General terms and conditions
General terms and conditions for the supply of goods and services
KNAPP Wälzlagertechnik GmbH, Eisentalstraße 32, D-71332 Waiblingen
I. Area of applicability:
1. These General Terms and Conditions for the Supply of Goods and Services apply to
- any natural person or legal entity or partnership with legal capacity acting in exercise of their commercial or independent professional duties (Entrepreneur § 14 BGB [German Civil Code]) and
- legal entities under public law or special assets under public law.
2. All supplies of goods and services are subject to these terms and conditions and any separate contractual agreements. Neither the customer’s conditions of purchase nor any other conditions which vary from these or are greater in scope than these can become part of the contract either through acceptance of the contract or the lack of an objection.
3. They also apply to all future business transactions and to all business contacts made with the customer, for example to the start of contract negotiations or the instigation of a contract, even if they are not expressly agreed again or if no further reference is expressly made to them again.
4. If in individual cases obligatory relationships are formed with persons or enterprises who are not themselves parties to the contract, the limitations on liability contained in these General terms and conditions for the supply of goods and services also apply, to the extent that these General terms and conditions for the supply of goods and services were included in respect of the third parties when the obligatory relationship was formed. This is in particular the case if the third parties acquired knowledge of these General terms and conditions for the supply of goods and services, or already had knowledge of them at the time the obligatory relationship was formed.
5. Acceptance of our supplies of goods and services by the customer is deemed to constitute the acknowledgement that these General terms and conditions for the supply of goods and services apply.
II. Conclusion of contract:
1. Our offers are non-binding. This applies in particular also to the delivery dates and scopes of delivery stated therein.
2. We are bound by a customer’s order, i.e. his offer, only when we accept this offer by written confirmation of the order, or we commence work on the order. The customer’s offer may be accepted by ourselves within 4 weeks of receipt.
3. If the order was placed verbally or by telephone, the customer is obliged for his part at our request to confirm our written acceptance of his order in writing. If the customer fails to provide this confirmation within a confirmation period of five working days after receipt by himself of the corresponding request, we are no longer bound by the order and are entitled to withdraw within a further five working days of the end of the confirmation period. This must be in writing.
4. Assurances given on characteristics, supplementary and side agreements are effective only when in writing.
III. Scope of goods and services, performance periods:
- Our written offer or our order confirmation is definitive for the scope of our goods and services. Side agreements and amendments must be confirmed by ourselves in writing. If our offer or order confirmation was based on details provided by the customer (dates, numbers, diagrams, drawings, details of weight and dimension etc.), our offer or our order confirmation is only binding if these details were accurate. If it transpires after conclusion of the contract that the order cannot be carried out in accordance with the details provided by the customer, we are entitled to withdraw from the contract, to the extent that the customer is not prepared to accept the replacement solution proposed by ourselves, and if necessary to accept additional costs actually incurred. The details attached to our offers, such as technical specifications, drawings, details of weight, dimensions and capacity, are only approximately definitive, unless expressly marked as binding. We reserve all rights to drawings, diagrams, calculations, sketches, samples or similar preparatory work and documents, in particular rights of ownership and copyright. These may not be disclosed to third parties or forwarded to them unless we have given our written consent.
2. We are entitled to make partial delivery of all orders to a reasonable extent. We are further entitled to use sub-contractors to fulfil our contractual duties.
For series production or special production we are also entitled to deliver quantities up to 10% in excess of or below scheduled quantities against a corresponding invoice.
3. Delivery periods and dates for goods and services always represent the best possible information, but are not binding unless another individual agreement has been entered into with the customer. An agreed delivery period is deemed to be met if the objects of the contract have left the works or the warehouse within the delivery period, or if the customer has been notified of readiness to despatch. The start of the delivery period and compliance with delivery dates are based on the assumption that the customer will fulfil his duties to co-operate correctly and on time, will make all documents which he has to provide available and will make any agreed on-account payments.
4. If acceptance tests are to take place (unless there is a justifiable reason for refusing acceptance), the acceptance date, or alternatively the notice of readiness to despatch, is definitive.
5. In the case of Act of God or other circumstances beyond our control and which are exceptional, we shall not be in default. In particular, we shall not be in default if there are delays in delivery, if these were caused by incorrect or late delivery by our suppliers, for reasons for which we are not responsible. In the event of obstacles of temporary duration for which we are not responsible, such as Act of God, employment disputes or other events which lie outside our sphere of influence, the delivery periods for goods or services will be extended or the delivery dates for goods or services will be postponed by the period of the obstacle plus a reasonable start-up period. This applies equally if these circumstances occur for preliminary suppliers. We will inform our contractual party of the beginning and end of such circumstances as soon as possible.
6. If the despatch and/or acceptance of the objects of the contract is delayed for reasons for which the customer is responsible, we may charge the customer for costs incurred due to the delay, starting one month after notice of despatch or notice of readiness to despatch was given. Without prejudice to further claims, after a reasonable extension period has passed without the expected result, we may dispose of the objects in other ways, in particular store them at the risk and cost of the customer and/or supply the customer after a reasonably extended period.
7. We are liable in accordance with statutory provisions if the delay in delivery is based on breach of contract which is the result of our wilful or grossly negligent conduct. Culpable conduct on the part of one of our legal representatives or vicarious agents will be ascribed to ourselves. Our liability is, however, limited in cases of gross negligence to foreseeable damage which is typical for the contract.
We are further also liable under the terms of statutory provisions if the delay in delivery is based on the culpable breach of a major contractual duty (cardinal duty). Major contractual duties (cardinal duties) are duties whose fulfilment makes correct performance of the contract possible, and on whose fulfilment the customer regularly relies and also may rely. Our liability is, however, limited in this case also to foreseeable damage which is typical for the contract.
8. A maximum period of 12 months applies to call-off orders (unless otherwise agreed), starting with the date of the order confirmation. After this period has elapsed, goods not yet taken will be delivered to the customer after prior written notification, and invoiced.
We must be informed of individual call-offs in good time, at least 6 weeks before the notified delivery date, to enable us to arrange manufacture and delivery.
9. Any further claims dues to delayed delivery will be determined exclusively in accordance with point IX. of these General terms and conditions for the supply of goods and services.
IV. Co-operation by customer:
- The customer must support ourselves and our employees to a reasonable, normal extent. If we have to undertake project-related work or services carried out by our employees on the customer’s premises, such support may also include at our request the provision of working rooms and work stations with PC and telephone, the costs of which will be borne by the customer.
2. Material, information and data which we require to perform our services must be made available to us by the customer. Data and data supports must be technically perfect. If particular legal or company safety conditions apply on the customer’s business premises, the customer must draw our attention to these before we perform our services.
3. Instructions given by the customer to our employees on the specific form in which services are to be provided are excluded, unless instructions are necessary in conjunction with safety requirements and company regulations on the customer’s business premises. Instructions on individual questions in respect of work or services to be performed by ourselves must not be given to the employees we have entrusted with the task, but to the contacts nominated by ourselves for the project. We always decide on our own responsibility about necessary measures as part of our obligation to perform our services.
1. Our prices are net prices and are always to be understood as “ex works” prices (EXW, Incoterms 2010, in force since 01.01.2011), namely “ex Waiblingen warehouse”. Cost for transport, customs duties and packing, as well as VAT at the statutory rate, are to be added to these. Goods with a gross invoiced value over 100.00 Euros are delivered free of charge, excluding those with special dimensions and despatches abroad; in all cases VII. 1. p. 1 applies, i.e. the place of transfer of risk is Waiblingen. For services, the prices refer to fulfilment of the service at the agreed place of performance. The statutory rate of VAT applicable at the time will be added to invoices and shown separately.
2. The customer is responsible for payment of costs to amend the contract.
3. Agreed prices are not binding for follow-up orders.
4. We reserve the right to amend our prices accordingly, if cost reductions or cost increases occur after the contract has been signed, in particular due to collective pay agreements, changes in material prices or changes in interest rates.
5. Expenses and travelling expenses will be invoiced separately, unless otherwise agreed; for travelling expenses outside a range of 40 km around the Waiblingen town boundary, reimbursement of 0.50 Euros per km plus VAT is deemed to be agreed.
VI. Conditions of payment, delay, offsetting, assignment:
- Unless contractually agreed to the contrary, our claim becomes due on receipt of the supply of goods, or when our services have been fully performed. If we provide our goods or services in definable part-sections, we are entitled to claim a corresponding part of the remuneration as due and payable for each part-section.
2. If the customer delays in making payment, he must recompense us for the loss caused by the delay, in particular interest at a rate of 8% p.a. above the base rate. If the customer delays in making payment of an amount or a part-amount due for longer than 14 days, the remaining total of all outstanding claims will immediately become due for payment. If the customer is late in making payment, we are also entitled to suspend further supplies or goods and services in whole or in part, and to revoke payment targets granted. If after signature of the contract, the customer experiences a not insubstantial worsening of economic circumstances, we are also entitled only to supply goods or services for cash in advance, or against the provision of securities. We may also prohibit the onward selling, processing, transformation, joining or mixing of goods supplied under reservation of title, and demand their return or the transfer of indirect ownership at the expense of the customer, revoke a direct debit mandate and enter premises in which goods supplied under reservation of title are stored, and remove these.
The pursuit of claims for more far-reaching damages due to delay remains hereby unaffected.
3. The customer is not entitled to make deductions without express agreement.
4. Payment by bill of exchange or acceptances is permitted only with express written agreement, and even then is only valid on account of payment. The acceptances must be negotiable and eligible for discount. The customer will pay any costs, charges etc. arising from acceptance of bills of exchange. These will be immediately payable. The same applies to cheques.
5. Only undisputed claims, or those established with full legal effect or acknowledged by ourselves can be offset against our claims for payment. The same applies to the exercise of a right of retention. The customer is furthermore authorised to exercise a right of retention only if this is based on the same contractual relationship.
6. The assignment of claims against us by the customer requires our prior written consent. The customer is, however, entitled to assign a cash claim if this assignment takes place within the context of a business transaction.
VII. Delay in acceptance, transfer of risk and acceptance:
- On handover of an object for despatch, or directly to the customer or his representative, the risk of loss or deterioration of the goods transfers to the customer, even if part-deliveries are made. If the customer delays in accepting the goods, or culpably infringes other duties of co-operation, we are entitled to demand compensation for the damage thereby incurred by ourselves, including any additional costs.
2. If we are entitled to demand compensation instead of settlement, we may demand 15% of the agreed price plus compensation for work already carried out and material used as recompense without proof. Other more far-reaching claims remain unaffected.
3. The risk of accidental loss or chance deterioration of the object of the contract transfers to the customer at the point at which the latter defaults on acceptance or debts. This continues to apply if despatch is delayed or does not occur, or acceptance does not occur as a result of circumstances for which we are not responsible, from the date of notification of readiness to despatch or acceptance.
4. The risk of accidental loss and the payment risk transfer to the customer at the time of loading the objects of supply on our premises from our warehouse or in the case of direct delivery to the customer, ex works of the preliminary supplier even if part-deliveries are made or if we have taken over other services such as transport costs, delivery, installation and unloading. Any agreed acceptance procedure must take place immediately on the date of acceptance, alternatively after our notification of readiness for acceptance.
5. Any additional costs hereby incurred must be borne by the customer. The customer may not refuse acceptance in the event of a non-significant defect.
6. Despatch takes place at our discretion without guarantee by the quickest and most beneficial route. Additional costs incurred due to special transport requests made by of the customer will be borne by the customer.
7. No packaging of any type will be taken back by ourselves, with the exception of pallets.
We provide a warranty against defects in quality and defects in title for new objects of supply, to the exclusion of further claims, subject to point IX. of these business terms and conditions as follows:
1. Defects in quality
(1) If a defect exists in the delivery items as a result of an existing circumstance at the time of transfer of risk, we undertake to repair these or supply new goods at our discretion. Replaced parts become our property and must be handed over by the customer immediately. We will pay the costs which become necessary for the purpose of repairing or replacing goods, such as transport, travel, labour and material costs, provided these are not increased by the requirement to take these to a location different from the place of performance.
To enable us to carry out all the repairs or replacements which we consider necessary, after notifying us the customer must provide us with the necessary time and opportunity to do so; otherwise we are released from liability for the consequences arising. The customer has the right to remedy the defect himself or arrange for it to be remedied by a third party, and to demand reimbursement for the necessary expense incurred only in urgent cases endangering operational safety or to prevent disproportionately major damage, in which case we must be notified immediately.
As the customer has a duty to pay us the portion of the purchase price corresponding to the defect-free part of the supply, we may refuse to carry out repairs or replacements until this amount has been paid.
(2) The customer must examine each delivery in accordance with § 377 HGB [German Commercial Code] immediately after delivery and inform us immediately of defects found. Complaints about defects can only be considered if they are made in writing immediately, at the latest however up to 2 weeks after receipt of the goods. The reference date is the date of receipt of the complaint. Later complaints are excluded. The supply is then deemed to be approved. This does not apply to concealed defects, i.e. defects which are not apparent. The loss of rights to claim for defects does not occur if it was not possible for the defect to be detected during the one-week period for complaints, provided examination of the goods for defects had taken place correctly and immediately; if a defect appears at a later date, the complaint must be made immediately after its discovery; otherwise the goods are deemed to be accepted, including with regard to this defect. If a justifiable complaint is pursued, payments may be withheld by the customer only to the extent that is reasonably proportionate to the defect which has occurred.
(3) If repair or replacement fails, the customer has the right under statutory regulations to reduce the purchase price or to withdraw from the contract.
(4) The warranty is excluded if the defect is the result of improper operation, incorrect service, handling or use, defective assembly by the purchaser or a third party, or any modification, reworking or repair made by the customer or a third party which is not authorised by ourselves unless we are culpable in this respect. The same applies to natural wear and tear, use of unsuitable operating consumables, chemical, electrochemical or electrical effects etc.
The warranty is also excluded for used items, unless an agreement to be contrary has been reached.
2. Defect in title
The guarantee concerning defect in title follows statutory regulations.
3. Time limitation
The period of time limitation for claims for defects is 1 year, calculated from the statutory start of the period of limitation.
For services as defined in §§ 438 para. 1 no. 2, 634 a para. 1 no. 2 BGB, the statutory periods of limitation apply.
4. Extension to third party
If a third party is awarded a contract or included for the purpose of instigating or handling an obligatory relationship between the parties, the limitations on and exclusions from the warranty described above apply in respect of the third party also.
5. Further claims
Point IX of these terms and conditions applies to such claims.
IX. Compensation for defects and other liability
1. In the event of culpable breach of major contractual duties, we are liable in accordance with statutory provisions, our liability in cases of minor or gross negligence in this case being limited to foreseeable damage which is typical for the contract. Major contractual duties (cardinal duties) are duties whose fulfilment makes correct performance of the contract possible, and on whose fulfilment the customer regularly relies and also may rely.
2. If the customer justifiably pursues claims for compensation instead of performance, we are liable in the same way; in cases of minor or gross negligence, however, similarly limited to compensation for foreseeable damage typical for the contract.
3. We are also liable in accordance with statutory provisions if the customer justifiably pursues claims for compensation based on the wilful intent or gross negligence of the owner, his legal representatives or vicarious agents.
In the case of non-deliberate actions in breach, our liability for compensation is limited to compensation for foreseeable damage typical for the contract.
4. Liability for damages arising from death, physical injury or damage to health based on culpable breach of duties by ourselves or deliberate or negligent breach of duties by our legal representative or vicarious agent remains hereby unaffected. Our liability for the fraudulent concealment of defects, the takeover of a guarantee or assurance of a characteristic, as well as for mandatory liability under the terms of the Product Liability Act is similarly unaffected.
5. If our liability for compensation is excluded or restricted, this also applies relative to the personal liability for damages of our employees, collaborators, representatives and vicarious agents.
6. Unless specified to the contrary above, further claims by the customer for compensation are excluded. This also applies to claims for compensation due to other breaches of duties and tortious claims to compensation for damage to property in accordance with § 823 BGB.
7. All claims pursued by the customer are time-barred after one year. For deliberate or fraudulent conduct, in cases of claims under the Product Liability Act and for services in accordance with §§ 438 para. 1 no. 2, 634 a para. 1 no. 2 BGB the statutory periods apply. The start of the period of time limitation is determined according to statutory regulations.
8. If a third party is contracted or included for the purpose of instigating or handling a debt relationship between the parties, the limitations on and exclusions from liability described above also apply in respect of the third party.
X. Product liability:
If, in contrast to German law, different and in particular stricter regulations exist on product liability or product safety in countries in which the customer intends to sell on our products, the customer must draw our attention to this at the time of awarding the contract. In this case we are entitled to withdraw from the contract within one month. If the purchaser fails to provide this clarification, we may withdraw from the contract within one month of learning of the corresponding legal position. The customer has a duty in the latter case to indemnify us against any claims by third parties which go beyond our duty of performance in a comparable case of product liability in Germany. This continues to apply if we continue with the contract.
XI. Reservation of ownership
1. We reserve ownership of items supplied and all rights of use arising from copyright until all claims against the customer have been fulfilled in whole, including all additional claims which result from the business association with the customer. If the effectiveness of the reservations stated in sentence 1 are dependent on their registration e.g. in the public registers in the customer’s country, we are entitled and duly authorised by the customer to effect this registration at the customer’s cost. The customer has a duty to provide all the co-operation necessary on his part for registration free-of-charge.
If payment is made by issuing cheques or bills of exchange, fulfilment occurs only at the point when the corresponding amounts remain definitively with ourselves.
2. The customer has a duty to handle the delivery items carefully. We are entitled to insure the delivery items at the expense of the customer against theft, breakage, fire, water and other damage unless the customer provides proof that he has taken out insurance himself. The customer assigns all claims against the insurer arising from the aforementioned damage events to ourselves as of now.
3. The customer may sell on the objects supplied, and may combine, mix or process them in a normal business transaction. Other cases require our prior written consent, in particular in the case of pledging or assignment by way of security.
He must inform us immediately of pledges, seizures or other dispositions by a third party. If the third party is not in a position to reimburse the legal and out-of-court costs of a suit under the terms of § 771 ZPO [German Code of Civil Procedure], the customer is liable to us for the loss incurred. The aforementioned duty to inform also applies in the event of loss or damage to goods subject to reservation of ownership.
4. In the event of a not merely minor breach of duty by the customer, in particular in the case of delayed payment, we are entitled to demand surrender of the goods subject to reservation of ownership after prior warning; the customer has a duty to surrender these. This constitutes neither a withdrawal from the contract by ourselves nor a seizure by ourselves.
The claim for surrender does not exist relative to goods subject to reservation of ownership for which the customer has already paid, or if payment arrears are based on circumstances for which the customer is not responsible.
If the return of goods subject to reservation of ownership takes place as set out above, we are entitled to re-use the goods subject to reservation of ownership held back, after giving prior warning with a reasonable period for compliance, and to offset the proceeds from re-use against the purchase price claims. We have a duty to ensure reasonable re-use. In the case of re-use, this entails withdrawal from the contract.
5. The customer is authorised to sell on, process, transform, join or mix the delivery items in a normal business transaction. If, however, he has delayed in making payment to us, or is to blame for any other not insignificant conduct constituting a breach of contract, we may revoke this authorisation.
6. If the goods subject to reservation of ownership are sold on, the customer as of now assigns to us his claim against his customer or a third party for the amount of the final invoiced amount (including VAT) arising for him from onward selling, regardless of whether the delivery items had been sold on with or without processing etc.
He is authorised to collect these claims even after assignment. Our authorisation to collect the claims ourselves remains hereby unaffected. We undertake, however, not to collect the claims unless the customer has delayed in making payment and no other objectively justifiable reasons exist, e.g. suspension of payments or the submission of an application to open insolvency proceedings. If such objectively justifiable reasons do exist, we are entitled to revoke the authority to collect payment, and may demand that the customer notifies us of the assigned claims and their debtors, and provides all details necessary for collection, hands over the documents belonging to these and informs the debtors and third parties of the assignment.
7. If the customer processes, transforms, joins or mixes the delivery items, or we carry this out at the request of the customer, this work is always carried out for ourselves. If the delivery items are processed, transformed, joined or mixed with other items which do not belong to us, we acquire joint ownership of the new item proportionately to the value of the delivery items to the other items created at the time of processing, transformation, joining or mixing.
If a residual portion initially remains which is not covered by reservation of ownership because other suppliers have not extended the reservation of ownership to value added by the customer, our share in joint ownership increases by this residual portion. If, however, other suppliers also expand their reservation of ownership to cover this residual portion, we acquire a share of this which is determined by the ratio of the invoiced value of our goods subject to reservation of ownership to the invoiced values of the jointly processed goods belonging to these other suppliers.
For the item created by processing, transformation, joining or mixing, the same applies as for the delivery items supplied with reservation of ownership.
8. If processing, transformation, joining or mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is deemed to be agreed that the customer transfers joint ownership to us proportionately. This share is measured by the ratio of the value of the purchased items (final invoiced amount incl. VAT) to the other items at the time of the aforementioned processes.
The customer provides safekeeping for the property thus created in sole or joint ownership on our behalf.
9. By way of securing our claims, the customer assigns to us his claims against a third party which he acquires through joining the delivery items to a piece of land, if the purchase item becomes an integral part of the piece of land through this joining.
10. We undertake to release the securities which we hold at our discretion at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%, provided that this excess security exists not only temporarily.
1. The customer and ourselves (the “parties”) undertake to keep secret all information to which they gain access during the period of the contract in connection with the contract which is described as confidential or which could be recognised as business or operational secrets due to other circumstances and, unless expressly approved in advance or required to achieve the purpose of the contract, neither to record nor disclose to a third party nor utilise this information in any way whatsoever. This duty of confidentiality remains in existence for a further five years after complete fulfilment or the end of the contract.
2. The following information is excluded from this:
- information already known to a party before the start of contract negotiations or which was disclosed by a third party as non-confidential, provided the latter had not himself thereby breached any duties of confidentiality;
- information which the parties had developed independently of one another;
- information which was or became public knowledge without fault or action by the parties;
- information which had to be disclosed because of statutory duties or by order of the authorities or the courts.
In the latter case, the disclosing party must inform the other party immediately before making the disclosure. Other more far-reaching duties to maintain confidentiality remain unaffected.
XIII. General concluding conditions:
- The place of fulfilment and exclusive court of jurisdiction for all disputes arising between the parties and in connection with the contractual relationship is Waiblingen, provided the customer is a businessman, legal entity under public law or a partnership with legal capacity, or the customer has no general court of jurisdiction in the Federal Republic of Germany or his court of jurisdiction is located abroad. By way of exception to this, we are also entitled to pursue claims against the customer before his general court of jurisdiction.
2. The customer is aware that data arising from the business transaction, including personal data, will have to be stored, processed as necessary for business purposes and transmitted to third parties. The customer agrees to this data collection and processing.
3. Should any clause in these business terms and conditions be or become invalid in general or for the individual case for any reason, the validity of the other clauses of these business terms and conditions shall remain thereby unaffected. In this case flexible law applies. The above regulations apply accordingly in the event of an omission.
4. For all claims arising from and in connection with the contractual relationship, the law of the Federal Republic of Germany applies exclusively, to the exclusion of the UN Convention on the International Sale of Goods.