General Terms and Conditions of Purchase of Bösch Boden Spies Import GmbH

1. General – Scope

  1. Our General Terms and Conditions of Purchase (hereinafter referred to as “Terms”) apply exclusively; we reject any terms and conditions of the supplier contrary to or deviating from our Terms, unless we have expressly agreed to their validity in writing. Our Terms shall apply even if we accept the supplier’s delivery without reservation despite knowledge of terms and conditions of the supplier contrary to or deviating from our Terms.
  2. All agreements which are made between the supplier and us for the purpose of executing a contract shall be set down in writing in the contract concluded with the supplier. Changes and additions to the concluded contract shall be effective only if confirmed by us in writing.
  3. Our Terms also apply to all future transactions with the supplier.
  4. Our Terms are applicable only vis-à-vis entrepreneurs within the meaning of Section 14 paragraph 1 of the German Civil Code [BGB].

2. Order

  1. The supplier may accept our order (offer) only within a period of 2 weeks, unless otherwise explicitly stated in our order.

3. Prices – Payment Terms

  1. The price shown in our order is binding. Unless otherwise agreed in writing, the price includes “DDP” (Incoterms 2010) delivery to the named place of destination, including packaging. The return of packaging requires a special agreement.
  2. Unless otherwise agreed, prices are inclusive of VAT at the prevailing rate.
  3. We can only process invoices if they indicate our order number; the supplier is responsible for all consequences resulting from non-compliance with this obligation unless it proves that it is not responsible for these.
  4. Unless otherwise agreed, we shall pay the purchase price within 14 days of delivery and receipt of the invoice at a 2% discount or within 30 days of receipt of invoice without any deduction.
  5. We shall have the rights of set-off and of retention to the extent provided by law.

4. Delivery time

  1. The delivery time stated in the order shall be binding, unless otherwise agreed in writing.
  2. The supplier is obliged to inform us in writing without undue delay if circumstances arise or become apparent to it which indicate that the agreed delivery schedule cannot be adhered to.
  3. In case of delayed delivery we are entitled to the statutory claims. In particular, we shall be entitled, after the lapse of a reasonable extension, to claim damages in lieu of performance and to withdraw from the contract. If we claim damages, the supplier will be entitled to prove to us that it is not responsible for the breach of duty.

5. Passing of Risk – Documents

  1. Unless otherwise agreed in writing, deliveries shall be made DDP (Incoterms 2010).
  2. The supplier is obliged to indicate our order number on all shipping documents and delivery notes; if the supplier fails to so, we shall not be responsible for the resulting processing delays.

6. Nature, Quality and Documentation

  1. The supplier is responsible for ensuring that the delivered goods comply with the provisions of national and European law applicable in the selling country notified by us. If we have not notified a selling country, the Federal Republic of Germany shall be deemed the selling country notified.
  2. The supplier is also responsible for ensuring that the sales packaging used by it is licensed in a dual system according to Section 6 of the German Packaging Regulation (VpackVO) and shall prove this to us in writing upon request, unless we declare that we intend to carry out the licensing ourselves.
  3. The supplier shall inspect the goods delivered by it before delivery to ensure that they comply with the legal requirements applicable to these and is responsible for ensuring their compliance vis-à-vis us; the supplier must document the inspections carried out and hand over its relevant documentation to us upon request. In particular, the supplier guarantees when supplying food products or raw materials for the production of food that these comply with all European food legislation and the national food legislation in the notified selling country. The same applies to the packaging used by the supplier for the food or raw materials supplied by it for the production of food. At our request, the supplier shall deliver a declaration of conformity in this regard. Overall, the supplier shall ensure that the goods supplied by it are marketable in Europe and in the selling country notified by us.
  4. The supplier guarantees compliance with the agreed product specifications as the contractually intended quality. Deviations are permitted only with our prior written consent.

7. Defect Inspection – Liability for Defects

  1. We satisfy the obligation to inspect the delivered goods if we randomly inspect the delivered goods for any quality and quantity deviations within a reasonable period; the complaint will be timely if it is received by the supplier within a period of 5 working days of receipt of the goods or, in the case of hidden defects, of their discovery.
  2. We are entitled to the statutory claims based on defects in full; in any case we are entitled to demand of the supplier, at our option, removal of the defects or delivery of a new item. The right to damages, particularly to damages in lieu of performance, remains expressly reserved.
  3. We are entitled to remedy the defect ourselves at the supplier’s expense if the supplier is in default.
  4. The limitation period is 36 months from the passing of risk, unless the mandatory provisions of Sections 478 and 479 BGB apply.

8. Product Liability – Indemnity

  1. In the event of product damage the supplier is obliged to indemnify us in this regard against damage claims of third parties on first request, unless the supplier is not responsible for such damage and the cause also does not lie within its area of control and organization.
  2. Within the limits of its liability for damages within the meaning of Section 7.1 the supplier is also obliged to reimburse any expenses pursuant to Sections 683 and 670 BGB or pursuant to Sections 830, 840 and 426 BGB which arise from or in connection with any recall carried out by us. We shall – as far as possible and can reasonably be expected – inform the supplier of the content and scope of the recall measures to be carried out and give the supplier an opportunity to comment. Other statutory claims remain unaffected.
  3. The supplier undertakes to conclude an extended product liability insurance policy with an adequate coverage, at least in the amount of 5 million euros per claim, including product recall insurance in the amount of 500,000.00 euros per claim, and to furnish us with proof of such insurance upon request. The product liability and recall insurance to be proven must apply to all deliveries to Europe (including the Federal Republic of Germany), which must also be proven upon request.

9. Industrial Property Rights

  1. The supplier warrants that no rights of third parties are infringed in connection with its delivery within the Federal Republic of Germany or in the selling country.
  2. If a third party asserts a claim against us due to such infringement, the supplier is obliged to indemnify against such claims on first written request; we are not entitled to enter into any agreements with the third party without the supplier’ consent, particularly to make a compromise, unless the supplier does not meet its indemnity obligation.
  3. The supplier’s indemnity obligation relates to all expenses necessarily incurred by us as a result of or in connection with the claim asserted by a third party.
  4. The limitation period is 36 months from the passing of risk.

10. Jurisdiction – Place of Performance

  1. If the supplier is a merchant, the courts of Hamburg shall have jurisdiction. However, we are entitled also to take legal proceedings against the supplier before the court at its place of residence.
  2. Unless otherwise stipulated in the order, Hamburg is the place of performance.

11. Governing Law – Severability

  1. The legal relations between the parties are exclusively governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).
  2. Should one or more provisions of these Terms be invalid, the validity of the other provisions will not be affected thereby.