General Terms and Conditions Boral GmbH
Valid from 1 January 2006
The following terms and conditions are applicable to purchase contracts as well as other contracts for deliveries and services which are issued or concluded by BORAL GmbH (hereinafter "BORAL").
Unless otherwise agreed in writing and in individual contracts, the legal relations between the contractor and BORAL for the transactions described herein are based exclusively on the following terms and conditions. Contractor's terms and conditions to the contrary shall not apply even if BORAL does not expressly object to them in individual cases, especially if ordered goods are accepted without objection.
2. Written Form
All orders, as well as changes and amendments, must be made in writing.
BORAL is authorised to cancel its order at no cost if the contractor confirms this within two weeks after receipt without changes.
4.1 Agreed deadlines for deliveries and services are binding. If delays are expected or become evident, the contractor must inform BORAL immediately.
4.2 If the delivery deadline is missed through fault of the contractor (delay), BORAL is authorised to request compensation without prejudice to other rights.
4.3 If the contractor also does not deliver or perform within a reasonable period of time determined by BORAL for subsequent performance, BORAL is entitled after expiry of this period to commission a third party with the fulfilment of the contract and to demand compensation from the contractor for the necessary expenses and additional costs. In addition, BORAL has the right to claim damages instead of fulfilment of the contract. The right of the contractor to subsequent performance and the obligation of BORAL to accept the performance are excluded as soon as BORAL procures replacement by way of self-execution or claims damages instead of performance.
The prices are fixed prices. They include all expenses in connection with the deliveries and services to be provided by the contractor.
6. Execution and Delivery
6.1 The contractor may only subcontract with the consent of BORAL unless the subcontracting is for the supply of saleable parts only. Call-off schedules are binding regarding the type and quantity of the goods called off as well as the delivery time. Partial deliveries require the consent of BORAL.
6.2 Every delivery must be accompanied by a delivery note that gives BORAL’s order number as well as the description of the content in terms of type and quantity.
6.3 A technical description and instructions for use must be supplied free of charge with the equipment. In the case of software products, the delivery period is only fulfilled when the complete (system-related and user) documentation has also been handed over. In the case of programs specially produced for BORAL, the program must also be delivered in source format.
7. Invoices, Payments
7.1 Invoices must be sent in duplicate separately from the consignment; they must correspond in wording to our order descriptions and contain our order number and the date of the order. The number of the delivery note must be included. Invoices which do not include this information, will be sent back, will not be considered to have been received, so they do not justify any due date and should be removed from your reminder record.
7.2 The period for payment of the invoice begins on the working day following the receipt of a proper, verifiable invoice (date of the receipt stamp - not the invoice date!) or the acceptance of the goods or service, whichever is later. Invoices which show defects or errors do not give rise to a due date and can be returned by us at any time. In the latter case, the due date is only established upon receipt of the corrected invoice. Missing delivery documents, receipt by an office other than the one named, incomplete information or errors will delay the payment period by as many days as it takes to rectify the defects caused by the contractor. The duration of the suspension of the invoice verification is to be considered in your reminder record or invoices that have been disputed are to be removed from your reminder record. Payments do not constitute recognition of the delivery or service as being in accordance with the contract. In the event of defective delivery or incomplete delivery or service, BORAL is entitled, without prejudice to its other rights, to withhold payment in reasonable measure on all claims arising from the business relationship and without compensation until proper subsequent performance, without loss of rebates, discounts and similar payment benefits
7.3 Payment will be made in the next payment run following the due date by means of a payment method of our choice.
8. Statutory Regulations
8.1 For all deliveries and services, the provisions of the Regulation on Hazardous Substances as well as the safety recommendations of the responsible German technical committees or professional associations, such as VDE, VDI, DIN, must be observed. Relevant certificates, test reports and proofs must be supplied free of charge.
8.2 For deliveries and provision of services, the contractor alone is responsible for complying with accident prevention regulations. The safety devices and any manufacturer instructions required in accordance with these regulations must be delivered free of charge.
9. Transfer of Risk, Acceptance, Ownership Rights
9.1 Irrespective of the agreed exemption, the risk shall pass to BORAL in the case of delivery without installation or assembly upon receipt at the delivery address specified by BORAL. In the case of delivery with installation or assembly upon successful completion, it must be documented by an acceptance protocol. The mere operation or use by BORAL does not replace the formal acceptance.
9.2 In case of delivery of goods under retention of title, BORAL is entitled to resell the goods within the scope of a proper business operation. BORAL becomes owner at the latest with the payment of the full fee.
10. Obligation to inspect and complain, inspection effort
10.1 BORAL will immediately report any obvious defects in the delivery or service to the contractor as soon as they are observed during the normal course of business. For defects reported within four weeks, the contractor waives the objection of late notification of defects.
10.2 Goods receipts checks are undertaken on a random basis. BORAL is authorised to reject the delivery completely if the quality control threshold defined by BORAL is exceeded or to inspect it 100% at the expense of the contractor.
10.3 If BORAL sends back faulty goods, BORAL is authorised, irrespective of the amount of the resulting expenses, to charge the contractor back the invoiced amount plus a lump-sum expense allowance of 5% of the price of the faulty goods. The lump sum will amount to maximum 550.50 EUR for the goods return. BORAL expressly reserves the right to prove higher expenses.
11. Guarantee for Material Defects and Defects of Title
11.1 Defective deliveries must immediately be replaced by defect-free deliveries or defective services must be repeated without defect. In the case of replacement or repetition, a subsequent performance is considered to have failed (§§ 440, 636 BGB “Bundesgesetzbuch” - German Civil Code), if the defect is not then removed after the second attempt at subsequent performance. In the case of development or construction errors, a subsequent performance is considered unacceptable (§ 440 BGB) and BORAL is authorised to apply the rights stipulated at Clause 11.4.
11.2 During the time that the object of the delivery or service is not in the custody of BORAL, the contractor carries the risk.
11.3 In urgent cases – in particular in the case of operational safety and the prevention of extraordinarily high damages – and also for the purpose of modest defects, BORAL is authorised at the cost of the contractor to rectify by themselves, or with the help of a third party, the defects and any resulting damages. This also applies in cases where a deadline set by BORAL for subsequent performance has been passed. In addition, this applies when the contractor delivers or performs a service late and BORAL consequently must rectify defects, to avoid a delivery delay.
11.4 If BORAL does not decide to remedy the defects itself, BORAL anyway has the choice, after unsuccessful expiry of the deadline it has set for subsequent performance, either to withdraw from the contract or to reduce the contractual remuneration (reduction). In addition to these two options, BORAL reserves the right to request compensation.
11.5 Goods delivered must be unencumbered by the rights of third parties. When delivering data processing programs, the contractor is liable for ensuring that they have all necessary rights, in particular property rights, to distribute the programs.
11.6 In the absence of any other agreement, the warranty period for defects is equal to 24 months from the transfer of risk in accordance with clause 9.1. The duration of the warranty obligation is suspended for the period, which begins with the despatch of the notification of defects and ends with the acceptance of the defect free delivery or service. For a part of the delivery or service that has been repaired or replaced or repeated, the period referred to in sentence 1 shall commence again upon receipt of the defect-free delivery or service.
11.7 Legal claims and rights, to which BORAL is entitled to as client remain otherwise unaffected.
12. If the contractor provides deliveries or services which are essentially the same or similar, or deliveries which are despite previous written warning from BORAL again faulty or late, subsequent performance will be seen as unacceptable and BORAL will be authorised to withdraw from the contract without further ado, also with regard to such deliveries and services which the contractor is obliged to deliver to BORAL in the future from an underlying or other contractual relationship.
13. Exemption in case of material defects and defects of title
The contractor indemnifies BORAL from all claims which third parties - for whatever legal reason - assert against BORAL on account of a material defect or defect of title or any other defect in a product delivered by the contractor, and reimburses BORAL the necessary costs of any legal proceedings caused thereby.
14. Technical documents, tools, production equipment
14.1 Technical documents, tools, drawings, works standard specification sheets etc. originating from BORAL constitute intellectual property and are subject to the copyrights of BORAL. Insofar as it is necessary for the processing of the order, BORAL grants the contractor a temporary, non-exclusive right to use the copyright, which ends as soon as the order has been processed. Any technical documents, tools, works standard specification sheets, manufacturing equipment etc. made available by BORAL remain the exclusive property of BORAL; all copyrights also remain with BORAL. They must be sent back without prompt to BORAL, including any duplicates that may have been made, immediately after execution of the order. In this respect the contractor is not authorised to assert a right of retention against BORAL. The contractor may only use the above-mentioned objects for the execution of the order and may neither hand them over nor otherwise make them accessible to unauthorised third parties. Any copying or reproduction of the aforementioned objects is only permitted to the extent that it is absolutely necessary for the execution of the order placed by BORAL.
14.2 If the contractor produces the objects named in 14.1 for BORAL in part or in whole at the expense of BORAL, 14.1 shall apply accordingly. In this case, BORAL will contribute proportionately to the production costs and in return will acquire co-ownership of the objects which the contractor will store for BORAL free of charge. However, BORAL may at any time acquire the rights in relation to the item by reimbursing expenses not yet amortised and demand the item back from the contractor.
15. Provision of Material
15.1 Material provided by BORAL remains the property of BORAL and is to be stored by the contractor free of charge and with the care of a prudent businessperson separately from other items of the contractor and to be marked as BORAL property. It may only be used for the execution of the order placed by BORAL.
15.2 If the contractor processes or restructures material provided by BORAL, this activity must be undertaken exclusively for BORAL. BORAL will immediately become owner of the new materials that are created in this way. If the material provided creates only a part of the new materials, BORAL acquires co-ownership of the new materials according to the share which corresponds to the material value provided by BORAL.
16.1 The contractor is obliged to treat information or knowledge which he receives in connection with the submission of a quotation or the placing of an order by BORAL as a confidential business secret and not to pass it on to third parties, unless the contractor proves to BORAL that this information was already known to him when the offer was submitted or was subsequently made accessible to him by a third party entitled to do so without an obligation to maintain secrecy or that it was generally accessible or subsequently became so without the contractor being responsible for this and without him being liable for it.
16.2 The manufacture for third parties and the display of products manufactured especially for BORAL, in particular in accordance with BORAL’s drawings or manufacturing specifications of finished products, publications on the subject of deliveries and services ordered by BORAL and the reference to an order by BORAL to third parties require the express prior written consent of BORAL.
17. Partial Invalidity
If individual provisions of this contract are or become invalid, this shall not detract from the validity of these Terms and Conditions of Purchase in other respects.
18. Place of performance, place of jurisdiction, law
18.1 Place of performance is the given delivery address.
18.2 If the contractor is a businessperson, the place of jurisdiction is Friedberg / Hessen
18.3 The contractual relationship shall be governed by the substantive law of the Federal Republic of Germany but excluding its referral rules of private international law.
19. Amendments to the contract
Any change or addition to an order already placed must be made in writing. This can only be waived in writing.
20. Marking of goods subject to export authorisation
They will be marked and the customs tariff number and the number from the German export list will be indicated. You will also draw attention in your order confirmation or invoice to items requiring an export licence or subject to US re-export regulations and inform us of the customs code number in addition to the corresponding export list number.
Delivery and Payment Conditions
The following terms of delivery and payment are authoritative for all deliveries and services. Any other terms and conditions of purchase of the buyer are hereby expressly contradicted. Such purchasing conditions shall only apply if we expressly confirm them in writing. Acceptance of the delivered goods shall be deemed to be acceptance of our terms and conditions.
1. Prices / Payment Conditions
1.1 We charge the prices valid on the day of delivery, in EURO (EUR), unless otherwise stated, plus the applicable value added tax. The prices are ex works, with immediate payment without deduction, unless special conditions are agreed upon.
1.2 If the payment deadlines are exceeded, all legal consequences of default occur without special reminder. In particular, we reserve the right to charge interest at the respective interest rate of our bank, as far as this exceeds the amount of the legally stipulated interest rate of 8% above the base interest rate. Furthermore, the total balance shall become immediately
due for payment independent of any payment terms.
1.3 In the case of custom-made products, we reserve the right to make a reasonable price increase as well as a reasonable deviation with regard to the agreed delivery quantity; excess quantities are to be accepted. A deviation of +/-10 % in relation to the order quantity is deemed to be agreed.
2. Delivery Deadlines
We make every effort to meet the deadlines given. These are, however, not binding, unless otherwise expressly agreed. Our contractual duties are subject to the correct and timely delivery by our own suppliers.
3. Place of Performance and Transfer of Risk
3.1 Place of performance for the delivery is the headquarters of the/our respective delivery plant.
3.2 At the time of dispatch, the risk shall pass to the buyer as soon as we have handed over the goods to the carrier selected by us, or in the case of routing orders, to the carrier specified by the buyer.
4. Unless otherwise agreed, we shall take back packaging material only to the extent that we are obliged to do so under the German Packaging Regulation (“Verpackungsordnung”).
5. Warranty for material defects and notification of defects
5.1 If complaints arise in spite of the greatest attention, then according to § 377 HGB (German Commercial Code) obvious defects must be reported immediately, at the latest within 14 days of receipt of the goods, hidden defects immediately after their discovery, otherwise the goods are deemed to be approved.
5.2 Claims for material defects shall become statute-barred 12 months after delivery of the goods supplied by us to our buyer. The above provisions shall not apply, if the Law according to § 438 Para. 1 No. 2 BGB (materials and items for buildings), § 479 Para 1 BGB (right of recourse) und § 634a Para 1 BGB (building defects) prescribes longer periods. Our consent must be obtained before any return of the goods.
5.3 If the delivered goods show a defect, in spite of all the care taken by us, at the time of transfer of risk, we will as long as we are notified about the defects within the time limit, according to our discretion, either rectify or deliver replacement goods. The opportunity of subsequent performance must always be given to us within a reasonable timeframe.
5.4 If the subsequent performance fails, the buyer may - without prejudice to any claims for compensation - withdraw from the contract or reduce the remuneration. The buyer may not demand compensation for wasted expenditure.
5.5 Claims for defects do not apply in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear or tear as well as in the case of damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or due to special external influences that are not provided for under the contract. If the buyer or third parties carry out improper repair work or modifications, no claims for defects shall exist for these and the consequences thereof.
5.6 Claims of the buyer on account of expenses required for the purpose of subsequent performance, in particular transport, infrastructure costs, work and materials costs, are excluded, insofar as the expenses increase because the goods delivered by us were later moved to a different location to the location of the branch of the buyer, unless the move corresponds with their intended use.
5.7 Recourse claims of the buyer against us exist only insofar as the buyer has not made any agreements with their buyer that go beyond the legally binding claims for defects. Furthermore, clause 5.6 shall apply accordingly to the scope of the buyer's right of recourse against the supplier.
5.8 Any further claims of the buyer against us and our vicarious agents for material defects or claims other than those regulated in this section 5 are excluded.
5.9 For our other claims for damages and reimbursement of expenses of the buyer, the provisions of section 7 shall apply.
5.10 In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk within the meaning of § 443 BGB 7 (Seller's declaration that the object of purchase has a certain characteristic at the time of transfer of risk and that the Seller intends to be liable for all consequences of its absence regardless of fault) the rights of the buyer shall be governed exclusively by the statutory provisions.
6. Industrial property rights and copyright; defects of title
6.1 Unless otherwise agreed, we are obliged to make the delivery free from industrial property rights and copyrights of third parties (hereinafter referred to as "property rights") only in the country of the place of delivery. If a third party asserts a justified claim against the buyer based on an infringement of an property right with respect to the deliveries made by the supplier and used in conformity with the contract, we shall be liable to the buyer within the time limits specified in clause 5.1 above as follows:
a) We shall, at our discretion and at our expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for us under reasonable conditions, the buyer shall be entitled to the statutory rights of withdrawal and reduction. The buyer cannot demand compensation for wasted expenditure.
b) The provisions of section 7 shall apply to any claims for damages.
c) Our aforementioned obligations shall only exist if the buyer informs us immediately in writing about the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved to us. If the buyer stops using the delivery for reasons of damage reduction or other important reasons, he is obliged to point out to the third party that no acknowledgement of an infringement of property rights is connected with the cessation of use.
6.2 Claims of the buyer are excluded if they are responsible for the infringement of property rights.
6.3 Claims of the buyer are further excluded if the infringement of the property right is caused by special specifications of the buyer by an application not foreseeable by us or by the fact that the delivery is modified by the buyer or used together with goods not delivered by us.
6.4 In the event of infringements of industrial property rights, the provisions of clauses 5.3 and 5.7 shall apply accordingly to the claims of the buyer regulated in point 6.1 a).
6.5 In the event of other defects of title, the provisions of section 5 shall apply accordingly.
6.6 Any further or other claims of the buyer against us and our vicarious agents other than those regulated in this section 6 due to a defect of title are excluded.
6.7 In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee of a quality of the goods at the time of the transfer of risk within the meaning of § 443 BGB (declaration by the seller that the object of purchase has a certain quality at the time of the transfer of risk and that the seller intends to be liable for all consequences of its absence regardless of fault), the rights of the buyer shall be governed exclusively by the statutory provisions.
7. Other Claims for Compensation
7.1 In the event of a pre-contractual, contractual and/or non-contractual breach of duty, including defective delivery, tort and producer's liability, we shall be liable for damages and reimbursement of expenses - subject to further contractual or statutory liability requirements - only in the event of intent, gross negligence and in the event of a breach of a material contractual obligation (contractual obligation whose breach endangers the achievement of the purpose of the contract) in the event of slightly negligent breach. However, our liability - except in the case of intent - is limited to the typical contractual damage foreseeable at the time the contract was concluded. Claim for wasted expenditure by the buyer is not permitted.
7.2 In the event of slight negligence, we shall only be liable for damages caused by delay up to a maximum of 5% of the purchase price agreed with us.
7.3 Apart from the violation of essential contractual obligations, liability for slight negligence is excluded. The provision of clause 7.2 remains unaffected.
7.4 The exclusions and limitations of liability contained in the provisions of clauses 7.1 to 7.3 shall not apply in the event of the assumption of a guarantee for the quality of the goods within the meaning of § 443 BGB, in the event of the fraudulent concealment of a defect, in the event of damage to life, body or health and in the event of mandatory liability under the German Product Liability Law (“Produkthaftungsgesetz”).
8. Binding nature of drawings, illustrations, dimensions and weights
Drawings, illustrations, dimensions and weights are only approximate unless they have been expressly designated as binding. The buyer shall be responsible for ensuring that they do not design submit drawings which infringe the property rights of third parties; they shall indemnify us in the event of recourse claims.
Documents handed over by us must not be made accessible to third parties or duplicated or used for anything other than the agreed purpose.
10. Retention of Title
10.1 The goods remain our property until all our claims, including those arising in the future, have been paid in full.
The buyer is entitled to process and sell the goods in accordance with the following provisions:
Insofar as the goods are further processed or transformed by the buyer, we shall be deemed to be the manufacturer within the meaning of § 950 BGB and shall acquire ownership of the intermediate or end products. The processor is only the custodian. If the reserved goods are combined or 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 reserved goods to the other items.
10.2 The goods may only be sold in the ordinary and proper course of business and only if claims from resale have not been previously assigned to third parties. The claims to which the buyer is entitled from the resale shall be deemed to have been assigned to us upon conclusion of the purchase contract with us, including to the extent that our goods are combined or processed with other items. In this case, the assigned claims serve as our security only to the value of the respective reserved goods sold. We will not collect the assigned claims if the buyer meets his payment obligations. However, the buyer is obliged to give up the third-party debtors to us upon request and to notify them of the assignment. The buyer is entitled to collect the claims themselves if they do not receive any instructions from us. The buyer must transfer the amounts collected by them to us immediately insofar as our claims are due.
10.3 Pledging or transfer by way of security of the goods subject to retention of title or the assigned claims is not permitted. The buyer must inform us immediately of any access by third parties to the goods supplied under reservation of title or to the assigned claims. We undertake to release the assigned claims at our discretion if they exceed our claims to be secured by more than 20% and if they result from fully paid deliveries.
10.4 In the event of breaches of duty by the buyer, in particular default of payment, we are entitled to withdraw from the contract and to take back the goods; the buyer is obliged to surrender them. The taking back or assertion of the reservation of title does not require a withdrawal on our part; these actions or a seizure of the reserved goods by us does not constitute a withdrawal from the contract, unless we have expressly declared this.
10.5 If, in the case of sales abroad, the retention of title agreed in this section 10 is not permissible with the same effect as under German law, the goods shall remain our property until payment of all our claims arising from the contractual relationship established by the sale of the goods. If this retention of title is also not permitted with the same effect as under German law, but it is permitted to reserve other rights to the goods, we shall be entitled to exercise all such rights. The buyer is obliged to cooperate in measures which we wish to take to protect our right of ownership or, in its place, another right to the goods.
11. Notices for electronic commerce
If we make use of our services in the sense of § 312 e BGB (German Civil Code) for the purpose of concluding a contract for the delivery of goods or for the provision of services of a tele- or media service (contract in electronic business transactions), the buyer waives the right to:
a) the provision and explanation of a system with the help of which they can recognise and correct input errors before placing an order and
b) to information concerning
ba) the steps to be taken until the contract is concluded,
bb) the storage of the text of the contract after conclusion of the contract and accessibility for the customer
bc) the languages available for the conclusion of the contract.
12. Applicable Law and Place of Jurisdiction
12.1 The substantive law of the Federal Republic of Germany shall apply to all legal relationships established by the contract of sale, excluding its referral rules of private international law and the rules of the UN Convention on Contracts for the International Sale of Goods ("UN-CISG").
12.2 The place of jurisdiction for both parties, also in matters relating to bills of exchange, is our registered office. If we appear as plaintiff, we are also entitled to bring an action at the buyer's place of business.