General Terms and Conditions of SBN Wälzlager GmbH & Co. KG

GTC

The General Terms and Conditions of SBN Wälzlager GmbH & Co. KG apply as follows:

Part A: SBN Wälzlager GmbH & Co. KG as Vendor

I. Scope

  1. The General Terms and Conditions apply to any legal relationships between us and our Customers. Opposing terms and conditions of the Customer shall not be applicable even if they were not rejected explicitly in any individual case.
  2. When receiving the order confirmation, however when receiving the ordered goods at the latest, the Buyer acknowledges our General Terms and Conditions. The General Terms and Conditions shall also apply to any future legal relationships between the parties, and shall also apply if we perform delivery of the goods despite our knowledge of differing or contrary terms and conditions of the Buyer.
  3. Agreements of the Buyer differing from our General Terms and Conditions shall require our explicit approval in writing for their validity and application.

II. Conclusion of Contract

  1. Basically the quotations to our Customers are non-binding. A contract between us and our Customers shall only be concluded upon receipt of our written order confirmation, however, upon delivery of the goods respectively our service delivery at the latest. Our order confirmation and the current version of our General Terms and Conditions shall be mandatory for the contractual content. Any modifications or supplements provided by the Customer shall only be effective if they have been confirmed in writing by us.
  2. The vendor may accept any orders within 14 days upon receipt thereof. Computer-generated confirmations on our forms without any personal signatures shall comply with this form requirement.
  3. Any supplements or modifications to the contract, including these General Terms and Conditions have to be in writing to become effective. This shall also apply to this stipulation.
  4. Details of the vendor regarding the items of delivery or service (i.e. weight, measurements, serviceability, load capacity, tolerances, technical data) as well as illustrations thereof (drawings, images, catalog presentations etc.) only serve as a template and do not have to be adhered to, unless the usability for the contractual purpose requires exact compliance therewith. The vendor details do not represent the quality features but the descriptions or identification marks of the delivery or service. Differences which are customary in the trade and such differences resulting from legal provisions or describing technical improvements as well as the replacement of components by parts of the same standard shall be admissible if the usability for the contractual purpose is not affected.
  5. In case of custom-made products we may appropriately exceed or undercut the order quantity and may invoice the quantity delivered.
  6. In case of call off orders the deliveries have to be called off not later than eight weeks prior to the required delivery date.

III. Prices

  1. Prices are ex works without obligation Schönenberg-Kübelberg. The prices are quoted net plus VATin the respective statutory amount. Payment is considered to be settled if the amount is at our disposal. The prices are calculated in accordance with the prices valid at the day of delivery or service in Euros plus VAT.
  2. The prices are valid for the scope of services or delivery stipulated in the order confirmation. Additional or special services shall be invoices separately.
  3. If the prices agreed are based on the vendor's list prices and if the delivery shall be effected more than four months after contract conclusion, the vendor's list prices at the day of delivery shall be valid.

IV. Delivery Periods

  1. Delivery periods are non-binding until order acceptance by the vendor. The delivery periods are settled as of the day of order acceptance by the Vendor.
  2. Terms and deadlines for the delivery and services provided by the vendor are approximate only unless a fixed term or a fixed deadline has been given explicitly. If shipment has been agreed upon, the delivery periods or deadlines refer to the time of transfer to the forwarder, carrier or other means of transport.
  3. Force majeure, labor disputes, disturbances, regulatory actions, obstacles to transportation or other unavoidable, unpredictable, serious circumstances and events beyond our control, release us from our service obligations for the duration of the disturbances and the extent of their effect. This also applies when these events occur at a time when we are already overdue. In the above mentioned cases we shall be furthermore entitled to terminate the contract, either fully or partly, without the Buyer being able to hold us responsible for any claim resulting therefrom, even if we are behind schedule. Furthermore, we are entitled to postpone the initial delivery period for the duration of the disturbance. Should the initially agreed delivery period be delayed by five months due to the above mentioned events, thus the Buyer is entitled to terminate the contract by written declaration.
  4. The delivery is conditioned upon the timely and proper performance of all duties of the Customer.

V. Dispatch, Passing of Risk

  1. Shipment is effected ex works Schönenberg-Kübelberg at the Buyer's risk and expense. The risk of loss or damage of the said goods shall pass from Vendor to Buyer as of the time of transfer to the forwarder or carrier. The transfer of risk shall take place at the latest as soon as our goods leave our company or our warehouse. Any expense for parcel service or postage for small item deliveries shall be paid by the Buyer. We reserve the right to choose the dispatch method.
  2. Any transport damage insurance shall only be taken out upon request and at the expense of the Buyer.
  3. Any skeleton boxes, pallets, containers, caskets or any other returnable packaging shall remain our property and shall be sent back to our delivery facility by the Buyer or the recipient, immediately and free of charge.

VI. Payments

  1. The purchase prices are due immediately. The Customer, unless he is a consumer, is in default on payment without any further reminder after expiry of 30 days upon receipt of the invoice. The Vendor may procure the delay in advance by sending a reminder in writing. After occurrence of the default interest shall be charged in the amount of 8 percentage points above the discount rate of the Deutsche Bank unless the Customer is a consumer. A consumer is in default after receipt of the invoice and after a reminder in writing has been issued. Upon occurrence of the default, interest in the amount of 5 percentage points above the discount rate of the Deutsche Bank shall be charged. A right to claim compensation for further damage against the Customer, caused by default is expressly reserved.
  2. Any of our claims against the Customer, resulting from the contractual relationship, shall be immediately due if payment periods are not respected or if other circumstances occur which give rise to fear that the Vendor does not meet his payment obligations in time.
  3. Should it come to light after the conclusion of the contract that a substantial worsening in the financial circumstances of the Buyer has occurred and that this worsening presumably reduces the creditworthiness significantly and endangers the payment of the claim by the Buyer or that the Buyer does not respect his payment obligations despite reminders, we are entitled to request advance payments or security deposits upon our choice because of claims due or not yet due from all existing contracts and to refuse delivery until receipt of advance payments or security deposits. Should advance payments or security deposits not be effected on the due date, we can terminate the contract and/or demand damages for non-performance.
  4. Shipping costs shall basically be invoiced in case of a value of the goods below an amount of 50,- Euros, furthermore, the purchase price shall become due immediately and payment has to be effected within 14 days as of the date of the invoice.

VII. Offset, Right of Retention

An offset by the Customer is only permitted with an uncontested claim or a claim that has been confirmed by declaratory judgement of a German court of law. If the offset is not permissible, the Customer has no right of retention. Given the above-mentioned preconditions to enforce the right of retention, the Customer is only entitled to enforce the rights of retention due to counterclaims resulting from the same contractual relationship.

VIII. Title Retention

  1. Until satisfaction of all accounts receivable and claims (including the settlement of all outstanding current account balances) which the Vendor is entitled for any legal reason to exercise now or in future against the Customer, the Vendor is granted the following securities which will be released by him on demand and freely selected at his discretion, provided their value exceeds the demands on a sustained level by more than 20%. The goods remain our property; processing or reshaping shall always be performed for us as the Vendor, but without any obligation for us. If our (joint-)title is no longer valid due to combination or mixing, it is hereby agreed that a share of the Customer‘s (joint-)title to the resulting item, corresponding to the ratio of the invoice value of our goods to the invoice value of the resulting item, will pass to us. The Customer will store our (joint-)property free of charge. Goods to which we have (joint-) title are referred to below as „goods subject to reservation of title“.The Customer is entitled to process or sell goods subject to reservation of title in the normal course of business. The goods may not be pledged or assigned as security. The Customer hereby assigns to us with immediate effect all claims relating to goods subject to reservation of title (inlcuding the settlement of all outstanding current account balances) and arising out of their sale or on another legal basis (insurances, unlawful act) in their entirety as a security. We hereby grant the Customer revocable authority to collect claims assigned to us in his own name and for our account. If the reserved products are resold together with other goods which do not belong to us the Customer assigns us that part of the claim resulting from the resale which corresponds to the value of the reserved product. If reserved products are resold, which belong only proportionally to us, the part assigned to us resulting from the claim of the resale will be equal to our percentage of ownership. If so required by us, Customer will reveal the assignment and supply us with the necessary information and documents.
  2. The enforcement of the title retention does not represent a withdrawal from the contract. In case of any delay in payment the customer is obligated to release the goods subject to retention upon our demand.
  3. If third parties attempt to assert rights over goods subject to reservation of title, the Customer will inform them of our title and notify us immediately. Costs and damage due to such actions shall be borne by the Customer.
  4. If the Customer's conduct constitutes a breach of the contract - particularly in case of delay in payment - we are entitled to temporarily request the goods subject to reservation or, if applicable, to request the assignment of the claim for return of property against third parties. The taking back or the seizure of the goods subject to reservation of title by us shall not be deemed termination of the contract.

IX. Warranty and Limitation

  1. The objects delivered have to be carefully examined immediately after receipt by the Customer or by the third party assigned by the Customer. The objects are deemed to be approved if the Vendor does not receive notice of the defect - either immediately evident or recognized as a result of an immediate careful examination - in writing and with an exact description of the defect within seven working days from the arrival of the objects of the contract or within seven days of the defects being discovered or the time at which the defect was recognizable without a closer examination by the Customer during normal use of the contract object.
  2. The Customer must keep the goods concerned available for inspection by us. We will only refund the cost for return if such return is made upon our request.
  3. If we negotiate about any claims of defects, this shall not mean we waive our right to object that the report of defect by the Customer has not been effected in good time or with sufficient proof.
  4. In the event of a defective delivery the Buyer is entitled to supplementary performances or a replacement at our option. The Customer may demand a reduction in the purchase price only for the failure to subsequently fullfil the contract or after having set an appropriate deadline which turned out to be unsuccessful, withdraw from the contract. In case of minor defects the Buyer shall only exercise the right to reduce the price. In this case claims of any nature for compensation are herewith excluded.
  5. We will reimburse the Buyer for his expenditures in connection with the supplementary performances only in so far as such expenditures are reasonable and proportional to the purchase price of the goods. We will not reimburse the Buyer for any expenditures in connection with the redelivery of the goods sold to any other place than the place of performance or the subsidiary of the Buyer, unless such redelivery corresponds to the contractual use of the goods.
  6. In case of defects in components from other manufacturers which the Vendor cannot remedy for reasons of licensing law or for factual reasons, then, at his choice, the Vendor will make his warranty claims against the manufacturer and supplier on the Buyer's account or transfer the title to this to the Buyer. Warranty claims against the Vendor only exist for defects of this kind in accordance with the General Terms and Conditions if the enforcement of the above mentioned claims against the manufacturers and suppliers was unsuccessful or has become practically impossible - for instance due to insolvency. During the duration of the legal dispute, the limitation of the relevant Buyer warranty claims against the Vendor is suspended.
  7. If the Buyer fails to immediately give to us the opportunity to inspect the defect, especially if he fails - upon our request - to immediately make the goods or samples hereof available to us, he will loose all of this warranty rights.
  8. The warranty shall null and void if the Buyer modifies the supplied goods without the Vendor's consent or allows it to be modified by third parties.
  9. Further claims are excluded or restricted according to item XI.
  10. Liability claims by the Customer for consumers in case of newly produced goods are subject to a limitation period of 12 months, for used goods it is one year after delivery of the goods. The limitation period for traders or businesses amounts to 1 year after delivery of the goods for newly produced goods and all warranty claims for defects are void for used goods. The herein stipulated shortening of limitation shall not apply for claims for damages of the Customer due to life injuries, the body, the health as well as for Customer claims for damages due to violation of substantial contract obligations. The above mentioned shortening of limitation shall also not apply for claims for damages which are based on any intentional or grossly negligent breach of duty by the Vendor, his legal representatives or his vicarious agent. For traders and businesses any recourse action in accordance with item 478 BGB shall also be excluded from the shortening of the limitation periods.

X. Resignation

The legal stipulations in compliance with item IX shall apply for the resignation of the contractual parties. The Vendor, however, has also the possibility to resign if new findings become obvious after order acceptance about the range of use or the usage of our products and subsequent risks.

XI. General Limitation of Liability

  1. We shall only be liable in case of unlawful intent or gross negligence.
  2. In case of simple negligence we shall only be liable - except for the injury of life, body or health - if substantial contract obligations (major obligations) are violated. The liability is limited to the contract typical and predictable damages and shall be determined up to the maximum amount of an existing liability insurance.
  3. The liability for indirect and unpredictable damages, loss of production and loss of utilization, loss of profit, lost savings and economic loss due to claims of third parties, shall be excluded in case of simple negligence - except for injury of life, body and health. This shall not affect the regulations regarding the onus of proof.
  4. Any further liability not stipulated in the General Terms and Conditions shall be excluded - regardless of the legal nature of the claim asserted. The foregoing limitations/exclusions of liability shall not apply for a mandatorily required strict liability (for instance in accordance with the product liability law).
  5. The forementioned exclusions/limitations of liability shall apply to the same extent for the Vendor's agencies, legal representatives, employees and other vicarious agents.
  6. In so far as the Vendor provides technical information or acts as an advisor and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and with the exclusion of any liability.

XII. Legal Venue, Jurisdiction and Applicable Law, Severability Clause

  1. Legal Venue for deliveries and services is our registered office. Place of payment for the services of the Customer is also our registered office.
  2. If both contractual parties are merchants, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Schönenberg-Kübelberg. However, we shall reserve the right to initiate legal action at the residence of the Buyer. The contractual relationship shall exclusively be governed by German Law with exclusion of the UN commercial law.
  3. If a provision of these General Terms and Conditions should be ineffective or become, this shall not affect the effectiveness of the contract. In this case the parties are obligated to replace this provision by an effective or feasible provision which corresponds as much as possible with the purpose of the provision to be replaced.

Part B: SBN Wälzlager & Co. KG as Buyer

I. Scope

  1. The General Terms and Conditions shall apply for any legal relationships between us and our suppliers. Opposing terms and conditions of the Supplier shall not be applicable even if they were not rejected explicitly in any individual case.
  2. When receiving our binding order, the Supplier acknowledges our General Terms and Conditions. The General Terms and Conditions shall also apply to any future relationships between the parties, and shall also apply if we place an order despite our knowledge of differing or contrary terms and conditions of the Vendor.
  3. Agreements of the Vendor differing from our General Terms and Conditions shall require our explicit approval in writing for their validity and application.

II. Conclusion of Contract

  1. Our purchase orders, transactions and delivery schedules as well as the modfications and supplements thereto must be made in writing to become effective.
  2. We are entitled to cancel our purchase order free of charge unless it is confirmed in an unchanged form within two weeks after receipt by the Vendor.

III. Deadlines and Periods of Grace

  1. Deadlines agreed for the deliveries and services are binding. The Vendor is obligated to immediately inform us in writing about any delays which are to be expected or have already been incurred.
  2. If the Vendor does not deliver or perform within a period of grace that we provide, we shall be entitled to refuse acceptance, withdraw from the contract or demand compensation for damages from failure to perform, without giving prior notice. The additional cost resulting from the delay in delivery have to be borne by the Vendor. We are also entitled to withdraw if the Vendor is not responsible for the delay.
  3. The additional costs which are associated with the delay, particularly due to a necessary alternate purchase, shall be borne by the Vendor.

IV. Prices

The prices are fixed prices. The fixed prices include any expenditures in connection with the deliveries and services to be performed by the Vendor.

V. Handling and Delivery

  1. A delivery note indicating our purchase order number regarding the content according to type and quantity has to be attached to each delivery.
  2. Any deviation from our purchase orders, particularly regarding quantity and nature of the goods are only permissible with our prior approval in writing. Partial deliveries also require our explicit approval. Excess deliveries are not accepted.
  3. Subcontract can only be awarded by the Vendor with our approval. This only applies unless such subcontracts relate simply to the supply of marketable components. Delivery call-offs are binding regarding the nature and type of the called-off goods as well as for the delivery period.
  4. As a rule the Vendor has to perform the delivery of the goods in customary non-returnable packaging. We are only obligated to retun packagings if this has explicitly been agreed with the Vendor.
  5. If the Vendor performs any deliveries or services on our premises, the Vendor is then obligated to observe all instructions in the current version regarding safety, environmental and fire protection for external personnel.

VI. Invoices and Payments

  1. Invoices have to be sent by mail and have to included the respective purchase order number. The respective VAT (value added tax) has to be separately indicated on the invoices.
  2. The purchase price shall become due not earlier than after receipt of the goods and the invoice. If we settle the invoice within 14 days upon receipt of the invoice we are entitled to reduce the total amount of the invoice by a 2% discount.
  3. Any of our payments on invoices shall not constitute an acknowledgement of the delivery or service as being in conformity with the contract. In case of incorrect or incomplete delivery or services, we are irrespectively authorized not withstanding other applying rights to reserve payments on claims resulting from business relationships in adequate extent till correct compliance has been effected.
  4. The Vendor is not authorized to assign any of his claims against us to third parties. The Vendor is only allowed to offset uncontested and legally recognized claims. If the offset is not admissible, the Vendor will then have no right of retention. If the foregoing preconditions are available for the enforcement of the right of retention, the Vendor shall only be entitled to enforce his right of retention due to counterclaims resulting from the same contractual relationship.

VII. Passing of Risk, Ownership and Acceptance

  1. In case of deliveries without installation, further processing or assembly the risk shall be passed to us on receipt at the delivery address given by us. If the delivery is effected including further processing or assembly, the risk shall be passed to us after successful acceptance by us. Putting the delivery into service or its use shall not replace our declaration of acceptance.
  2. Property of the goods delivered shall be transferred to us after payment. Any extended right of retention is excluded.

VIII. Duties of Inspection and Complaints

  1. An inspection of the incoming goods is only performed with regard to evident defects as well as to obvious external deviations in terms of identity and quantity of the goods. Any evident defects will be immediately reported by us. We will reprimand any hidden defects as soon as such defects have been discovered in the course of an orderly business practice. The Vendor will waive the claim of late notification of defects for any defects reported within 14 days as of discovery.
  2. If we have detected any deficiencies of the goods and have sent them back to the Vendor, we will be entitled to charge the amount of the invoice back to the Vendor, plus an expense allowance of 5% of the price of the defective goods. We reserve the right to provide evidence of higher expenditures.

IX. Warranty for Material Defects and Defect of Title

  1. Material Defects and Defects of Title shall be governed by the legal provisions unless otherwise stipulated in the following.
  2. Defective deliveries are to be immediately replaced by faultless deliveries and faulty services are to be repeated without any defects.
  3. Rectifications of defects of faulty deliveries or services require our approval. During the time period the object of the delivery or service is not in our possession, the Vendor shall bear the risk.
  4. If the Vendor does not remove the defct within an appropriate period of grace set by us, we can terminate the contract or reduce payment at our discretion and can additionally request compensation.
  5. In urgent cases (particularly of jeopardy to the operational safety and to prevent disproportionate damage) to remove minor defects as well as in case of delay in removing a defect, we are entitled, after having informed the Vendor and after expiration of a short appropriate period of grace, to remedy the defect ourselves and possible damages resulting therefrom, however at the Vendor's expense or to have it remedied by a third party at the Vendor's expense. This also applies if the Vendor performs a delayed delivery or service and if we have to remedy defects immediately in order to prevent a delay in delivery on our part.
  6. The Vendor is obligated, during the duration of the contract, to maintain a product liability insurance. The Vendor has to present us a corresponding proof upon request.
  7. The Vendor shall indemnify us for all claims brought against us by third parties - for whatever legal reason - due to material defects and defects of title or any other defect of a product delivered by the Vendor and the Vendor shall reimburse us the necessary expenses of our legal defense in this matter.
  8. If the Supplier satisfies its obligation to cure performance by effecting substitute delivery, the limitation period for the substitute delivery shall begin to run from the time of delivery thereof.

X. Force majeure

Force majeure, disruptions of operations that are not our fault, disturbances, regulatory actions or any other events beyond our control release us from our obligation to timely acknowledge the delivery for the duration of their impact. During such events and within two weeks after their end, we shall - without any prejudice to any other rights - have the right to completely or partially rescind the contract where these events are not of an immaterial duration and where our demand is substantially lowered due to procurement from other sources as required by these circumstances. This also applies to labour disputes.

XI. Other

  1. The place of performance shall be the place indicated as the delivery address.
  2. If both contractual parties are merchants, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Schönenberg-Kübelberg. However, we shall reserve the right to initiate legal action at the residence of the Vendor. The contractual relationship shall exclusively be governed by German Law with exclusion of the UN commercial law (international commercial transaction).
  3. If a provision of these General Terms and Conditions should be ineffective or become, this shall not affect the effectiveness of the contract. In this case the parties are obligated to replace this provision by an effective or feasible provision which corresponds as much as possible with the purpose of the provision to be replaced.