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Terms and conditions

General Terms and Conditions of Trade

General terms and conditions of trade for the planning, development, production and delivery of machines of BOS GmbH & Co. KG

Section 1
General – Scope of Application

(1)    Our general terms and conditions of trade for the planning, development, production and delivery of machines (hereinafter briefly referred to as general terms and conditions of trade) shall apply exclusively; we do not recognize terms and conditions of the customer conflicting with or deviating from our general terms and conditions of trade unless we have explicitly agreed to the validity of these terms and conditions in writing. Our general terms and conditions of trade shall also apply if we execute the order vis-à-vis the customer without any reservations even if we are aware of terms and conditions of the customers conflicting with or deviating from our general terms and conditions of trade.

(2)    All agreements made between us and the customer for the purpose of executing this contract have been set down in writing in the concluded contract.

Section 2
Offer – Offer Documents

(1)    Orders which can be qualified as an offer pursuant to section 145 BGB (German Civil Code) can be accepted by us within three weeks in form of a written confirmation of order.

(2)    We shall reserve property rights and copy rights to illustrations, drawings, calculations and other information of a tangible and intangible kind including in electronic form attached to the offer documents. This shall also apply to such written documents marked as “confidential”. A passing on to third parties requires our express written approval.

(3)    We are authorized to award subcontracts to third parties in order to fulfil our obligations.

Sections 3
Prices – Terms of Payment

(1)    Unless otherwise agreed in the offer or the confirmation of order, our prices shall apply “ex-works” excluding packaging. The packaging will be charged separately.

(2)    The statutory turnover tax is not included in our prices and will be charged additionally.

(3)    The deduction of a discount requires a specific written agreement.

(4)    Unless otherwise agreed in the order or in the confirmation of order, the net purchase price (without deduction) becomes due and payable within 10 days from the respective date of invoice. The invoicing shall take place as follows: 30% down payment after orders received (a down payment will be charged from an order value of EUR 25,000.00), 60% after preliminary acceptance at our works (however, at the time of delivery at the latest) as well as 10% after final acceptance at the customer´ s site (however, 30 days after delivery at the latest unless we are responsible for the delay of the final acceptance).

(5)    The customer is only entitled to rights of set-off if his counterclaims are legally binding, undisputed or have been recognized by us. Besides, he shall be authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

Section 4
Completion and Delivery Time

(1)    The adherence to our obligations assumes the timely and regular fulfilment of the obligations of the customer. These obligations of the customer shall contain, inter alia, the provision of samples to be processed by the delivery item, the provision of all necessary information, technical details and parameters as well as the making of an agreed down payment by the customer. The defence of the unfulfilled contract shall remain reserved.

(2)    The adherence to completion- and delivery times shall be subject to correct and timely self-delivery. We shall immediately inform the customer of delays indicating reasons and new completion- and delivery times. The same shall apply if the customer alters or extends the originally agreed performance which results in a delay.

(3)    The completion- and delivery times shall be adequately extended if the non-compliance with the period of time can be attributed to force majeure, to industrial disputes or other events beyond our sphere of influence. We shall immediately inform the customer about respective delays indicating reasons and new completion- and delivery times.

(4)    If the customer´ s acceptance is delayed or if he culpably violates any other duties to collaborate, we are authorized to demand compensation for damage including possible additional expenditure. Further claims are reserved.

(5)    We shall be liable pursuant to the statutory provisions if the delayed delivery can be attributed to a wilful or grossly negligent violation of contract for which we are responsible; a fault of our representatives or vicarious agents shall be attributed to us. If the delayed delivery cannot be attributed to a wilful violation of contract for which we are responsible, our liability for damages shall be limited to the predictable, typically occurring damage.

(6)    We shall be also liable pursuant to the statutory provisions if the delayed delivery for which we are responsible can be attributed to the culpable violation of a fundamental contractual obligation; in this case, however, the liability for damages shall be limited to the predictable, typically occurring damage.

(7)    Besides, we shall be liable in case of a delayed delivery up to a maximum amount of 5% of the value of the part of the total delivery which cannot be used in time or as stipulated in the contract.

(8)    Other statutory claims and rights of the customer shall remain unaffected.

Section 5
Transfer of Risk, Acceptance – Packaging Costs

(1)    Unless otherwise agreed in our offer or our confirmation of order, the delivery “ex works” is agreed.

(2)    Unless otherwise agreed, the acceptance of the ordered item shall take place in a lengthened procedure. The preliminary acceptance shall be executed in the presence of the customer at our works. After the executed preliminary acceptance the readiness for delivery shall be reported. After the delivery the final acceptance of the ordered item shall take place at the customer´ s site. The respective acceptance shall be immediately executed at the date of acceptance, alternatively after the report of the readiness for acceptance.

(3)    After arrival of the delivered item at the customer´ s site, the customer shall store the ordered item separately and carefully keep it for us until the final acceptance. Immediately after arrival we shall be informed about obvious existing damages of the delivered item. If damages are detected later, the customer shall be obliged to prove that he has complied with his obligations pursuant to sentence 1.

(4)    Transport- and all other kind of packaging in accordance with the packaging regulation will not be taken back. The customer is obliged to cause the disposal of the packaging at his own expense.

(5)    Upon the request of the customer we will cover the delivery by a transport insurance; the arising costs shall be borne by the customer.

Section 6
Liability for Defects

(1)    The customer shall immediately inform us about possible defects in writing.

(2)    If a delivered item is defective, we are entitled to – at our choice – either a subsequent performance in form of a removal of defects or to a delivery of a new item free of defects. In case of a subsequent performance we will subsequently improve or replace free of charge all parts which turn out to be defective as a consequence of circumstances existing prior to the transfer of risk. We shall only bear the costs for the removal of defects up to the amount of the contract price. Replaced items will become our property.

(3)    A new beginning of the warranty by a subsequent performance shall be excluded.

(4)    For the subsequent performance the customer shall grant us the necessary access to the delivered item and the necessary time; otherwise we shall be exempted from the liability for the consequences resulting from it.

(5)    In case of a complete failure of the subsequent performance, the customer is authorized to – at his choice - reduce the contract price, to withdraw from the contract or to claim damages.

The liability due to fraudulent intent and taking over of warranted properties shall remain unaffected.

(7)    We shall be liable pursuant to the statutory provisions if the customer claims damages that can be attributed to wilful intent or gross negligence including the wilful intent or gross negligence of our representatives or vicarious agents. If we are not accused of a wilful violation of contract, the liability for damages shall be limited to the predictable, typically occurring damage.

(8)    We shall be liable pursuant to the statutory provisions if we culpably violate a fundamental contractual obligation; in this case, however, the liability for damages shall be limited to the predictable, typically occurring damage.

(9)    The liability due to a culpable injury of life, body or health shall remain unaffected; this shall also apply for the compulsory liability pursuant to the Product Liability Act.

(10)    Any further liability shall be excluded.

(11)    The limitation period for claims for defects shall be 12 months, calculated from the transfer of risk and final acceptance respectively.

Section 7
Liability for Industrial Property Rights and Copyrights

(1)    In case of a violation of industrial property rights and/or copy rights due to the use of the delivered item, we will either alter the delivered item in a way excluding the above mentioned violations of property rights or exclude a violation by granting respective rights.

(2)    If the required granting of rights is not possible economically or with regard to time and on adequate terms, both parties shall be authorized to withdraw from the contract. Damage claims shall remain unaffected from it.

(3)    In addition, the customer shall be entitled to a right of recourse vis-à-vis us with regard to undisputed or legally binding claims of the respective holders of property rights.

(4)    The above mentioned liability (paragraph 1 to 3) shall only apply if

• the customer immediately informs us in writing about an alleged violation of property rights,
• the customer gives us an adequate opportunity to alter the delivered item,
• the customer cooperates in the defence of the violation of property rights so that an adequate defence is possible,
• the customer lets us reserve all defence measures including an out-of-court settlement and
• the violation of property rights does not result from an instruction of the customer, an executed modification of the delivered item or from a use not stipulated in the contract.

(5)    In addition, section 6, paragraph 6 – 11 shall apply respectively.

Section 8
Joint Liability

[Translate to English:]

(1)    Any further liability for damages other than the liability stipulated in sections 6 and 7 shall be excluded – regardless of the legal nature of the asserted claim. This shall particularly apply to damage claims due to fault at the conclusion of the contract, due to other violations of obligations or due to tort liability claims for compensation of property damage pursuant to section 823 BGB (German Civil Code).

(2)    For the statute of limitations with regard to all claims that are not subject to the statute of limitations regarding the defect of an item, a time bar of 12 months shall apply starting from the knowledge of the damage and the author of damage.

(3)    If the liability for damages vis-à-vis us is excluded or restricted, this shall also apply with regard to the personal liability for damages of our staff members, employees, colleagues, representatives and vicarious agents.

Section 9
Rights to Use Delivered Software

(1)    If the delivered item contains software programs, the customer shall be granted a simple, non-exclusive right to use the software including the delivered documentation. The software shall only be provided for the use on the delivered item. A use beyond that use is prohibited.

(2)    The customer is only allowed to use the software within the legally permitted scope (sections 69 a continued UrhG (German Copyright Act)).

(3)    We and the software producer respectively will keep all other rights to the software and the documentation.

Section 10
Reservation of Proprietary Rights

(1)    We shall reserve the proprietary rights to the delivered item until all payments arising from the contract are made. If the customer acts contrary to the contract, particularly in case of default in payment, we shall be entitled to take back the delivered item. The taking back of the delivered item does not represent a withdrawal from the contract unless we expressly declare it in writing. The seizure of the delivered item by us always represents a withdrawal from the contract. After taking back the delivered item we shall be authorized to utilize it, the proceeds from the utilization shall be taken into account in the liabilities of the customer – minus adequate utilization costs.

(2)    The petition for the institution of insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivered item.

(3)    The customer shall be obliged to handle the delivered item with care; he shall be particularly obliged to adequately insure this item at his own expense at the replacement value against damages caused by fire, water and theft. If maintenance- and inspection works are required, the customer shall execute these works in time and at his own expense.

(4)    The customer shall neither alienate the delivered item nor pawn it or assign it for the purpose of safeguarding. In case of seizures or other interventions by third parties, the customer shall immediately inform us in writing so that we are able to take legal actions pursuant to section 771 ZPO (Code of Criminal Procedure). If the third party is not able to compensate us for the legal and out-of-court fees of a suit pursuant to section 771 ZPO (Code of Criminal Procedure), the customer shall be liable for the loss we incur.

(5)    The processing or alteration of the delivered item by the customer shall always be carried out for us. If the delivered item is processed with other items we do not own, we will become co-owners of the new item in the proportion of the value of the delivered item (final amount of invoice including turnover tax) to the other processed items at the time of the processing. For the item created by the processing, the same shall apply as for the item delivered with reservations.

(6)    If the delivered item is inseparably combined with other items we do not own, we will become co-owners of the new item in the proportion of the value of the delivered item (final amount of invoice including turnover tax) to the other combined items at the time of combination. If the combination is carried out in a way that the item of the customer shall be considered as the main thing, it is deemed as agreed that the customer proportionally transfers co-ownership to us. The customer shall keep safe for us the sole property or co-ownership thus created.

(7)    The customer also assigns the claims to us for the purpose of securing our claims against him that arise from the linking of the delivered item with a property.

(8)    We undertake to release – upon the request of the customer – the securities we are entitled to if the realizable value of our securities exceeds the claims to be secured by more than 10%; it is our responsibility to select the securities to be released.

Section 11
Place of Jurisdiction – Place of Performance

(1)    Place of jurisdiction is Berlin; we are authorized, however, to also sue the customer at his place of business/place of residence.

(2)    The law of the Federal Republic of Germany shall apply; the validity of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.

(3)    Unless otherwise agreed in the confirmation of the order, our place of business is the place of performance.