General terms and conditions of the company WIK Elektro-Hausgeräte, Vertriebs GmbH & Co. Produktions KG

1.

Deliveries, services and offers shall be rendered or submitted exclusively on the basis of these general terms and conditions. They shall thus also apply to all future business relations even if they are not expressly agreed on again. The terms and conditions shall be accepted at the latest by taking delivery of the goods or the services. Objection is herewith raised to any counterconfirmation of the buyer which refers to the buyer’s terms of business or purchase. Deviations from these terms and conditions shall only be effective if confirmed by WIK in writing.

2.

Our offers are without obligation and not binding. In order to be legally valid, declarations of acceptance and all orders require WIK’s written confirmation or confirmation by fax. This shall also apply to amendments, alterations or supplements. The dates and time periods stated by us in our offer are also not binding unless expressly otherwise agreed in writing.

 

Even if time periods and deadlines have been agreed in a binding manner, WIK shall not be held responsible for delays in delivery and completion caused by Force Majeure and as a result of events that make it essentially more difficult or impossible for WIK to effect delivery, which, among other things, include subsequently occurring difficulties in procuring material, operational breakdowns, strike, lockout, shortage of staff, shortage of means of transport, orders by the authorities, etc., even if they arise at the seller’s suppliers or at their subsuppliers. Such difficulties shall entitle WIK to postpone the delivery or service for the time the disturbance lasts plus a reasonable start-up period or to cancel the contract in whole or in part with respect to the part which had not yet been executed. Should the disturbance last longer than three months, the buyer shall be entitled, after granting a reasonable period of grace, to cancel the contract with respect to the part which had not yet been executed. In the event that WIK can be held responsible for not adhering to time periods and deadlines guaranteed by it in a binding manner, or in the event that WIK is in default, the buyer shall not be entitled to compensation for default. If compensation is awarded, however, it shall not in any case exceed the lower limit prescribed by law or by the highest court. Claims of any kind exceeding this lower limit shall be excluded.

 

WIK shall be entitled to carry out partial deliveries or partial services.

3.

Unless stated otherwise, WIK shall be bound by the prices quoted in its offer for 30 days starting from the date of the offer. The prices quoted by WIK in its confirmation of the order shall be decisive plus the applicable statutory value added tax. Additional deliveries and services shall be invoiced separately. Unless otherwise agreed, the prices shall be understood ex <st1:city w:st="on"><st1:place w:st="on">Essen</st1:place></st1:city> warehouse including normal packing and, if agreed, insurance.

 

4.

The risk shall pass to the buyer at the moment the consignment has been handed over to the person performing the transport or has left the WIK warehouse for the purpose of shipment. Should shipment become impossible without fault of WIK, or should WIK have the right of retention, the risk shall pass to the buyer upon report of readiness for dispatch.

 

5.

Notices of defects have to be given within 8 days of receipt of the goods. The limitation period for claims based on defects shall be 1 year as of delivery of the goods. The decision whether appliances are to be replaced by new ones or merely repaired shall be made by WIK at its sole discretion. The buyer shall not be entitled to withdraw from the purchase contract in whole or even in part because of justified notices of defects. WIK’s warranty shall be complied with by repair of the appliance or by replacement of the defective parts. WIK shall not be liable for consequential damages.

 

6.

WIK shall reserve title to the goods delivered by it until the individual receivables have been paid or until a credit balance arising in its favour from a current account relationship has been settled. Any processing of the goods delivered shall be performed by the buyer by order of WIK, who shall also become owner of the newly produced items. The buyer may sell the goods delivered and the items produced by such goods being processed only in proper business transactions. For the purpose of providing security to WIK, the buyer shall immediately assign to WIK any claims arising from the resale or based on any other cause in law. WIK shall be entitled to collect the assigned claims as long as the buyer does not comply with its liability to make payment to WIK according to the contract. The buyer shall immediately transfer to WIK any amounts collected on WIK’s behalf, provided WIK’s claims have become due. Even in the event that the buyer does not comply with this duty, the collected amounts shall be due to WIK and have to be kept separately. The buyer shall notify WIK immediately of any third-party access to the goods delivered with reservation of title, or to the assigned claims. The buyer shall be obliged to furnish all information to WIK that WIK needs in order to assert claims against third parties, as the case may be, in its own name due to the assignment. If requested by WIK to do so, the buyer has to disclose the assignment and, besides furnishing the required information, has to also hand over the pertaining documents.

 

7.

Unless otherwise agreed, payments for foreign transactions have to be made against irrevocable LC, payable in euro currency immediately net upon submission of the documents to the bank by WIK, for domestic transactions (Federal Republic of Germany) within 30 days of the date of invoice net in cash and exclusively in euro currency. Even in the event that default has not yet occurred, delayed payments shall oblige the debtor to pay default interest amounting to 8 % above the base rate in line with § 247 BGB (Civil Code) for the period from the day the invoice became due until the receipt of payment. Should the buyer not meet its obligation to pay, should it not be possible, in particular, to honour a cheque or a bill, should the buyer cease making payments or should WIK gain knowledge of circumstance calling in question the creditworthiness of the buyer, WIK shall be entitled to call due the balance of debt from all deals effected by it with the buyer. Even in the event that notices of defect or counterclaims are asserted, the buyer shall only be entitled to set-off, retention or reduction of the purchase price if WIK has expressly agreed to this in writing or if said counterclaims have been established with final and binding effect.

 

8.

Unless WIK or its vicarious agents have acted wilfully or with gross negligence, claims for damages arising from impossibility of performance, from positive violation of claim, from culpa in contrahendo or from tortious act, shall be excluded, both vis-à-vis WIK and vis-à-vis its vicarious agents.

 

9.

The terms and conditions and the complete legal relationship between WIK and the buyer shall be subject to the law of the Federal Republic of Germany. The provisions of the uniform UN Sales Convention shall not apply. The language of the agreement shall be German.

 

10.

Place of performance for both parties shall be <st1:city w:st="on"><st1:place w:st="on">Essen</st1:place></st1:city>. Exclusive venue for all disputes arising directly or indirectly from the contractual relationship shall be <st1:city w:st="on"><st1:place w:st="on">Essen</st1:place></st1:city>. This shall also apply to attachments, temporary injunction proceedings and proceedings arising from cheques or bills.

 

11.

Should one of the provisions in these terms and conditions or one of the provisions under any other agreements be or become invalid, this shall not affect the validity of the remaining provisions or agreements.

 

As per: 31.01.2006