KaWe Germany - Kirchner & Wilhelm GmbH + Co. KG
General Terms and Conditions of Sale.

For Transactions with Purchasers in Trade and Industry

status: 1st August 2010

  1. General Terms and Effectiveness
    All our deliveries, services and offers to purchasers in trade and industry are exclusively based on these General Terms and Conditions of Sale. These terms shall apply even if they are not expressly declared a second time and shall be binding for all future business transactions. Any deviating terms and conditions shall become legally binding only upon our written confirmation. We herewith expressly and finally contradict any of our Purchasers' terms and conditions of sale that deviate from ours. They will not be recognized even if after receiving them, we do not revoke them once more.
  2. Offers and Orders
    Our offers are subject to prior sale and not binding. Orders, price agreements and all other additional agreements shall become legally binding for us only when confirmed in writing or after the presenting of an invoice. Any documentation accompanying our offers shall be valid only with the restriction that we reserve the right to make changes in the course of further technical developments and depending on the economic market situation. If after contract conclusion the Purchaser's financial circumstances show a marked deterioration which becomes evident only after the finalization of the contract jeopardizing our entitlement, and the agreed terms and conditions of sale, we shall be entitled to repudiate the purchase contract.
    Any agreements entered into with our representatives shall be valid upon our written confirmation only. Any subsequent changes or agreements will require our written confirmation in order to become valid.
  3. Prices
    Our prices offered or agreed upon shall be net plus statutory German V.A.T (MWST). If no express price agreement has taken place, prices valid on the delivery date shall apply. If market or production conditions change on the delivery date of the ordered goods, due to circumstances beyond our control, the prices valid on the date of delivery – e.g. the market prices – shall apply. This shall concern business transactions with non-traders only if delivery is to take place later than 4 months after contract conclusion or within the scope of a continuous obligation.
  4. Time of Delivery and Performance
    Delivery dates quoted by us are not binding unless definite fixed dates have been agreed upon in writing. Partial deliveries and partial performances are permissible. If no other terms and conditions have been agreed, the entire quantities of call orders must be accepted within 6 months of contract conclusion. Thereupon and upon prior announcement we shall be entitled to supply any of our warehoused stored goods. In case of delays in delivery and performance due to force majeure events, or events beyond the scope of our responsibility, we shall be entitled to postpone any delivery or performance as long as the force majeure event lasts plus a reasonable start-up period . If the disruption continues for longer than one month, the Purchaser shall be entitled, after a suitable grace period, to withdraw from contract as far as any not yet delivered parts are concerned.
  5. Delay, Impossibility of Performance
    Delays in agreed lead-times due to any force majeure events may not be reasons for damage claims or contract withdrawal.
  6. Delivery
    All shipments shall take place at the Purchaser's risk, as soon as they have left our factory premises, and irrespective as to who bears the freight costs or who carries out the transport. If we carry out the transport, we shall be liable for any damage or injuries caused by ourselves and for any damage or injuries caused by our skilled workers. If transport is carried out by any third parties we shall only be liable for damage or injuries caused during selection , and only for the value of the damaged goods, and only if the Purchaser submits its claims within 5 days in writing.
    In order to be able to claim damages, any damage of goods incurred during transport must be certified by Railway, Post Office, or Carrier officials when the goods are taken over from any of them.
  7. Insurance
    KaWe shall take out a transport insurance policy for all deliveries within Germany and abroad.
  8. Defects and Complaints
    Complaints due to defects must be submitted to us in writing. Any delivered goods must be checked immediately upon arrival at destination. Delivery shall be regarded as accepted if within 8 days after arrival of the goods at the destination, no written complaint of defects has been submitted. For any hidden defects, the statutory period of limitation shall apply.
    In case of justified complaints, non-defective goods shall be supplied once warranty rights have been excluded. Warranty shall be granted for 2 years, which does not exclude the right of damages for non-compliance with assured properties.
  9. Reservation of Proprietary Rights
    For goods delivered by us, we reserve an ownership right as long as there are any outstanding liabilities due to unpaid invoices and unpaid incidental expenses. Incidental expenses shall also be those incurred due to any delay on the Purchaser's side. In case of several liabilities or open account, reservation of proprietary rights serve as collateral security for the settlement of our accounts without regard to whether some goods deliveries have already been paid or not. When receiving checks or bills of exchange we reserve the proprietary rights in the supplied goods until the checks or the bills of exchange have been discharged and honoured. The Purchaser may resell any goods supplied in the ordinary course of business. In so doing it will be its duty to secure our rights when reselling the secured goods to any third party. Any accounts receivable the Purchaser is entitled to out of the resale, the Purchaser shall assign to us even now to the full extent of the title we have in the sold goods, by way of a collateral security, or at least an amount equalling the price agreed upon between us and the Purchaser for the respectively used or sold reserved goods, without requiring any special agreement in each case.
    We agree, upon the Purchaser's request, at our own discretion, to release any collateral securities which we are entitled to do, in as much as the amount exceeds the liabilities to be secured by more than 10%.
    The Purchaser shall be entitled to collect the assigned accounts receivable for us in a fiduciary capacity for as long as they duly discharge their assigned payment obligations towards us. The Purchaser shall be obliged to forward us any incoming amounts until all our amounts receivable have been paid. Upon our request, the Purchaser shall deliver to us – at any time – the addresses of its clients, as well as the figures and invoice amounts of any deliveries. At any time we shall be entitled to inform those third parties about the assignment. The Purchaser shall not be entitled to pawn the reserved "goods", or pledge them as collateral security. The Purchaser shall be obliged without delay to inform us by telegram or fax of any third party's execution enforcement imposed on the reserved goods or on any collateral securities which we are entitled to.
    We shall be entitled and shall herewith be empowered to take possession of the reserved goods without having recourse to any courts if the Purchaser is in delay of payments due. This way of taking possession shall not be deemed as withdrawal from contract. The Purchaser shall be liable for the remaining monetary deficiency once the withdrawn goods have been turned to account.
  10. Payment Terms
    Our invoices shall be payable as follows:
    3% discount in case of advance payment and collection by the Bank, 2% discount within 14 days after the invoice date. Net 30 days after the invoice date.
    Special payment terms for special productions.
    If payment by bill of exchange has been agreed, all charges for bills of exchange and discounts will have to be borne by the Purchaser.
    If the payment term is not observed, statutory interest for delay shall be charged. Immediate payment of all accounts payable shall be imposed if due to delay in payment of (a partial) amount, summary proceedings for recovery of debt will be imposed by a court. Payment shall be deemed to have taken place as soon as it is at our disposal. In case of checks, payment shall be deemed to have taken place when the check has been honoured. The acceptance of a bill of exchange takes place upon special payment agreements. Payments by bills of exchange do not count as cash payments and do not entitle the Purchasers to claim any discounts. Purchasers who are not our regular customers or who place an initial order with us shall receive our goods against advance payment.
  11. Very small Orders
    For orders within Germany below EUR 100,– net order value a processing fee of EUR 15.- will be charged.
    For orders within the EU countries below EUR 500,– net order value a processing fee of EUR 20,– will be charged.
    For orders from NON-EU countries below EUR 1.000,– net order value a processing fee of EUR 30,– will be charged.
  12. Limitation of Liability
    Excluded shall be any compensation for defects in our goods deliveries and performance including consequential harm, abortive retroactive performance or violation of any other contractual or preliminary contractual obligations (indebtedness when entering into the contract) of any kind irrespective of the legal reason and notwithstanding the above paragraphs 5 and 8. Also excluded shall be the liability for claims outside this contract, in particular for tortious acts. However, there shall be no exemption from liability:
    • if our employees are accused of causing damage intentionally or by gross negligence
    • if due to any non-performance of major contract obligations the purpose of this contract (cardinal duties) is imperilled
    • if the liability is based on the warranty for grade and quality of the subject matter.
  13. In all cases indemnity /liability shall be restricted to the replacement of a typical contractual damage.
  14. Applicable Law, Legal Venue, and Place of Performance
    These mutual terms and conditions and all agreements within the framework of our business relations shall be governed and construed in accordance with the laws of the Federal Republic of Germany. Place of performance shall be Asperg. Legal Venue for any legal rights and obligations also concerning bills of exchange and checks shall be Ludwigsburg, provided Purchasers are fully qualified business men, or legal persons under public law, without any General Legal Venue.
  15. Severability of Contract Provisions, Storing of Computer Data.
    If any provision of these business terms or any condition or provision of any other agreements should be or become void or unenforceable, the validity of the remaining provisions shall remain unaffected.
    We shall store the data within the scope of our mutual business relationship pursuant to the German Federal Data Protective Law. (BDSG)
  16. Use of graphical material and KaWe logos
    With regard to the use of the KaWe graphical material and logos please refer to our general terms of use at General Terms.
  17. Final Provision
    In addition, the delivery and payment terms of the current price-list shall apply.

KIRCHNER & WILHELM GmbH + Co KG, Asperg, Germany