General Terms and Conditions of Sale and Delivery of Bösch Boden Spies Import GmbH
1. General – Scope
- Our Terms and Conditions of Sale and Delivery (hereinafter referred to as “Terms”) apply exclusively; we reject any terms and conditions of the customer contrary to or deviating from our Terms, unless we have expressly agreed to their validity in writing. Our Terms apply even if we execute delivery to the customer without reservation despite knowledge of terms and conditions of the customer contrary to or deviating from our Terms, including any contract award regulations of public corporations.
- All agreements which are made between the customer and us for the purpose of executing the contract concluded with it shall be set down in writing in the contract concluded with it. Changes and additions to the contract shall be effective only if confirmed by us in writing.
- Our Terms also apply to all future transactions with the customer as part of its business activities in the course of the ongoing business relationship.
- Our Terms are applicable vis-à-vis entrepreneurs within the meaning of Section 14 paragraph 1 of the German Civil Code [BGB], public law entities and public special funds (Section 310 BGB).
2. Our offers
- All our offers are subject to change and subject to prior sale, unless otherwise indicated in the order confirmation or unless we have expressly stated otherwise in writing.
- For all contracts for goods whose entry into the territory of the Community requires the issue of an import license or the making of an import declaration the timely and complete grant of the license or, as the case may be, the binding acceptance of the import declaration are a prerequisite for the completion of the respective contract.
- In the event of refusal of the license or revocation of the import declaration the customer may not demand performance of the contract. In these cases the customer may not derive any legal claims, particularly claims for damages and/or compensation for expenses, unless otherwise provided for below in Section 9.
- If it is determined after conclusion of a contract that the goods do not comply with German food regulations, labelling requirements and/or the German Weights and Measures Act (Eichgesetz), we shall be entitled to withdraw from the contract. In these cases the customer may not derive any legal claims from the withdrawal and the seller’s liability for damages and/or compensation for expenses is excluded, unless otherwise provided for below in Section 9.
- All contracts concluded for the delivery of or from lots to be offloaded or of floating or rolling goods are subject to correct and timely procurement by us and safe and prompt arrival.The customer always bears the transport risk, even for carriage paid deliveries or sales concluded with similar conditions. In the absence of specific instructions from the customer, we shall choose the transport route to the best of our judgment without liability for the cheapest shipping.
4. Delivery times and deadlines
- The commencement of the delivery times stated by us presupposes clarification of all the necessary questions and compliance with the customer’s obligations. Unless otherwise agreed or provided for in the contract, the delivery time stated by us is always non-binding.
- Delivery delays due to force majeure or unforeseen circumstances for which we are not responsible, such as breakdowns, strikes, lock-outs, lack of transportation, shortage of raw materials, raw material procurement difficulties, disruptions in production of the works entrusted with the delivery, flood, storm and tempest, official or government directives and/or controls, total or partial obstruction in the growth of the harvest, processing and packing, or other unforeseen shipping difficulties do not lead to default. The agreed delivery period shall be extended by the period of the delivery delay due to the aforementioned circumstances and a reasonable start-up period. If the impediment lasts longer than one month, we and the customer will be entitled after granting a reasonable extension of time to withdraw from that part of the contract not yet performed.
- If the customer grants us a reasonable extension of time after our default, it shall be entitled after the expiry of this deadline to withdraw from the contract; the customer shall be entitled to damages in lieu of performance only if the default is due to intent or gross negligence or breach of an essential contractual obligation, the fulfilment of which enables proper execution of the contract in the first place and on the fulfilment of which the customer can regularly rely (“cardinal obligation”). In the case of slight negligence on our part our liability is always limited to the foreseeable damage. These limitations of liability do not apply if a commercial transaction for delivery by a fixed date has been agreed; the same applies if the customer may assert because of the delay caused by us that interest in the contract performance has ceased to exist. In these cases liability is limited to the typical and foreseeable damage.
- If the customer is in default of acceptance or breaches other obligations to cooperate, it must compensate us for the damage caused thereby, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the bought object shall also pass to the customer at the time when the customer defaults in acceptance.
- We are entitled to make partial deliveries or deliveries before the delivery date in so far as they do no conflict with a recognizable interest of the customer.
- The obligation of the customer to take delivery of the goods is the primary obligation.
5. Passing of risk
- Unless otherwise agreed in writing, the Incoterms 2010 “ex works” delivery clause applies vis-à-vis undertakings and public corporations.
- At the customer’s express request, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer.
- If “cif” is agreed exceptionally, we shall take out insurance coverage that includes Cargo Clauses (all risks), Institute War Clauses and Institutes Strikes, Riots and Civil Commotions Clauses Any additional risks shall be insured only at the customer’s specific request at its expense. We are not liable for other risks that that are covered by the insurance. Increases or reductions of the insurance premium after conclusion of the contract due to war risks (including terrorism) which amount to more than 0.5 % of the premium shall be borne by the customer.
- The quantity specifications entitle us to make additional or short deliveries of up to 5%; in particular, additional and short deliveries of up to 5% are no defect.
- For “Loco”-Hamburg sales the weight and/or number determined at the wharf or warehouse is decisive for the calculation.
- The same also applies to carriage free deliveries.
- In case of call contracts for which more than 4 weeks elapse between the conclusion of the contract and delivery date we reserve the right – unless otherwise agreed – to change our purchase price accordingly if, as a result of negotiated wage changes, price changes for materials and fuels, for containers (bottles, cans, bags, etc., and their closures) and for packing material incurred by us, suppliers or firms manufacturing on our behalf, said cost factors change in the period between the conclusion of the contract and delivery compared to the cost factors underlying the calculation of the agreed purchase price, and we may do so in the same proportion as the change of the cost factor or cost factors has an impact in the total price.
- Notwithstanding, we are entitled to adjust the purchase price in accordance with the change to public charges, taxes and duties occurring after the conclusion of the contract, which we shall prove to the customer upon request. The same applies to changes in foreign exchange rates, freight rates (if we assume the cost of freight) and price changes resulting from government measures.
- Unless otherwise agreed, all prices are in euros and exclusive of the turnover tax (VAT) payable thereon.
8. Claims for defects
- Warranty rights (claims based on defects) of the commercial customer presuppose that the customer inspects the goods without undue delay after receipt thereof and notifies any obvious defects to us in writing without undue delay after the inspection and hidden defects without undue delay after their discovery, specifying the defect (Section 377 of the German Commercial Code [HGB]). Other customers must notify obvious defects to us in writing within 2 weeks of the passing of the risk, otherwise the warranty will expire for such defects that are not notified. We must be given the opportunity to satisfy ourselves that the notified defects exist.
- Claims for defects including damage claims of the customer are excluded if the customer does not comply with our or generally known directions for use and regulations as well as our operating instructions or the recognized rules of technology when using our products or the damage is due to this. The same applies to damage or consequential damage due to improper use of our products, for which the customer is responsible.
- Claims for defects do not exist in cases of only insignificant deviations from the agreed quality of the goods or only insignificant impairment of the fitness of the goods for use.
- All our specifications such as dimensions, documents, brochures, etc., are only indicative and performance specifications and do not constitute guarantees, unless otherwise expressly agreed.
- If our products have a defect for which we are responsible, we are entitled, at our option, to remedy the defect or deliver a replacement.
- Payments of the customer in cases where a notice of defects is given may be retained only to the extent reasonably proportionate to the defects having occurred. These payments may be retained only under the conditions of Section 11.6 of these Terms.
- If the customer wrongly notifies the existence of a defect for which we are responsible for reasons for which we are not responsible, it must compensate us for the reasonable expenses incurred in this respect for the removal and/or detection of the defect.
- We may charge the customer for the additional costs necessary for the purpose of subsequent performance (“Nacherfüllung”), particularly transport, travel, labour and material costs, to the extent that the expenses increase by delivering the delivered product to a place other than the delivery address.
- In view of the agreements of the customer with its customers going beyond the customers’ legal claims for defects, recourse claims of the customer for consumer goods sales (Section 478 BGB) are excluded in this respect. The customer must inform us in good time about its customers’ claims for defects to enable us, at our option, to perform these claims in the customer’s place.
- Claims for defects, particularly claims for defects of quality, become statute-barred after 12 months from the passing of the risk, unless we caused the defect intentionally or by gross negligence or fraudulently concealed this. This provision also applies to any guarantees given and binding on us, unless otherwise provided in these. The statutory time limits apply to limitation periods in respect of claims for defects that exceed 2 years by law. The statutory periods also apply to the recourse claim under Sections 478, 479 BGB. These limitation periods also apply to consequential damages caused by a defect to the extent that these are not asserted for tortious acts. If subsequent performance (“Nacherfüllung”) is required due to a defective delivery, the limitation period will only be suspended from the notice of defects until the subsequent performance, but not set in motion again.
- Before the customer can assert further claims or rights (withdrawal, reduction, compensation for damages or expenses), we must first be given the opportunity to effect subsequent performance within a reasonable time, unless we have given a guarantee to the contrary. If the subsequent performance fails despite a second attempt, is impossible or cannot be reasonably expected of the customer or we refuse subsequent performance, the customer may withdraw from the contract or reduce the remuneration. Assertion of claims for damages or for compensation for expenses is governed by Section 9 of these Terms.
- In addition, the following applies to claims based on defects of title:
- Unless otherwise agreed, we are only obliged to make the deliveries in the country of the delivery address free of third party rights.
- In the event of infringement of industrial property rights of third parties for which we are responsible we may, at our option, either obtain at our expense a right of use sufficient for the agreed or expected use and transfer this to the customer, or modify the delivered goods in such a way that the industrial property right is not infringed or replace the delivered goods in so far as the agreed or expected use of the delivered goods is not impaired hereby. If this is impossible for us or we refuse subsequent performance, the customer will be entitled to the legal claims and rights. Claims for damages or for compensation for expenses are governed by Section 9.
- We are liable for damage caused to the customer only in case of intent or gross negligence, unless this is due to breach of an essential contractual obligation, the fulfilment of which enables proper execution of the contract in the first place and on the fulfilment of which the customer can regularly rely (“cardinal obligation”). In case of slight negligence our liability is limited to the typical damage that was foreseeable upon conclusion of the contract. In particular, we are not liable in this case for lost profits of the customer and foreseeable indirect consequential damage. The foregoing provisions also apply in case of negligence of our legal representatives and “Erfüllungsgehilfen” (persons employing in performing a contractual obligation for whom the principal is vicariously liable).
- The above limitations of liability do not apply to the extent that we are compulsorily liable under statutory provisions, such as Sections 1 and 4 of the German Product Liability Act (ProdHaftG), if injury has been caused to life, limb or health or if damage claims are asserted against us owing to the absence of a guaranteed quality within the meaning of Section 443 BGB or a defect was fraudulently concealed.
- If liability is excluded or limited, this also applies for the benefit of our legal representatives and “Erfüllungsgehilfen” in the event of the customer making a direct claim.
10. Retention of title
- We retain title to the delivered items until receipt of all payments arising from the business relationship with the customer. In case of breach of contract by the customer, particularly default in payment despite being given a reasonable extension of time, we are entitled to take back the delivered item. This does not apply if the customer has already requested the opening of insolvency proceedings or insolvency proceedings have been opened on account of which we are not permitted to take back the delivered items immediately. After taking back the delivered item we shall be entitled to realize the same; the realization proceeds shall be offset against the customer’s liabilities, less reasonable realization costs. We may also realize the reserved goods that have been taken back through a private sale. The provisions of the German Insolvency Code (InsO) relating to realization remain unaffected.
- The customer is obliged to treat the delivery item with care, in particular, the customer is obliged to insure this adequately against damage caused by fire, water and theft at the replacement value at its expense.
- In case of attachments or other interferences by third parties, the customer must inform us in writing without undue delay. The customer is liable to us for the judicial and extrajudicial costs of any necessary action pursuant to Section 771 of the German Code of Civil Procedure (ZPO) (third-party action against execution).
- The customer is entitled to resell the delivery item in the ordinary course of business; however, the customer hereby already assigns to us all claims to the extent of the final invoiced amount (including VAT) that accrue to it from the resale against its customers or third parties, regardless of whether the delivered item was resold without or after processing. We accept this assignment of the customer to us.The customer remains authorized to collect this claim even after the assignment. However, we are authorized to collect the claim ourselves if the customer no longer meets its payment obligations from the collected proceeds, defaults in payment or has filed a petition to open insolvency proceedings or such a petition has been filed or payments have been suspended. In these cases we may demand that the customer informs us of the assigned claims and their debtors, furnishes all the information required for the collection of the sums due, hands over the relevant documents and notifies the debtors (third parties) of the assignment. However, it is not possible for us to collect the claim if this conflicts with the Insolvency Code.
- The processing or transformation of the delivered item by the customer is always done for us. If the delivered item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the same proportion as the value of the delivered item to the other processed items at the time of the processing. Otherwise, the same shall apply to the item resulting from the processing as to the delivered items subject to a reservation.
- The retention of title shall exist even if some or all of our claims are included in a current account and the balance has been struck or accepted.
- We undertake to release, at the customer’s request, the securities to which we are entitled also to the extent that the value of our securities exceeds the claims to be secured by more than 10%; selection of the securities to be released is incumbent on us.
- Payments shall be made in accordance with the relevant agreement with the customer. Unless the relevant agreement provides otherwise, the purchase price shall be paid in accordance with Section 7.3 of these Terms and without discount and/or bank charges.
- Unless a different payment term is expressly agreed in the contract, the payment must be made no later than 8 days after the invoice date. The customer agrees to invoices being sent electronically.
- In the event of default in payment we charge the statutory interest pursuant to Section 288 paragraph 2 BGB. Dunning and collection costs as well as any other charges are also payable by the customer in the event of default in payment.
- Bills and cheques are – if at all – accepted only as conditional payment. All bill and cheque charges, especially discount fees, stamp costs and any collection fees, shall be borne by the customer.
- If we are obliged to perform in advance and, after the conclusion of the contract, we become aware of circumstances indicating a substantial deterioration of the customer’s financial situation, we may, at our option, demand either security within a reasonable time or payment against delivery. If the customer does not comply with this demand, we shall be entitled, subject to other legal rights, to withdraw from the contract.
- The customer shall have rights of set-off only if its counterclaims have been confirmed by a final and absolute court judgment, are uncontested or are recognized by us. The customer is entitled to exercise a right of retention or a right to refuse performance only if the same conditions are met or, in the event of assertion of claims for defects, the defects of the delivered goods have at least been substantiated (e.g. by a written confirmation from a neutral person) and also its counterclaim is based on the same contractual relationship.
12. Jurisdiction, place of performance
- The courts of Hamburg have jurisdiction. However, we are entitled also to take legal proceedings against the customer before the court at its principal place of business.
- Unless otherwise stipulated in the order confirmation, Hamburg is the place of performance.
13. Governing law, severability
- The legal relations between the parties are exclusively governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).
- Should one or more provisions of this contract or of these Terms be invalid, the validity of the other provisions will not be affected thereby.