BOOMEX GmbH – General Terms and Conditions of Sale and Delivery
(Version as of 1 February 2015)
§ 1 – Scope of Application-
Our Terms and Conditions exclusively apply to entrepreneurs according to § 310 BGB (German Civil Code).
The following Terms and Conditions of Sale and Delivery apply to all contracts, deliveries and other services unless they have been changed or excluded with our express written consent. In particular, they also apply if we carry out the delivery/service without any reservation whatsoever while being aware of any deviating conditions on the part of our contractual partner. Our contractual partners’ general terms and conditions do not apply unless accepted by us in writing.
Our Terms and Conditions also apply to all future contracts, deliveries and services, even if they are not resent to our contractual partner along with our quotation or order confirmation.
§ 2 – Quotation and Conclusion of Contract –
Our quotations are non-binding. Contracts and other agreements are not binding until confirmed by us in writing or by means of our delivery/service.
All agreements between us and our contractual partner have to be set out in writing when the contract is concluded.
Any agreements made between our employees or agents and our contractual partner at the time of or after the contract conclusion are subject to our written confirmation. The power of representation of our employees and agents is therefore limited.
In no case do any commercial letters of confirmation issued by our contractual partner lead to the conclusion of a contract containing provisions that deviate from our quotation and/or other written declarations. This also applies if we do not expressly object to such deviating provisions.
§ 3 – Prices, Price Increase and Payment –
Our prices are ex works including national-territory packaging. However, they are exclusive of freight, customs duties, insurance and statutory VAT. The latter will, in any case, be charged at the rate applicable on the day of delivery or service.
If, in case of orders to be fulfilled with a delay of four months after conclusion of the contract, regardless of whether such delay has been agreed upon or caused by reasons attributable to our contractual partner, our purchase price and/or the applicable wage/salary scale increase in the period between the conclusion of the contract and the execution of the order, we are entitled to increase the price agreed upon on a pro-rata basis as a percentage of the purchase price concerned and/or the wage costs concerning the price agreed upon.
In case of long-term contractual obligations, we are entitled to do so even if the period between conclusion and fulfilment of the contract is shorter than four months.
Unless otherwise agreed or set out in our quotation/order confirmation, our invoices have to be paid upon receipt without any discounts.
From the due date on, we are entitled to claim interest on arrears at 8 % above the applicable base rate. Any further claims – especially those resulting from default on the part of our contractual partner – remain unaffected.
The offsetting with any counterclaims disputed by us and not legally ascertained is not permitted unless there is reciprocity between the claim to be offset and our claim.
The assertion of any right of retention due to claims that are not based on the same contractual relationship is excluded when these claims have not been accepted by us, when they have not been legally ascertained and when there is no reciprocity with our claim.
In the event of a complaint, our contractual partner is only entitled to withhold payment if there cannot be any doubt over the justification of the complaint. Apart from that, payment may only be retained to an extent that is in reasonable proportion to the respective defect.
§ 4 – Deterioration of the Contractual Partner’s Assets –
We are entitled to require our contractual partner to pay the price agreed upon in advance, if one of the following events occurs or if such event had already existed when the contract was concluded, but had not become known until after conclusion of the contract.
Such events include the following:
– Judicial or extrajudicial insolvency or settlement proceedings relating to the contractual partner’s assets are opened or rejected for lack of assets.
– A written credit report provided by a bank or credit agency informs about our contractual partner’s credit unworthiness.
– We received a cheque or bill of exchange of our contractual partner that cannot be cashed and/or is dishonoured.
2. If our contractual partner, despite our explanation that we will refuse to accept any further orders after expiry of the deadline, fails to make the advance payment as legitimately requested within a reasonable grace period specified by us, we are entitled to withdraw from the contract
or demand compensation instead of performance, which applies, however, only to the part of the contract we have not yet fulfilled.
§ 5 – Shipment and Transfer of Risks, Insurance –
Irrespective of the place of dispatch, the risk is always transferred to our contractual partner with the dispatch of the goods. This also applies to freight-free deliveries which have been agreed upon by way of exception.
However, this does not apply in cases where transport takes place through our own employees, or if any loss or damage of the goods has been caused due to a fault on the part of our employees.
If our contractual partner fails to give us shipment instructions, or if any deviation from such instructions seems necessary, we will dispatch the goods at our best discretion and without the obligation to select the cheapest or quickest mode of shipment.
Only at the express request and expense of our contractual partner will we take out insurance of the delivery item against the insurable risks requested by the contractual partner. This applies in particular to insurance against theft and transport damages.
Cases of transport damage must be reported to us immediately. Furthermore, upon receipt of the goods, the recipient is obliged to make sure that the corresponding claims and reservations towards the carrier are declared.
In the event that the shipment is delayed on our contractual partner’s request or for reasons attributable to our contractual partner, the risk is already transferred to the contractual partner with our readiness for dispatch and notification of this readiness for dispatch.
In this case, the goods are stored at our contractual partner’s expense and risk.
§ 6 – Delivery Deadlines, Purchase on Call –
Delivery deadlines and dates are not binding unless confirmed by us in writing.
A performance deadline that has been determined exclusively according to the duration starts with expiry of the day on which all details of the contract contents have been agreed upon, at the earliest with our acceptance of the order, however not until all documents, permits and approvals have been furnished, and not before receipt of a possible advance payment to be made by the contractual partner.
A delivery deadline or delivery date is deemed to be complied with once the goods are ready to be dispatched or, in cases where goods are not supposed to be dispatched or not yet ready to be dispatched for reasons attributable to our contractual partner, once the notification of our readiness for dispatch has been sent out by the date and/or deadline.
Delivery deadlines and delivery dates will be reasonably postponed – also within a delay – in cases of force majeure and unforeseen events as well as events occurring after conclusion of the contract, provided that such events are not attributable to us and insofar as such events will verifiably affect the delivery of the object sold.
These provisions also apply when the events causing the delay occur on the part of our supplier or their subcontractors.
Provided that the delivery delays caused for the above-mentioned reasons last longer than six weeks, our contractual partner is entitled to withdraw from the contract with the exclusion of any further claims. The right of withdrawal is limited to the part of the contract that has not yet been fulfilled unless our contractual partner is, in consequence of the withdrawal, no longer interested in the part fulfilled.
Delivery deadlines are extended and delivery dates postponed by the period during which our contractual partner is in default with their contractual obligations, regardless of whether these result from a current business relationship or from other contracts, or not able to create the requisite conditions for starting or continuing the works, especially when the necessary documents, plans or other specifications are not made available.
Our contractual partner bears the burden of proving that the requisite conditions have been created and the requisite documents, plans or specifications have been made available.
On-call orders are accepted exclusively with periods of acceptance.
If the period of acceptance has not been defined, it will end 9 months after conclusion of the contract.
The goods have to be purchased in approximately equal quantities per month.
Failure to purchase the goods within the period agreed upon shall entitle us to either dispatch the prepared deliveries without further notice or to store them at the contractual partner’s expense.
We are furthermore entitled to grant our contractual partner a grace period for the purchase while at the same time warning our contractual partner that we will reject acceptance of the goods should the deadline expire unsuccessfully.
If the deadline expires unsuccessfully, we are entitled to withdraw from the contract while terminating our delivery obligation or request compensation instead of performance, which, however, only applies to the part of the contract we have not yet fulfilled.
If the contractual partner fails to comply with their obligation to classify the goods at the latest within one month after expiry of the deadline agreed upon for that purpose, or, in the event that such an agreement has not been made, at the latest within one month after having been requested to do so by us, we are entitled to classify and deliver the goods at our discretion.
We are furthermore entitled to set our contractual partner a grace period for classification together with the warning that we will reject acceptance of the goods should the deadline expire unsuccessfully.
If the deadline expires unsuccessfully, we are entitled to withdraw from the contract while terminating our delivery obligation or request compensation instead of performance, which, however, is limited to the part of the contract we have not yet fulfilled.
We are entitled to make partial deliveries and to charge them separately.
§ 7 – Declaration Concerning the Selection of Rights after Setting a Deadline for Supplementary Performance –
In all cases where our contractual partner has set a deadline for supplementary performance due to non-delivery or improper delivery and this deadline has expired, we are entitled to request our contractual partner to declare, within a reasonable time, whether they will continue to assert the claim for supplementary performance despite the deadline having expired or pass over to the rights granted optionally.
Failure of our contractual partner to make this declaration within such reasonable time results in the exclusion of the claim for performance/supplementary performance. If our contractual partner declares, within the reasonable time specified, that performance/supplementary performance is still requested, they may at any time set a new deadline and, should it expire unsuccessfully as well, exercise other rights.
§ 8 – Delay, Exclusion of the Obligation to Perform the Contract –
If we are in default with the delivery or if our obligation to perform the contract is excluded according to § 275 BGB, we are liable for damages exclusively according to the provisions and to the extent set out in § 12 section 4, but with the following additional stipulations:
If we are in default with the delivery due to slight negligence on our part, our contractual partner’s claims for damages are limited to a lump-sum compensation for delay. For each full week of delay, this compensation amounts to 1% of the value of goods to be delivered. However, this compensation is limited to a maximum of 8% of the value of goods to be delivered, while we reserve the right to prove that the delay in delivery has not resulted in any damage or has caused slight damage only.
If we are in default, our contractual partner is entitled to claim damages instead of performance provided that a reasonable grace period of at least 4 weeks has been granted for delivery. At the same time, our contractual partner may, on a case-by-case basis, reserve the right to grant a reasonable grace period of less than 4 weeks insofar as a 4-week deadline for delivery is unacceptable.
The right of withdrawal and claims for damages that our contractual partner is entitled to are, as a matter of principle, limited to the part of the contract that has not yet been fulfilled unless our contractual partner is no longer interested in the part that has already been fulfilled.
Claims for damages raised against us due to default or the exclusion of the obligation to perform the contract according to § 275 BGB will lapse after expiry of one year from the beginning of the statutory limitation.
The above-mentioned provisions do not apply in case of damages to the contractual partner’s life, body or health or if the damages are based on a wilful or grossly negligent breach of duty on our part or on the part of one of our legal agents or assistants. Moreover, they do not apply in case of a default if a forward deal had been agreed upon.
§ 9 – Default of Acceptance on the Part of our Contractual Partner –
If our contractual partner is in default of acceptance, either in whole or in part, we are entitled to either withdraw from the contract or demand compensation instead of performance after unsuccessful expiry of a reasonable grace period set by us along with the warning that we will reject acceptance of our service, which, however, only applies to the part of the contract we have not yet fulfilled. We are not entitled to any claim for damages if such default of acceptance is not attributable to our contractual partner.
The statutory rights we are entitled to in the event of default of acceptance on the part of our contractual partner remain unaffected.
The contractual partner has to reimburse the storage costs, warehouse rent and insurance costs incurred for the goods that are due for acceptance but have not been accepted.
However, we are not obliged to insure the stored goods.
If the delivery of the goods is delayed on our contractual partner’s request, or if our contractual partner is in default of acceptance, we may, upon expiry of one month after having sent the notification of our readiness for delivery, charge storage fees that correspond to the storage costs that are generally charged by a specialised company at the location in question. Nevertheless, we reserve the right to prove that the actual damage incurred is higher unless our contractual partner proves that this damage is not attributable to them.
§ 10 – Cancellation of Orders, Taking Back of Goods, Claim for Damages Instead of Performance –
If we accept our contractual partner’s wish to cancel a confirmed order, or if we take the goods delivered by us back for reasons not attributable to us while at the same time releasing our contractual partner from their obligation to purchase and pay the goods, or if we are entitled to a claim for damages instead of performance, we may demand, without proof, compensation of 20% of the contract price proportion that corresponds to the delivery item. Our contractual partner, however, may reserve the right to prove that no damage or only slight damage has been caused.
Our right to prove that the actual damage incurred is higher remains unaffected.
§ 11 – Properties and Condition of the Goods, Additional and Reduced Services –
Illustrations, drawings, dimensions and other information about the properties of the goods contained in catalogues, price lists and other printed material constitute mere approximate values in line with the industry standard.
Our samples and specimen are only approximate display models for quality, dimensions and other features.
Our information concerning the dimensions, properties and intended use of our products serves as a mere description and does not contain any warranty of quality.
If required for technical reasons, we reserve the right to deliver the goods ordered with deviations regarding their properties and condition, dimensions and other features.
We will advise our contractual partner of such changes.
Our contractual partner is not entitled to assert any warranty claims if and insofar as these changes do not bring about any significant impairment regarding the usability of the products and provided that they are not unacceptable for other reasons.
We reserve the right to deliver quantities exceeding or falling short of up to 10% of the quantity originally ordered.
In any case, our contractual partner has to pay the quantity actually delivered.
§ 12 – Liability for Defects and Compensation –
Any claims of our contractual partner raised due to defects of the goods imply that our contractual partner has duly fulfilled their obligations to inspect and complain according to § 377 HGB (German Commercial Code). The complaint has to be submitted in writing.
If our contractual partner fails to submit the complaint properly and in due time, claims due to the circumstances to be reported can no longer be asserted unless we had acted maliciously.
Any claims raised by our contractual partner due to defects of the goods delivered by us will lapse upon expiry of one year after delivery.
As regards claims for damages and reimbursement of expenses according to § 437 section 3, 478, 634 section 4 BGB, the statutory period continues to apply in case of damages to our contractual partner’s life, body or health, or if the damages are based on a wilful or grossly negligent breach of duty on our part or on the part of one of our legal agents or assistants.
The statutory limitation period also applies in case of a fraudulent concealment of the defect.
In the circumstances laid down in §§ 478, 479 BGB, the provisions set out therein will apply, while the aforementioned provisions 1, 2 and 3 also apply to claims for damages.
The rights that our contractual partner is entitled to due to defects of the goods are determined according to the statutory provisions with the stipulation that our contractual partner has to grant us a reasonable grace period of at least 4 weeks for supplementary performance. However, our contractual partner may, on a case-by-case basis, reserve the right to set a reasonable grace period of less than 4 weeks insofar as a 4-week deadline for supplementary performance is unacceptable.
In no case may the deadline for supplementary performance begin prior to the date on which our contractual partner returned the defective goods. The return costs will be borne by us.
If only part of the goods delivered by us are defective, our contractual partner’s right to withdraw from the contract or demand compensation instead of performance is limited to the defective part of the delivery unless this limitation is not feasible or unacceptable for the contractual partner.
Any claims for compensation raised by our contractual partner due to defects of the delivery or service are limited to the extent pursuant to the following section (4.).
Our liability for damages to our contractual partner’s life, body or health caused by a culpable breach is neither excluded nor limited.
Liability for other damages incurred by our contractual partner is only assumed if these damages have been caused by a wilful or grossly negligent breach of duty on our part or on the part of one of our legal agents or assistants.
If the damage resulted from slight negligence on our part, we only assume liability if the breach concerns essential contractual obligations. At the same time, our liability is limited to the reasonably foreseeable damage typical for the contract.
Any other claims for damages raised by our contractual partner due to breach of obligation, unlawful act or for other legal reasons are excluded.
The above-mentioned liability limitations do not apply in cases where guaranteed characteristics are missing, if and insofar as such guarantee had had the purpose of protecting the contractual partner against damages that have not been caused to the delivered goods themselves.
To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees and assistants.
In any case, the aforementioned liability exclusions also apply to consequential damages. However, the above-mentioned liability exclusions do not apply to claims according to the Product Liability Law.
The provisions set out in the aforementioned section (4.) also apply when our contractual partner asserts any claims of reimbursement of expenses.
§ 13 – Manufacturer Liability –
Our contractual partner has to indemnify us from all claims for damages asserted against us by third parties based on the provisions on unlawful acts, product liability or other regulations due
to errors or defects concerning the goods manufactured or delivered by us and/or our contractual partner. This applies to the extent that such claims would also be justified when asserted against our contractual partner or insofar as they are no longer justified due to the statute of limitation.
Based on these conditions, our contractual partner has to indemnify us from the costs incurred due to any lawsuits brought against us owing to such claims. Insofar as the claims asserted are also justified as regards us or if they are no longer justified due to the statute of limitation, we are entitled to a partial indemnity from liability against our contractual partner. The scope and amount of it will be set out according to the provisions of § 254 BGB.
Our indemnity obligation, duty to pay compensation and liability for damages pursuant to §§ 437 section 3, 478, 634 section 4 BGB or any other obligations based on other legal grounds remain unaffected by the aforementioned provisions; the limitations pursuant to § 12 sections 4 and 5 of the present provisions apply instead.
§ 14 – Retention of Title –
Until all current and future receivables from our contractual partner have been paid in full, our contractual partner will grant the following guarantees, which we will release upon request at our own discretion, insofar as their nominal value sustainably exceeds the debts due to us by more than 20%:
The goods delivered remain our property.
Processing or restructuring always take place for us as a manufacturer, however without any obligations on our part.
If the goods delivered by us are processed with other objects not belonging to us, we obtain co- ownership of the new object at the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods used at the time of processing.
If our goods are compounded/blended with other movable objects so as to form a uniform product, and if this other product is to be seen as the principal product, our contractual partner will transfer co-ownership to us on a pro-rata basis insofar as this principal product is the contractual partner’s property.
Any transfer required on our part in order to obtain ownership or co-ownership is replaced by the agreement concluded herewith to the effect that our contractual partner will keep the product in safe custody for us like a borrower or, should our contractual partner not possess the product either, replace the transfer as early as now by assigning to us the claim for restitution against the owner.
Products regarding which we have a right to retain (co-)ownership according to the aforementioned provisions are hereinafter referred to as “goods subject to retention of title”.
Our contractual partner is entitled to sell the goods subject to retention of title in the normal course of business or to compound/blend them with other objects.
The receivables resulting from the sale, compound/blend or other legal grounds regarding the goods subject to retention of title are as early as now assigned to us by our contractual partner, either in whole or in part, proportionally to that part of the object sold or processed which we are entitled to co-own.
If such receivables are included in current invoices, this assignment also applies to all outstanding balance claims.
The assignment takes place with priority over the remainder.
We authorise our contractual partner to collect the receivables assigned. This authorisation is, however, subject to revocation.
Any amounts collected must be immediately forwarded to us insofar as and as soon as the receivables due to us are due for payment. If the receivables due to us are not yet due for payment, the amounts collected have to be recorded separately.
Our authorisation to collect the receivables ourselves remains unaffected.
Upon our request, our contractual partner is obliged to disclose to us the assigned receivables and the corresponding debtors, to hand in the associated documents and to provide all the details required for the collection of the outstanding receivables. At the same time, we are entitled to notify the debtors of the assignment.
In case of suspension of payment, filing for or opening of insolvency proceedings or judicial or extrajudicial settlement proceedings, our contractual partner’s right to resale, process, compound/blend or install the goods subject to retention of title ceases, while the authorisation to collect the receivables assigned is withdrawn, also without our revocation.
Our contractual partner is obliged to inform us immediately about any third-party access to the goods subject to retention of title and the receivables assigned.
Any costs for interventions or other defence will be borne by the contractual partner.
Our contractual partner is obliged to handle the goods subject to retention of title with care. In particular, they have to be insured against damages caused by fire, water and theft at the contractual partner’s expense and with the insured amount being adequate to cover the original value.
In the event of our contractual partner’s failure to comply with the contract – especially in case of default in payment – we are entitled to take back the goods subject to retention of title at the contractual partner’s expense, or to request the assignment of the contractual partner’s claims for restitution against third parties, without our having to declare our withdrawal from the contract beforehand or at the same time.
Our taking back and seizure of the goods subject to retention of title do not constitute a withdrawal from the contract unless expressly declared by us in writing.
If our retention of title should no longer be valid in case of export deliveries or for other reasons, or should we, for any reason whatsoever, lose our ownership of the goods subject to retention of title, our contractual partner is obliged to immediately grant us an alternative guarantee for the goods subject to retention of title or to provide another security for the receivables due to us. This security must be effective in the respective law and correspond most closely to the retention of title according to German law.
§ 15 – Samples, First Drafts, Counselling –
The production of samples, sketches, first drafts and test prints requested by our contractual partner will also be invoiced when the order is not being placed.
The same applies to tests and expert reports demanded by our contractual partner.
Any samples, sketches, first drafts and test prints made by us remain our property; our contractual partner must neither imitate nor copy them nor make them accessible to third parties or companies. The same applies to proposals worked out by us.
Our counselling is provided to the best of our knowledge, but does not release our contractual partner from their duty to check the materials and implementations for their suitability for the intended purpose as well as for compliance with the relevant provisions.
The ownership of the created final artworks, colour printings, printing plates, printing blocks, punching tools and other auxiliary equipment will be transferred to our contractual partner once the invoiced amounts have been paid. They will, however, remain our property and be disposed of two years after their last use if our contractual partner fails to instruct us otherwise.
Production samples, galley proofs, press proofs etc. have to be checked by our contractual partner and returned with the note of their readiness for processing.
In any case, change requests have to be submitted in writing.
If our contractual partner fails to request an outturn sample, or should it be impossible to submit it due to the deadline stipulated by the contractual partner, our liability for any errors is limited to intent or gross negligence.
As regards colour reproductions in all printing processes, minor deviations from the original are not considered a defect.
The same applies to the comparison of any press print with the production print.
§ 16 – Ownership of Documents, Non-Disclosure –
All illustrations, drawings, calculations, samples and models remain our property.
Our contractual partner undertakes not to make such objects accessible to third parties in any form whatsoever without our express consent.
Our contractual partner undertakes to pay a contractual penalty for each culpable infringement of the aforementioned obligations, whereas this penalty amounts to € 6,000.00 for each individual case.
Our right to claim compensation for an actually incurred damage exceeding the contractual penalty remains unaffected.
The contractual partners mutually undertake to treat the commercial and technical details that are not publicly known but have become known in the course of their cooperation as they would treat their own trade secrets. They undertake to treat them with absolute confidentiality and not to disclose them to third parties.
The contractual partners undertake to pay a contractual penalty for each culpable infringement of the aforementioned obligations, whereas this penalty amounts to € 6,000.00 for each individual case.
The right to claim compensation for an actually incurred damage exceeding the contractual penalty remains unaffected.
§ 17 – Property Rights –
If the goods have to be produced according to drawings, samples or other specifications of our contractual partner, our contractual partner ensures that this will not result in any infringements of any third-party rights. This applies, in particular, to patents, utility models as well as property rights and copyrights.
Our contractual partner indemnifies us from all third-party claims resulting from any infringement of such rights. Moreover, our contractual partner will bear all costs incurred by us due to third parties asserting their claims relating to the infringement of such rights and our defence against such claims.
Should it happen that our development works result in achievements, solutions or techniques that are patentable in any way, we are the sole owner of the resulting property rights, copyrights and utilisation rights, while we reserve the right to make the corresponding patent applications on our own behalf and in our name.
§ 18 – Assignment –
Our contractual partner is not entitled to assign any claims raised against us unless our written consent has been obtained.
§ 19 – Place of Fulfilment, Place of Jurisdiction, Applicable Law –
Provided that our contractual partner is a merchant, Essen is the place of fulfilment and the exclusive place of jurisdiction for deliveries, services and payments including lawsuits filed in connection with checks and bills of exchange as well as any disputes arising between the parties.
However, we are entitled to sue our contractual partner at another place of jurisdiction applicable to them according to §§ 12 ff. ZPO (German Code of Civil Procedure).
The relationships between the contractual partners are regulated exclusively according to the law applicable in the Federal Republic of Germany under exclusion of the international sales
law and, in particular, the United Nations Convention on Contracts for the International Sale of Goods and other international agreements on the standardisation of the sales law.