General Sales Conditions
(Last update: 01/07/2017)
1. General terms, scope
1.1. The present General Sales Conditions (“GSC”) shall apply to all products and services distributed by Bohle AG, including application-oriented advice and consulting. However, extended and partly deviant sales conditions, overriding the present GSC, shall apply for selling and installing machinery. For all other cases, solely the present GSC shall apply.
1.2. Bohle AG shall not accept any adverse or deviant conditions of the customer without explicit written consent. The present GSC shall apply even if services are delivered without reservation in the knowledge of conflicting conditions of the customer or conditions of the customer that deviate from these General Sales Conditions.
1.3. 1.2 These GSC shall apply only to companies, legal persons under public law and special funds under public law as per § 310 BGB (German Civil Code). They are also applicable in the respective current version to all future transactions with the Supplier.
1.4. Individual agreements reached with the customer in individual cases (including collateral agreements, additions and modifications) shall in any event take precedence over the present GSC. A written contract or a written confirmation of Bohle AG shall be decisive, subject to counterevidence, for the contents of such an agreement. Legally relevant declarations and notifications which are made by the customer towards Bohle AG (e.g. deadlines, notices of defect, notices of cancellation or rescission) must be made in writing to be effective.
2. Contract, reservation of changes, minimum order value, quotation documents, etc.
2.1. The offers of Bohle AG are subject to change and are non-binding. All information and specifications in catalogues, flyers or other documents are non-binding. The customer´s order shall be deemed a binding contractual proposal. Contracts between Bohle AG and their customers are accepted via order confirmations sent by Bohle AG in written or electronic form, by email or fax. The order confirmation is decisive for the content of the contract. If Bohle AG delivers services without prior order confirmation, the contract shall be deemed effective upon the beginning of the service or delivery of the ordered goods.
2.2. If the ordered goods are no longer available or have been replaced, Bohle AG reserves the right – subject to the customer´s approval – to deliver alternative products of the same or improved quality.
2.3. The information about the products or services provided by Bohle AG shall not be deemed guaranteed characteristics but descriptions or labels which are only approximately authoritative insofar as the usability for the contractually stipulated purpose does not require exact conformity.
2.4. For contracts which have not been concluded with end customers (e.g. dealers or resellers), the minimum order value shall amount to €50.00. For contracts concerning goods or services for export, the minimum order value shall be set at €500.00. Spare parts and services are exempt from minimum order value.
2.5 Bohle AG retains all property rights, copyrights and other protected rights to submitted quotations, cost estimates as well as drawings, figures, calculations, flyers, catalogues, models and other documents made available. The above mentioned documents must not be made available to third parties without explicit written consent. This applies in particular to confidential documents.
3. Prices, terms of payment
3.1. If not indicated otherwise in the order confirmation, all prices are quoted "ex works" in Haan, plus VAT. Shipping and freight charges, packaging costs and possible installation costs are not included. In case of direct sales to end customers, shipping charges shall be omitted starting from an order value of €250.00, except for deliveries by forwarding agent. For contracts which have not been concluded with end customers (e.g. dealers or resellers), the customer shall always bear the resulting shipping charges. Additionally, a handling fee of €10.00 shall be levied for order values below €100.00. For contracts concerning goods or services for export, the customer shall always bear the resulting shipping charges. Additionally, a handling fee of €100.00 shall be levied for orders with a net value of goods between €500.00 and €1000.00.
3.2. Changes to catalogue prices are reserved. The respective list prices at the time of the order are binding. Modified prices shall be considered accepted if the customer does not object immediately after receiving the order confirmation.
3.3. The purchase price is payable without deductions within 30 days from the invoice date, unless indicated otherwise in the order confirmation. If the customer is overdue in making the payment, Bohle AG is entitled to demand default interest pursuant to § 288 BGB. Bohle AG reserves the right to prove and assert greater damages caused by such default.
3.4. The customer shall only be entitled to set-off rights if his/her counterclaims have been legally ascertained, undisputed or accepted by Bohle AG. He/she is moreover entitled to exercise his/her right of retention insofar as his/her counterclaim derives from the same contractual relationship.
3.5. Bohle AG reserves the right to supply their goods only on pre-payment or by cash on delivery.
3.6. Unless otherwise agreed, advance payment or letter of credit shall be applicable for export goods.
4. Delivery, delivery time and delay, transfer of risk
4.1. All deliveries shall be made "ex works" in Haan according to Incoterms® 2010, which shall also be the place of performance for delivery and possible supplementary performance. The risk of accidental loss and accidental deterioration of the goods shall be transferred to the customer at the latest upon handover of the goods. If the customer delays in accepting the goods, the transfer shall still be deemed to have taken place.
4.2 At the customer´s choice and expense, the goods can be sent to a different destination (sales shipment). In the case of sales shipments, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay shall be transferred to the forwarder, carrier or any other person or institution authorised to carry out the shipment already upon handover of the goods.
4.3 If acceptance has been agreed upon, it shall be decisive for the transfer of risk. Apart from that, the legal provisions of the German labour and transportation contracts law shall apply accordingly. If the customer delays in accepting the goods, the acceptance shall still be deemed to have taken place.
4.4. Partial deliveries are permissible if not all ordered goods are available and insofar as the customer can be reasonably expected to accept such partial deliveries.
4.5. Delivery dates and times are only binding if they are explicitly confirmed in writing as binding between Bohle AG and the customer.
4.6. Agreed delivery periods are extended by a reasonable period of time - also within primary delay - in the event of unforeseeable impediments that have occurred after the conclusion of contract and are beyond the control of Bohle AG, regardless of whether the impediments are suffered by Bohle AG or their suppliers. In this case, both parties shall be entitled to terminate the contract.
4.7. Decisive for the observance of the delivery date is the day when the (partial) delivery is made available for collection or shipment or the day when the goods are handed over to the forwarding agent.
4.8. The occurrence of a delay in delivery by Bohle AG is determined according to statutory provisions. In any case a reminder by the customer shall be required. If Bohle AG defaults in delivery, the customer shall be entitled to demand a lump sum compensation for the damages incurred by the delay. The lump-sum compensation for each completed calendar week of delay shall amount to 0.5% of the net price (delivery value), however, limited to no more of a total of 5% of the delivery value of the goods delivered with delay. Bohle AG reserves the right to prove that no or a considerably smaller damage has incurred to the customer than laid down in the above mentioned lump-sum compensation. Further claims for damages on behalf of the customer as a result of the delayed delivery shall be explicitly excluded.
4.9. If the customer defaults in accepting the performance or if he/she violates further obligations to cooperate, the risk of accidental loss or accidental deterioration of the goods shall be transferred to the customer from the point in time where the delay of acceptance commences.
4.10. Bohle AG reserves the right to choose the shipping method and the means of packaging and transport. No claim of the customer against Bohle AG shall be derived from this choice.
In compliance with the German Packaging Ordinance on the Avoidance and Recovery of Packaging Waste, all packaging materials are to be disposed of in a recyclable and environmentally friendly way. If the customer himself/herself carries out the disposal, Bohle AG shall not be held liable for the resulting costs. If the customer sends back the packaging material to Bohle AG for disposal, the despatch shall be done at the customer´s expenses; any packaging material reaching Bohle AG with the postage unpaid, shall be refused.
6. Return of Goods
6.1. Goods ordered incorrectly or in excess can be returned by the customer within 30 days of receipt as long as the goods have not been used, are in their original packing and in good and resalable condition. The return of goods will be charged with 10% of the net invoice amount, however, minimum €10.00. For contracts which have not been concluded with end customers (e.g. dealers or resellers) or which concern goods or services for export, goods can only be returned subject to prior written approval of Bohle AG.
6.2. Goods which have been manufactured or purchased especially for the customer cannot be returned.
6.3. Return consignment must under all circumstances be announced in advance and can otherwise not be handled.
7.1. If Bohle AG can be held responsible for defects in the purchased goods, Bohle AG reserves the right to choose between remedy of defects and replacement delivery. In the event of remedy of defects, Bohle AG will bear any and all resulting costs and expenses, especially transportation, travelling, work and material expenses, to the extent that these expenses are not increased because the goods have been transported to a place other than the place of fulfilment.
7.2. Should Bohle AG not be willing or not be able to remedy the defect or make a replacement delivery, the customer is entitled to withdraw from the contract or demand an appropriate reduction of the purchase price. This is also applicable if remedial action is delayed beyond reasonable periods on grounds for which Bohle AG can be held responsible.
7.3. The customer's warranty rights are subject to the customer's due compliance with inspection and notification stipulations in accordance with § 377 HGB (German Commercial Code). If a defect is discovered during the inspection or later, the customer shall be held liable to notify Bohle AG immediately thereof in writing. The notification shall be deemed immediate if effected within 5 work days, whereby punctual sending shall be deemed sufficient to observe the deadline. The customer shall be obliged to inform about obvious defects (including wrong and short deliveries) in writing within 5 work days upon delivery, whereby punctual sending shall be deemed sufficient to observe the deadline.
7.4. Claims for material defects are subject to a limitation period of 12 months starting from the transfer of risk.
7.5. The customer shall grant Bohle AG the necessary time and opportunity for the owed supplementary performance, especially for handing over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective goods to Bohle as per the statutory regulations. The supplementary performance shall neither include the deinstallation of the defective goods nor their reinstallation, if Bohle AG were initially not liable for installation.
7.6. If a defect actually exists, Bohle AG shall bear all costs resulting from the inspection and supplementary performance, especially transportation, travel, work and material expenses (not installation and deinstallation expenses). Otherwise Bohle AG shall be entitled to charge a handling fee of €49.00 for an unjustified claim for removal of defects of the customer, unless the absence of warranty claims was not discernible for the customer. The proof of a higher damage and the statutory claims shall remain unaffected; however, the handling fee shall be offset against further monetary claims. The customer reserves the right to prove that no or a considerably smaller damage has incurred to Bohle AG than laid down in the above mentioned lump-sum.
7.7. Any and all indications and descriptions in illustrations, flyers, catalogues and advertisements are mere product descriptions and cannot be regarded as quality description of the goods. Such indications are only binding if they have been expressly agreed to define the quality of the goods.
7.8. All technical data, especially information on dimensions, have been thoroughly compiled. They comply with the current state of the art at the time of publication. Changes might result from necessary technical amendments. Liability for damages caused by wrong dimensions is expressly denied. Production-related deviations in measures, contents, weights and colours are permissible within the scope of normal industry tolerances. All published and distributed technical data, explanations and instructions concerning conditions of use and installation, are to be observed by the customer.
8.1. If application-oriented advice by Bohle AG staff is required, this advice always complies with the current state of development. The advice will be given by qualified Bohle AG staff or authorised partners observing the principles of proper execution of work. The selection of the appointed employees and service partners is reserved to Bohle AG.
8.2. A guarantee of successful performance is not given – unless agreed otherwise in writing – as the successful performance depends on different factors which are usually not verifiable through application-oriented advice. The advice does not exempt the customer from testing the suitability of the product for the intended purpose and processes.
9.1. Bohle AG shall be held liable for violating the contractual and non-contractual obligations as per the statutory regulations, if nothing else results from the present GSC.
9.2. Bohle AG shall be liable for compensation, regardless of the legal grounds, within the scope of the fault-based liability in cases of intent or gross negligence. In case of simple negligence, Bohle AG shall be liable, subject to a mild standard of liability, as per the statutory regulations (e.g. for diligence in one´s own matters) only
- for damages arising from injury to life, body and health
- and for damages resulting from a not insignificant violation of a cardinal contractual obligation (obligations whose fulfilment are a prerequisite for the proper implementation of the contract and on the fulfilment of which the customer regularly relies and may rely), in this case, however, the liability of Bohle AG shall be limited to the compensation of foreseeable, typically occurring damages.
9.3. The limitations of liability resulting from point 10.2 shall also apply in case of breaches of duty by or in favour of persons whose default Bohle AG are responsible for according to legal stipulations. They shall not apply if Bohle AG has fraudulently concealed a defect or have assumed a guarantee for the quality of the goods, and for claims of the customer according to the Product Liability Act.
9.4. The customer shall not be entitled to cancel or terminate the contract because of a breach of duty which does not consist in a defect, if Bohle AG is responsible for the breach of duty.
10. Retention of Ownership
10.1. Bohle AG retains ownership of the delivered goods until complete fulfilment of all present and future obligations resulting from the contract and a current business relationship (secured claims) with the customer.
10.2. The customer is entitled to sell goods subject to retention of title within the course of ordinary business; however, the customer hereby assigns to Bohle AG in advance any claim to the amount of the invoice total (including value added tax) of our claim which the customer may have against his/her clients or third parties; irrespective of whether the goods subject to retention of title were resold without or after processing. The customer shall remain entitled to collect this claim even after assignment. The authorisation of Bohle AG to collect the debts themselves, shall remain unaffected. However, they undertake not to collect the claims as long as the customer or a third party authorised by the customer meets his/her payment obligations, is not in default of payment, no insolvency proceedings are instituted over his/her assets or payments are suspended. In this case, the customer shall be obliged to disclose to Bohle AG the receivables assigned and their debtors, give all information required for collection, surrender associated documentation and notify the debtors (third parties) about the assignment.
10.3. The customer is entitled to process the reserved goods. The authorisation ends with the definite suspension of payments by the customer or by the third party authorised by the customer, or if insolvency proceedings are instituted over the customer´s assets. Any processing or transformation of the goods is always done for Bohle AG. If the reserved goods are processed with other objects, Bohle AG shall be entitled to co-ownership of the new object in a ratio equal to the value of the deliverables to the other goods that were processed at the time of processing. For the object arising from such processing the same applies as for the goods delivered subject to retention of title. If the goods supplied under reservation of title are inseparably combined or mixed with other goods not belonging to Bohle AG, then Bohle AG shall acquire co-ownership of the new item created in the ratio of the value of the deliverables to the value of the other goods combined or mixed at the time of mixing. If mixing is performed in such a manner that the item of the customer is to be regarded as the principal item, then it is deemed agreed that the customer transfers to Bohle AG a proportional co-ownership. The customer shall hold the sole or joint ownership for Bohle AG.
10.4. If the customer defaults in payment or fails to fulfil his/her obligations under the retention of ownership, Bohle AG may set a reasonable extension of time for performance or subsequent performance. In the event of this period expiring without result, Bohle AG shall be entitled to withdraw from the contract and to take back the delivered goods. For this purpose, the customer shall send an accurate statement of all goods that have been delivered to him/her subject to retention of ownership, separate the goods and hand them over to Bohle AG. After a warning with a reasonable time limit, the goods may be sold for the best possible price on the open market, setting off the price charged to the purchaser.
10.5. The customer is obliged to treat the purchased item with care; he/she is especially obliged to insure it sufficiently at his/her own expense against fire, water and theft damages to the replacement value. Should maintenance and inspection work be necessary, the customer must perform such work in good time and at his/her own expense. Seizure or other third party interventions are to be notified immediately in writing.
10.6. Upon request of the customer, Bohle AG shall release the delivered goods subject to retention of ownership and items or claims that have replaced them, insofar as the realisable value of the securities exceeds the obligations to be secured by more than 10%; Bohle AG shall be responsible for the selection of securities to be released.
11. Data protection
If personal data arising from or in connection with the agreement are saved by Bohle AG and/or the customer for data processing purposes, the applicable legal provisions regarding data protection, especially §§ 27 et seq. BDSG (German Federal Data Protection Act) shall be complied with. The data shall not be passed on to third parties.
12. Place of performance, court of jurisdiction, applicable law
12.1. The exclusive legal venue for all disputes arising from or in connection with this agreement – as far as legally permissible – shall be Haan. However, Bohle AG shall also be entitled to take legal action against the customer at his/her general place of jurisdiction.
12.2. The place of performance for delivery shall be the place where the goods are stored for the purpose of being despatched or handed over to the customer. The place of performance for paying the purchase price and for fulfilling all other contractual obligations shall be Haan.
12.3. For all contractual relationships between Bohle AG and the customer the law of the Federal Republic of Germany shall apply exclusively, also in case of a possible foreign connection, under exclusion of UN Sales Law and the conflict-of-law rules of international procedural law.