Windward Offshore GmbH & Co. KG (hereinafter referred to as
“Windward”)
1. General Provisions
1.1. These Terms and Conditions (hereinafter the “Terms”) shall apply to all business relations of Windward with its
customers (hereinafter referred to as “Customer”) to the extent no other agreement has been explicitly made in writing.
These Terms are applicable only to national or international enterprises covered by Section 14 of the German Civil Code,
to legal persons under public law and to special funds under public law covered by Section 310 of the German Civil Code.
1.2. These Terms shall apply exclusively. Any terms and conditions proposed in Customer’s offer, acceptance or in any
acknowledgment, invoice, or other form of Customer that add to, vary from, or conflict with the Terms herein are hereby
rejected. These Terms shall also apply in the event that Windward unconditionally makes the delivery or performs
services to the Customer despite its knowledge of conflicting or differing or contrary general terms and conditions of
the Customer.
1.3. Only orders or changes or additions to the Terms placed in writing shall be binding for Windward. Oral agreements
and collateral agreements are only binding after a written confirmation by Windward.
2. Conclusion of Agreement
2.1. If not expressly stated otherwise in the offer submitted by Windward, offers by Windward are not binding.
2.2. Agreements concluded with Windward enter into force only after the orders received by Windward have been
confirmed in writing, or the supplies or services ordered have been delivered or performed respectively. The same
applies to requests by the Customer aimed at supplementing, modifying or extending an agreement. All orders by the
Customer are deemed to be binding. Unless expressly stated otherwise in the offer, Windward has four (4) weeks from
the date of receipt of the offer to accept it.
3. Prices, Payments
3.1. Prices for deliveries are quoted net in EURO ex works plus statutory V.A.T., excluding packaging costs, customs
duties in the case of exports and tariffs and other public dues.
3.2. Prices for services provided are quoted net in EURO, plus the applicable statutory V.A.T.. The price calculation
for services is based on time and expenses, unless it was agreed to provide the services for a lump sum.
3.3. In the event of deliveries abroad or services provided by Windward abroad, all taxes, fees and duties charged on
the basis of provisions outside the Federal Republic of Germany, together with costs connected with these, are to be
borne by the Customer. This shall also apply in the event that the remuneration of Windward’s personnel to be paid is
subject to taxation.
3.4. Invoices are to be settled within fourteen (14) days of receipt of the respective invoice, without deductions. The
decisive date for the payment is the date of receipt of payment by Windward on its bank account.
3.5. In the event of default of payment by the Customer and without prejudice to any other rights or claims, Windward
is entitled to charge interest from the point in time of the start of the delay at a rate of eight (8) percentage points
above the respective base interest rate. Prior to full payment of outstanding invoice amounts, including interest
accrued, Windward is not obliged to make any further deliveries or render any further services to the Customer from
any ongoing contracts. Windward reserves the right to receive compensation for additional loss occurring in relation
to default of payment.
4. Delivery, Delayed Delivery and Delayed Acceptance
4.1. The parties will agree on the delivery dates or delivery periods or commencement of performance of services
individually in writing.
4.2. Provided that nothing to the contrary has been agreed upon, deliveries take place ex works respectively.
4.3. The delivery of the goods is at the cost and risk of the Customer. Windward is entitled to determine the type of
transportation (particularly forwarding companies, dispatch route, packaging, insurance) itself.
4.4. Goods are delivered if the goods have been made ready to be picked up by Windward before or at the time when the
delivery period expires.
4.5. Performance has been carried out when the contractual services have been provided within the agreed time limits or
when minor reworking operations are required, provided that the functionality of the object of performance is only
minimally impaired by this.
4.6. Windward is entitled to make partial deliveries and to supply before the delivery date within the agreed delivery
period or up until the agreed delivery date, provided they are utilizable by the Customer in the framework of the
contractual purpose and do not produce considerable additional expenditure for the Customer. The Customer must be
informed in advance in the case of partial deliveries and supplies before the delivery date.
4.7. Delivery periods are extended or delivery dates are postponed by the length of time of the obstruction, plus a
reasonable lead time, in the event of force majeure, industrial action, disruption of operations of any kind or other
unforeseeable circumstances not under the control of Windward. Counting as a “circumstance” under the previous
sentence are late deliveries by a supplier provided that Windward has concluded a covering deal in good time. If the
obstruction lasts longer than three months, the parties are entitled to rescind the contract, with their statutory
rights remaining unaffected by this. This provision shall also apply with regard to deadlines of performance of
services.
4.8. In any event Windward is entitled to stock up on goods of the same kind and quality from different sources than
those that might be laid down in the contracts for the performance of the contract.
4.9. If the Customer is in delay in accepting deliveries or services or if it culpably breaches other cooperation
obligations, Windward is entitled to request compensation for loss occurring in this respect, including possible
additional expenditure. Further rights or claims are reserved.
4.10. If Windward is in delay in making a delivery or in providing services or if it becomes impossible, for whatever
reason, for Windward to make a delivery or to provide services, and the Customer has suffered a loss due to this
delay, the Customer is entitled to demand compensation for the delay. The Customer is entitled to claim an amount of
zero point five (0.5) percent of the net value of the goods or services per week of the delay, in total, however, not
exceeding five (5) percent of the net value of the goods or services. Any losses for delay going beyond this are
excluded. Windward is allowed to provide evidence that the Customer did not actually suffer losses due to delay or
that losses were lower than the amount mentioned above. Windward’s liability shall be limited in accordance with
Clause 10 of the Terms. Windward’s statutory rights (e.g. due to impossibility of, or exceptional hardship through,
performance and/or rectification) remain unaffected.
5. Passage of Risk, Acceptance
5.1. With regard to deliveries, the risk of accidental destruction and accidental deterioration of the goods and the
risk of delay are transferred to the Customer as soon as the goods have been made ready for picking up by Windward at
the place the parties have agreed on. If it has been agreed that the goods should be sent by Windward, the
abovementioned risks are transferred to the Customer with the handing over the goods to the freight forwarder or other
persons used to perform the shipping if an agreement for work is involved. If acceptance of the goods to be delivered or
services is agreed, the acceptance is the point in time of the passage of risk.
5.2. Deliveries or services shall be accepted only if this was agreed in writing or legally provided for. If acceptance
was agreed, Windward notifies the Customer in writing about the readiness of the deliveries or services for
acceptance. Acceptance shall take place within 14 calendar days upon the notification about the readiness for
acceptance. Upon expiry of 14 calendar days the deliveries or services are deemed to be accepted if acceptance was not
affected before for reasons beyond the Customer’s control. The Customer shall not refuse the acceptance of deliveries
and services on account of minor defects.
5.3. The deliveries and services are also deemed to be accepted as soon as the Customer has put the delivered item into
use for longer than a week without reporting defects. The aforementioned shall not apply if the usage was unavoidable
for the Customer due to special circumstances.
5.4. Customer’s claims are time barred after one year starting from delivery or completion of services to be performed
unless the mandatory statutory limitation periods provide a longer limitation period. This does not apply to claims for
which Windward is liable without limitation in accordance with Clause 10.
6. Warranties
6.1. In case of a delivery of goods Windward is only liable for defects (incl. incorrect assembly instructions) in
accordance with statutory law, unless there is a provision to the contrary in this Clause 6.
6.2. The defect claims of the commercial Customer require, in the case of a delivery of goods, that the Customer,
without delay, but at the latest within seven (7) days, after taking delivery, makes a complaint to Windward in
writing in relation to recognizable defects. Hidden defects are to be the subject of a complaint in writing by the
Customer without delay following their discovery (Section 377 German Commercial Code).
6.3. The Customer shall not be entitled to assert any claim for defects, in the event of minor deviation from the agreed
condition or in the event of insignificant impairment in the usability or in the event of natural wear and tear.
6.4. In the event of a defect Windward has the right to remedy the defect at its own discretion and has at least two
attempts for rectification for which a reasonable time shall be given by the Customer.
6.5. Windward shall not bear any additional costs due to a change of the place of delivery. These costs shall be borne
by the Customer.
6.6. Windward shall not be liable for defects which are solely attributable to items or material provided by the
Customer or any improper handling by Customer’s personnel.
6.7. If the Customer gives notice of a defect, the Customer shall reimburse Windward for all costs and expenses
incurred, if in fact there is no defect.
6.8. With regard to the time-bar for claims in connection with defects, Clause 5.4 applies.
7. Property Rights
All right over all documents given to or made accessible to the Customer are reserved to Windward, including in
particular all proprietary rights and copyrights. Without the prior written consent of Windward, documents given by or
made accessible by Windward shall not be used for purposes outside the agreement and shall not be divulged to third
parties. Upon request, such documents shall be returned to Windward.
8. Offsetting and Assignment
8.1. Claims for payment to Windward shall not be subject to any setoff unless the counterclaim of the Customer is
undisputed or based on a decision by a competent court or arbitration which is final and binding or based on a defect of
goods delivered to the Customer.
8.2. Subject to Section 354a of the German Commercial Code the Customer shall not assign or transfer (whether
voluntarily or involuntarily, by operation of law or otherwise) any or all of its rights or obligations under the
agreement without the prior written consent of Windward.
9. Cooperation
9.1. The Customer shall provide all relevant certificates, work permits, permits and documents and export licenses
according to the requirements of the Bundesamt für Wirtschaft und Ausfuhrkontrolle, if required, and in any event
provided that Windward’s responsibility is not explicitly agreed upon.
9.2. If Windward provides services abroad, the Customer has to ensure that, at its own costs, Windward will receive
all necessary authorisations for the import and export of tool, equipment and other materials.
9.3. The Costumer shall at its own costs and expense provide Windward with all information, such as but not limited to
soil conditions and weather conditions, which Windward reasonably requires for the performance of services. In the
event the Customer becomes aware of such information in the course of the performance by Windward, the Customer shall
inform Windward without undue delay about the occurrence or change of information already provided.
10. Liability
10.1. The Customer shall be liable in accordance with the applicable statutory provisions.
10.2. Windward shall only be liable as set out in this clause and is excluded in the remainder.
10.3. Windward is liable in the framework of the fulfillment of its obligations under the agreement without limitation
for loss of life and damage to health, as well as in the cases of willful misconduct and gross negligence in line with
the statutory provisions. The same applies to claims against Windward under the Product Liability Act. For negligent
breaches of fundamental contractual duties, liability is limited to loss which is foreseeable for the type of contract.
Fundamental contractual duties are those whereby only with their fulfillment a normal execution of the contract is
possible and on the fulfillment of which the Customer has relied and was entitled to rely. In all other cases,
Windward’s liability for negligently causing any damage or loss is excluded.
11. Provision of Windward’s Materials
11.1. Drawings, blueprints, samples, production regulations, company-internal data, tools, equipment, or any other
material provided by Windward shall remain the property of Windward. It shall be used for the purposes of the
agreement only, and it shall not be reproduced or made accessible to third parties without the written consent of
Windward and it is to be safely stored and maintained in good, workable condition and it shall be plainly marked and
adequately identified as Windward’s material. After the agreement has been fully executed it is to be returned to
Windward including all duplicates made without request or – after written consent – to be destroyed by the Customer.
11.2. In the event that the Costumer processes or transforms materials provided, this shall be carried out for the
benefit of Windward. Windward shall become the direct owner of the new objects processed or transformed. If the
material provided only accounts for part of the new objects, Windward shall be entitled to the co-ownership of the new
objects in the ratio which corresponds with the value of the provided material contained therein.
12. Confidentiality
12.1. “Confidential Information” shall mean all information, knowledge or data (including without limitation financial,
business, and product strategy information; product specifications; product designs; procedures; studies; tests; and
reports) in written, electronic, tangible, oral, visual or other form, (i) disclosed by, or obtained from, Windward or
(ii) conceived, created, acquired, or first reduced to practice in connection with the agreement. If Windward
furnishes sample products, equipment, or other material to Customer, the material so received shall be used and the
information obtained from said material shall be treated as if it were Confidential Information disclosed in connection
with the agreement.
12.2. Unless the Customer has received Windward’s express written consent to the contrary, the Customer shall (i) use
the Confidential Information solely for the purposes of the agreement and not for any other purpose (including, without
limitation, designing, manufacturing, selling, servicing or repairing equipment for entities other than Windward;
providing services to entities other than Windward; or obtaining any government or third party approvals to do any of
the foregoing); (ii) safeguard the Confidential Information to prevent its disclosure to, or use by, third parties;
(iii) not disclose the Confidential Information to any third party; and (iv) not reverse engineer, disassemble, or
decompile the Confidential Information
12.3. The agreement shall not restrict the Customer from using or disclosing any information that, as proven by written
contemporaneous records kept in the ordinary course of business: (i) is or may hereafter be in the public domain through
no improper act or omission of the Customer or a third party; (ii) is received by the Customer without restriction as to
disclosure by the Customer from a third party having a right to disclose it; (iii) was known to the Customer on a non-
confidential basis prior to the disclosure by Windward.
12.4. The conclusion of the agreement is to be treated confidentially. Reference may only be made to the business
transaction with Windward in advertising materials of the Customer after obtaining written consent. Windward and the
Customer undertake to treat all non-obvious commercial or technical details, of which they become aware through the
business relationship, as business secrets. Sub-suppliers are to be obliged accordingly.
13. Applicable Law
This agreement and all non-contractual obligations arising out of or in connection with it are governed by and construed
in accordance with German law under the exclusion of the UN Convention on the International Sale of Goods as well as the
standards of conflict of international private law.
14. Place of Jurisdiction
Unless provided otherwise by mandatory statutory provisions the exclusive place of jurisdiction for all disputes from
the agreement is Hamburg.
