General Terms and Conditions

issued by W+W Aufzugkomponenten GmbH u.Co.KG , applicable from 1st April 2007

General

  1. Our confirmation of order and the terms and conditions set out below apply to all goods and services, hereinafter referred to as goods, supplied by W+W Aufzugkomponenten GmbH u.Co.KG, hereinafter referred to as W+W. This shall also apply where an Ordering Party has excluded our terms of sales in its own terms of purchase, and has not expressly contradicted our terms when the contract is made. W&W herewith contradicts any such terms of purchase.
  2. Orders shall become binding only once confirmed by us or by our representatives in writing. Any verbal agreements and subsequent amendments to the contract shall become binding only once confirmed in writing. The same applies to the assured characteristics of the purchased goods.
  3. We issue any documents relevant to our quotations, such as illustrations, drawings and dimensional data, with great care; however they are approximate, and are not binding on the goods supplied, unless otherwise expressly designated as being binding. We reserve the right to make improvements and technical design changes.
  4. We reserve property rights and copyright on cost estimates, drawings and other documents; such documentation must not be made available to third parties. Upon request, and where no order has been given, the drawings and other documents enclosed with our quotation must be returned to us without delay.

Prices

  1. Unless otherwise stated, our prices are stated in Euros. All prices stated in our price lists apply as non-binding price recommendations. Any discounts apply only if stated in the confirmation of order. This also applies to any general discounts stated in our price lists. In the event that crucial cost factors (such as production material, wages, operating materials) should change substantially in price during the period between entering into the contract and the anticipated date of supplying the goods, we have the right to demand that the Client should agree to new prices at variance from the quoted prices. If such agreement cannot be reached, we are entitled to withdraw from the contract. Any general offers of discounts do not apply to special parts, one-off manufacturing runs or to the supply of single parts.
  2. Unless otherwise stated, all prices apply ex Works, excluding packaging and exclusive of Sales Tax. Packaging is calculated at cost price, however is not returnable.

Payment

  1. If no other payment conditions are agreed on the confirmation of order at the time of entering into the contract, payment is due within 10 days in cash, with no discount.
  2. The date of payment is deemed to be the day on which the sum due is available to us. Should the amount owed become overdue, the consequences of delayed payment shall come into effect without the need for any special warning or advice. At present annual delayed payment interest at a rate of 3.5% above the European Central Bank rate is applied to late payment, while reserving the right to apply other or further entitlement.

Reservation of property rights

  1. The object of the contract shall remain our property until full settlement of our claim for payment.
    Any processing or mixing of the goods supplied by us takes place for us as manufacturer within the meaning of Article 950 of the BGB (Federal Code of Law) and does not put us under any liability.
    The new item arising from such processing shall also be deemed reserved goods within the meaning of these terms and conditions. In this event, we hold co-ownership of the items that have arisen by being mixed or processed, in a ratio of the amount of our invoice and the other parties= goods. The new item is not the main article within the meaning of Article 947 II of the Federal Code of Law. Where an invoice is current, the reserved ownership shall apply as a surety of payment of the balance against the Ordering Party.
  2. During the period of the property ownership rights the Purchaser is entitled to take possession of and use the object of the contract, provided that he meets his obligations arising from the retention of property rights in accordance with the provisions of this section, as set out below, and is not in arrears of payment. In the event that the Ordering Party should fall into arrears of payment, or does not meet his obligations arising from the retention of property rights, we may, in addition to applying our remaining rights under this condition, demand the return of the object of the contract from the Ordering Party, and following notice in writing, with an appropriate time limit, and taking into account the loss of value on the purchase price/works claim, utilize it as best as possible by means of a private sale.
    In the event of partial payment made by a non-businessman, the taking back of goods shall be deemed as being a withdrawal. In such a case the provisions of the Consumer Credit Act shall apply.
    In the event that we demand the return of the purchased object, the Ordering Party is under an obligation to return the object of the contract to us without delay, except under the terms of any retention rights - unless such are substantiated in the contract. Any costs involved in returning and reusing the object of the contract shall be borne by the Ordering Party.
  3. While the property retention right exists, and except with our prior written consent, the object of the contract may not be realized, pledged, used as security, rented or otherwise licensed in any way that would affect our security, or modified.
  4. In the event that third parties have access to the items, in particular where the object of the contract has been pledged or where the Contractor=s Lien is applied, the Ordering Party must inform us immediately in writing and indicate our property retention right to the Third Party without delay. The Ordering Party shall bear all costs that have had to be applied with regard to revoking access to and restoring the object of the contract, where they cannot be applied, or cannot be successfully applied against the third parties.

Delivery

  1. Unless otherwise agreed in writing the delivery timescale begins upon receipt of the confirmation of order, provided that at this point in time, all the details pertinent to the contract are bindingly in place.
  2. Any unpredictable, inevitable, or other serious events that may occur to us, to one of our suppliers or sub-contractors, such as strikes, lock-outs, operational breakdowns (shutdown), shortage of power or of materials, official decree or natural incidents, technical or physical hindrance, which result in a delay in delivery, or even in the impossibility of supplying the goods or services, the agreed delivery date shall be extended by the amount of time that the hindrance is in existence, and in the event that it is impossible to fulfil the order, the Client shall have the right to withdraw from the contract. Any claim resulting from delayed deliveries or non-deliveries caused by the above-stated reasons is excluded.
  3. Partial deliveries are permitted.
  4. Deliveries are made ex Works exclusive of packaging. The risk on our goods passes to the Client at the moment of handing to the carrier or freight shipper. We inspect and pack the goods with care. We are not liable for damage and breakages that may occur during shipping. This also applies where we have appointed the carrier and the cost of carriage has been passed on to the Ordering Party. The Ordering Party must make any complaints regarding transport damage to the carrier company within the stated period. The Ordering Party is responsible for finalizing carriage and any insurance involved.

Deliveries to W+W

  1. Returns made as a result of a notification of defects or for repair must be properly packed. Information regarding proper packaging may be obtained at any time from W+W. In all cases the sender is responsible for any damage occasioned by improper packaging.

Illustrations and Descriptions

  1. Illustrations and Descriptions, as well as technical data, are deemed to be approximate to the conditions or purposes at the time they were produced. We reserve the right to make modifications of any kind, in particular where they are a result of technical progress, changed design or similar, provided that such modifications are reasonable taking into account our interests for the Purchaser.
  2. We provide application advice to the best of our knowledge. However, all data and information about the suitability and application of our goods are non-binding and do not release the Purchaser from carrying out his own tests and trials. The Purchaser is responsible for observing statutory and local authority regulations in the use of our goods.
  3. The article number stated in the confirmation of order is crucial to the execution of the order. Any requests for changes must be indicated at latest 3 days after our confirmation of order has been issued.
  4. Our products correspond to the standards, which are indicated in the brochures and as well on our Internet pages. In principle it is possible that depending upon location or land regulation additional or other standards must be fulfilled. It is also possible that other local imponderableness or user applications stand in opposition to the use of our products. The examination, if a professional employment of our products is possible in single cases, is incumbent on the user.
  5. All brochures and instructions are in German and English language. If instructions and brochures are necessary in other languages, the importer is responsible for the translation in the respective national language.

Material Defects

We are liable for material defects as follows:

  1. By our choice, we will improve, re-supply, or re-manufacture all parts and supplies that indicate a material defect within the period of limitation – without taking into consideration the period of operation - provided that the cause of the defect was present at the time that the risk was transferred.
  2. The limitation period on material defects is 12 months. This does not apply in the case of death, personal injury or harm to health, in the event of deliberate or gross negligence of its obligations and duties by W+W, or in the event that a malicious silence is maintained over a defect. The statutory regulations with regard to the suspension of the limitation period, suspension of and restarting the limitation periods shall be unaffected hereby.
  3. The Ordering Party must inform W&W of the material defect without delay in writing.
  4. In the event of a material defect the Ordering Party may withhold payment to a certain extent, i.e. in proportion to the material defect that has occurred. The Ordering Party may withhold payment only in the event that a material defect has been notified in writing, and there can be no doubt about entitlement to do so. If the notification of material defect is unjustified, we are entitled to demand reimbursement of the costs incurred.
  5. By our choice, we have the right to make improvements on two occasions, or to replace the goods on two occasions. In the event that the second attempt to make the improvement should fail, or the second replacement delivery is also defectively, only the Right of Reduction shall arise at this point. In the event that we and the Ordering Party are unable to come to an agreement about the extent of such reduction, the Ordering Party may demand a conversion. The Ordering Party may demand the right of conversion only if the defect has considerably affected or eradicated his interests in the goods. In the event of conversion, liability is limited to reimbursement of the purchase price.
  6. No notification of material defects shall be permitted in the event of an insignificant deviation from the agreed characteristics, or an insignificant effect on usability, in the event of natural wear or tear, or as a result of incorrect or negligent handling after the transfer of risk, excessive stress, inappropriate operating materials or arising as a result of external influences, not stipulated in the contract, or in the event of non-reproducible software errors. Nor do we accept notification of material defects in the event that the Ordering Party, or a Third Party has made improper alterations or repair work to the goods, nor do we accept liability for any consequences arising therefrom.
  7. Any claims by the Ordering Party with regard to the necessary expense in fulfilment, in particular transport, route, work and material costs are excluded, where such the costs have been incurred because the goods item has been brought to a place other than the Ordering Party’s premises.
  8. The right of recourse by the Ordering Party against W&W in accordance with Article 478 of the Federal Code of Law shall exist only where the Ordering Party has made no agreement over and above the legal claim for notification of material defect with his own buyers. Furthermore, paragraph 8 applies accordingly to the extent of the Right of Recourse by the Ordering Party against W&W in accordance with article 478, paragraph 2 of the Federal Code of Law (BGB).
  9. Any claim for damages or reimbursement of expenses by the Ordering Party (hereinafter referred to as claims for damages) for whatever reason in law, in particular due to a breach of obligations arising from the debt relationship and from unauthorised handling, are excluded.
  10. This does not apply where a compulsory liability exists, for example under the Product Liability law, in the case of intent, gross negligence, death, injury or harm to health.
  11. Any further claim or any claim by the Ordering Party against us or against our agents, other than those described above, with regard to a material defect, is excluded, where they are not based on a compulsory statute.

Industrial Property Rights held by Third Parties (e.g. patents, design)

Our position with the Ordering Party, with regard to any claims arising from the industrial property rights held by third parties is as follows:

  1. A claim for reimbursement of damages shall exist only in the case of gross negligence and intent.
  2. If a Third Party makes a claim to industrial property rights with regard to the supplied item, the Ordering Party needs to provide the evidence of such deficiency in title only when a legally valid judgement is made against him or against us.

The Internal Market Sales Tax Law

  1. The ordering part shall ensure that he has given the correct details of his name, address and VAT Identification no., which shall be provided immediately upon request if not already provided. He is under an obligation to inform us without delay whenever his name, address, and VAT registration number is changed, or whenever the internal tax authority responsible for his affairs should alter.
  2. In the event that a consignment is treated as being liable to tax as a result of an error in the name, address or VAT identification no., the Ordering Party shall reimburse us with the tax that we pay.
  3. In the event of dual taxation, purchase tax in the purchasing country, sales tax in Germany, the Ordering Party shall repay us with the amount of tax by which overpayment has been made.

Place of Performance and Place of Jurisdiction

  1. The Place of Performance and the Place of Jurisdiction for both parties is the headquarters of our company. This exclusive place of jurisdiction shall apply to all present and future claims arising from the business relationship, whether during the party making the legal claim should remove his residence or place of usual domicile away from the jurisdiction of German law or, whether this is not known at the time of the action. The same shall apply to claims validated by means of the reminders procedure (Articles 688 onwards of the Civil Action Order (ZPO). The law valid within the Federal Republic of Germany shall be applied exclusively.

Concluding provision

  1. In the event that any clause of these General Terms and Conditions should become unworkable, or impossible to execute, or should these General Terms and Conditions be found to contain a loophole, the remaining provisions of these terms and conditions shall not be affected. An effective or executable provision that comes closes to the meaning and purpose of the ineffective or non-executable provision in economic terms shall be agreed to take the place of the ineffective or non-executable provision.

W+W Aufzugkomponenten GmbH u.Co.KG
01.04.2007