General Terms and Conditions of Sale of bogason GmbH (as at 19 July 2021)
I. General Provisions – Scope of Application
1. Our deliveries and services are provided exclusively in accordance with the following General Terms and Conditions of Sale. These General Terms and Conditions of Sale shall also apply to all future transactions between the contracting parties, without the need for any further reference to our General Terms and Conditions of Sale. They shall apply even if we do not expressly refer to them in subsequent contracts, in particular where we supply goods or provide services to the customer without reservation, whilst being aware of the customer’s terms and conditions that conflict with or deviate from our General Terms and Conditions of Sale.
II. Offers and Conclusion of Contract, Scope of Services
1. Our quotations to the customer are non-binding. In particular, our quotations are subject to sufficient supply capacity and are subject to clerical, calculation or other errors. Illustrations, drawings, dimensions, weights and colour shades contained in catalogues, price lists and other printed materials or on our website represent approximate values customary in the industry. Furthermore, we reserve the right to make any changes required for technical reasons. This applies in particular to custom-made items.
2. The customer’s order shall be deemed a binding offer. Acceptance of this offer shall take place, at our discretion, within four weeks by sending an order confirmation or by the unconditional provision of the ordered goods or services. Verbal side agreements shall only be binding if we have confirmed them in writing, by fax or by email.
3. The technical data and descriptions contained in the relevant product information or promotional materials do not constitute guarantees of the quality or durability of the goods to be supplied by us.
4. In the case of sales based on a sample or specimen, these merely guarantee that the goods conform to the sample in a professional manner; however, they do not constitute a guarantee within the meaning of Section 276(1) of the German Civil Code (BGB) or a guarantee as to the quality or durability of the products to be supplied by us within the meaning of Section 443 of the German Civil Code (BGB).
III. Prices, Terms of Payment, Late Payment
1. The prices agreed at the time of conclusion of the relevant contract, as specified in particular in the order form or the order confirmation, shall apply. If a price is not expressly specified, the prices valid at the time of conclusion of the contract in accordance with our price list shall apply. In addition to these prices, the value-added tax applicable on the day of delivery at the relevant statutory rate shall be added, as well as the costs of packaging necessary for proper dispatch, transport costs from our works or from our warehouse, handling charges and – where agreed – the costs of transport insurance. For international deliveries, other country-specific duties may apply.
2. We reserve the right to adjust our prices reasonably if, following the conclusion of the contract, external cost reductions or increases occur – in particular as a result of collective wage agreements and changes in market prices – and these affect the total cost of the goods. Upon request, we shall provide the customer with evidence of this, taking into account the individual cost elements and their significance for the total price.
3. The purchaser shall only be entitled to rights of set-off or retention if their counter-claims have been legally established, are ready for a decision, are not disputed by us or have been acknowledged by us. Furthermore, the purchaser shall only be authorised to exercise a right of retention to the extent that their counter-claim is based on the same contractual relationship as our claim.
4. The deduction of a cash discount requires a specific written agreement.
5. Unless otherwise stated in the order confirmation, the purchase price (without any deductions) is due for payment within 7 days of the invoice date. The statutory provisions apply in the event of late payment.
6. If the customer fails to pay due invoices, exceeds a granted payment term, or if the customer’s financial circumstances deteriorate after the conclusion of the contract, or if we receive unfavourable information about the customer after the conclusion of the contract which calls into question the customer’s solvency or creditworthiness, we shall be entitled to declare the customer’s entire outstanding debt due and, by amending the agreements made, to demand advance payment or the provision of security, or, following delivery, immediate payment of all our claims arising from the same legal relationship. This applies in particular if the customer suspends payments, a cheque issued by the customer is not honoured, a bill of exchange issued by the customer is not paid by the customer, insolvency proceedings have been opened in respect of the customer’s assets, or if an application to open insolvency proceedings has been made but the proceedings have not been opened due to lack of assets.
IV. Delivery and Performance Periods, Delay in Performance
1. Agreed delivery times are approximate only, unless a fixed-date transaction has been expressly agreed in writing. If, nevertheless, agreed delivery deadlines are exceeded due to circumstances for which we are responsible, the customer may withdraw from the contract following the fruitless expiry of a reasonable grace period set by them, provided that the setting of the grace period was accompanied by a declaration that the customer would withdraw from the contract upon the unsuccessful expiry of the grace period. Withdrawal must be made in writing.
2. We shall only be in default after the expiry of a reasonable grace period set by the purchaser. In the event of force majeure and other unforeseeable, exceptional circumstances for which we are not responsible, such as operational disruptions caused by fire, water damage and similar circumstances, breakdowns of production plant and machinery, delays in delivery or non-delivery by our suppliers, as well as operational interruptions due to shortages of raw materials, energy or labour, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions or official intervention, we shall be entitled – insofar as we are prevented, through no fault of our own, from fulfilling our performance obligations on time due to the aforementioned circumstances – to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. The contracting parties are obliged to notify the other party immediately of any impediments of the aforementioned nature. If such impediments delay the delivery or service by more than one month, both we and the customer are entitled – to the exclusion of any claims for damages – to withdraw from the contract in respect of the quantity affected by the disruption to delivery.
3. In any case of delay, our liability for damages shall be limited in accordance with the provisions of Clause VII. 1 to 6.
4. We are entitled to make partial deliveries and provide partial services within the agreed delivery and performance periods, provided this is reasonable for the customer.
5. If the customer is in default of acceptance or culpably breaches other obligations to cooperate, we shall be entitled to claim compensation for the loss incurred by us in this respect, including any additional expenses. We reserve the right to make further claims.
V. Transfer of Risk, Transport and Packaging Costs
1. We shall determine the method of dispatch and packaging unless specific agreements to the contrary are made in writing, by fax or by email.
VI. The Purchaser’s Rights in the Event of Defects
1. The purchaser must notify us in writing of any apparent material defects, incorrect deliveries and discrepancies in quantity without delay, but no later than 14 days after receipt of the goods by the purchaser, stating the delivery note date and the order number. Hidden defects must be reported to us in writing within eight days of their discovery. The seller is obliged to check, if necessary by means of a trial run, whether the goods delivered are free from defects and suitable for their intended use. Three months after the risk has passed to the purchaser in accordance with Clause V. 1, complaints regarding apparent or hidden defects are excluded and shall be deemed to have been made too late. If a complaint regarding defects is made late or not in the proper manner in accordance with Clause VI. 1, sentences 1 to 4, the purchaser shall forfeit their rights in respect of defects, unless the defect has been fraudulently concealed by us.
2. In the event of defects in goods supplied by us, we shall, at our discretion, be obliged only to rectify the defect or to supply goods free from defects (subsequent performance). If we are unwilling or unable to provide subsequent performance, in particular if we allow a reasonable deadline set for us – which was accompanied by a declaration that the purchaser would withdraw from the contract upon the expiry of that deadline without action having been taken – to lapse for reasons for which we are responsible, or if subsequent performance fails in any other way, the purchaser shall be entitled, at their discretion, to withdraw from the contract or to claim a reduction in the purchase price. A repair shall be deemed to have failed after the third attempt, unless the nature of the goods or other circumstances indicate otherwise. Insofar as the purchaser has suffered damage or incurred futile expenses due to defects in goods supplied by us, our liability in this regard shall be governed by Clause VI.1, Clauses VII.1 to 6 and Clause VIII.
3. The rights set out in Clause VI. 2. are excluded in the event of only an insignificant deviation from the agreed quality, only an insignificant impairment of usability, natural wear and tear, or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, or due to special external influences not provided for in the contract.
4. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, material and labour costs, are excluded to the extent that such expenses are increased because the goods have been moved to another location following our delivery, unless this corresponds to the intended use of the goods.
VII. Liability
1. Our company shall only be liable for damage or wasted expenditure – regardless of the legal basis – if the damage or wasted expenditure
a) have been caused by us or one of our vicarious agents through a culpable breach of an obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer may regularly rely (material contractual obligation), or
b) is attributable to a grossly negligent or intentional breach of duty by us or one of our vicarious agents. Notwithstanding Clause VII. 1 a), we shall be liable for damage or wasted expenditure caused by advice and/or information for which no separate remuneration is payable only in the event of a breach of duty committed with intent or through gross negligence, provided that such breach of duty does not constitute a material defect in the goods supplied by us within the meaning of Section 434 of the German Civil Code (BGB).
2. Where we are liable under Clause VII.1(a) for a breach of a material contractual obligation without there being gross negligence or wilful misconduct, our liability for damages shall be limited to the foreseeable, typically occurring damage. In this case, we shall in particular not be liable for the customer’s loss of profit or unforeseeable indirect consequential damages. The above limitations of liability set out in sentences 1 and 2 shall apply equally to damage caused by gross negligence or wilful misconduct on the part of our employees or agents, provided that they are not our managing directors or senior executives. We shall not be liable for any consequential damage suffered by the customer arising from the assertion of contractual penalty claims by third parties.
3. If we are liable under Clause VII. 1. a) for a breach of a material contractual obligation, without there being gross negligence or wilful misconduct, our liability shall be limited to a maximum of €5 million per claim, but not exceeding €10 million per annum.
4. The limitations of liability set out in clauses VII. 1. to 3. above shall not apply where our liability is mandatory under the provisions of the Product Liability Act or where claims are brought against us arising from injury to life, limb or health. If the goods supplied by us lack a guaranteed characteristic, we shall only be liable for such damage as the absence of which was the subject of the guarantee.
5. Any liability for damages beyond that provided for in clauses VII. 1–4 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the time of conclusion of the contract pursuant to Section 311(3) of the German Civil Code (BGB), breach of a positive contractual obligation pursuant to Section 280 BGB, or tortious claims pursuant to Section 823 BGB.
6. Insofar as our liability for damages is excluded or limited in accordance with clauses VII. 1–5, this shall also apply with regard to the personal liability for damages of our employees, staff, representatives and vicarious agents.
VIII. Limitation period for claims
1. Claims by the customer arising from defects in goods supplied by us or from services provided by us in breach of our obligations – including claims for damages and claims for reimbursement of wasted expenditure – shall become time-barred within one year from the start of the statutory limitation period, unless otherwise provided for in sections VIII. 2. to 5. below.
2. If the customer is a business and if they or another buyer in the supply chain, acting as a business, has satisfied a consumer’s claims arising from defects in newly manufactured goods supplied by us, which were also supplied to a consumer as newly manufactured goods, the limitation period for the purchaser’s claims against us under Sections 437 and 478(2) of the German Civil Code (BGB) shall commence no earlier than two months after the date on which the purchaser or the other buyer in the supply chain, acting as a trader, satisfied the consumer’s claims, unless the purchaser could have successfully raised the defence of limitation against its customer/contractual partner. The limitation period for the purchaser’s claims against us in respect of defective goods supplied by us shall in any event commence once the claims of the purchaser’s customer or contractual partner against the purchaser for defects in the goods supplied by us to the purchaser have become time-barred, but no later than 5 years after the date on which we delivered the relevant goods to our purchaser.
3. In the case of newly manufactured goods supplied by us which have been used in accordance with their normal intended use in a structure and have caused its defectiveness, the purchaser’s claims shall become time-barred within 5 years from the statutory commencement of the limitation period.
4. Where we have provided advice and/or information for which no separate remuneration is payable in breach of our obligations, without having supplied any goods in connection with such information or advice, or without the advice or information provided in breach of our obligations constituting a material defect pursuant to Section 434 of the German Civil Code (BGB) in the goods supplied by us, any claims against us arising therefrom shall become time-barred within one year from the statutory commencement of the limitation period. Claims by the purchaser/customer against us arising from a breach of contractual, pre-contractual or statutory obligations which do not constitute a material defect under Section 434 of the German Civil Code (BGB) in the goods to be delivered or delivered by us shall also become time-barred within one year from the start of the statutory limitation period. Insofar as the aforementioned breaches of duty constitute a material defect within the meaning of Section 434 of the German Civil Code (BGB) in the goods supplied by us in connection with advice or information, the provisions set out in Clauses VIII 1 to 3 and 5 shall apply to the limitation period for claims arising therefrom.
5. The provisions set out in Clause VIII 1 to 4 shall not apply to the limitation period for claims arising from injury to life, limb or health, nor to the limitation period for claims under the Product Liability Act, nor to claims arising from defects in title in the goods supplied by us which consist of a right in rem held by a third party, on the basis of which the surrender of the goods supplied by us may be demanded. Furthermore, they do not apply to the limitation period for claims by our purchaser/customer arising from our fraudulent concealment of defects in goods supplied by us or from our breach of a duty through wilful misconduct or gross negligence. In the cases referred to in this clause VIII.5, the statutory limitation periods shall apply to the limitation of these claims.
IX. Returns
1. The return of goods delivered by us that are free from defects requires our prior, express consent. Where such consent has been given, the goods must be returned carriage paid and in good condition, quoting the invoice number and date. The net value of the goods must be at least EUR 100.00. Depending on the nature and extent of the return, the handling costs amount to 20–30 per cent of the value of the goods, subject to a minimum of EUR 50.00. Damage to the product itself or to the packaging will result in correspondingly higher deductions.
X. Retention of Title
1. The goods delivered shall remain our property until full payment of the purchase price and all other present or future claims to which we are entitled against the customer arising from the business relationship. The inclusion of the purchase price claim against the customer in a current account and the acknowledgement of a balance shall not affect the retention of title.
2. The purchaser is obliged to treat the goods with due care; in particular, they are obliged to insure them adequately at their own expense against loss, damage and destruction, such as damage caused by fire, water and theft, at replacement value. The purchaser hereby assigns to us their claims arising from the insurance contracts. We accept this assignment.
3. The purchaser may neither pledge the goods remaining our property nor transfer them by way of security. However, subject to the following provisions, the purchaser is entitled to resell the delivered goods in the ordinary course of business. The aforementioned right shall not apply insofar as the purchaser has – in each case validly – assigned or pledged in advance to a third party the claim arising from the resale of the goods against its contractual partner, or has agreed with that party on a prohibition of assignment.
4. To secure the fulfilment of all our claims set out in Clause X.1, the purchaser hereby assigns to us all claims – including those arising in the future and conditional claims – arising from the resale of the goods delivered by us, together with all ancillary rights, in an amount equal to the value of the delivered goods, with priority over the remainder of the purchaser’s claims. We hereby accept this assignment.
5. For as long as and to the extent that the purchaser meets its payment obligations to us, it is authorised to collect the claims against its customers assigned to us in the ordinary course of business. However, it is not entitled to agree on a current account arrangement or a prohibition on assignment with its customers in respect of these claims, nor to assign or pledge them to third parties. If, contrary to the second sentence, a current account relationship exists between the purchaser and the purchasers of our goods subject to retention of title, the claim assigned in advance shall also relate to the acknowledged balance and, in the event of the purchaser’s insolvency, to the balance then outstanding.
6. At our request, the purchaser must provide individual evidence of the claims assigned to us and notify its debtors of the assignment, requesting them to pay us up to the amount of our claims against the purchaser. We are entitled at any time to notify the purchaser’s debtors of the assignment ourselves and to collect the claims. However, we shall not exercise these powers as long as the purchaser meets its payment obligations properly and without delay, no application has been made to open insolvency proceedings against the purchaser, and the purchaser has not suspended payments. Should, however, any of the aforementioned circumstances arise, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information necessary for the collection of the claims, and hand over the relevant documents.
7. In the event of attachment or other interventions by third parties, the purchaser must notify us immediately in writing so that we may bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO).
8. Any treatment, processing or transformation of the goods delivered by us subject to retention of title shall always be carried out by the customer on our behalf, without this giving rise to any liabilities on our part. If the goods delivered by us subject to retention of title are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the goods delivered by us (final invoice amount, including VAT) to the value of the other processed items at the time of processing. In all other respects, the same provisions shall apply to the item created by such processing as to the goods supplied subject to retention of title. If the goods delivered by us subject to retention of title are inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the goods delivered by us (final invoice amount, including VAT) to the value of the other mixed or combined items at the time of mixing or combining. If the mixing or combination takes place in such a way that the customer’s item is to be regarded as the principal item, it is deemed agreed that the customer shall transfer proportionate co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safe custody on our behalf. The customer is entitled, in the ordinary course of business, to dispose of the products newly created through processing, transformation, combination or mixing, provided that they fulfil their obligations arising from the business relationship with us in a timely manner. However, under no circumstances is the purchaser authorised to resell or otherwise realise these new products whilst agreeing a prohibition on assignment with its customers, or to pledge or transfer them by way of security. The purchaser hereby assigns to us, by way of security, its claims arising from the sale of these new products, in which we hold ownership rights, to the extent of our share of ownership in the goods sold. If the purchaser combines or mixes the delivered goods with a principal item, they hereby assign to us their claims against the third party up to the value of our goods. We hereby accept these assignments.
9. The purchaser shall also assign to us, by way of security for our claims, any claims arising against a third party as a result of the combination of our goods with immovable property, up to the value of our goods.
10. We undertake to release the security to which we are entitled at the purchaser’s request to the extent that the realisable value of our security exceeds our claims against the purchaser to be secured by more than 10 per cent; the choice of which security is to be released shall be at our discretion.
11. In the event of the customer’s breach of contract, in particular in the event of a delay in payment amounting to more than 10 per cent of the invoice amount for a not insignificant period, we shall be entitled – without prejudice to any further claims (for damages) to which we are entitled – to withdraw from the contract and to demand the return of the goods delivered by us. Once we have taken back the goods we have supplied, we are authorised to realise their value. The proceeds from such realisation shall be set off against the customer’s outstanding liabilities to us, less reasonable costs of realisation.
XI. Prohibition on Assignment
1. Without our express written consent, the customer may not assign or pledge to third parties, either in whole or in part, any of their rights or claims against us, in particular those arising from defects in goods supplied by us or from breaches of duty on our part; Section 354a of the German Commercial Code (HGB) remains unaffected by this provision.
XII. Place of Performance, Jurisdiction, Applicable Law, Foreign Trade Law
1. The place of performance and exclusive place of jurisdiction for all claims between us and merchants, legal entities under public law or special funds under public law shall be Lemgo, unless mandatory statutory provisions preclude this. We shall, however, be entitled to bring legal proceedings against a customer at their statutory place of jurisdiction.
2. The legal relationship between us and the customer, or between us and third parties, shall be governed exclusively by the law of the Federal Republic of Germany, as it applies between German merchants. The application of the provisions on the international sale of goods (CISG – the UN Convention on Contracts for the International Sale of Goods) and of German private international law is expressly excluded.
3. The customer undertakes to comply with the laws and regulations governing foreign trade applicable in Germany and across the EU. The relevant regulations can currently be viewed at www.bafa.de.
XIII. Final Provisions
1. We store our customers’ data within the framework of our mutual business relationships in accordance with the Federal Data Protection Act.
XIV. Severability clause
1. Should any individual provisions of these General Terms and Conditions be wholly or partially invalid, or should they subsequently lose their legal validity, this shall not affect the validity of the remaining provisions of the General Terms and Conditions. The invalid provisions shall be replaced by the statutory provisions. The same applies in the event that the General Terms and Conditions contain an unforeseen omission.