GTC

• 1. Validity of these General Terms and Conditions

  (1) The General Terms and Conditions shall apply for all goods and services of Oberleitner Windschutz GmbH & Co. KG and of all affiliated companies, especially Oberleitner Technik GmbH & Co. KG (herein after referred to as "OWS" ). Differing Terms shall only apply if they are confirmed in writing.

  (2) As far as the customer is a businessmen as mentioned in § 310 (1) BGB the following shall apply, too:

  (a) It shall also apply to all future business relations, also without being expressly agreed again.

  (b) These Terms shall also apply to information, counsels, and in the context of contract negotiations.

  (c) Customer’s Terms and Conditions to the contrary or differing from OWS’s Terms and Conditions are not accepted, except if they were expressly acknowledged in writing. Customer’s Terms and Conditions shall not become integral part of the contract, also in case the customer refers to them in context of contract negotiations or when placing the order and also if OWS has neither expressly negotiated validity of those terms nor in face of having notice of customers regulations to the contrary performs services without reservation.

  (3) Terms and Conditions and changes can be looked up under OWS’s homepage: www.oberleitner-windschutz.com

  2. Conclusion of Contract

  (1) Offers of OWS are - particularly in regard to prices, respites and ancillary services - non-binding and subject to confirmation.

  (2) A contract with OWS only is concluded after a written order of the customer and its acceptance (particularly by confirmation or execution) by OWS. Only the content of this confirmation is material to the contractual relationship.

  (3) All promises, also those of employees, which may extend these Terms and Conditions and which may cause an obligation to meet claims for OWS shall only be valid after written confirmation by OWS. Warranties have to be confirmed by OWS expressly and in writing.

  (4) OWS shall be entitled to refuse acceptance of customers orders without giving reasons; this particularly is valid, if there are doubts in customers creditworthiness.

  (5) All data (e.g. concepts or offers), OWS pre-contractually provides to customers, remain in the property of OWS. If the contract falls through these data as well as possibly purpose-built copies have completely to be returned or destroyed and must not be used furthermore.

  3. Prices

  As far as not agreed otherwise for all goods and services prices of the respectively current price-lists are applicable.

  4. Payment

  (1) All payments have to be effected in Euro, plus actual applicable VAT. If services and / or consignments accrue additional taxes or other public charges, these have to be borne by customer as well.

  (2) Not included in the purchase price are costs for delivery, transport, packaging. These will be invoiced to customer separately, unless otherwise expressly agreed.

  (3) One half of an invoice has to paid as an advance before delivery, the remaining amount within 10 days after delivery. Cash discount deduction has to be agrees separately in writing.

  (4) OWS shall be entitled to invoice partial services or adequate partial payments.

  (5) Objections against outstanding accounts have to be announced to OWS in writing and reasoned within four weeks since the date of invoice. After this term invoices shall be considered as improved.

  (6) Customer shall be entitled to charge or to exert a right of retention only in case of the claim being undoubted or ascertained legally binding. Furthermore customer is only entitled to exert a right of retention against counterclaims from the relative contractual relationship.

  5. Term of delivery

  (1) As far as not expressly stated in the order confirmation all terms of delivery are non-binding and their compliance can not be guaranteed.

  (2) In case of delay in delivery (also partial) customer shall be entitled to claim legal rights within the scope stated by clauses 10 and 11 of these terms.

  6. Matters Beyond OWS’s Reasonable Control

  In case of matters beyond reasonable control OWS is exempt from obligation to provide performance. As matters beyond reasonable control are also considered industrial conflict measures, official measures or similar circumstances, as far as there is no fault of OWS.

  7. OWS’s Obligations

  (1) OWS guarantees to provide goods services according to contract conditions.

  (2) As far as OWS provides services for free, a customer’s claim for performance does not exist.

  (3) As far as OWS shall also provide work performance for those exclusively the terms of the VOB/B shall apply, provided that a warranty period of two years shall apply.

  8. Customers Obligations

  (1) Customer is obliged to verify all data, drawings, measures and so on submitted with the sales confirmation ant to notify OWS immediately about errors and necessary changes. If customer fails to notify OWS his rights arising out of warranty will drop out.

  (2) Customer is obliged to verify delivered goods concerning their shape and intended purpose. If he does not, his rights arising out of warranty will drop out.

  (3) As far as discrepancies are noticed not until mounting all costs arising from demounting and its consequences are at customer’s expense.

  (4) For all damages arising from deficient mounting or usage against purpose of the delivered goods, as well from non-observance of the instruction manual only the customer shall be liable.

  (5) Transport package and all other packaging as specified in the German Packaging Regulation (incl. pallets) will not be taken back by OWS and has to be recycled by customer.

  9. Retention of title / Passing of risk

  (1) Title to the contractual goods shall remain vested in the OWS and shall not pass to the customer unil the purchase price for contractual servives has been received in full by the OWS. Also the extended retention of title shall apply. In case of customers behaviour contrary to contract in any way OWS shall have the authority to retake or sell the contractual goods.

  (2) Customer shall handle with the contractual goods carefully, maintain them in proper way and ensure them to their full replacement value.

  (3) Customer has the right to resale the contractual goods in correct business connections; but he goes ahead and assigns all claims, arising from resale, amounting to the final purchase price (incl. VAT) to OWS.

  (4) Irrespective of whether title to the contractual goods remains vested in OWS, risk in the contractual goods shall pass to Customer upon delivery.

  10. Guarantee

  (1) In case of defects in delivered products or in service customers rights are limited to supplementary performance, in the way of remedy or replacement by and within the choice of OWS.

  (2) The scope of supplementary performance is limited to the delivery of material. Thereby incurred hours of work as well as travel costs are not included and will be invoiced separately, if required.

  (3) If remedy and replacement should be impossible or fails, also if supplementary performance should be refused in bad faith or be delayed in an undue, culpable way, customer shall be entitled to abate the price or resign from the contract, but without further rights, especially without claims.

  (4) Further claims of the customer, particularly in substitution of damages having not occurred to the subject of the contract itself, are excluded as well as within the scope of guarantee and within the scope of clause 10.

  (5) The guarantee period for provided goods and services, especially for electric components, amounts to 12 month since delivery.

  (6) All damages to equipment without security installations caused by or storm or thunderstorm (more than wind-force 7) do not cause any guarantee claims.

  (7) Conditions and changes in material, which are not relevant for technical usage of the equipment, esp.

  • tarpaulins drawing water
  • folds at pull-buttons
  • folds because of plane-stressing
  • folds within knit lines
  • other optical irregularities

  do not cause any guarantee claims to the customer.

  (8) As far as the default is caused by the customer or its assistants or otherwise derives from its area of risk or responsibility, all measures initiated by OWS have to be reimbursed separately.

  (9) Operation of supplementary performance work do not cause an extension or renewal of the guarantee period.

  (10) Each warranties of the producers of goods may apply as well as the guarantee-duties of OWS and are valid in its entirety according to applicable EU-law.

  11. Liability

  (1) OWS shall unlimited be liable in case of personal injury. The same shall apply for liability from Product Liability law or other obligatory liability regulations.

  (2) OWS shall be liable for failing warranty commitments as far as they were expressly agreed in writing.

  (3) Beyond this any liability of OWS is excluded, as far as the damage is not caused by gross negligence or intent by OWS, its legal agents or executive employees. If the customer is a businessman, liability in case of intent or gross negligence by assistants, which are not legal agents or executive employees, is limited to contract-typical, predictable losses.

  (4) As far as OWS lightly negligent has violated a cardinal obligation or a basic contractual obligation, liability is limited to contract-typical, predictable losses. But in this case liability is excluded, if the damage was insurable and typically are insured.

  (5) Any liability of OWS for financial losses or a loss of profit is excluded.

  (6) The above mentioned shall also be valid to the liability of OWS for its legal agents, employees and assistants.

  12. Cancellation

  (1) Both parties shall be entitled to cancel the contract extraordinarily for important reasons. OWS particularly is entitled to an extraordinary cancellation, if customer

  • quits its usual business activity,
  • files for insolvency, or insolvency or execution proceedings are induced to customers estate or
  • is behind schedule with paying monthly fees which comes up to an amount of fees for two months for a period lasting more than two months.

  (2) In case of an extraordinary cancellation by OWS, OWS shall be entitled to demand an immediately due, flat-rate indemnity amounting to 20 % of the remuneration. Parties are allowed to prove a minor or superior harm.

  13. Final Provisions

  (1) Subsidiary agreements, amendments and supplements to the contract and to all supplementary agreements have to be done in writing and have to be signed by correctly authorized representatives of each party. A waiver of the written requirement can itself only be agreed in writing.

  (2) The parties undertake to handle all information and documents supplied to them by the other contracting partner in strict confidence. There is agreement that information that is already in the public domain or that comes in the public domain independently of the fulfilment of this contract shall not be regarded as confidential. Customer further undertakes not to reveal any information about the expertise of OWS and / or an authorised service company.

  (3) This agreement is subject to the law of Germany; the provisions of the United Nations Sales Convention shall not apply. The court of jurisdiction for all disputes arising from the business relationship shall be Düsseldorf, as far as this agreement is legally allowed.

  (4) If one provision of the contract or any supplementary agreement is or becomes invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a legal one that most closely reflects the economic purpose of the invalid provision. The same shall apply to deficiencies in the contract.

  (5) All contracts and agreements are only valid in German language. Translations in English language are for convenience only.

  OWS, March 2008

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