General Sales Terms and Conditions of HOWA-Tech Bearings GmbH
1. General - Applicability
(1) These general terms and conditions for sales and deliveries (“HOWA Sales T&C”) shall govern all sale of goods or work- and service performances by HOWA-Tech Bearings GmbH (”HOWA”) including future contract negotiations, price quotations and transactions.
HOWA does not recognise any terms and conditions of the customer which deviates from our HOWA Sales T&C unless we have agreed to their validity in writing. Our terms of sale apply even if we make unconditional delivery with knowledge of purchaser’s conditions that are in conflict with or differ from our conditions of sale.
(2) All agreements reached between ourselves and the purchaser for the purpose of performance of this contract are to be set out in writing.
(3) HOWA Sales T&C only apply to natural persons who are aged 18 years or over and who are entrepreneurs as defined by section 14 BGB (German Civil Code).
2. Offer – Quotation Documents – Catalogues
(1) Quotations or offers provided by HOWA are non-binding. A customer purchase order is only valid if HOWA provided an order confirmation within 2 weeks of order receipt.
(2) We reserve property rights and the copyright for illustrations, drawings, calculations and other documents; these may not be made accessible to third parties. HOWA’s approval in writing is mandatory before they are sent to third parties.
(3) The descriptions of our products are simply information about product properties and in no way represent a guarantee of their performance.
(4) Modifications to our technical literature may be made at any time and without prior notification.
3. Prices - Terms of Payment
(1) Unless otherwise specified in the order confirmation, our prices are considered “ex-works” and excluding packaging. The packaging will be charged at cost price.
(2) We shall be obliged to accept returned packaging only if this is a mandatory statutory requirement and the purchaser so requests. In this case, the purchaser bears the separate costs of return.
(3) HOWA is eligible to make partial deliveries. We expressly reserve the right to make under or over deliveries regarding the weight and number of units of up to 10% with regards to both the total order quantity as well as every individual partial delivery. This situation still represents the contractual fulfilment of the delivery obligation unless otherwise expressly agreed in the contract. In this case, it is the quantity actually delivered which is invoiced.
(4) Our prices do not include value added tax, which is shown separately in the invoice.
(5) In the case of orders that are to be carried out later than 4 months following the conclusion of the contract, in the event of unforeseeable and major changes to the production costs (e.g. the cost of materials, energy, personnel, transport and public levies), we are entitled to adapt the prices of deliveries that have not yet taken place accordingly.
(6) Unless otherwise agreed, HOWA’s claims are due immediate upon delivery.
No discounts are granted unless so agreed in writing. HOWA may request payment in advance or collateralization prior to delivery. If the purchaser is in default of payment, we shall be entitled to demand default interest at a rate of 8% p.a. above the base interest rate. HOWA reserves the right to assert further damages.
The goods will remain our property until the full payment is made and all of our obligations under the entire business arrangement are fulfilled.
(7) The Customer shall be entitled to set-off rights only if his counterclaims have been legally established, and are undisputed or have been acknowledged by us. Also, he shall be entitled to exercise lien insofar as his counterclaim is related to the same contractual relationship.
(8) Our minimum order values is EUR 50.- Exceptions can be made with First Article orders or product sample deliveries.
4. Delivery Time
(1) Agreed lead-times are subject to correctness and fulfilment of all documents, necessary authorizations, agreed payments and releases, especially of drawings being issued by the Customer. If these obligations are not complied with, delivery times will be adjusted accordingly. Unless otherwise agreed, delivery times specified by us are not binding.
(2) If we are in default of delivery for reasons for which we are responsible, the liability for damages resulting directly from the delayed delivery shall be limited to the amount of the foreseeable damage.
(3) If deliveries are already delayed, and the Customer sets us a reasonable extension period, he shall be entitled to cancel the contract if the extension period elapses without result. If a reasonable extension period elapses without result, the Customer shall be obliged, within a period of two weeks, to state whether he wishes to cancel the contract or insist on fulfilment.
(4) If we are also liable for damages in lieu of performance, claims in the case of ordinary negligence shall be limited to the amount of foreseeable damage.
(5) In cases of ordinary negligence, we shall never be liable for consequential damage resulting from delayed or failed performance, or especially for earnings lost by the Customer or other production downtime costs.
(6) Fulfilment of our delivery obligation requires punctual and proper fulfilment of the Customers obligations.
(7) If we can demonstrate that we have not been supplied on time by one of our suppliers, despite careful selection of these suppliers and conclusion of the necessary contracts on reasonable terms, the term of delivery shall be extended by the delay caused by our supplier’s failure to supply on time. In the case where delivery by the supplier is impossible, we shall be entitled to withdraw from the contract.
(8) If the Customer defaults on acceptance or is in breach of other collaboration obligations, we shall be entitled to claim compensation for losses incurred, including any additional expenses. In this case, the risk of accidental loss or degradation of the purchase item shall pass to the Customer at the point in time at which the Customer becomes in default of acceptance.
5. Transfer of Risks
(1) Unless otherwise specified in the order confirmation, delivery is performed “ex works”, according to Incoterms 2010. The risk passes to the Customer once the delivery item has left the factory, even in the case where partial deliveries are being made or we have accepted to provide other services such as shipping costs or site-delivery and installation. Insofar as an acceptance is to be carried out, this shall be the point at which risk is transferred. Acceptance must be carried out promptly at the delivery date, or alternatively immediately after our notification of readiness for acceptance. The Customer shall not be entitled to refuse acceptance in the case of minor defects.
(2) In the event of delay or failure of shipment or acceptance due to circumstances for which we are not responsible, the risk shall pass to the purchaser from the day of notification of shipment or readiness for acceptance.
(3) Partial deliveries are permitted insofar as these are acceptable to the Customer.
(4) If no shipping instructions have been given, the most favourable transport method will be selected.
(5) Unless otherwise expressly agreed, the passing of the risk of loss is not affected even where HOWA should upon request and/or on the account of Customer arrange for insurance of the Products.
6. FORCE MAJEURE
(1) In case of an event of force majeure or other unforeseen, extraordinary circumstances not due to either Party’s fault (interruption of business, strike, lockout, interventions by authorities, difficulties in power supply, delayed supply of or supply of defective raw material, semi-finished or finished preliminary products necessary for the production of the Products, etc.) both Parties are released from rendering their obligations under the contract to the extent and for the duration of the impediment plus an appropriate start-up time thereafter. This also applies if such impediments occur at sub-suppliers. Either Party will inform the other Party without undue delay on the commencement and end of such impediments.
(2) In case delivery or performance becomes impossible or unreasonable for HOWA due to such impediments, HOWA is released from the delivery obligation. In such cases advance payments will be returned to Customer.
(3) In the event the impediment lasts longer than four (4) months either Party may withdraw from the contract.
7. Warranty Claims
(1) Warranty claims are excluded if the condition of the goods changes after the passing of the risk and/or the customer has to inspect and accept the goods prior to shipping.
Notification of defects shall be made in writing immediately after delivery, within 14 days at the latest. At the same time HOWA is entitled to arrange for inspection of the delivered goods in question.
(2) If a defect for which we are responsible is found in the purchased item, HOWA shall be entitled either to correct the defect or supply a defect-free replacement item. Replaced parts become the property of the supplier.
If we are not prepared or not in a position to correct the defect or supply a replacement, or if this is delayed beyond a reasonable period for reasons for which we are responsible, or correction of the defect or the supply of a replacement fails for some other reason, the purchaser shall be entitled either to cancel the contract or demand a reduction of the purchase price. If a reasonable extension period elapses without result, the purchaser shall be obliged, within a period of two weeks, to state whether he wishes to cancel the contract or insist on fulfilment.
(3) Unless otherwise specified below, other claims by the Customer – irrespective of legal grounds – are excluded. We shall therefore not be liable for damages not related to the delivered item itself; and in particular, we shall not be liable for loss of earnings or other financial loss on the part of the purchaser. If liability for such damages nevertheless becomes effective, claims for damage compensation shall not exceed the extent of the foreseeable damage.
(4) The above exclusion of liability shall not apply if mandatory statutory regulations establish liability, and particularly if the damage is due to intent or gross negligence, or if claims are made for loss of life, physical injury or damage to health as a result of negligence. It also does not apply if we have guaranteed a specific quality in the goods and this quality is not present.
(5) If we are in breach of an essential contractual obligation due to negligence, our liability shall be limited to the foreseeable damage.
(6) The warranty period is 1 year starting from the date of delivery of the goods. This is a period of limitation and also applies to claims for compensation for consequential damage, provided the claims are not made as a result of unlawful acts.
(7) All our catalogue data are based on decades of experience in designing and manufacturing our products and their practical applications. However, general statements in the application of our bearings can be considerably restricted by unknown influences and conditions; therefore HOWA strongly recommends further tests by the Customer. Due to the large number of possible applications of our products, we cannot assume any guarantee for the correctness and completness of our recommendations in each case.
8. Return of Goods
(1) In general, goods that have been sold and properly delivered cannot be returned to HOWA. Exceptions can be made only in special cases and after prior agreement in writing.
(2) The costs of the return delivery shall be borne by the purchaser. Only items that are in perfect condition will be accepted and credited.
(3) In general, returns are excluded for custom-made products.
9. Applicable Law
(1) If the Customer is an entrepreneur or a company, the place of jurisdiction is in Dresden. However, HOWA is entitled to institute legal proceedings against the Customer in any courts having jurisdiction over him.
(2) This contract is subject exclusively to the laws of the Federal Republic of Germany.