General Terms and Conditions
Short description
§ 1 Scope of application, offers
1.1 All contracts concluded with regard to our deliveries and services shall be provided exclusively pursuant to these Terms and Conditions They shall be deemed accepted by the customer upon order placement or at the latest upon acceptance of the first delivery or service and shall apply for the entire duration of the business relationship. We do not recognise any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out deliveries to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our General Terms and Conditions.
1.2 Our offers are always subject to confirmation unless they are expressly designated as binding. Agreements, in particular verbal collateral agreements and assurances by our sales staff, shall only become binding upon our written confirmation. Instead of a written order confirmation, the issued invoice or delivery note may be used for short-term deliveries.
1.3 Documents pertaining to the offer such as drawings, illustrations, technical data, references to standards and information in advertising material are not warranted characteristics unless they are expressly designated as such in writing.
1.4 All information on weights, dimensions, performance and other technical data contained in our printed matter, catalogues, price lists or other publishing documents are only approximate values unless expressly designated as binding.
1.5 Deviations of the delivery item from offers, samples, trial and advance deliveries are permissible in accordance with the applicable DIN standards or other relevant technical standards.
1.6 We reserve the right to make changes to the design and form of the subject matter of the contract, provided that this does not result in any unacceptable changes for the customer. However, we are not obliged to make such changes to products already delivered.
1.7 Assurances, collateral agreements and amendments to the contract require our written confirmation in order to be effective. This requirement cannot be waived.
§ 2 Prices
2.1 Unless otherwise agreed, our prices are quoted ex works, excluding packaging, which will be invoiced separately in accordance with Clause 2.2. Furthermore, our prices are exclusive of value added tax.
2.2 Packaging will be invoiced as follows: Disposable packaging such as wooden crates, cardboard boxes, etc. shall be charged at cost price and shall not be taken back. Reusable and lattice box pallets, pallets with collars and lids, containers and cassettes shall remain our property and shall be returned to the place of delivery without delay at no cost to us. Bulk packages contain the quantity listed as minimum package in our price lists. Quantities deviating from this minimum package or multiples thereof can only be delivered in single packages, provided this complies with minimum order quantities.
2.3 We charge the prices agreed upon at the time of conclusion of the contract, which are based on the cost factors valid at that time. Should these cost factors (in particular material, wages, energy, etc.) change between the conclusion of the contract and the agreed delivery date, we shall be entitled to amend the respective prices accordingly. If the customer is not a merchant or if the contract is not associated with the operation of a commercial trade, this shall apply solely if a period in excess of 4 months has passed between contract conclusion and the agreed delivery date, unless the delivery is made within the framework of a continuing obligation.
2.4 These prices only apply to deliveries within the Federal Republic of Germany.
§ 3 Payment conditions
3.1 Our invoices shall be payable – also in the case of partial deliveries – without any deduction under the terms of payment agreed with the supplier. Repairs, moulds and tooling costs are due immediately and payable without discount. Payment must be made within the agreed periods so that the amount required to settle the invoice is available to us by the due date at the latest.
3.2 We accept discountable and duly taxed bills of exchange on account of payment if this has been expressly agreed in writing beforehand. Credit notes for bills of exchange and cheques shall be issued subject to receipt less expenses with value date of the day on which we can dispose of the equivalent value.
3.3 If the term of payment is exceeded, at the latest after a reminder, we shall be entitled to charge interest in the amount of the respective bank rates for overdraft credits, but at least interest in the amount of 3% above the discount rate of the Deutsche Bundesbank. We reserve the right to assert further claims for damages caused by delay if we can prove higher damages caused by delay.
3.4 If we subsequently become aware of circumstances which result in a significant deterioration in the customer’s financial situation and which endanger our claim to payment, we shall be entitled to make our claims due irrespective of the term of credited bills of exchange. If the customer is in default of payment, we shall be entitled to take back the goods after setting a reasonable grace period. We may also prohibit the resale and further processing of the delivered goods. Taking back goods does not imply withdrawal from the contract. After taking back the goods, we shall be entitled to sell them; the proceeds from the sale shall be offset against the customer’s liabilities, minus reasonable selling costs. In any case, we may withdraw the authorisation to collect pursuant to Clause 6.3 and demand advance payments or securities for outstanding deliveries. If the customer does not comply with our request for advance payment or provision of security within a reasonable period of time, we shall be entitled to withdraw from the contract (or contracts) and to invoice the customer for the costs incurred up to that point, including lost profit. The customer may avert all these legal consequences by payment or by the provision of security in the amount of our endangered payment claim. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%. The choice of the securities to be released shall be incumbent upon us.
3.5 The customer shall only be entitled to a right of set-off or retention provided that his counterclaims have been legally established, are undisputed or have been acknowledged by us.
§ 4 Delivery time
4.1 Specified delivery times are non-binding unless individually agreed upon as binding.
4.2 The binding delivery period begins with the dispatch of the order confirmation, however not before clarification of all technical questions and provision of the documents, approvals, releases etc. to be procured by the customer, and not before receipt of an agreed down payment.
4.3 Binding delivery periods and dates shall be deemed to have been complied with if the delivery item has left the delivery centre or notification of readiness for dispatch has been given by the end of the delivery period, subject to punctual and correct delivery by our own suppliers.
4.4 Delivery periods shall be extended to a reasonable extent in the event of delays in delivery and performance due to force majeure and due to events which make delivery significantly more difficult or impossible for us – this includes in particular measures within the framework of industrial disputes (e.g. strike and lockout), official orders, etc., even if they occur at our suppliers or their sub-suppliers. We are not responsible for delays of this kind, even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the deliveries or services for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
4.5 If the hindrance lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery period is extended or if we are released from our obligation, the customer may not derive any claims for damages from this. We can only invoke the circumstances mentioned in Clause 4.4 if we have informed the purchaser hereof immediately.
4.6 Delivery of products and services before expiry of the delivery period are permissible. The seller is entitled to partial deliveries and partial services at any time.
4.7 Compliance with the delivery periods and dates presupposes the fulfilment of the contractual obligations by the customer.
4.8 If we are in default, the customer may withdraw from the contract after expiry of a reasonable grace period set for us, insofar as the goods have not been dispatched by the end of the grace period. If the delay relates only to a partial performance, the customer is entitled to withdraw from the entire contract in accordance with the above provision if he proves that the partial fulfilment of the contract is of no interest to him. If the customer suffers damage due to a change which has occurred as a result of the delay, he shall be entitled, to the exclusion of further claims, to claim compensation for delay in the amount of 0.5% for each full week of delay, but in no case more than a total of 5% of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. Any further claims are excluded unless the delay is due to intent or gross negligence or constitutes a fundamental breach of contract. In this case we shall be liable in accordance with § 8.
4.9 If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the customer at the latest at the point in time at which the customer is in default of acceptance.
§ 5 Transfer of risk, dispatch and acceptance
5.1 The risk shall pass to the purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. If dispatch becomes impossible through no fault of our own, the risk shall pass to the customer upon readiness for dispatch. In the case of roller bearings and accessories, this shall apply mutatis mutandis with regard to the transfer of risk; with regard to shipping costs, however, delivery shall be free to the German destination, excluding any freight charges, additional express delivery costs and shipping costs for small consignments. If goods are taken back for reasons for which we are not responsible, the customer shall bear all risk until receipt of the goods by us.
5.2 At the customer’s request and expense, we shall insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks.
5.3 Packaging, dispatch route and means of transport shall be at our discretion, unless special agreements have been made. The customer shall be responsible for immediate and proper unloading. Any waiting times will be invoiced.
5.4 Goods reported ready for dispatch must be retrieved immediately. Otherwise, we shall be entitled at our discretion to dispatch them or to store them at the expense and risk of the customer and to take all appropriate measures to preserve the goods. Storage costs of at least 0.5% of the invoice amount per month can be charged for storage at the factory. In this case, the goods will be invoiced as delivered. Furthermore, we shall be entitled, after the fruitless expiry of a reasonable grace period set by us – at least 4 weeks – to otherwise dispose of the delivery item and to supply the customer within a reasonably extended period. Our rights to withdraw from the contract under the conditions of § 326 BGB (German Civil Code) or to claim damages for non-performance remain unaffected by this. If we claim damages for non-performance, we may claim 25% of the agreed price plus value added tax as compensation without proof. We reserve the right to claim a higher actual loss.
§ 6 Retention of title
6.1 We retain title to the goods until all claims arising from the business relationship have been settled. In case of current accounts, the retained property shall be deemed security for our current account balance claims.
6.2 The customer is obliged to treat the object of sale with care until our claims have been fully met. In particular he is obliged to sufficiently insure them at his own expense against theft, breakage, transport, fire and water damage as well as other damage at replacement value. We are entitled to insure the delivery item ourselves against the aforementioned risks at the expense of the customer unless the customer can prove that he has taken out the insurance. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
6.3 The customer is entitled to process and sell the object of sale in the ordinary course of business as long as he is not in default. However, he hereby assigns to us all claims in the amount of the invoice amount agreed with us (including value added tax) which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect these claims even after assignment until we revoke this authorisation, which is permissible at any time. Our authority to collect the claims ourselves remains unaffected by this. However, we undertake not to collect the claims and not to revoke the direct debit authorisation of the customer as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no petition for the opening of insolvency or composition proceedings has been filed and payments have not been suspended or the customer’s financial situation has not deteriorated significantly. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides us with all information necessary for collection, hands over the associated documents and informs the debtor (third party) of the assignments.
6.4 The customer may neither pledge the delivery item nor assign it as security. In the event of seizures or other action by third parties, the customer must notify us in writing immediately so that we can pursue our rights of ownership in accordance with § 771 ZPO (German Code of Civil Procedure). All costs incurred by us as a result of the seizure shall be borne by the customer, in particular the costs incurred as a result of the third party not being in a position to reimburse us for the judicial or extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure.
6.5 Processing and treatment of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The customer’s expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created in safe custody for us.
6.6 The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a piece of real estate.
6.7 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released shall be incumbent upon us.
6.8 Should the retention of title not be fully effective in this form for legal reasons, the customer is obliged to secure our claims for goods in a legally effective manner and to actively contribute to taking proper measures.
§ 7 Warranty for defects
7.1 The warranty rights of the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects pursuant to § 377, 378 HGB (German Commercial Code). The time at which the goods leave our delivery centre shall be decisive for determining their contractual condition. In the event of damage during transport, the customer must immediately arrange for the damage to be assessed by the competent authority and inform us. Visible damage must be noted on the freight documents upon acceptance.
7.2 The customer must inspect the goods and specify any defects, including differences in quantity and weight, and give written notice of defects at the latest 5 days after receipt at the place of destination, stating our order data.
7.3 If a notice of defect is substantiated, payments may only be withheld to an extent that is in reasonable proportion to the defect that has occurred. Any processing of the goods shall be stopped immediately upon discovery of a defect. If the customer does not give us the opportunity to convince ourselves of the defect, if necessary, on the spot and in particular if he does not immediately make the rejected goods or samples thereof available to us upon request, all warranty claims shall lapse. In the event of loss of the warranty claim, the defective goods may not be modified by the customer or by third parties without our consent. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case we must be notified immediately, shall we grant the customer the right to remedy the defect himself or have it remedied by third parties and to demand compensation from us for the necessary costs which are in reasonable proportion to the damage incurred.
7.4 Our verbal and written application advice as well as suggestions, calculations, project planning etc. are only intended to explain to the customer the best possible use of our products. The customer shall not be released from the obligation to convince himself of the suitability of the products for the intended purpose by conducting his own tests.
7.5 We shall not be liable for defects in the material supplied by the customer. If goods are manufactured based on the customer’s drawing, we shall only be liable for executions in accordance with the drawing. For third-party products, our liability shall be limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product. This shall not apply if legal action against the supplier of the third-party product by the customer was unsuccessful.
7.6 We assume no liability for damages arising from the following reasons: Unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent treatment, unsuitable operating materials, chemical, electrochemical or electrical influences, insofar as they are not attributable to our fault.
7.7 In the event of justified immediate notification of defects, we shall take back defective goods and deliver faultless goods in their place. Instead, we shall be entitled to remedy the defect while reasonably safeguarding the interests of the customer. Several attempts at rectification shall be permitted. Replaced parts become our property. We shall not assume the costs incurred in the course of a repair or new delivery due to the fact that the object of sale was transported to a location other than the place of performance or due to shipping and travel costs abroad.
7.8 If we are unwilling or unable to remedy the defect or make a replacement delivery, if we refuse to do so or if it is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or the replacement delivery fails in any other way, the customer may demand cancellation of the contract (rescission) or a reduction in payment (abatement).
7.9 Unless otherwise stated below (§ 8), further claims of the customer – for whatever legal reasons – are excluded. We shall therefore not be liable for damage which has not occurred to the delivery item itself (consequential damage caused by a defect); in particular, we shall not be liable for loss of profit or other financial losses of the customer. In cases where warranted characteristics are missing, we shall only be liable to the extent that the purpose of the warranty was to protect the customer against the damage which has occurred.
7.10 The warranty period shall be 6 months, calculated from the transfer of risk, unless a longer statutory warranty period is mandatory.
§ 8 Joint liability
8.1 Unless otherwise stipulated in these General Terms and Conditions, we shall – to the extent permitted by law – only be liable for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence.
8.2 If we culpably breach an essential contractual obligation or a “cardinal obligation”, we shall also be liable in the event of simple negligence.
8.3 Our liability does not include – except in the case of intent – such damage which cannot typically be expected in the specific business transaction or for which the customer is insured or can usually be insured.
8.4 Liability beyond that provided for in Clauses 7.9, 8.1, 8.2 and 8.3 shall be excluded irrespective of the legal nature of the claim asserted.
8.5 The provision pursuant to Clause 8.4 shall not apply to claims pursuant to § 1.4 Produkthaftungsgesetz (German Product Liability Act). Insofar as the limitation of liability pursuant to Clause 8.3 does not apply to claims arising from manufacturer’s liability pursuant to § 823 BGB (German Civil Code), our liability shall be limited to the amount covered by our insurance policy. If the insurance does not cover or does not cover in full, we shall be liable up to the amount of the sum insured.
8.6 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
8.7 The statutory statute of limitations for warranty claims shall also apply with regard to claims for compensation for consequential damage caused by a defect as well as to any claims of the customer due to the breach of ancillary obligations, in particular from culpa in contrahendo or positive breach of contract.
§ 9 Property rights, tools
9.1 We reserve ownership rights and copyrights to all illustrations, sketches, drawings, gauges, samples, etc. attached to our enquiries, offers and deliveries. They may not be made accessible to third parties without our express permission. This applies in particular to written documents which are designated as “confidential”. Reproduction and copying are prohibited.
9.2 The customer assumes sole responsibility for the documents, plans, samples or the like to be provided by him. The customer shall be responsible for ensuring that the execution drawings submitted by him do not interfere with the industrial property rights of third parties. We shall not be obliged towards the customer to check whether the submission of offers infringes upon any industrial property rights of third parties. If liability nevertheless arises, the customer shall indemnify us.
9.3 The operating items manufactured by us for the purpose of manufacturing the contractual items on behalf of the customer, in particular tools, devices, etc., shall remain our property even if they are invoiced separately or if the customer has participated in their costs, and shall not be delivered even upon termination of the contract.
§ 10 Place of performance, place of jurisdiction and applicable law
10.1 The place of performance for our services shall be our registered office, unless otherwise stated in the order confirmation. Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of jurisdiction of our registered office, insofar as permissible under § 38 ZPO (German Code of Civil Procedure). However, we are also entitled to sue the customer at his place of jurisdiction.
10.2 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between us and the customer.
§ 11 Subject to change and partial invalidity
11.1 We expressly declare to the customer our readiness to formulate the content of the contractual clauses by way of free mutual negotiation.
11.2 Should individual provisions of these Terms and Conditions be invalid in whole or in part, this shall not affect the validity of the remaining provisions or agreements. The invalid provision shall be replaced by a valid provision which comes as close as possible to the economic intent of the invalid provision.
This translation of the German GTCs is provided for information purposes only.
Only the German original is legally binding.