Boltze Gruppe - General terms and conditions of sale
1. Applicable Conditions and Scope of Application
1.1 Unless otherwise expressly agreed upon in writing, our supplies and services are exclusively subject to the following General Terms and Conditions of Sale.
1.2 Any conditions of the Customer shall apply only if and to the extent to which we have expressly consented thereto in writing.
2. Information and Advice
Any advice and information given on our products is based on our experience to date. The data, in particular concerning the possibilities of use of our products, are average data only and do not represent quality description of the products. We are unable to assume any liability as to the exact correctness of the data and the possibilities of use. As far as the Customer is entitled to damages notwithstanding this provision, clause 7 shall apply.
3. Conclusion and Content of Contract
3.1 Our offers are not binding. A contract for delivery shall be concluded only upon either our written confirmation of the Customer's order or, where no such confirmation is given, the delivery of the goods. The contents of the contract shall be determined by our written confirmation, in case of delivery without prior confirmation, our delivery note shall be deemed as being such written con-firmation. Oral statements and explications by our commercial representatives/ travelling sales-men (“Handelsvertreter”/”Reisende”) are in any case not binding.
3.2 Any information given on our products, in particular, pictures or drawings or information concerning quality, quantity, weight, colour, measure and performance enclosed in our offers are approximate data only and not quality descriptions. As far as permissible deviations are not stipulated in the order confirmation and none are given in the Customer’s specification expressly accepted, devia-tions customary in the industry are admissible in any case. The composition, suitability, qualifica-tion, function and purpose of our products are exclusively determined by our specifications and technical qualifications. Public statements, laudations or advertising by third parties do not repre-sent a quality description of the product.
3.3 Guarantees regarding qualities or shelf life of our products must be expressly declared as such in the order confirmation. If models and samples are delivered, their qualities are not warranted un-less expressly stated otherwise in the order confirmation. This shall also apply to data concerning the result of analyses. However, we endeavour to deliver products which properties comply with the properties of the models or samples or the result of analyses, respectively.
4. Delivery and Passing of Risk
4.1 Where delivery dates or times are not expressly declared as fixed in our written order confirmation but are to be regarded as estimates, the Customer may set a reasonable time limit for delivery two weeks after expiry of the delivery dates or times. We are only in default after expiration of such final time limit.
4.2 In case of default or impossibility of performance we are liable for claims for damages exclusively pursuant to the provisions in clause 7 below. Our liability for damages caused by default is limited to 0.5 % per completed week of the value of the delivery or partial delivery that is in default. Our maximum liability for damages caused by default is limited to 5 % of the value of the (partial) delivery in default.
4.3 In cases of force majeure, for example operational disturbances, delay in transportation, measures taken in the course of industrial action, in particular strike and lockout, and in cases of non-delivery, incorrect or delayed delivery by our own suppliers, irrespective of its cause (reservation of self-supply), and in any other case of insufficient performances for which we are not responsi-ble, we shall be entitled to extend the delivery period for the duration of the obstruction and for a reasonable period thereafter to reinstate works. If it is foreseeable that the inability to perform will be of permanent nature, we are entitled to refuse the delivery completely or in part. In that case the Customer is not entitled to any damage claims. He is no longer obliged to fulfil his contractually agreed counter-performance and any advance payments will be returned.
4.4 We are entitled to make partial deliveries. Place of Performance is Braak in Germany, unless otherwise agreed upon in writing. Place of Performance for our delivery is at our warehouse in Braak or Bad Oldesloe depending on where the goods are stored.
4.5 We expressly reserve the right to terminate any business relationship with a customer without giving reasons and not to accept any further orders by a customer.
4.6 Types of shipment are agreed upon pursuant to Incoterms 2010.
4.7 If delivery upon request is agreed upon, the respective requests must be placed within three months after availability of the products, unless otherwise agreed upon in writing. In case the Customer does not request delivery within the specified time, clause 4.7 shall apply accordingly.
4.8 If the Customer refuses acceptance of the goods or if shipment is delayed for reasons which the Customer is responsible, the risk shall pass when his default in acceptance commences. Any storage costs incurred after the risk has passed shall be payable by the Customer. We are entitled to charge either a lump sum of 0.5% of the invoice amount per month as storage costs or the dam-age actually suffered, unless the Customer proves lesser damage. In addition, we are entitled to set the Customer a final period of 14 days and to rescind the contract or claim damages for non-fulfilment if this period lapses without acceptance of the goods by the Customer.
5.1 Our prices do not include value added tax which will be added to the prices at the rate in force at the time of supply.
5.2 The Customer is not entitled to make any deductions from amounts due to us due to any counterclaims or to exercise a right of retention, unless the counterclaims or the right of retention have been acknowledged by us in writing or declared valid with final effect in a judicial proceed-ing.
5.3 Payment of our invoices is due within 30 days from the invoice date, unless otherwise agreed upon in writing. For payment made by direct debit a discount of 3.5 % of the invoiced amount is granted. For payment within ten (10) days from the date of invoice a discount of 3.5 % of the in-voiced amount is granted. The Customer is in default, if this period lapses without payment. Any further discounts or deductions are not granted. We do not accept bills of exchange.
5.4 If the Customer is in default with any payments due, we are entitled to claim interest at 8 % p.a. above the base-lending rate of the European Central Bank, unless a higher or lower damage is proven.
5.5 The Customer is not entitled to assign any claims to third parties following from this contract without our prior written consent.
6. Retention of Title
6.1 All goods delivered shall remain our sole property ("Vorbehaltsware" - separate goods) until the Customer has fully satisfied all existing claims and those arising after conclusion of contract.
6.2 Processing and transformation of the separate goods is made for us as manufacturer (”Hersteller”) in the sense of sec. 950 German Civil Code (BGB), without obligation to us. Processed and trans-formed goods are deemed to be separate goods within the meaning of clause 6.1 above. In case of processing and transformation, combining and intermixture of the separate goods by the Cus-tomer with goods of other origin to a new product or to an intermixed stock, respectively, we be-come co-owner of it, namely in the ratio of the invoiced amount of the separate goods at the time of delivery to the value of the other processed or the intermixed goods, respectively. The co-ownership share is held as separate goods within the meaning of clause 6.1 above.
6.3 If separate goods are connected with other goods and if goods belonging to the Customer are to be regarded as the principal good within the meaning of sec.947 German Civil Code, it is hereby agreed that the co-ownership share is transferred to us in the ratio of the invoiced amount of the separate goods to the value of the principal good and that the Customer holds the goods in safe custody for us free of charge. The co-ownership share is held as separate good within the meaning of clause 6.1 above.
6.4 The Customer shall hold the separate goods in safe custody. At any time and upon our request the opportunity of stocktaking and stock marking at the warehouse must be given. The Customer shall notify us immediately of any seizure or other interference of third parties in respect to our property rights and will provide us with all documents and information necessary to oppose such interfer-ence with all legal means.
6.5 The Customer is entitled to resell the separate goods exclusively within the ordinary course of business according to his usual conditions provided that he also ensures retention of title as stipulated above and if it is ensured that his claims arising from the resale pursuant to clauses 6.6 through 6.8 below are transferred to us.
6.6 The Customer hereby assigns to us all claims he acquires against his buyers through the resale of separate goods, also within the scope of contracts for work and contracts for delivery of work, with all subsidiary rights. The assigned claims shall function as security for our claims to the same extent as the separate goods. The Customer is only authorised to assign claims to third parties with our prior written consent.
6.7 If the Customer sells the separate goods together with other goods not supplied by us, the claim following from such sale shall only be assigned to us up to the amount invoiced by us for the respective separate goods at the time of delivery. For the resale of goods, for which we become co-owners pursuant to clause 6.2 or clause 6.3, respectively, the assignment of claims is valid up to the amount of the co-ownership share.
6.8 If the assigned claim is taken into a current account, the Customer hereby assigns to us a corresponding part of the balance of such account, including a deficit balance.
6.9 The Customer is authorised to collect the claims assigned to us pursuant to clauses 6.5 through 6.7 above on our behalf until revocation of this right by us.
6.10 If the Customer does not fulfil his obligations under this or any other contract entered into with us or if circumstances making the creditworthiness of the Customer doubtful become known to us, - we are entitled to prohibit the resale, the processing and transformation of the separate goods as well as the combination and intermixture with other goods; - we are entitled to rescind the contract; in this event, the Customer’s right of possession of the separate goods terminates and we are entitled to demand surrender of the separate goods; the claim for surrender is deemed as rescission only if the rescission is expressly declared by us; we are then entitled to enter the Customer’s business premises and take possession of the separate goods at the expense of the Customer and to sell it by private sale or public auction at the highest price possible, notwithstanding the Customer’s financial obligations and other duties; after deduction of the costs of such sale the proceeds thereof shall be used to reduce the Customer’s debt; any remaining surplus shall be made available to the Customer; - upon our request the Customer shall provide us with the names of the debtors of all claims assigned to us to enable us to disclose the assignments and collect these claims; the Cus-tomer shall forward to us any payments he receives on claims assigned to us immediately upon receipt if and as soon as our claims against the Customer become due; - we are entitled to revoke the Customer’s right to collect the claims assigned to us on our behalf.
6.11 If the value of the security provided to us exceeds the aggregate of our secured claims by more than 20 %, we are under an obligation to release security of our choice to this extent at the request of the Customer.
7.1 Any documents, article information, photographs, and items, such as drawings, texts, logos, images, visual / audio-visual recordings, samples, or models (subsequently also referred to indi-vidually and jointly as “materials”) that we provide to the customer in the context of our services, shall remain our property. We hold trademark rights, copyrights, and other related rights – as de-fined by the copyright act – to these documents and items. The customer may only disclose the provided materials to third parties or to publish them, subject to item 7.2, or to our prior written approval.
7.2 Our customer has the right to use the materials that we provide them with for presenting and advertising individual products, from the time they have ordered the goods in question, and for the sole purpose of selling and advertising the respective products purchased from us. Under these conditions, the customer may also provide the materials to sales platforms (such as Amazon) for use. Unless otherwise arranged for in an individual written contract, the customer’s right to use the materials shall expire 3 months after the last products were sold, or after they ceased to offer the products for sale. The product photos and logos provided for download must only be modified subject to our prior ap-proval.
8. Documents, advertising material / rights of use
8.1 The Customer shall diligently examine the goods immediately upon receipt at the place of destination, also if models or samples were delivered in advance. The goods are to be particularly examined with respect to their external quality. If boxes, cartons or other containers are delivered, samples have to be taken at random. The goods shall be deemed to have been accepted without any defects, unless the Customer notifies us of any defect within ten (10) days after receipt of the goods at the place of destination or, in case of hidden defects, within ten (10) days after the defect was discovered. The notification must be made in writing or by telefax and has to specify the defect. All such notifica-tions of defects of goods must be addressed to us directly.
8.2 Any damages to goods in transit and incomplete delivery have to be notified immediately to the forwarding agent; the notification obligations pursuant to the German General Conditions for Forwarders (Allgemeine Deutschen Speditionsbedingungen) shall apply.
8.3 If a notification of defects is justified and has been made in due time we shall subsequently perform through remedying the defect or replacing the delivered goods according to our choice.
8.4 If subsequent performance or replacement of the goods does not remedy the defect, the Customer may demand a reduction in the purchase price or rescission of contract. In the case of minor de-fects, the Customer is not entitled to rescission of contract. If the Customer chooses rescission of contract after such unsuccessful subsequent performance, he is not entitled to any additional damage compensation.
8.5 In case the Customer receives a defective instruction sheet, we are obliged to deliver a sufficient instruction sheet only and only if the defect of the instruction sheet prevents a proper installation.
8.6 The provisions above contain the final and complete warranty for our goods. For any further claims for damages caused by the delivery of defective goods, we can only be held liable pursuant to clauses 7.7 and 7.8 below, irrespective of their legal basis.
8.7 For any claims based on misconduct, irrespective of their legal basis, e.g. default, delivery of defective goods, violation of contractual duties, violation of duties during contractual negotia-tions, torts, product liability (with the exception of the liability under the German Product Liability Act, "Produkthaftungsgesetz"), we can be held liable for damages in case of a wilful act or gross negligence only. We are not liable for negligent conduct of a minor degree, unless the contractual purpose is thereby substantially endangered. In any event, our liability shall be limited to fore-seeable and typical damages. This restriction does not apply to injuries suffered by the Customer to his life, body or health. Personal liability on the part of our statutory representatives, persons engaged in performance of our contractual obligations or employees for damage caused by them by negligent conduct of a minor degree is excluded.
8.8 Warranty claims of a Customer shall become time-barred one year after delivery of the goods. The Customer’s rights to replacement shall become time-barred one year after delivery of the goods. This shall not apply where we can be accused of fraudulent intent.
8.9 Agreements between the Customer and his Customers beyond the statutory warranty claims shall have no affect to our disadvantage.
9. Applicable Law/Jurisdiction
9.1 The relations between us and the Customer are governed by the laws of the Federal Republic of Germany. Neither the UN-treaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into German law, shall be applicable.
9.2 Place of jurisdiction for all disputes arising from or in connection with the contract shall be at our choice either Reinbek or the company seat of the Customer; for lawsuits filed by the Customer, exclusively Reinbek. Any statutory provisions regarding exclusive jurisdiction remain unaffected.
10. Concluding Provisions
10.1 Any alterations and amendments to the contract, including this clause, must be made in writing and signed in order to be valid. This shall also apply to any supplementary and additional agree-ments. 10.2 Contracts with legal persons constituted under public law and public separate estates shall be treated as contracts with commercial businessmen.
10.3 If a provision herein is or becomes partly or completely invalid, the invalidity of this provision shall not affect the validity of the remaining provisions of this contract. The invalid provision shall be replaced by a valid provision reflecting in an economic respect as closely as legally possible the objectives of the invalid provision. This applies also to issues the parties intended but failed to address.
Boltze Gruppe GmbH • Alte Landstr. 42• 22145 Braak June 2019