately, even where specific prices had been agreed. If, in such a case, the price increases by more than 10%, the customer is entitled to withdraw from the contract by means of an immediate declaration in writing. Where the increase in prices relates only to a part of the delivery, withdrawal applies only to that part of the contract.

Section 4 Delivery and delivery time

(1) (1) Deliveries are made ex works.

(2) Time periods and deadlines communicated by the Seller for deliveries and services are deemed to approximate unless a firm period or date has been specified or agreed. Where dispatch has been agreed, the delivery periods and delivery dates apply to the date of hand-over to the forwarding company, driver or Third Party commissioned to organise the transport. Risk is deemed to have been transferred to the ordering party with the hand-over, which also applies in the event of deliveries made free-of-charge.

(3) The Seller can – without prejudice to its rights resulting from the default of the ordering party – require the ordering party to accept an extension or postponement of the delivery periods by that period of time in which the ordering party has failed to meet its contractual obligations towards the Seller.

(4) The Seller shall not be liable for non-delivery or non-supply or late delivery or supply of goods or services where this is as a result of force majeure or other events not foreseeable at the time the contract was concluded (e.g. interruptions to production of any kind, difficulties procuring materials and power, delays in transport, strikes, legal lockouts, insufficient supplies of skilled workers, power or raw materials, difficulties obtaining the necessary permissions from the authorities, measures imposed by regulatory bodies, wrong or late delivery or non-delivery by our suppliers. Where these events make it difficult or impossible for the Seller to supply the goods or services and the delay is not only of a transient nature, the Seller reserves the right to withdraw from the contract. If the delay is perceived to be of a transient nature, the delivery or supply period is deemed to be put back by the same period as the delay plus an appropriate period for adjustment to the changed circumstances. If the ordering party cannot, as a result of the delay, be expected to take delivery of the products or services, it is entitled to withdraw from the contract by means of an immediate declaration in writing to the Seller.

(5) The Seller is entitled to make partial deliveries in the following circumstances only:
- if the partial delivery is usable by the ordering party within the context of the contractually agreed purpose,
- if the delivery of the remaining goods ordered is secure and
- if there are no major additional costs accruing to the ordering party (unless the seller agrees to bear those costs).

(6) If the Seller should be in default with a delivery or service or if a delivery or service should become impossible to deliver for whatever reason, the liability of the Seller for damages is restricted as defined in Section 8 of these General Terms & Conditions.

Section 5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) Place of performance for all obligations arising from this contractual agreement is Wuppertal unless otherwise agreed. If the Seller is also required to perform installation, the place of performance shall be the place where the installation is to be made.

(2) The method of dispatch and the packaging are at the discretion of the seller.

(3) The risk is deemed to pass to the ordering party at the latest with hand-over to the forwarding agent, driver or other person engaged to organise the shipment of the goods to be delivered to the ordering party (where the commencement of the loading process is meant). This shall also apply to partial deliveries and cases where the Seller has agreed to supply additional services (e.g. shipping or installation). If dispatch or hand-over is delayed for reasons for which the ordering party is responsible, risk is transferred to the ordering party on the day on which the delivery is ready for dispatch and the Seller has communicated this fact to the ordering party.

(4) All and any warehousing costs incurred after transfer of risk are to be borne by the ordering party. If warehousing is arranged by the Seller, the costs shall be 0.25% of the invoice amount per week for the goods to be stored. We retain the right to claim additional or lower storage charges on the basis of appropriate documentation.

(5) Shipments are only insured against theft, breakage, transport damage, fire and water damage and other insurable risks if the order party expressly requests this and agrees to pay the charges.

Section 6 Guarantee, material defects

(1) The warranty period is one year starting from the date of delivery or, where acceptance testing is required, from the date of the successful acceptance test.

(2) The products supplied shall be carefully inspected without delay on receipt by the ordering party or the Third Party named by the ordering party. The goods are deemed to have been accepted if the Seller does not receive a written list of visible defects or other defects that were detectable on immediate, careful inspection, within seven working days of delivery of the goods or, in the event of invisible defects, within seven working days of discovery of the defect or an earlier time if the defect is of a kind that would be discovered by the ordering party on normal use of the goods without a more intensive inspection as described in Section 2 (3). If the Seller so requests, the goods subject of the complaint shall be returned to the Seller carriage paid. Where complaints are justified, the Seller shall reimburse the costs for the cheapest method of dispatch; however this shall not apply if these charges increase simply because the goods are at an address which differs from the location given for the intended use.

(3) Where the goods delivered have material defects, the Seller is obliged and entitled to choose either to repair or rework the goods or to replace them at his discretion, where the decision is to be taken within a reasonable time period. In the event of complete failure, i.e. if it is impossible for the Seller to repair or replace the goods, or if it is unreasonable for it to do so, or if it refuses to do so or if there are unacceptable delays in the repair or replacement, the ordering party may withdraw from the contract or make a reasonable reduction in the price paid.

(4) If a defect is attributable to the Seller, the ordering party may claim damages under certain circumstances as defined in Section 8.

(5) If the defects are in components supplied by a different manufacturer and the Seller is not permitted for licensing reasons or is not able to remedy them, the Seller shall at his discretion either make a claim under warranty against the manufacturer and supplier on behalf of and for the account of the ordering party or assign that right to the ordering party. Warranty claims against the Seller with regard to defects of this type under the conditions as defined in these General Terms & Conditions shall only apply if it has not been possible to enforce the claims against the manufacturer and supplier through court action or where there is no reasonable hope of enforcing the claims, e.g. due to bankruptcy. For the duration of litigation, the statute of limitations for the ordering party’s warranty claims against the Seller is blocked.

(6) The guarantee lapses if the ordering party modifies the goods delivered or has them modified by a Third Party without the consent of the Seller and remedying of the defect is as a result of this modification either impossible or unreasonable. In any case, the ordering party shall bear those additional costs of the remedy that are attributable to the modification.

(7) Delivery of used products as agreed in individual cases with the ordering party shall exclude all and any guarantee for material defects.

Section 7 Proprietary rights

(1) The Seller guarantees for the purposes of this Section 7 that the goods delivered are free from proprietary rights or copyright of Third Parties. Each Party shall notify the other contractual party immediately in writing if any claim is made against him regarding violation of such rights.

(2) If the goods delivered should in fact violate the proprietary rights or copyright of a Third Party, the Seller shall at his discretion and at his own expense modify goods delivered or replace them in such a way that no violation of the rights of Third Parties occurs but the goods delivered still provide the functions contractually agreed or, after concluding a Licence Agreement, the Seller shall provide the ordering party with the rights to use the products. If this should not succeed with a reasonable period of time, the ordering party shall be entitled to withdraw from the contract or make a reasonable reduction to the purchase price. Any claims for damages by the ordering party are subject to the restrictions defined in Section 8 of these General Terms & Conditions.

(3) If products manufactured by other manufacturers and supplied by the Seller violate any Third Party rights, the Seller shall at his discretion claim against the manufacturer and its suppliers on behalf of and for the account of the ordering party or assign his rights to the ordering party. Claims against the Seller with regard to such cases under the conditions as defined in Section 7 shall only apply if it has not been possible to enforce the claims against the manufacturer and supplier through court action or where there is no reasonable hope of enforcing the claims, e.g. due to bankruptcy.

(4) If the order placed by the ordering party necessitates the purchase of special moulds or special-purpose tools & dies, the ordering party shall bear the costs of these. Special moulds or special-purpose tools & dies shall be used by the contractor exclusively for orders placed by the ordering party. At the request of the ordering party, the Seller shall destroy these moulds, tool & dies. For such special-order products, the ordering party shall bear the risk of any infringements of proprietary rights.

Section 8 Liability for culpable damages

(1) The liability of the Seller for damages, for whatever legal reason, in particular resulting from impossibility of supply, default, non-conforming or incorrect delivery, breach of contract, violation of obligations during contractual negotiations and unlawful acts where the Seller is culpable, is restricted by this Section 8.

(2) The seller shall not be liable in the event of simple negligence by the officers of the company, employees or other agents unless a violation of obligations under the contract is involved. Key elements of the contract are the obligation to deliver in a timely manner and install the goods delivered free of major defects and the obligations applying to consultancy services, protection and care to enable the ordering party to use the goods delivered in accordance with the contract or protect life and limb of the ordering party's staff or his property to prevent major damage or injury.

(3) Where the Seller is liable for damages in principle in accordance with Section 8 (2), this liability is restricted to damage that the Seller considered to be possible consequences of a breach of contract at the time of signing or which he should have predicted had he applied normal care and attention. Indirect damage and consequential damages as a result of defects in the goods delivered are only considered if the damage or injury could normally be foreseen if the goods delivered are used in accordance with the intended purpose.

(4) In the event of liability for simple negligence, the Seller's duty to replace for damage to property and any consequential intangible damage is restricted to 10 m. euros per case (conforms with current coverage of product liability insurance and third party insurance), even if it is a violation of obligations under the contract.

(5) The above-mentioned disclaimers and restrictions apply to the same extent to the officers of the company, employees and other agents of the seller.

(6) Where the seller provides technical information or acts as a consultant, and this information or advice is not part of the contractually agreed services or one which he is duty bound to provide, it is provided free of charge and no liability at all is accepted for it.

(7) The restrictions in this Section 8 do not apply to the seller's liability for intentional actions, guaranteed quality features, injury to life and limb or health generally or under product liability legislation.

Section 9 Retention of title

(1) The goods delivered by the contractor to the ordering party remain the property of the Seller until fully paid for and all claims have been settled. The goods supplied and any goods that replace these and that are subject to this retention of title are referred to as the goods delivered.

(2) The ordering party shall care for the goods delivered free of charge on behalf of the contractor.

(3) The ordering party is entitled to process and resell the goods delivered in normal business transactions until such time as a claim is made against them. It is not permitted to mortgage the goods or use them as collateral.

(4) If the goods delivered are processed by the ordering party, it is deemed to be on behalf of and for the account of the contractor as the manufacturer and the contractor directly acquires property or – if the processing involves materials provided by a number of owners or the value of the processed goods exceeds that of the goods delivered – partial property in the items thus created and in proportion of the value of the goods delivered to the value of the new items. In case the contractor should not be able to acquire property as described herein, the ordering party agrees that his future property or partial property in the new items, as described above, is now assigned to the contractor as collateral. If the goods delivered become an integral part of another item and if that item is considered to be the main item, the Seller becomes joint owner of the main item to an extent which is proportionate to the value of the Seller's property in the new item as defined above in so far as the ordering party is the owner of the main item.

(5) In the event that the goods delivered are resold, the ordering party hereby assigns to the contractor as collateral any claims he may in future have against the buyer in an amount proportionate to the contractor's property in the goods delivered. The same is deemed to apply to other claims which may replace the goods delivered or which may arise in connection with the goods delivered, such as insurance claims and claims resulting from unlawful acts in the event of loss or destruction of the goods. The contractor hereby empowers the Buyer irrevocably to collect the claims assigned to the Seller in his own name. The Seller may only revoke this power to collect in the event a claim is made.

(6) If Third Parties attempt to seize the goods delivered, in particular through distraint orders, the ordering party shall without delay notify those Third Parties that the contractor has property / partial property in those items, and notify the contractor of this fact to enable him to take steps to secure his property rights. If the Third Parties are not in a position to reimburse the contractor for the costs incurred in this connection whether in court or out of court, the ordering party shall be liable to the contractor.

(7) The contractor shall release the goods delivered and items or claims that have replaced them at his own discretion on request to the extent that their value exceeds the claims secured by them by more than 50%.

(8) If the contractor withdraws from the contract due to a violation of the contract by the ordering party – in particular payment arrears – he shall be entitled to require return of the goods delivered.

Section 10 Conclusion

(1) The Court of jurisdiction for all disputes arising from all and any transactions between the Seller and the ordering party is either Wuppertal or the headquarters of the ordering party at the discretion of the Seller. For all legal claims filed against the Seller, the Courts in Wuppertal shall have exclusive jurisdiction. Binding legal provisions relating to exclusive courts of jurisdiction shall remain unaffected.

(2) All relationships between the Seller and the ordering party are subject exclusively to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 as amended is excluded.

(3) If the contract or these General Terms & Conditions are found to contain gaps or ineffective clauses, the parties agree to find a provision or fill the offending gap with a provision which is enforceable and comes closest to the original commercial intentions of the parties when the unenforceable clause in the contract or General Terms & Conditions was written if they had considered the unenforceability or incompleteness at the time.

Note:

The ordering party is aware that the Seller stores certain data relating to the contractual agreement in accordance with Section 28 of the German Data Protection legislation for the purpose of data processing and reserves the right to transmit these data to Third Parties (e.g. insurance companies) provided this is necessary for fulfilment of the contract.