Terms and Conditions of Sale, Delivery and Payment of Boecker Stahl-Service GmbH

As of 05/2021

§ 1 - General - Scope of Application

(1) Our Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as: Terms and Conditions of Sale) shall apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale.

(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.

(3) Our terms and conditions of sale apply only to companies within the meaning of § 310 para. 1 BGB (German Civil Code) as well as legal entities under public law or special funds under public law.

(4) Our terms and conditions of sale also apply to all future business with the customer.

§ 2 - Offer - Offer documents

(1) Our offer is subject to change. If the order of the customer is to be qualified as an offer according to § 145 BGB (German Civil Code), we can accept this within 2 weeks.

(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents as well as samples. This also applies to written documents marked “confidential”. The customer requires our express written consent before passing them on to third parties.

§ 3 - Prices - Terms of Payment

(1) Unless otherwise stated in the order confirmation, our prices are “ex works” and do not include packaging; this will be invoiced separately. We reserve the right to adjust our prices appropriately if, after the conclusion of the contract, cost increases or decreases occur, in particular due to collective wage agreements or fluctuations in the price of materials. We will provide the customer with evidence of this upon request.

(2) Statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.

(3) The deduction of cash discount requires special written agreement.

(4) Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) on the 15th of the month following delivery. The statutory provisions regarding the consequences of default in payment shall apply.

(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer shall only be entitled to a right of retention under the aforementioned conditions.

§ 4 - Delay in Delivery - Impossibility

(1) The commencement of the delivery period stated by us requires the clarification of all technical questions.

(2) Furthermore, compliance with our delivery obligation requires the timely and proper fulfillment of the customer's obligations. The right to plead non-performance of the contract remains reserved.

(3) We are entitled to make partial deliveries within the bounds of reasonableness for the customer.

(4) Production-related excess or short deliveries are permissible within a tolerance of 10% of the total order quantity.

(5) If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damages incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

(6) If the conditions of paragraph (5) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or payment.

(7) If we are in default or if our obligation to perform is excluded due to impossibility in accordance with § 275 para. 1 BGB or if we can refuse performance in accordance with § 275 para. 2 and 3 BGB, we shall only be liable in accordance with § 8 of these Terms and Conditions of Sale. In addition, in cases of simple negligence, a flat-rate limitation of liability applies to 1% per week of the delay, but not more than 5% of the value of that part of the delivery that cannot be used or cannot be used in accordance with the contract as a result of the delay.

(8) The liability restrictions mentioned in paragraph (7) do not apply to transactions for delivery by a fixed date in the sense of § 286 paragraph 2 no. 4 BGB or § 376 HGB (German Commercial Code) or to the cases regulated in § 8 paragraph (5).

§ 5 - Delivery obligation – Reservation of self-supply – Force majeure

(1) We do not enter into any delivery obligation without a binding purchase obligation on the part of the customer, subject to any agreements to the contrary in individual cases. Without an express agreement, delivery to the customer – even over a longer period of time – does not establish any delivery obligation for the future. In particular, the uncontested acceptance of a delivery forecast or comparable documents from the customer does not establish any corresponding delivery obligation on our part.

(2) If, in individual cases, we have assumed an open-ended delivery obligation without specifying a total delivery quantity (permanent delivery contract), we shall be entitled to an ordinary right of termination subject to a notice period of three months. Conversely, the customer shall also be entitled to this right of termination if it enters into an open-ended purchase obligation without specifying a total delivery quantity.

(3) We shall not be liable for any damages resulting from a late delivery on our part that is not our fault and that results from a late delivery to us; the customer shall, of course, have the statutory right of withdrawal if necessary. We also reserve the right to withdraw from the contract if a minimum congruent hedging transaction fails for the reasons described through no fault of our own.

(4) In cases of force majeure and other impediments to performance that are not foreseeable and not caused by us – which also includes industrial disputes, lack of raw materials, operational disruptions, transport obstacles, official measures – in each case also at our suppliers – we are entitled to postpone delivery for the duration of the impediment to performance. We will immediately inform the customer about the non-availability or delayed availability of the delivery item and in case of withdrawal, we will immediately refund the consideration of the customer.

§ 6 - Transfer of risk - Packaging costs

(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.

(2) The risk of accidental loss or accidental deterioration shall pass to the customer upon dispatch, even if we have assumed the shipping costs or other additional services or a partial delivery is made.

(3) If the customer so desires, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

(4) Unless otherwise provided by law, we will not take back any packaging. This does not apply to Euro pallets, which remain our property and are to be returned to us at the customer's expense. The customer is obliged to dispose of packaging at his own expense.

§ 7 - Claims for defects

(1) Claims for defects by the customer presuppose that the customer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The customer must notify us of any defects that are recognizable during a reasonable incoming goods inspection within 7 days of receipt of the goods at the latest, without prejudice to the statutory obligations to inspect and give notice of defects. This must be done in writing.

(2) If the purchased item is defective, we shall be entitled, at our discretion, to provide subsequent performance in the form of remedying the defect or delivering a new item that is free of defects. In the event of remedying the defect, we shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, provided that these are not increased by the purchased item having been taken to a location other than the place of performance.

(3) If the supplementary performance fails, the customer is entitled to the other statutory claims for defects. The customer is only entitled to claims for damages in accordance with § 8 of these terms and conditions of sale.

(4) The customer's claims for defects become time-barred in accordance with § 9 (1) of these terms and conditions of sale.

§ 8 - Liability

(1) We are only liable for damages in accordance with the following provisions:

(2) We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional or grossly negligent breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

(3) We shall be liable in accordance with the statutory provisions insofar as we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.

(4) Insofar as the customer is entitled to claim compensation for damages instead of performance, our liability is also limited to compensation for foreseeable, typically occurring damages within the scope of paragraph (3).

(5) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act and liability under a guarantee.

(6) The above limitations of liability shall also apply if the customer demands compensation for wasted expenditure instead of claiming compensation for damages in lieu of performance.

(7) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

§ 9 - Limitation

(1) The limitation period for claims for defects is 12 months from the statutory commencement of the limitation period.

(2) An exclusion period of 18 months shall apply to the limitation of other claims of the customer that are not subject to the limitation period for claims for defects. It begins with knowledge of the damage and the person of the damaging party.

(3) The statutory limitation periods shall remain unaffected by the above provisions in the following cases:

- in the event of a delivery recourse according to §§ 478, 479 BGB;

- for the defects in buildings/building materials mentioned in §§ 438 para. 1 no. 2; 634a para. 1 no. 2 BGB;

- for damages resulting from injury to life, limb or health;

- for cases of intent or fraudulent intent or gross negligence on our part, on the part of our legal representatives or vicarious agents;

- for the right of the customer to withdraw from the contract in the event of a breach of duty for which we are responsible and which does not consist of a defect in the purchased item or the work;

- for claims under a guarantee.

§ 10 - Retention of title

(1) We retain title to the goods until all payments arising from the business relationship with the customer have been received. If the customer acts in breach of contract, in particular if he is in default of payment, we shall be entitled to take back the goods. Our taking back of the goods shall constitute a withdrawal from the contract. After taking back the purchased item, we are entitled to sell it; the proceeds of the sale shall be credited against the customer's liabilities, less reasonable costs of sale.

(2) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it sufficiently at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

(3) In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing so that we can file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a suit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.

(4) The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim that accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and there is no cessation of payments. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

(5) Any processing or alteration of the purchased item by the customer shall always be carried out for us. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.

(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing is done in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportional co-ownership to us. The customer thus retains sole ownership or co-ownership for us.

(7) The customer also assigns to us the claims for securing our claims against him, which arise from the connection of the purchased item with a property against a third party.

(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is at our discretion.

§ 11 - Place of Jurisdiction - Place of Performance

(1) If the customer is a merchant, our registered office in Schwerte is the place of jurisdiction; however, we are also entitled to sue the customer at his local court.

(2) The law of the Federal Republic of Germany applies; the validity of the UN Sales Convention is excluded.

(3) Unless otherwise stated in the order confirmation, our registered office in Schwerte is the place of fulfillment.

§ 12 - Final provisions

(1) Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by provisions that come as close as possible to the economic purpose of the contract while safeguarding the interests of both parties.

(2) All our previous terms and conditions of sale and delivery are hereby superseded.

Note in accordance with § 33 BDSG: The customer's data will be processed electronically.