1. 1. Application

1.1. These General Terms and Conditions (hereinafter: “Terms and Conditions”) shall apply to all business transactions between Wall-Smart UK Distribution Ltd (hereinafter: “Wall-Smart UK”) and the customer, even if they are not referred to in subsequent contracts. Terms and conditions of the customer that conflict with, supplement, or deviate from these Terms and Conditions shall not become part of the contract unless their application is expressly approved by Wall-Smart UK in writing in advance. These Terms and Conditions shall apply even if Wall-Smart UK makes a delivery to the customer without reservations whilst being aware of the customer’s conflicting or deviating terms and conditions.

1.2. Agreements which supplement or deviate from these Terms and Conditions and which are made between Wall-Smart UK and the customer for the performance of a contract must be set out in writing in a contract. This shall also apply to the cancellation of this requirement of the written form.

1.3. Any rights beyond these Terms and Conditions to which Wall-Smart UK is entitled in addition to this general terms by law shall remain unaffected.

2. 2. Offer and formation of contract

2.1. Offers from Wall-Smart UK shall be subject to change and non-binding unless they are expressly stated to be binding. Pictures, drawings and information about weight, performance and measurement shall be approximations only unless they are expressly stated to be binding. Such items shall not constitute an agreement on, or guarantee of, an according quality of the goods. Wall-Smart UK retains all property rights and copyrights in all offer documents. Such documents may not be made available to third parties.

2.2. Orders shall not become binding until they have been confirmed by Wall-Smart UK by means of a written order confirmation. Order confirmations that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written order confirmations. If Wall-Smart UK does not respond to offers, orders, requests or other declarations from the customer, this shall only be deemed approval if an express written agreement to this effect has been made between Wall-Smart UK and the customer. To the extent that an order confirmation contains obvious errors, clerical mistakes or calculation errors, it shall not be binding upon Wall-Smart UK.

2.3. The closing of any contract shall be conditional upon Wall-Smart UK being correctly and timely supplied by its own suppliers. This shall only apply, however, if Wall-Smart UK is not responsible for the non-delivery, in particular, if Wall-Smart UK has made a corresponding covering transaction with its supplier. Wall-Smart UK shall notify the customer without undue delay if goods or services are not available. In such cases, the consideration shall be refunded without undue delay.

3. 3. Prices

3.1. Prices shall be charged on the basis of the price list that is valid on the date of delivery, plus actual value-added tax.

3.2. Unless specifically otherwise agreed, all prices are “ex works” (EXW pursuant to Incoterms® 2010), excluding packaging, transport, insurance and installation.

4. 4. Terms of delivery and transfer of risk

4.1. The scope of the delivery shall be as set out in the written order confirmation from Wall-Smart UK. Any changes to the scope of the delivery must be approved by Wall-Smart UK in writing to be valid. Wall-Smart UK reserves the right to make changes to the construction or form of the goods to the extent that such changes are insignificant and not unreasonable for the customer. Wall-Smart UK shall have the right to make partial deliveries.

4.2. Delivery periods must be agreed in writing and shall be non-binding unless they are expressly stated to be binding.

4.3. The delivery period shall commence upon dispatch of the order confirmation by Wall-Smart UK, but not before all documents, permits and approvals to be obtained by the customer have been provided in full, all technical issues have been clarified and the agreed down-payment, if any, has been received.

4.4. The agreed delivery period shall be deemed met if the goods have left the warehouse by the time the delivery period expires or – if the customer has announced that it will refuse acceptance and the goods have not, therefore, left the warehouse – Wall-Smart UK has given notice that the goods are ready for dispatch. The delivery shall be conditional upon Wall-Smart UK being timely and properly supplied by its own suppliers.

4.5. If the failure to comply with delivery periods is due to force majeure or other obstacles for which Wall-Smart UK is not responsible, such as war, terrorist attacks or import and export restrictions, including restrictions affecting Wall-Smart UK’s suppliers, the agreed delivery periods shall be extended for the duration of the existence of such obstacles. This shall also apply to any industrial action which affects Wall-Smart UK and/or its suppliers.

4.6. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW pursuant to Incoterms® 2010), which means that the risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer as soon as the goods have been handed over to the person in charge of carrying out the transport or have left the warehouse of Wall-Smart UK for shipment. This shall also apply if partial deliveries are made or Wall-Smart UK has assumed further obligations, such as the transport costs or the assembly of the goods at the customer’s place. At the request and expense of the customer, Wall-Smart UK shall insure the goods against the risks specified by the customer by taking out a transport insurance policy.

4.7. If the customer defaults on acceptance of the goods or breaches other duties to cooperate, Wall-Smart UK may claim damages for the losses suffered, including additional expenses, if any, in the sum of 0.5% of the price of the goods included in the delivery, at maximum, however, in the total sum of 5% of the price of the goods included in the delivery. The contracting parties may prove that a larger or smaller amount of additional expenses was actually incurred. The risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer at the time the customer starts to be in default of acceptance.

4.8. The customer shall – without prejudice to the customer’s claims for defects, if any – be obliged to accept the goods supplied even if they contain minor defects.

5. 5. Terms of payment

5.1. Unless otherwise agreed, the gross price plus the cost of packaging, freight and insurance, where applicable, shall be paid in advance, within after the order confirmation has been received. Invoices for services provided by Wall-Smart UK, such as repairs, programming, training, initial operation, etc., shall be payable without deductions within 8 days of the invoice date. Any deduction of a discount for prompt payment must be agreed in writing in advance. If the payment obligation due order confirmation or invoice is not objected within four weeks from the date of the order confirmation or invoice, the payment obligation shall be deemed accepted.

5.2. A payment shall be deemed made when Wall-Smart UK is able to dispose of the amount at its place of business. If Wall-Smart UK accepts means of payment other than cash, payment shall also be deemed made when the relevant sum has been credited unconditionally to the bank account of Wall-Smart UK and/or when Wall-Smart UK is able to dispose of the sum owed.

5.3. If requests for payment become necessary after the time allowed for payment has expired, the costs incurred in making any such requests for payment shall be charged to the customer.

5.4. Wall-Smart UK may charge default interest at the rate of 9% above the base rate of the European Central Bank from the due date. This shall not affect Wall-Smart UK’s right to assert further claims for damages.

5.5. If the customer defaults on payment, Wall-Smart UK may demand immediate payment in cash of all claims which result from the business relationship and are due and not subject to any defences.

5.6. Wall-Smart shall have the right to make the performance of outstanding deliveries or services contingent upon prepayment or the provision of security if, after the contract has been entered into, circumstances become known which could significantly reduce the customer’s creditworthiness and jeopardise the payment of outstanding claims of Wall-Smart UK under the relevant contract by the customer. This shall apply accordingly if the customer refuses to pay, or fails to pay, outstanding claims of Wall-Smart UK and undisputed objections against Wall-Smart UK’s claims, or objections which have been established by a judgment that cannot be appealed against, do not exist. The customer shall have no right to set its claims off against claims of Wall-Smart UK or exercise a right to retain with regard to its claims unless the customer’s claims are undisputed or have been established by a judgment that cannot be appealed against. Furthermore, the customer may only exercise a right to retain if the customer’s claims and the claims of Wall-Smart UK are based on the same contract.

6. 6. Retention of title

6.1. The goods supplied by Wall-Smart UK shall remain the property of Wall-Smart UK until all claims resulting from the business relationship have been paid in full. The customer shall be obliged to handle the goods which are subject to this retention-of-title clause with due care for as long as title is retained. In particular, the customer shall be obliged to insure the goods at the customer’s own expense sufficiently, at their replacement value, against damage by fire, water and theft. The customer hereby assigns to Wall-Smart UK all claims for compensation arising from such insurance. Wall-Smart UK hereby accepts this assignment. If assigning such claims is not allowed, the customer hereby instructs the insurer to make payments, if any, only to the supplier. This shall not affect any further claims of Wall-Smart UK. Upon request, the customer shall provide Wall-Smart UK with evidence of the conclusion of the insurance contract.

6.2. The customer may sell the goods which are subject to this retention-of-title clause only in the ordinary course of business. The customer shall not be authorized to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security or to make any other dispositions which jeopardize the ownership of Wall-Smart UK. In the event of attachments or other encroachments by third parties, the customer must notify Wall-Smart UK without undue delay in writing and provide all the information needed, advise the third party of Wall-Smart UK’s property rights and assist with the measures taken by Wall-Smart UK to protect the goods which are subject to this retention-of-title clause.

6.3. The customer hereby assigns to Wall-Smart UK its claims arising from the resale of the goods, along with all ancillary rights, irrespective of whether the goods which are subject to this retention-of-title clause are resold without or after further processing. Wall-Smart UK hereby accepts this assignment. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to Wall-Smart UK. The customer shall be authorized, subject to revocation, to collect the claims which have been assigned to Wall-Smart UK in its own name as a trustee on behalf of Wall-Smart UK. All amounts collected must immediately be remitted to Wall-Smart UK. Wall-Smart UK may revoke the customer’s authority to collect claims and the customer’s authority to resell the goods if the customer fails to properly perform its payment obligations to Wall-Smart UK, defaults on payment or stops payment, or if a petition is filed to institute insolvency proceedings against the assets of the customer.

6.4. Any processing or alteration by the customer of the goods which are subject to this retention-of-title clause shall always be carried out on behalf of Wall-Smart UK. The customer’s right to acquire ownership of the goods which are subject to this retention-of-title clause shall continue to exist as a right to acquire ownership of the processed or altered item. If the goods are processed together with items that are not owned by Wall-Smart UK, Wall-Smart UK shall acquire co-ownership of the new item in a proportion that corresponds to the ratio of the value of the goods supplied and the value of the other items processed at the time of processing.

In all other respects, the item created through processing or alteration shall be governed by the same provisions that also apply to the goods which are subject to this retention-of-title clause.

6.5. At the request of the customer, Wall-Smart UK shall be obliged to release the security interests to which Wall-Smart UK is entitled to the extent that the realizable value of such security interests exceeds Wall-Smart UK’s claims arising from the business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. Wall-Smart UK may choose which security interests to release.

6.6. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in clauses 6.1 to 6.5 above do not provide the same degree of protection as they offer in the Republic of Austria, the customer hereby grants Wall-Smart UK an equivalent security interest. If the creation of such security interest requires further measures, the customer shall do whatever is necessary to grant Wall-Smart UK such security interest without undue delay. The customer shall assist with all measures required for, and conducive to, the validity and enforceability of such security interests.

7. 7. Warranty and liability

7.1. The customer’s rights arising from defects shall be contingent upon the customer performing its statutory obligations to inspect and give notice of defects, in particular, on the customer inspecting all goods supplied upon receipt and notifying Wall-Smart UK upon receipt of the goods without undue delay in writing of any obvious defects and defects that could be identified during such inspection. Hidden defects must be reported to Wall-Smart UK by the customer in writing without undue delay after such defects have been discovered. In order for the notification to be deemed without undue delay, it must be made within 10 working days if the defects are obvious or could be identified during a proper inspection, and within 10 working days upon discovery if the defects were hidden; this deadline is met if the notification or complaint is received by Wall-Smart UK before the expiry of the aforesaid period. If the customer fails to carry out a proper inspection and/or give notice of defects, Wall-Smart UK shall not be liable for the defect. When reporting defects to Wall-Smart UK, the customer must provide a written description of the defects.

7.2. All claims for remedial action shall be excluded in the event of minor deviations in quality, colour, width, weight, equipment or design which cannot be avoided technically.

7.3. If the goods contain defects, Wall-Smart UK may, at its option, take remedial action by remedying the defects or delivering goods which are free from defects.

7.4. The customer’s statutory right to rescind the contract shall be excluded if the customer is unable to return the goods or services received and this is not due to the fact that returning the goods or services received is impossible because of their nature, Wall-Smart UK is not responsible for such inability or the defect is only showed during the processing or alteration of the products. The customer’s right to rescind the contract shall further be excluded if Wall-Smart UK is not responsible for the defect and if, instead of the goods or services received being returned by the customer, Wall-Smart UK must pay compensation for the loss of value.

7.5. If the item supplied is not at the place of delivery, the customer shall bear all additional costs and expenses which Wall-Smart UK incurs as a result of this fact when remedying defects unless such relocation is in line with the agreed use.

7.6. Rights arising from defects shall not exist

– In the event of natural wear and tear;

– If the relevant quality of the goods or the damage is due to improper handling, storage or maintenance, or to excessive strain or use;

– If the relevant quality of the goods or the damage is due to force majeure, to particular external impacts not intended according to the contract, or to the goods being used in a manner which does not correspond to their contractually intended or customary use. Wall-Smart UK shall not be liable for any quality of the goods which is due to their processing or the materials chosen if the design or the material requested by the customer was not included in the range of possible designs or materials offered by Wall-Smart UK.

7.7. Wall-Smart UK shall be liable up to the amount of Wall-Smart UK´s product liability insurance for damage resulting from breach of guarantee or from death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects, and liability if defects were concealed with fraudulent intent. In cases of slight negligence, Wall-Smart UK shall only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, Wall-Smart UK’s liability shall be limited to the damage that can typically be expected with such contract.

7.8. The limitation period for the customer’s claims for defects shall be 12 months and shall commence when the goods are delivered (transfer of risk). Except where agreed out of goodwill, the limitation period shall not start anew as a result of a repair or replacement delivery. The above limitation period shall also apply to tort claims which are based on a defect of the goods. Wall-Smart UK’s above mentioned liability for damage resulting from breach of guarantee or from death, bodily injury or damage to health, for wilful misconduct and gross negligence and for product defects shall remain unaffected.

8. 8. Rescission

8.1. If the customer breaches the contract, in particular, if the customer defaults on its payment obligations, Wall-Smart UK shall – without prejudice to its other contractual and statutory rights – have the right to rescind the contract after a reasonable additional period of time set for performance has expired.

8.2. Wall-Smart UK shall have the right to rescind the contract without setting an additional period of time for performance if the customer stops payment, files for insolvency or applies for the institution of similar proceedings against its assets for debt settlement purposes.

8.3. After notice of rescission has been given, the customer shall grant Wall-Smart UK or Wall-Smart UK’s agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender such goods. After a timely announcement to this effect, Wall-Smart UK may otherwise sell the goods which are subject to the retention-of-title clause in order to achieve the settlement of its due claims against the customer. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.

8.4. The provisions of this clause 8 shall not operate to limit statutory rights or claims.

9. 9. Return of goods

9.1. Except in the case of justified complaints pursuant to clause 7 above, goods may only be returned with the prior consent of Wall-Smart UK. When returning goods, the customer must state the invoice number and the date of the invoice.

9.2. If Wall-Smart UK issues a credit note, a mark-down of at least 5% of the sales price, in any case, however, GBP 40.00, plus value added tax at the rate applicable from time to time shall be deducted, depending on the state of the goods (new, original packaging, used). The customer may prove that the loss in value or the amount of expenses actually incurred is smaller.

9.3. If Wall-Smart UK agrees to take back goods, this shall not constitute a rescission of the contract but the customer’s fulfilment of an obligation in lieu of performance under the sales contract.

9.4. Wall-Smart UK shall not supply goods for test purposes, unless expressly otherwise agreed.

10. 10. Final provisions

10.1. The legal relationship between the customer and Wall-Smart UK shall be governed exclusively by the laws of the United Kingdom, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.2. The exclusive place of jurisdiction for all claims against businesspersons and legal persons under public law arising out of the business relationship shall be Wall-Smart UK’s place of business. However, Wall-Smart UK shall additionally have the right to sue the customer at the customer’s place of business or at any other permissible place of jurisdiction.

10.3. If goods or services are delivered to a place outside of the United Kingdom, Wall-Smart UK’s place of business shall be the exclusive place of jurisdiction for all disputes arising out of the contractual relationship. However, Wall-Smart UK reserves the right to sue the customer at the customer’s general place of jurisdiction or before any other court of competent jurisdiction pursuant to Council Regulation.

10.4. The place of performance for all obligations that are to be performed by the customer and by Wall-Smart UK shall be Wall-Smart UK’s place of business.

10.5. Any assignment by the customer of its rights and obligations, or any part thereof, to a third party shall be subject to written approval by Wall-Smart UK.

Wall-Smart UK Distribution Ltd


Lower St Clere

Sevenoaks

Kent

TN15 6NL

September 2017