General Terms and Conditions of Purchase

§ 1 Scope of application, form

(1) These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers ("Seller"). The GPC shall only apply if the Seller is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.

(2) The GPC apply61 in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCP in the version valid at the time of the Buyer's order or in any case in the version last communicated to the Seller in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if the Seller refers to its General Terms and Conditions in the order confirmation and we do not expressly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order shall take precedence over the GTCP. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

(5) Legally relevant declarations and notifications by the seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. Written form within the meaning of these GTCP includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.

(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

§ 2 Conclusion of contract

(1) The delivery time specified by us in the order and any preliminary services is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 1 week from conclusion of the contract. The seller is obliged to inform us immediately in writing if he is unlikely to be able to meet agreed delivery times - for whatever reason.

(2) If the seller does not perform13 or does not perform within the agreed delivery time14 or is in default,15 our rights - in particular to rescission and compensation - shall be determined in accordance with the statutory provisions.16 The provisions in para. 3 shall remain unaffected.

(3) If the seller is in default (including partial deliveries), we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1.5% of the net price per completed calendar week, but not more than a total of 10% of the net price of the goods delivered late and hourly expenses of €150. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only significantly less damage has been incurred.

§ 3 Delivery time and delay in delivery

(1) The delivery time specified by us in the order and any advance performance is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 1 week from conclusion of the contract. The seller is obliged to inform us immediately in writing if he is unlikely to be able to meet agreed delivery times - for whatever reason.

(2) If the seller does not perform13 or does not perform within the agreed delivery time14 or is in default,15 our rights - in particular to rescission and compensation - shall be determined in accordance with the statutory provisions.16 The provisions in para. 3 shall remain unaffected.

(3) If the seller is in default (including partial deliveries), we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1.5% of the net price per completed calendar week, but not more than a total of 10% of the net price of the goods delivered late and hourly expenses of €150. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only significantly less damage has been incurred.

§ 4 Performance, delivery, transfer of risk, default of acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Delivery shall be made within Germany "free domicile” to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the supplier must request this. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).

(3) The delivery must be accompanied by a delivery bill stating the date (issue and dispatch), the content of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content must be sent to us separately from the delivery bill. Documents such as receipted delivery bills must be sent to us in writing within 3 working days.

(4) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(5) For the occurrence of our default of acceptance, e.g. resulting from the other customer, the seller must also expressly offer us its service if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material).

(6) Returns that may arise will be taken back by the supplier in any condition of the items. This up to 13 months after delivery. Credit note is to be calculated on the purchase price on our part.

(7) If BOSolution GmbH is assigned a specific territory or district, this provides BOSolution GmbH with protection to the effect that it can claim a commission/surcharge calculation as applied for all transactions in this territory, even if it was not directly involved or participated in them (Section 87 (2) HGB).
In the case of BOSolution GmbH, which is not granted contractual customer protection/territory protection by the client/supplier, the entitlement to commission depends on its involvement in customer acquisition, with regard to the mark-up calculation applied. If customer protection exists as representation, commission is generally paid for all transactions of the entrepreneur that are concluded with customers from the territory assigned to him, regardless of who acquired them and whether they were involved in the brokerage.
Despite the granting of customer/territory protection, the principal/supplier may at the same time engage in sales in this territory, i.e. conduct direct business. This direct distribution can only be excluded by express agreement or the granting of an exclusive distribution right. This applies to the model representation in the context of commission or distributor. In the case of co-operations under mutual branding support for brand/private label, global customer protection applies in principle.
The sales partner BOSolution must be informed immediately (after 7 days at the latest) of direct inquiries to the brand manufacturer. These are the consequence of BOSolution's visibility activities on the market. This applies to all of the above points.

§ 5 Prices and terms of payment

(1) The price stated in the order is binding. All prices include statutory value added tax if this is not shown separately.

(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the seller (e.g. assembly, installation) and all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) The agreed price shall be due for payment within 40 calendar days30 from complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice.31 If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice.32 In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We do not owe any interest on arrears. The statutory provisions shall apply to late payment.

(5) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments as long as we are still entitled to claims against the Seller arising from incomplete or defective services.

(6) The Seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.

§ 6 Confidentiality and retention of title

(1) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Images and other materials that are required for the fulfillment of the order and are to be provided by the supplier are freely usable by us and correspond to the rights listed above and can be proven. Such documents are to be used exclusively for the contractual performance. The confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become generally known. Special confidentiality agreements and statutory provisions on the protection of secrets shall remain unaffected.

(2) The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the Seller for production. Such items shall - as long as they are not processed - be stored separately at the Seller's expense and insured to an appropriate extent against destruction and loss.

(3) Any processing, mixing or combining (further processing) of items provided by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer from the Seller to transfer ownership conditional on payment of the purchase price, the Seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the resulting claim (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.

(5) Data protection

(5.1) The Company processes the Client's personal data in accordance with applicable data protection laws.

(5.2) Further information can be found in the company's privacy policy.

§ 7 Defective delivery

(1) The statutory provisions and, exclusively in our favor, the following supplements and clarifications shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the seller.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.

(3) In the case of goods with digital elements or other digital content, the seller shall be responsible for providing and updating the digital content in any case to the extent that this results from a quality agreement pursuant to para. 2 or other product descriptions of the manufacturer or on its behalf, in particular on the Internet, in advertising or on the product label.

((4) We are not obliged to inspect the goods or make special inquiries about any defects upon conclusion of the contract. Partially deviating from § 442 para. 1 sentence 2 BGB, we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us upon conclusion of the contract due to gross negligence.

(5) The statutory provisions (Sections 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognizable during our quality control in the sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 30 working days of discovery or, in the case of obvious defects, of delivery.

(6) Subsequent performance shall also include the removal of the defective goods and reinstallation, provided that the goods were installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; our statutory claim for reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne by the seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; however, we shall only be liable in this respect if we recognized or were grossly negligent in not recognizing that there was no defect.

(7) Notwithstanding our statutory rights and the provisions in paragraph 5, the following shall apply: If the seller does not fulfill his obligation to provide subsequent performance - at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without delay, if possible in advance.

(8) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.

§ 8 Supplier recourse

(1) We shall be entitled to our statutory claims for expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b50 or Sections 445c, 327 (5), 327u BGB) in addition to the claims for defects without restriction. In particular, we are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the seller that we owe our customer in the individual case; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates.51 Our statutory right of choice (Section 439 (1) BGB) is not restricted by this.

(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2, 3, 6 sentence 2, 475 para. 4 BGB), we shall notify the seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall have the burden of proof to the contrary.

(3) Our claims arising from supplier recourse shall also apply if the defective goods have been combined with another product or processed in any other way by us, our customer or a third party, e.g. by installation, attachment or installation.

(4) Returns based on lack of sale by the customer of any channel are excluded.

§ 9 Producer Liability

(1) If the seller is responsible for product damage, they shall indemnify us against third-party claims to the extent that the cause lies within their sphere of control and organization, and they are liable to third parties themselves.

(2) As part of their indemnification obligation, the seller must reimburse expenses in accordance with §§ 683, 670 of the German Civil Code (BGB) arising from or in connection with third-party claims, including recall actions carried out by us. We will inform the seller about the content and scope of recall measures – as far as possible and reasonable – and give them an opportunity to comment. Further statutory claims remain unaffected.

(3) The seller must take out and maintain product liability insurance with a lump sum coverage of at least 5 million EUR per personal injury/property damage incident.

§ 10 Statute of Limitations

(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions unless otherwise specified below.

(2) Deviating from § 438 (1) No. 3 BGB, the general limitation period for defect claims is 3 years from the transfer of risk. If acceptance has been agreed upon, the limitation period begins upon acceptance. The 3-year limitation period also applies correspondingly to claims arising from legal defects, whereby the statutory limitation period for real claims of third parties (§ 438 (1) No. 1 BGB) remains unaffected; claims arising from legal defects shall not become time-barred as long as the third party can assert the right – particularly due to the absence of limitation – against us.

(3) The limitation periods under purchase law, including the above extension, apply – to the extent permitted by law – to all contractual defect claims. If we are entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) applies, unless the application of the limitation periods under purchase law leads to a longer limitation period in an individual case.

§ 11 Choice of Law and Jurisdiction

(1) These General Terms and Conditions of Purchase (GTC) and the contractual relationship between us and the seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, particularly the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) If the seller is a merchant as defined in the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Ravensburg. The same applies if the seller is an entrepreneur as defined in § 14 BGB. However, we are also entitled in all cases to file a lawsuit at the place of performance of the delivery obligation under these GTC or a prevailing individual agreement, or at the general place of jurisdiction of the seller. Priority statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.

(3) We reserve the right to claim force majeure.