Bollig & Kemper GmbH & Co. KG
“General Terms and Conditions of Sale and Delivery”
1. General – Scope of application
- The following General Terms and Conditions of Sale and Delivery apply to all contracts concluded by Bollig & Kemper GmbH & Co KG (hereinafter also referred to as “Seller”) with its customers (hereinafter also referred to as “Buyer”).
- Upon conclusion of the contract, the terms and conditions of sale and delivery shall be accepted to the exclusion of any other general terms and conditions without the need for express consent. Unless otherwise agreed, these General Terms and Conditions of Sale and Delivery shall also apply to similar future contracts, even if they are not again separately agreed. Deviating or contradictory conditions or other restrictions of the buyer shall not be recognised unless the seller has expressly agreed in writing or in text form in individual cases.
2. Offer and acceptance, quality of the goods
- 1. The seller’s offers are subject to change without notice and non-binding with regard to price, quantity, delivery period and delivery possibility, unless they are expressly marked as binding.
- 2. The buyer is obliged to enclose with his orders or order confirmations all necessary information required for the complete delivery.
- 3. Only the quality described in the seller’s product descriptions, specifications and markings shall deem the quality of the goods. Public statements, pro-moting or advertising do not represent any information as to the quality of the purchased item.
- The valid prices of the seller at the time of delivery shall be charged.
- Should the seller increase its prices generally in the period between conclusion of the contract and delivery, the buyer shall be entitled to withdraw from the contract within a period of two weeks after notification of the price increase, unless the price increase is based exclusively on an increase in freight rates. The right of withdrawal shall not apply to long-term supply contracts (continuing obligation contracts).
- If payment in a currency other than Euro (EUR) has been agreed (foreign currency), the seller reserves the right to reduce or increase its purchase price claim in foreign currency upon invoicing in such a way that the amount shown in the invoice corresponds to the Euro equivalent calculated on the basis of the foreign currency debt at the time of conclusion of the contract.
4. Delivery and delivery time
- Delivery shall be effected in accordance with the commercial clauses stipulated in the individual contract, the interpretation of which shall be governed by the INCOTERMS in the version valid at the time of conclusion of the contract.
- If no express agreement has been made, deliveries shall be made ex works, external warehouse or third party authorised by us. The respectively current version of the INCOTERM “EXW” shall apply.
- The seller shall always deliver as soon as possible, however, there shall be no fixed delivery periods unless a fixed delivery date has been expressly agreed.
- In the special case that a fixed delivery date has been agreed, the buyer shall set a reasonable grace period in the event of a delay in delivery.
- The fulfilment of the contract is subject to the correct and timely delivery of the seller’s own supplies. The day of delivery shall be the day on which the goods leave the factory or warehouse and, if that day cannot be ascer-tained, the day on which they are made available to the buyer.
- The seller shall only be entitled to make partial deliveries and render partial services if these are of interest to the buyer in accordance with the purpose of the contract and the buyer does not incur any substantial additional expenses or costs as a result thereof, unless the seller declares its willingness to bear these costs.
- Force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, war, acts of terrorism, fire damage, floods, unforeseeable shortages of labour, energy, raw materials or auxiliary materials, strikes, lockouts, official orders or other obstacles for which the seller is not responsible which reduce, delay, prevent or make unreasonable the production, shipment, acceptance or consumption, shall release the seller from the obligation to deliver or accept for the duration and extent of the disruption.
- If delivery and/or acceptance is exceeded by more than eight weeks as a result of the disruption, both parties shall be entitled to withdraw from the contract. In the event of partial or complete discontinuation of the seller’s sources of supply, the seller shall not be obliged to obtain supplies from third-party suppliers. In this case, the seller shall be entitled to distribute the available quantities of goods taking into account its own requirements.
- If delivery is made in returnable containers, these must be returned empty and carriage paid within 90 days of receipt of the delivery. Loss and dam-age of loaned packaging shall be borne by the purchaser. Returnable packaging may not be used for other purposes or to contain other products. They are only intended for the transport of the delivered goods. Labels must not be removed.
- 1. The seller reserves the right to choose the dispatch route and the mode of dispatch. Additional costs caused by special shipping requests of the buyer shall be borne by the buyer. The same applies to increases in freight rates occurring after conclusion of the contract, any additional costs for diversion, storage costs, etc., unless freight-free delivery has been agreed.
- 2. At the request and expense of the buyer, the goods will be shipped to an-other destination (mail order purchase).
- 3. The risk of destruction, loss or damage of the goods shall be passed on to the buyer upon dispatch of the goods or, in the case of collection by the buyer, upon their provision.
- Unless otherwise agreed, the invoice amount is due immediately and payable without deduction.
- Payments shall only be deemed to have been effected when the invoice amount is finally available on an account specified by the seller.
- During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The assertion of further damages caused by default remains reserved.
- The buyer may only offset against undisputed claims recognised by the seller and legally established or against reciprocal claims.
- The purchaser is only entitled to exercise a right of retention if his counter claim originates from the same contractual relationship.
- The seller is entitled to assign claims from its business relations.
7. Retention of title
- The delivered goods shall remain the property of the seller (reserved goods) until final payment has been made of all claims incurred and arising on the basis of the business relationship. In the case of several claims or current account, the retention of title shall be deemed as security for the balance claim, even if individual deliveries of goods have already been paid.
- If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in and for the account of the seller as manufacturer and that the seller directly acquires ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur with the seller, the buyer hereby transfers his future ownership or – in the above ratio – co-ownership of the newly created object to the seller as security with the proviso that the buyer shall keep the new object in safe custody for the seller.
If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the seller shall transfer to the buyer, to the extent that the main item belongs to the seller, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
- The buyer is entitled to dispose of the products in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with the seller in good time.
- The buyer is obliged to keep the reserved goods in safe custody and to insure them at his own expense against loss and damage.
- Claims arising from the sale of goods in which the seller has ownership rights shall be assigned by the buyer to the seller by way of security already to the extent of the seller’s ownership share in the sold goods. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims and claims arising from tort in the event of loss or destruction. The seller revocably authorises the buyer to collect the claims assigned to it in its own name.
- At our request, the buyer shall provide the seller with all necessary information about the stock of the goods owned by the seller and about the claims assigned to the seller, as well as inform his customers of the assignment.
- If the value of the securities exceeds the seller’s claims by more than 10 %, securities in the amount of the excess security of more than 10 % shall be released at the buyer’s request at the seller’s discretion.
- The purchaser’s right to dispose of the products subject to retention of title and to collect the assigned claims expires as soon as he ceases payment and/or falls into financial collapse. If these conditions occur, the seller is entitled to demand the immediate provisional return of the entire goods subject to retention of title, excluding the right of retention, without setting a grace period or exercising the right of withdrawal.
- If the retention of title should not be effective according to the law of the country in which the delivered goods are located, the buyer must provide an equivalent security at the request of the seller. If he does not comply with this request, the seller can demand immediate payment of all outstanding invoices regardless of the agreed payment terms.
8. Notification of defects
- The buyer must inspect the delivered goods for defects immediately after receipt.
- Defects must be reported to the seller in writing immediately upon receipt, but no later than 14 days after receipt, unless the defect was not identifiable during inspection (hidden defect). In the case of hidden defects, the written complaint must be made immediately after the defect has been discovered. The burden of proof that the defect is hidden lies with the purchaser. The notice of defect must precisely describe the type and extent of the defect.
- Rejected goods may only be returned with the consent of the seller.
9. Rights of the buyer in case of defects
- The buyer’s warranty claims are limited to the right to subsequent performance. If the subsequent performance by the seller fails, the buyer can reduce the purchase price or withdraw from the contract at his discretion. Claims for damages, which are not excluded according to clause 11), remain unaffected by this. Claims of the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the branch office of the purchaser, unless the transfer corresponds to its intended use.
- If the warranty is a recourse of the buyer after it has been successfully claimed according to the provisions of the consumer goods purchase, the recourse claims under the provisions of the consumer goods purchase remain unaffected. Clause11) shall apply to the claim for damages.
- The buyer is obliged to notify the seller immediately upon becoming aware of any case of recourse occurring in the supply chain. The buyer’s statutory rights of recourse against the seller shall only exist to the extent that the buyer has not entered into any agreements with its customer that go beyond the statutory claims based on defects.
- The agreement of a guarantee requires the written form. A guarantee declaration is only effective if it appropriately describes the contents of the guarantee as well as the duration and the territorial scope of the guarantee protection.
- The seller shall only be liable for the compensation of consequential damage caused by a defect if it is (co-)responsible for the occurrence of the defect through intentional or grossly negligent conduct.
- If the seller is not willing or able to remedy the defect or make a replacement delivery, or if this is delayed beyond a reasonable period of time for reasons for which it is not responsible, or if the remedy of the defect or a replacement delivery otherwise fails, the buyer shall be entitled, at its option, to demand rescission of the contract or a corresponding reduction in the purchase price.
- In the event of recourse by the entrepreneur (§445a BGB), it is assumed that no defects existed at the time of the transfer of risk to the purchaser if the purchaser duly inspected the goods in accordance with the above clause 8) but did not report any defects, unless this assumption is incompatible with the nature of the goods or the defect.
- If the buyer asserts claims under a right of recourse, he must treat the seller as if he had implemented all legally permissible contractual possibilities vis-à-vis his contractual partner (e.g. refusal of subsequent performance due to disproportionality or limitation of the reimbursement of expenses to an appropriate amount).
10. Statute of limitation
- 1. Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.
- 2. The aforementioned limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer according to the legal regulations for damages from the injury of life, body or health as well as according to the product liability law become statute-barred exclusively according to the legal limitation periods.
- Claims for damages of the buyer – also of a non-contractual nature – against the seller, its employees and other subcontractors are excluded in the event of a slightly negligent breach of duty by the seller, its employees and other vicarious agents, unless the breach concerns a duty which is of essential importance for achieving the purpose of the contract.
- The seller shall only be liable for indirect damage or damage not foreseeable at the time of conclusion of the contract if the seller, its executive employees or other subcontractors are grossly at fault.
- The foregoing limitations shall not apply to damages resulting from injury to life, limb or health. Mandatory statutory liability provisions, such as liability for the assumption of a guarantee or the Product Liability Act, shall remain unaffected.
12. Place of Performance, Place of Jurisdiction, Final Provisions
- Place of performance for the delivery is the respective shipping point of the customer, for the payment Cologne.
- Place of jurisdiction for all disputes is Cologne for both parties. In addition, the seller is entitled to assert its claims at the general place of jurisdiction of the buyer.
- The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) (UN Sales Convention) is expressly excluded.
- Customary commercial clauses shall be interpreted in accordance with the INCOTERMS applicable at the time.
- Data of the buyer is stored and processed in accordance with the relevant legal regulations.
- Should one or more provisions of these Terms and Conditions of Sale and Delivery be or become invalid or void, the Terms and Conditions of Sale and Delivery shall remain unaffected in all other provisions and shall continue to apply unchanged. The ineffective provision shall be replaced by another legally permissible provision which comes closest to the meaning and purpose of the ineffective provision, taking into account the principle of compliance with the contract, after negotiation of the parties, in cases in which no dispositive law exists or such law would lead to an inappropriate result.