Fa. Findling Wälzlager GmbH
1. Purchase orders and offers
In the case of offers based on inventories, we reserve the right to prior sale. Purchase orders require the written form to be valid. Oral side agreements, also by phone, are only binding upon us after we confirmed such agreements in writing. We only accept purchase orders at our terms and conditions of business. If customers received deliveries in the past or our terms and conditions became known to them on another occasion, they acknowledge our terms and conditions for future business transactions, without a specific arrangement or confirmation being required. We are not obligated to demonstrate that our terms and conditions were actually received by the customer. If we can demonstrate that our terms and conditions were sent, they are deemed to be received by the customer. We do not recognize any third-party conditions of purchase. Neither by silence nor by conclusive conduct, even if we do not expressly object again on or after the conclusion of the agreement. This applies primarily to third-party conditions, which conflict with our conditions. Conflicting conditions become obsolete at the latest upon acceptance of the goods.
2. Delivery dates and periods
Confirmations of delivery dates and periods are not binding. Delivery dates and periods are subject to the condition that all essential specifics for the performance of the agreement are agreed between the parties.
Delivery dates and periods are extended or postponed in the case of unforeseeable impairments, force majeure events, transportation delays or disruptions of operation at upstream suppliers.
3. Limitation of liability
In the case of circumstances that make delivery of sold goods impossible or significantly more difficult for us, we are authorized, without any obligation to provide compensation, to limit the delivery, postpone delivery dates or withdraw from the agreement. In the case of goods that are not yet in our possession, delivery is subject to proper and timely delivery by our suppliers. We are not obligated to enforce damage claims against our suppliers or assign such claims. The right to charge additional costs that arise from replacement purchases is expressly excluded. This does not apply if this is, also in consideration of our interests, unreasonable to the other party of the agreement.
4. Shipping and delivery
We reserve the right to select mode of transport. The customer bears risk and costs for delivery and shipping. The risk passes to the customer at the latest at the point the goods leave the storage and are transferred to the carrier. Expenses for express and postal packages are borne by the customer. We have the right to invoice partial deliveries separately. Reduction of additional freight costs is, however, not permitted. Call-off orders must be called-off completely within 12 months. After the expiry of this period, we are authorized to assert damage claims against the customer and/or dispose of the goods otherwise. Tacking back of parts that are not produced for and kept on stock is excluded and withdrawal from an agreement concerning such parts is also excluded. In the case of non-acceptance, we have the right, after setting a grace period, to demand damages for non-performance, which will be assessed at a flat rate of at least 20 % of the delivery value, without VAT. We reserve the right to furnish proof of greater damages. The customer has the right to furnish proof of smaller damages. Tacking back of goods is only possible after we provided our prior consent and any expenses for the return or retrieval of the goods are borne by the customer, less at least 25 % of the delivery value for costs arising from tacking back the goods into storage.
5. Reservation of title
Delivered goods remain our property until we receive payment of the full amount, including any expenses and interest (in the case of payment by bills of exchange or checks until the bill or check is cashed). In the case of existing receivables from prior or simultaneous deliveries, our reservation of title remains in effect until all receivables are paid. If delivered goods are processed or mixed, to secure our claims the customer, hereby, transfers to us the ownership to the new created object or plurality of objects. The customer is authorized to collect assigned receivables in its own name as long as the customer properly meets its payment obligations towards us. We are, however, authorized to inform the debtor of such assignment and to give the debtor payment instructions. The current account clause (full settlement clause) is deemed to be agreed. The customer is obligated to provide us with any requested information and deliver to us any requested documents that we deem necessary to enforce and prosecute our rights arising from the provided securities. Resale of goods subject to reservation of title is only permitted in the ordinary course of business and subject to the condition that the customer also stipulates a prolonged reservation of title with its customer. The customer is, however, not authorized to make other dispositions of the goods subject to reservation of title, in particular pledges or transfers by way of security. In the case of a resale, the customer, hereby, assigns to us all claims, including all ancillary rights, that arise to the customer from the resale. Attachments or seizures of the goods subject to reservation of title must be notified without undue delay. In the case of a coincidence with a processing clause or a prolonged reservation of title of other suppliers, the sentences 3 and 6 of this sections apply subject to the condition that the acquisition of ownership or claims only arises proportionate to the value of the relevant goods subject to reservation of title in accordance with our list prices. The customer bears the burden of proof.
6. Discount agreement and pricing
All price quotes are non-binding and apply ex warehouse. Statutory VAT is charged separately. The valid list prices on the delivery date apply. Discount agreements or commitments only apply to the individual purchase order. Discount agreements or commitments do not bind us, neither for future purchase orders nor for all roller bearing types.
If the infringement of provisions of the German Value Added Tax Act or the provisions of Value Added Tax Acts of other EU states by the customer (or by a third party engaged by the customer or acting on behalf of the customer) has the consequence that we are held liable, based on primary or secondary liability, for the payment of value added tax, we can discharge ourselves from this obligation by payment to the relevant fiscal authority without being obligated to conduct a closer verification. In the case of such payment, we have the right to charge the customer the amount paid by us, plus interest at a rate of 2 percentage points above the applicable federal bank discount rate, applied from the date of our payment.
7. Reservation in the case of fixed prices
Higher prices must be charged, if by means of unilateral government measures or events, such as import restrictions, higher customs, dumping, energy crises or price increases by manufacturers or other material reasons beyond our sphere of control, price increases are caused.
Payments must be made within 8 days, 2 % cash discount applies, or 30 days net from the invoice date. Cash discount deduction is excluded, if the customer is in delay of payment. The customer is in delay of payment without a reminder being required, if the customer does not meet the deadline of 30 days. In the case of delay of payment we have the right: a) to request payment of a flat fee of EURO 5,— for each reminder b) to demand interest at a rate of 6 % above the discount rate i.e. the base rate of the European Central Bank. Otherwise, the consequences of such default are subject to the law. All claims become due immediately, if the customer is in default with a payment obligation, also if the initially granted payment term has not yet expired. Checks and bills of exchange are only accepted on account of payment. Payment by way of bill of exchange excludes cash discount payment and must be agreed in advance. Bill of exchange tax, discount, encashment charges are borne by the customer and are due immediately. The customer expressly accepts that the goods, also in the case of further processing into semi-finished or finished products, remain subject to our prolonged reservation of title until the bill of exchange is cashed and we are completely released from our liability as the issuer of the acceptor’s bill. Comparisons reservation of title Sentence 3 and 6. Section 455 BGB [German Civil Code] is agreed in our favor to the effect that the title to the goods first passes to the customer, if not only the purchase price is paid, but it is also finally determined with legal effect that we will no longer be held liable based on the bill of exchange. In the case of a ‘Deterioration of the Assets section 321 BGB’ [German Civil Code] or delay of payment of the customer, we have the right to demand advance payment and payment of all invoices not yet due. We have the right to demand damages for non-performance or rescind from active agreements in whole or in part. The customer is only entitled to set-off or reduce the purchase price, also if notices of defects or counter-claims are asserted, if the counter-claims are uncontested or recognized by declaratory judgment. The same requirements restrict a potential right of retention of the customer, unless this right is based on the same contractual relationship.
Roller bearings that become demonstrable unusable within one year from delivery due to material or production defects will be exchanged against roller bearings free from defects. Warranty claims do not apply to roller bearings that were damaged during installation or negatively affected by dirt, corrosion or otherwise. In the case replacement delivery fails, the customer has the right to demand reduction of the remuneration or rescission of the agreement. Additional statutory warranty claims are excluded. We are not obligated to take responsibility under any legal aspect for losses or damages the customer suffers as a result of processing, resale or other use of defective goods (consequential damages). The customer is obligated to inspect received goods without undue delay. Defects that are identifiable by thorough inspection, only obligate us, if notice of these defects is given in writing at the latest within one week from receipt of the goods. In the case of hidden defects this period begins upon discovery and ends at the latest with the expiry of our warranty period. We do not assume any responsibility for the assurance of properties, the illustrations and information contained in offers, price lists and brochures, in particular weight and measurements indications, as well as other technical data and the referenced DIN and other standards. Without an additional written confirmation, samples do not represent an assurance of properties. They are only used to designate the goods. If assured properties are missing, we are only obligated to compensate for indirect consequential damages within the scope of sections 463, 480 (2), 635 BGB [German Civil Code], if, in the individual case, the purpose of our assurance was to ensure the customer against such damages. Damage claims for indirect consequential damages caused by a defect based on a positive violation of a contractual duty are excluded.
10. Limitation of liability
We provide advice and recommendations to the best of our knowledge, but without any obligation. Complaints within the scope of partial deliveries does not entitle to the rejection of the remaining delivery. Roller bearings that were expressly ordered for subordinated purposes are excluded from warranty. Damages claims against us, based on any legal grounds whatsoever, are excluded to the extent permitted by law. This applies, in particular, to damages claim arising from default or non-performance. We expressly make aware of the fact that roller bearings from Eastern countries, including Russia and China, do not meet the Western European quality standards. These bearings can only be used for subordinate applications. For this reason, we expressly reject any liability in the case these products fail. The liability for all damage claims against us is limited as follows: In the full amount of the damage in the case of gross fault of management or executive employees or in principle in the case of each intentional or negligent violation of any material contractual obligations, as well as in the case of intentional damages caused by subordinated vicarious agents, as to the amount regarding the last two case groups to the compensation of the typical foreseeable damage. Material contractual obligations are such obligations, whose fulfillment is a prerequisite for the proper implementation of the agreement and on whose fulfillment the contractual party therefore relies on and also may rely on. This limitation of liability also applies to the same extent to the individual liability of our vicarious agents. We are liable under the German Product Liability Act as follows: Our liability is reduced or becomes obsolete, if the damage was caused by a defect of the product and at the same time through the fault of the aggrieved party or a person for which the aggrieved party is liable. The amount of the reduction is determined by the facts and circumstances of the individual case.
11. Place of performance
Place of performance for delivery and payment, also in the case bills of exchange or checks are accepted, is Karlsruhe. Place of jurisdiction is Karlsruhe. German law applies to all legal relationships under exclusion of any foreign law.