General Terms and Conditions of KFB Clarfeld Germany GmbH (September 2019)
1.1. The following General Terms and Conditions (hereinafter referred to as “GTC“) shall apply to all contracts relating to the sale of ball and roller bearings, housings for ball bearings, chains and drive wheels or other products (hereinafter referred to as “Goods“) and other services (e.g. repair and maintenance services) by KFB Clarfeld Germany GmbH (hereinafter referred to as “KFB“, “us/our/our” or “we”).
1.2. These GTC apply exclusively vis-a-vis entrepreneurs pursuant to section 14 of the German Civil Code, legal entities under public law or special funds under public law.
1.3. Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent KFB has expressly agreed to their applicability. This shall also apply if KFB, being aware of the terms and conditions of the customer, performs the delivery to the customer without reservation.
1.4. Individual agreements between KFB and the customer take precedence over these GTC. Subject to proof to the contrary, a written agreement or written order confirmation from KFB are decisive for the content of such agreements.
1.5. Legally relevant declarations and notifications by the customer which are to be made after conclusion of the contract (e.g. setting of grace periods, notifications of defects, declarations of rescission or reduction of the purchase price) must be made in writing in order to be effective (fax or e-mail shall suffice).
- Offer and conclusion of contract
2.1. Offers from KFB are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period for acceptance.
2.2. The order by the customer is deemed as a binding contract offer. A contract is concluded by the service of a written order confirmation from KFB, but in any case upon commencement of the execution of the order or delivery of the Goods.
2.3. Unless otherwise stated in the order, KFB shall be entitled to accept the contractual offer within 4 calendar weeks of its receipt by KFB.
2.4. Our information on the subject matter of the delivery/service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) and our desciptions of the same (e.g. drawings, illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose.
- Deliveries and partial deliveries
3.1. Periods and dates for deliveries and services promised by us are always only approximate, unless a fixed period or date has been expressly promised or agreed.
3.2. The delivery time results from the agreements of the contracting parties and is stated in the order confirmation. Their observance by KFB is subject to all commercial and technical questions between the parties having been clarified and the customer having fulfilled all obligations incumbent upon it. If this is not the case, the delivery period shall be extended accordingly. This shall not apply insofar as KFB is responsible for the delay. If sale by dispatch (Versendungskauf) has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
3.3. If KFB is unable to meet binding delivery times for reasons for which KFB is not responsible (non-availability of the service), KFB shall inform the contractual partner immediately and at the same time inform the contractual partner of the expected new delivery time. If the service is also not available within the new delivery time, KFB is entitled to rescind the contract in whole or in part. KFB will reimburse any consideration already paid by the contractual partner without delay. In particular, the non-availability of the service shall be deemed to be the failure of KFB’s suppliers to deliver to KFB on time, provided that KFB has entered into a specific corresponding cover transaction, neither KFB nor the supplier is at fault, or if KFB is not obliged to procure in individual cases.
3.4. The occurrence of delays in delivery by KFB shall be determined in accordance with the statutory provisions. In any case, however, a reminder with a grace period set by the customer is required. KFB’s liability for delay in delivery is limited – except in cases of intent or gross negligence – to a maximum amount of 25% of the net remuneration attributable thereto.
3.5. KFB shall only be entitled to make partial deliveries if (i) the partial delivery can be used by the customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered Goods is ensured and (iii) the customer does not incur any considerable additional expenditure or costs as a result (unless KFB declares its willingness to bear these costs).
3.6. The rights of the customer pursuant to section 9 of these GTC and the statutory rights of KFB – in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of performance and/or subsequent performance) – shall remain unaffected.
- Prices and payment
4.1. Unless otherwise agreed, all prices are quoted net plus freight, statutory value added tax and other public charges such as taxes, fees or customs duties. Packaging of the Goods, insurance and transport shall be at the expense and risk of the customer.
4.2. Insofar as the agreed prices are based on our list prices and delivery is to take place more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount). Furthermore, KFB reserves the right to change the prices accordingly if there are more than four months between the conclusion of the contract and the agreed performance date and cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in material prices, and the prices have not been expressly agreed as fixed prices. In the event of a price increase of more than 15% of the agreed price, the customer is entitled to rescind the contract.
4.3. Unless otherwise agreed, the purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods.
4.4. In the event of late payment, KFB shall be entitled to claim default interest at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default and the statutory rights based on default of payment. Delivery periods running against KFB shall be extended by the duration of the delay in payment.
4.5. The customer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the Goods, including assembly by KFB, the statutory counter rights of the customer remain unaffected.
4.6. If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that KFB’s claim to the purchase price or further payments is at risk due to the customer’s inability to pay, KFB shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a grace period – to rescind the contract pursuant to section 321 of the German Civil Code. In the case of contracts for the manufacture of custom-made products (unique products), KFB may declare its rescission immediately. The statutory provisions on the dispensability of setting a grace period and the assertion of claims for damages shall remain unaffected.
4.7. If the customer is in delay with any payment obligations, all existing claims shall become due immediately.
4.8. KFB shall be entitled to assign the receivables and claims arising from the business relationship.
4.9. Unless expressly agreed otherwise in individual cases, all payments with discharging effect shall be made to the bank account of Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Mainz, to which we have assigned the present and future claims from our business relationship. We have also transferred our reservation of title to this institute.
- Dispatch, packaging and transfer of risk
5.1. Unless otherwise agreed, delivery is made ex works (EXW Winsen/Luhe, Incoterms 2010). The customer shall bear the risk for all deliveries, including any returns, even if carriage paid, FOB or CIF delivery (Incoterms 2010) has been agreed in individual cases. The risk shall pass to the customer as soon as the consignment leaves KFB’s warehouse. This shall also apply if partial deliveries are made or KFB has assumed further services (e.g. dispatch or installation). If dispatch is delayed at the request of the customer or due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day of notification of readiness for dispatch.
5.2. Containers, lattice boxes, cassettes and pallets shall not become the property of the customer; they shall be returned to KFB free of charge. Wooden boxes, cartons and one-way packaging shall be charged at cost and shall not be taken back unless there is a legal obligation to do so.
5.3. If the customer is in default of acceptance or culpably violates other obligations to cooperate, KFB shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. In the case of storage by KFB, the storage costs amount to 1% of the net invoice amount of the Goods to be stored for each completed calendar month or 5% of the net invoice amount in the event of final non-acceptance. We reserve the right to assert further claims. The customer may prove that KFB did not suffer any damage or that the damage was considerably less than the aforementioned lump sum.
5.4. If acceptance is agreed, it shall be decisive for the transfer of risk. For an agreed acceptance, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis unless otherwise stipulated in these GTC. The Goods shall be deemed to have been accepted if (a) the delivery has taken place, (b) KFB has informed the customer of this with reference to this deemed acceptance and has requested the customer to accept the Goods within a reasonable period of time and (c) the customer has failed to refuse acceptance within this period of time, stating a defect which is not merely immaterial and which is and actually existing or at least obvious from an objective point of view.
- Retention of title
6.1. KFB retains title to the delivery item (Reserved Goods) until all present and future claims arising from transactions with the customer have been paid in full. This shall also apply if individual or all claims of KFB have been included in a current account which has been balanced and acknowledged.
6.2. As long as title has not been transferred to the customer, the customer is obliged to treat the Reserved Goods with care and insure them sufficiently at his own expense.
6.3. The Reserved Goods may neither be pledged to third parties nor transferred by way of security before the secured claims have been paid in full. The customer must immediately notify KFB in writing if an application for the opening of insolvency proceedings has been filed or if the Reserved Goods are seized by third parties. In consultation with KFB, the customer must do everything necessary to avert such risk. Insofar as it is indicated for the protection of the Reserved Goods, the customer must assign claims to KFB at KFB’s request. The customer is obliged to compensate KFB for all damages and costs – including court and attorney fees – incurred by KFB as a result of intervention measures against access by third parties.
6.4. The customer shall be entitled to resell and/or combine, mix or process the Reserved Goods in the ordinary course of business. A combination, mixing or processing of the Reserved Goods by the customer is always carried out for KFB. If the Reserved Goods are combined, mixed or processed with other objects not owned by KFB, KFB shall acquire co-ownership of the new object in the ratio of the invoice value of the Reserved Goods to the other combined, mixed or processed objects. Otherwise, the same regulations shall apply to the resulting product as to the Reserved Goods.
6.5. All claims against third parties arising from the resale of the Reserved Goods or the product of combining, mixing or processing shall be assigned in advance by the customer to KFB in their entirety or in the amount of any co-ownership share as security to KFB. KFB accepts the assignment. The obligations of the customer mentioned in section 7.3 shall also apply with regard to the assigned claims.
6.6. Irrespective of the assignment, the customer remains entitled to collect the claims in addition to KFB. KFB undertakes not to collect the claims as long as the customer fulfils his payment obligations towards KFB, there is no lack of ability to pay and KFB does not assert retention of title by exercising a right in accordance with section 7.8. Otherwise, KFB may demand that the customer informs KFB of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. In this case KFB shall also be entitled to revoke the customer’s authority to further sell and combine, mix or process the Reserved Goods.
6.7. If the realisable value of the securities exceeds KFB’s claims by more than 20%, KFB shall release securities at KFB’s discretion at the customer’s request.
6.8. In the event of conduct on the part of the customer in breach of contract, in particular default in payment, KFB shall be entitled to rescind the contract in accordance with the statutory provisions and demand the return of the Reserved Goods. In particular, the assertion of these rights is only possible after the expiry of a grace period for payment which has been set unsuccessfully, insofar as the setting of a grace period is not dispensable according to the statutory provisions. The setting of a grace period shall also be dispensable if an application has been filed for the opening of insolvency proceedings against the customer’s assets.
6.9. If the intended retention of title is not effective according to the law in whose area of application the Goods are located, KFB and the customer hereby agree to agree on a regulation in this case which comes closest to the nature of the retention of title according to the law then applicable. Insofar as special requirements are required for this, the customer hereby agrees to bring about these requirements at his own expense.
- Liability for defects
7.1. The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
7.2. Warranty claims of the customer presuppose that the customer has duly fulfilled his inspection and complaint obligations. The customer must inspect the Goods immediately after delivery. Complaints due to recognisable defects or incorrect deliveries must be made in writing to KFB immediately, but no later than 10 days after delivery of the Goods. Hidden defects of the delivery item must be notified in writing by the customer immediately after discovery. If the customer does not comply with this obligation, the Goods shall be deemed to have been delivered free of defects.
7.3. Liability for defects does not refer to normal wear and tear. Furthermore, it shall not apply to such damage which occurs after the transfer of risk as a result of faulty or negligent handling, improper maintenance, incorrect storage, incorrect assembly or commissioning, improper installation in another object or improper attachment to another object, excessive stress, unsuitable operating materials or such chemical, electrochemical or electrical influences which are not assumed under the contract and for which KFB is not responsible.
7.4. In the event of a timely and justified notice of defects, KFB shall, at its own discretion, repair or replace the Goods free of charge. KFB is entitled to make at least two attempts at subsequent performance. KFB is entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
7.5. The customer must give KFB the time and opportunity necessary for subsequent performance, in particular to hand over the Goods complained of for inspection purposes or to grant unimpeded access to his premises and to his facilities, provided that KFB has carried out the assembly of the Goods. Subsequent performance shall not include removal of the defective item or reinstallation unless KFB was originally obliged to install it.
7.6. KFB shall bear the expenses required for inspection and subsequent performance – including the necessary dismantling and installation costs – insofar as a defect actually exists. Otherwise the customer shall bear these expenses or KFB may demand reimbursement of the corresponding expenses from the customer, unless the lack of defectiveness was not recognisable to the customer. Claims of the customer for reimbursement of expenses are, however, excluded insofar as the expenses increase because the Goods were subsequently taken to a place other than the place of performance, unless the transfer corresponds to the contractually agreed use or the intended use resulting from the circumstances.
7.7. In urgent cases (e.g. if operational safety is endangered or to prevent disproportionate damage), the customer shall have the right to remedy the defect itself and to demand reimbursement from KFB of the expenses objectively required for this purpose. In the case of self-execution, KFB must be notified immediately and, if possible, in advance. The right of self-remedy does not exist if KFB would be entitled to refuse subsequent performance in accordance with the statutory provisions.
7.8. If the supplementary performance has failed or if a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may rescind the purchase contract or reduce the purchase price. However, the right of rescission does not exist in the case of an insignificant defect.
7.9. The general limitations of liability pursuant to section 9 shall apply to claims for damages or reimbursement of futile expenses. Any further claims shall be excluded.
7.10. All warranty claims are subject to a limitation period of 12 months after delivery of the Goods. This limitation period shall also apply to contractual and non-contractual claims for damages by the customer based on a defect, unless the application of the regular statutory limitation period (cf. sections 195, 199 of the German Civil Code) would lead to a shorter limitation period in individual cases. In the case of claims for damages by the customer due to intent or gross negligence and in the case of damages resulting from injury to life, body or health and in accordance with the Product Liability Act, however, only the statutory limitation periods shall apply.
7.11. Insofar as KFB is subject to recourse by the customer after resale of the Goods due to claims for defects by its customer and the last customer in the supply chain is an entrepreneur pursuant to 14 of the German Civil Code, contrary to the statutory provision in section 445a para. 2 of the German Civil Code, the otherwise necessary setting of a grace period for the rights specified in section 437 of the German Civil Code shall always be required. Recourse claims according to section 445a Abs. 1 of the German Civil Code become statute-barred within 12 months after delivery to the customer. The statute of limitations shall, however, not be earlier than two months after the point in time at which the customer has fulfilled the claims of his customer. This suspension of expiry shall end at the latest two years after the date on which KFB has delivered the item to the customer.
- Liability for damages
8.1. Insofar as nothing to the contrary arises from these General Terms and Conditions including the following provisions, KFB shall be liable in the event of a breach of contractual or non-contractual obligations in accordance with the statutory provisions.
8.2. KFB shall be liable for damages on whatever legal grounds in the event of intent or gross negligence. In the event of ordinary negligence, KFB shall be liable – subject to a milder liability standard in accordance with statutory provisions (e.g. for care in its own affairs) – only for
(a) damage resulting from injury to life, body or health, and
(b) damage resulting from the breach of an essential contractual obligation (i.e. an obligation the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer regularly relies and may rely); in this case liability is limited to the foreseeable, typically occurring damage and, in addition, to a maximum amount of 200% of the respective net order value.
8.3. The limitations of liability pursuant to section 9.2 shall also apply to breaches of duty by persons whose fault KFB is responsible for in accordance with the statutory provisions. They shall not apply if and to the extent that KFB fraudulently concealed a defect or assumed a guarantee for the quality of the Goods and for claims of the customer under the Product Liability Act.
8.4. In the event of a breach of duty that does not consist of a defect, the customer may only rescind or terminate the contract if KFB is responsible for the breach of duty. A free right of termination of the customer (especially according to sections 651, 649 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
- Drawings and other documents
We reserve title and copyrights to cost estimates, drawings and other documents provided to the customer. They may not be used for purposes other than those stated by us or made accessible to third parties.
- Export regulations and local laws
The customer shall observe all relevant export regulations as well as the laws and other regulations applicable at the place of use of the Goods which apply to the assembly and/or operation of the Goods and shall obtain any necessary permits and documents at its own expense.
- Data protection
The data in connection with the processing of business transactions will be processed by us in compliance with the statutory provisions.
- Applicable law, arbitration, place of jurisdiction
12.1. The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.2. All disputes between KFB and the customer shall be settled in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V.). (DIS) shall be finally decided under exclusion of the ordinary legal process. The place of arbitration shall be Winsen/Luhe or Mainz at our discretion.
12.3. Alternatively, the plaintiff may also choose proceedings before the ordinary courts. Exclusive place of jurisdiction in this case is Winsen/Luhe. However, KFB is also entitled to bring an action at the customer’s head office or in Mainz.
12.4. If the plaintiff appeals to the ordinary courts, the plea of arbitration by the other party shall be excluded.
12.5. Unless otherwise stated in the order confirmation, the registered office of KFB in Winsen/Luhe shall be the place of performance and place of subsequent performance.