General Standard Terms and Conditions

General Terms & Conditions of Purchase

1        Scope of application

1.1        The General Terms and Conditions of Purchase (“GPC”) of Boll & Kirch Filterbau GmbH (hereinafter referred to as “Boll & Kirch”) apply to all orders and formally concluded contracts with the contract partner (hereinafter referred to as “supplier”) for all goods and services. The GPCs shall also apply to contracts concluded with the supplier in future, provided the supplier has accepted them following receipt thereof.

1.2        Boll & Kirch shall not recognise conflicting, deviating or supplementary general terms and conditions of business, unless Boll & Kirch has expressly accepted them in writing on an individual case basis. They shall also have no effect even if Boll & Kirch has not objected to them in a particular case. The acceptance of goods or services or making payment for them shall not be deemed as acceptance of the supplier’s general terms and conditions of business.

2        Quotations, orders, conclusion of contract

2.1        The issue of quotations or preparation of cost estimates for Boll & Kirch shall be free of charge. Furthermore, Boll & Kirch shall not bear the cost of planning or other preliminary work undertaken by the supplier that is associated with the submission of quotations and shall pay no charges, unless expressly agreed in writing for the particular case.

2.2        In his quotation the supplier undertakes to strictly adhere to the requested specifications and any other requests contained in the enquiry and to explicitly refer to any deviations that may become apparent. Should the supplier identify any obvious errors or omissions in the enquiry documents when preparing a quotation he shall notify Boll & Kirch as quickly as possible thereof.

2.3        Where Boll & Kirch informs the supplier of the particular country for which the goods or services are intended, the supplier shall take this into consideration when submitting his quotation and shall ensure the quoted goods or services meet the technical requirements and statutory provisions that are applicable there.

2.4        Orders and their amendments or supplements, together with other agreements concluded in connection with the conclusion of a contract shall be stated or confirmed in writing by Boll & Kirch. Each order shall be confirmed in writing by the supplier.

2.5        During order processing the supplier shall, for all processes and in all documentation associated with the order, provide an order number, order date and corresponding delivery destination.

2.6        Where the order involves the acceptance of a binding quotation with materially identical content and a contract has been concluded on this basis, any amendments or supplements subsequently confirmed by the supplier shall only become effective in law once they have been confirmed by Boll & Kirch in writing.

2.7        Any necessary amendments or supplements to the agreed scope of goods/services to be supplied, and that prove necessary during execution of the order, shall be immediately notified to Boll & Kirch by the supplier. The supplier shall then only execute the order provided written confirmation is received from Boll & Kirch or if a change is made to the purchase order.

3        Sub-contracting of orders to third parties, engaging subcontractors

3.1        Should the supplier plan to engage subcontractors to execute the order he shall notify Boll & Kirch upon submitting the quotation and name the respective subcontractor(s).

3.2        The supplier may not subsequently subcontract third parties to provide ordered goods and services, or substantial elements of them, without obtaining prior written agreement from Boll & Kirch. Written agreement shall also be obtained when replacing an approved third party supplier with another third party supplier.

4        Contractor´s property, Industrial Property Rights, Copyright

4.1        Drawings, samples and other documents or resources that Boll & Kirch makes available to the supplier shall remain the property of their rightful owners. They may only be used for their intended purpose and shall be returned to Boll & Kirch immediately upon request.

4.2        In particular, the supplier shall respect industrial property rights and copyrights to which Boll & Kirch possesses rights of use and exploitation. Their use or exploitation shall only be permitted for the contractually agreed purposes. The supplier may not use or exploit goods produced from documents, drawings, models or other additional items drafted by Boll & Kirch or on behalf of Boll & Kirch for his own purposes or for the purposes of third parties. The supplier may neither offer nor supply them to third parties.

5        Delivery dates and deadlines, default

5.1        Agreed delivery dates and deadlines shall be binding. Delivery dates and deadlines shall be deemed to be met upon receipt of goods and/or service(s) that are free of defects and complete at the specified point of delivery or upon acceptance, if this has been contractually agreed or is required by law. If delivery has been agreed with assembly but without acceptance, the delivery dates and deadlines shall be based upon the time of handing over the assembled product in a state that is free of defects.

5.2        Should the supplier identify that he will be unable to meet his contractual obligations on time – in full or in part – he shall notify Boll & Kirch immediately thereof, stating the reasons and, where appropriate, the expected duration of the delay. Corresponding notifications made by the supplier shall not affect the statutory rights and claims to which Boll & Kirch is entitled in the event of non-performance or delay.

5.3        The supplier shall request in good time any information and documentation required in order to complete the contract on time, in order to ensure that delivery dates and deadlines can be met.

5.4        If a contractual penalty clause has been agreed and is invoked in the event of default, then Boll & Kirch shall be entitled to assert this clause until payment of the invoice for the delayed goods or services has been received, without Boll & Kirch having to expressly reserve the right to do so during acceptance. Early delivery of goods/services shall require prior approval in writing from Boll & Kirch. Agreed payment dates shall remain unaffected by this, even if Boll & Kirch has approved the early delivery of goods/services.

6        Performance, safety regulations, origin of goods, conformity

6.1        The supplier shall conform to accepted engineering standards and the correspondingly applicable statutory and official requirements.

6.2        Where the supplier carries out work at the factory, buildings and site of Boll & Kirch, the supplier undertakes to comply with all applicable laws, rules and regulations relating to the health and safety of employees, environmental protection, the transportation of hazardous goods and protection against fire, including the data sheets issued by the employers' liability insurance associations and the Association of Property Insurers, where these are applicable to the provision of the goods and/or services.

6.3        Machinery and technical work equipment must be manufactured in conformance with the corresponding regulations of the German Product Safety Act (ProdSG), be accompanied by operating instructions in German that meet the requirements of the current Machinery Directive and must bear the CE mark. As part of the conformity procedures, incomplete machinery must be supported by a declaration.

6.4        The supplier shall also comply with mandatory marking requirements, similar to the CE mark, in other cases relating to the corresponding product to be supplied.

6.5        The supplier is obligated to state the net weight and statistical goods number or HS code (“harmonised system”) for each product to be supplied, pursuant to the relevant regulations of the European Union.

6.6        The supplier is obliged to certify the origin of goods in the form of a supplier´s declaration whether or not the goods are non-preferential or preferential. This document has to conform to the current regulations in form and accuracy.

6.7        Where a product that is to be supplied is subject to export restrictions in the country of final destination and Boll & Kirch has notified the supplier of this destination country, then the supplier undertakes to notify Boll & Kirch hereof in good time. This shall apply in particular to so-called dual use products pursuant to the relevant European regulations or to products for which export or re-export is prohibited or are subject to approval pursuant to mandatory national, European or international regulations.

6.8        The supplier shall apply a material mark to all goods that, in connection with the supplied goods or services, have enclosed or separately forwarded manufacturer’s certificates, other certificates and/or inspection documents that contain information about the materials from which the goods are made and the manufacturer of the goods.

7        Delivery, transfer of risk

7.1        Unless otherwise agreed, deliveries shall be made inclusive of packaging “DDP place of destination, Incoterms® 2010”. If acceptance by Boll & Kirch is a legal requirement, or if it has been contractually agreed, the supplier shall bear the risk until acceptance by Boll & Kirch.

7.2        Cases of force majeure together with other unforeseeable or uncontrollable external circumstances, for example industrial action, shall entitle Boll & Kirch to correspondingly postpone acceptance of goods and/or services and/or official acceptance.

7.3        Boll & Kirch shall only be obliged to accept deliveries of goods and/or services if they exhibit the agreed quality characteristics.

7.4        The supplier shall provide the required documentation in good time, without any request being necessary, and at the latest upon delivery of the goods. For all deliveries of goods that are subject to documentation procedures the supplier shall enclose a material certificate pursuant to DIN EN 10204 and send it in advance in the form of a PDF document and stating the purchase order number as a reference to the e-mail address Zeugnis@bollfilter.de. Each material certificate shall be sent as a separate e-mail.

8        Shipping and packaging

8.1        If delivery is to be performed by a haulage contractor, the supplier shall transfer the goods to the haulage contractor along with the proper shipping documents which must show the order information.

8.2        Boll & Kirch shall only bear the shipping and packaging costs following explicit prior written agreement. If the price is “ex works” or “ex warehouse”, the supplier undertakes to select the method of transportation that is most economical and suitable for Boll & Kirch, in the event that the supplier organises the transportation pursuant to the agreement and then charges the cost on to Boll & Kirch.

8.3        The supplier shall mark, package and ship hazardous products in accordance with the corresponding relevant national, European and international regulations applicable at the agreed destination and in the country of final destination of the goods, provided he is aware of this.

9        Statutory minimum wage, German law on the posting of workers abroad, prohibition of illegal employment

9.1        The supplier shall ensure that the staff he employs or that are employed by subcontractors to perform the contracts with Boll & Kirch receive the statutory minimum wage (pursuant to the German minimum wage law – MiLoG) or, if remuneration is to be paid pursuant to the provisions of the German law on the posting of workers abroad (Arbeitnehmerentsendegesetz – AEntG), that the corresponding statutory minimum remuneration is paid. The supplier shall also meet his responsibilities to pay contributions to social security funds, employers' liability insurance associations, health insurance funds and other institutions.

9.2        When selecting subcontractors the supplier shall check that the conditions set forth in para. 9.1 above are met and obtain written confirmation of this from the respective subcontractor. The same shall apply to temporary employment agencies that conclude temporary employment contracts with Boll & Kirch and to suppliers that engage temporary staff to perform contracts for Boll & Kirch.

9.3        The supplier shall refrain from illegal employment of any type.

10      Prices, invoice and terms of payment

10.1      The agreed prices are fixed prices. They shall include all discounts and surcharges and shall be subject to the addition of statutory value-added tax. These prices shall include all goods and services which the Client has to provide in order to fulfil his contractual obligations.

10.2      Invoices shall be verifiable and shall, following complete delivery of the goods or acceptance of the services, which shall be free of defects, either be sent as an original paper invoice to the business address of Boll & Kirch or forwarded in electronic form to finance@bollfilter.de. Separate invoices must be issued for each individual order and must show the respective order number. Invoices must not accompany a delivery. The amount of statutory value added tax shall be shown separately on the invoice.

10.3      Payment of correctly submitted and verifiable invoices shall be made within 30 calendar days without deduction or within 25 calendar days with a discount of 2%, provided the requirements for proper accounting have been met. If it is only possible to make a delayed payment because of the lack of proper delivery documentation or the submission of unverifiable invoices, then the discount period shall only commence once clarification has been received.

10.4      Payments made by Boll & Kirch shall not constitute any acknowledgement that the goods and/or services are in compliance with the contract or of the correctness of the amount invoiced.

11      Quality Management System, Audit

11.1      The supplier has to plan, to organize and to realise the production process and quality assurance at his own responsibility in a way, that a comprehensive quality monitoring and control is guaranteed and all quality and safety requirements are complied with.

11.2      This applies to all products, regardless of whether the Supplier manufactures or refines them itself or sources them from third parties, or has them processed or refined by third parties. It remains necessary to ensure that in the production of products bearing pressure/requiring proof, all applicable laws and required rules of manufacture are respected, including the associated regulations of marine classification societies.

11.3      The Supplier undertakes to maintain a quality management system according to ISO 9001, as amended. The contractually stipulated requirements are to be produced in accordance with this quality management system and to be inspected subject to the obligation to achieve a zero-defect goal; this shall take place in order to continuously improve its performance. Under special circumstances, a certified quality management system can be dispensed with, provided that the Supplier maintains its own quality management system. Evidence of this system must be provided by the Supplier and can be inspected by a Boll & Kirch supplier audit at the latter’s manufacturing facility upon prior agreement. Any use of a non-certified quality management system requires the prior consent of Boll & Kirch.

11.4      The Supplier undertakes to comply with all environmental laws and regulations and maintains, at best, a certified environmental management system according to ISO 14001, as amended. The goal is the responsible use of resources and the protection of the environment.

12      Notification of defects, claims on account of defects

12.1      Where the commercial obligation to inspect and report defects applies pursuant to § 377 HGB (German Commercial Code), Boll & Kirch’s obligation shall be limited to checking the quantity and identity of the goods, outward signs of transport or packaging damage and random inspection of the goods in terms of their material characteristics, to the extent that this is reasonable. Boll & Kirch shall notify the supplier of any identifiable defects within eight (8) calendar days of delivery. In the event of unidentifiable defects that become apparent at a later date, Boll & Kirch shall notify the supplier within eight (8) calendar days of identifying the defect.

12.2      The supplier shall be responsible for the perfect condition of the goods delivered and the services provided. These must exhibit the agreed quality characteristics and conform to the guaranteed values and properties and shall be fit for the intended purpose. The supplier shall also ensure that the goods and services correspond with the current state of the art and generally recognised technical standards and that qualified personnel are deployed to provide services. Goods shall be equipped with the stipulated safety devices. The applicable environmental, hazardous materials, hazardous goods and accident prevention regulations shall be observed, as must regulations relating to occupational safety. Specific safety regulations applicable at the place of performance of the service at Boll & Kirch, and that are brought to the attention of the supplier, must be complied with.

12.3      Approval by Boll & Kirch of submitted drawings, shall not affect the responsibility of the supplier with regard to proper and defect free performance of the contract.

12.4      In the case of defects and in the event of a warranty claim, Boll & Kirch shall be entitled to assert its statutory right to claim for defects. In the event that warranty claims go beyond the statutory claims for defects, then the statutory claims for defects shall remain unaffected. The period of limitation regarding claims for defects shall run for a period of 24 months which shall commence upon delivery of the goods and/or performance and/or acceptance of the service, provided acceptance is either agreed or required by law. Should a longer period of limitation be required by law then this shall apply. The period and course of the normal statutory period of limitation shall remain unaffected by this.

12.5      Should a defect become apparent within the period of limitation, then Boll & Kirch shall be entitled to demand subsequent performance by way of improvements, reworking or the supply of new goods and/or remanufacture within a reasonable period of time. The place of subsequent performance shall be the intended place of destination. The place of acceptance, insofar as the supplier was aware of this, shall be final place of performance.

12.6      The period of limitation shall be suspended if the parties to the contract enter into negotiations regarding claims for defects or if the supplier investigates or resolves a notified defect. If parts are replaced in connection with subsequent performance, the period of limitation shall recommence for these parts.

12.7      In urgent cases, when the contractor is unavailable and there is a risk of incurring disproportionately greater damages, Boll & Kirch shall be entitled to rectify the respective defects itself or to have such defects rectified by third parties at the expense and risk of the supplier. Boll & Kirch shall immediately inform the supplier of such measures.

12.8      If subsequent performance by the supplier is not effected within the specified reasonable deadline extension period, if it has has failed or said period has expired fruitlessly or was unnecessary for other reasons provided for by law, then Boll & Kirch shall be entitled in accordance with statutory provisions to withdraw from the contract and demand payment of damages in place of performance, compensation for any unnecessary expenditures or a reduction in price.

13         Granting of rights, third party proprietary rights

13.1         Where the supplier manufactures goods or provides services according to requirements and/or specifications issued by Boll & Kirch and in so doing acquires his own proprietary rights to the delivered goods or to the extent that he employs third party proprietary rights therefor, he shall grant Boll & Kirch the right to use and exploit these for the contractually agreed purposes.

13.2         The supplier shall ensure that all of the services he provides and goods he delivers are free from any third-party rights and that Boll & Kirch will not infringe the proprietary rights of any third parties through the use and exploitation of such goods and/or services for the contractually agreed purposes. If and to the extent that the goods and/or services are subject to third party proprietary rights, the supplier undertakes to inform Boll & Kirch thereof and to ensure that he receives the necessary authorisations from the right holder to allow the rights to be granted.

13.3         Should an infringement of rights take place nonetheless, the supplier shall indemnify Boll & Kirch against all claims by third parties that may be asserted against Boll & Kirch due to or in connection with the infringement of third party rights resulting from the use of the goods and/or services in accordance with the contract. The supplier shall furthermore bear the cost of safeguarding the rights if such claims result from a breach of contract on the part of the supplier. Boll & Kirch shall inform the supplier immediately in the event of a claim.

14         Other contractual liability, non-contractual product liability, insurance

14.1         The supplier shall be liable in the event of a breach of all types of contractual obligations in accordance with the relevant statutory provisions.

14.2         The supplier shall indemnify Boll & Kirch against any and all claims arising from product liability claims where such claims are due to a defect in the goods and/or services provided by the supplier. Under the same conditions the supplier shall also be liable for damages suffered in such cases by Boll & Kirch as a result of the type and scope of legally required and appropriate precautionary measures, e.g. public warnings or product recalls. The right of Boll & Kirch to assert its own claims for damages against the supplier shall remain unaffected by this.

14.3      The supplier undertakes to take out appropriate insurance against the corresponding risks and provide evidence of such to Boll & Kirch by submitting the corresponding insurance policy on request.

15      Confidentiality, data protection, advertising

15.1      The supplier shall maintain strict confidentiality in respect of all documents, information about supplied items and any other know-how of Boll & Kirch or customers of Boll & Kirch to which he has gained access during the business relationship. The supplier shall also not be entitled to transfer or make these accessible to third parties without the express written consent of Boll & Kirch. The supplier shall furthermore maintain strict confidentiality in respect of all knowledge and results gained through his involvement; however, this provision shall not apply insofar as such knowledge and results are already in the public domain or have entered the public domain or become generally known without the supplier’s involvement.

15.2      Boll & Kirch shall be entitled to store and process data provided by the supplier while observing the applicable data protection regulations, provided such data is required for performing the contractual obligations. This shall also apply in the case of personal data. The supplier undertakes to comply with the legal provisions governing data protection.

15.3      Any exploitation or announcement of business relationships with Boll & Kirch in publications or for advertising purposes shall only be permitted if written consent is obtained from Boll & Kirch in advance.

16      Assignment, retention of title

16.1      The supplier may only assign his claims against Boll & Kirch or have them collected by a third party with our prior written approval. This shall not apply to claims against Boll & Kirch that are undisputed, legally established or have been recognised by Boll & Kirch.

16.2      Boll & Kirch shall not recognise the supplier’s provisions governing retention of title which go beyond simple legal retention of title. This shall be subject to prior written agreement on an individual case basis. In the event that the supplier’s subcontractors nevertheless exercise their rights vis-à-vis Boll & Kirch under the retention of title clause or assert co-ownership rights or rights of lien or initiate enforcement measures, then Boll & Kirch shall assert claims against the supplier for any and all damages incurred as a result thereof.

17         Place of performance, place of jurisdiction, applicable law

17.1         The place of performance shall be the place of destination of the goods or the place of acceptance, if this has been contractually agreed or is required by law.

17.2         The laws of the Federal Republic of Germany shall apply with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980.

17.3         The place of jurisdiction shall be Cologne. Boll & Kirch shall furthermore be entitled to bring legal action at its general place of jurisdiction.

Last updated: May 2015

General Terms and Conditions of Delivery and Service

1 General
1.1 These general terms and conditions of delivery and service apply for all contracts that involve the ordering of goods and services by the contract partner (hereinafter referred to as the "customer") from Boll & Kirch Filterbau GmbH (hereinafter referred to as "Boll & Kirch").

1.2 These general terms and conditions of delivery and service apply for all future contracts with the customer, even if the general terms and conditions of delivery and service are not agreed separately again.

1.3 Conflicting, differing or supplementary terms and conditions of the customer are not recognised by Boll & Kirch, unless Boll & Kirch has expressly recognised them in writing in a given case in place of these general terms and conditions of delivery and service with the signature of one of the managing directors who are authorised to do this.

1.4 The general terms and conditions of delivery and service of Boll & Kirch also apply if Boll & Kirch provides its services without reservation in the knowledge of conflicting or differing contract terms and conditions of the customer.

1.5 Unless otherwise expressly stated in these general terms and conditions of delivery and service, all declarations and notifications made in the course of the contractual and business relationship with the customer need to be made in writing (including by fax) or electronic form.

1.6 These general terms and conditions of delivery and service constitute conclusively together with the respective contract (i.e. the order and/or order confirmation) the agreements of the parties in relation to the respective object of the contract. No additional verbal agreements have been made.

1.7 Amendments and additions to these general terms and conditions of delivery and service and the contracts, additional agreements, declarations and any other agreements need to be made in writing in order to be effective. This also applies for any amendment of this clause requiring the written form.

2 Conclusion of contract
2.1 Unless otherwise is expressly stated in writing, Boll & Kirch’s offers are non-binding and without obligation, this applies in particular for any prices and times stated in the offers.

2.2 An order placed by the customer (order) is a binding offer to enter into a contract with Boll & Kirch. Unless otherwise is stated in the order, Boll & Kirch has the right to accept this offer to enter into a contract within fourteen (14) days of its receipt.

2.3 The order will be confirmed to the customer by Boll & Kirch in writing (including by fax or in electronic form). The customer has to check the order confirmation carefully. Boll & Kirch has to be notified immediately of any deviations from the order.

2.4 The details concerning the services will be specified in the respective order confirmations.

2.5 Cost estimates and information provided by Boll & Kirch concerning the scope, nature and duration of the services to be performed and the expected costs are non-binding and can only be approximate. They do not constitute an undertaking. They can only become a binding part of the contract if Boll & Kirch provides such cost estimates and information in writing without any reservation. Detailed cost estimates are only provided at the express wish of the customer. There will be a charge for this.

3 Duties of cooperation of the customer
3.1 The customer has to inform Boll & Kirch of any circumstances that are relevant for the performance of the services that are the object of the contract. Unless otherwise is expressly agreed in writing, Boll & Kirch is under no obligation to check data, information or any other performance provided by the customer for completeness and accuracy.

3.2 If cooperative acts need to be performed by the customer in order for Boll & Kirch to provide its services, it has to perform these at its own cost. Unless otherwise is expressly agreed in writing, Boll & Kirch will not refund any costs to the customer.

3.3 If the customer needs to provide equipment and/or components in order for Boll & Kirch to provide its services, the customer will make these available to Boll & Kirch in good time at its own cost. Unless otherwise is expressly agreed in writing, Boll & Kirch will not refund the costs of supplying the equipment and/or components to the customer.

3.4 If the customer fails to meet its duties of cooperation or fails to meet them in good time or properly, Boll & Kirch will be released from its own obligation to perform; Boll & Kirch will also have the right to charge the customer for the additional cost incurred as a result. The right to make further claims is expressly reserved.

3.5 If Boll & Kirch carries out work on the premises of the customer, the customer will have a duty to implement all of the measures required in order to maintain safety, unless the nature of the business or an agreement with the customer requires otherwise. So long as the customer has not taken the necessary measures, Boll & Kirch will be released from its duty to provide the service.

3.6 If Boll & Kirch provides services or goods on behalf of the customer, the customer must, at the request of Boll & Kirch, perform the cooperative acts required for export and import at its own cost.

3.7 The customer must, upon written request by Boll & Kirch, issue a confirmation of arrival and send this to Boll & Kirch.

3.8 Further duties of cooperation may be stated in the respective order confirmations.

4 Performance time
4.1 The performance time will be stated in the respective order confirmation. If the service is to be performed within a period of time allowed for performance, the period of time will be calculated from the date of the order confirmation by  Boll & Kirch or from the start of the period stated in the order confirmation, but not before all of the cooperative acts to be performed by the customer have been performed in full, the receipt of an agreed instalment or advance payment or before an agreed letter of credit has been opened.

4.2 Performance times are only binding if it has been expressly confirmed in writing, by fax or in electronic form that they are binding by the contact designated by Boll & Kirch.

4.3 If a binding performance time cannot be met for reasons for which Boll & Kirch is responsible, the customer may grant Boll & Kirch a reasonable extended deadline in order to perform the service, stating that it will reject the performance after the extended deadline has passed. The extended deadline set by the customer must not be less than four (4) weeks.

5 Delivery of goods
5.1 Unless otherwise agreed in writing, all deliveries by Boll & Kirch are EXW (Incoterms 2010) Boll & Kirch. Unless otherwise is agreed in writing, the place of fulfilment for all obligations arising from these general terms and conditions of delivery and service is the registered office of Boll & Kirch.                                     
5.2 Boll & Kirch has the right to make partial deliveries and deliveries are also subject to Boll & Kirch itself being supplied in good time and correctly.

5.3 The goods will be packed in accordance with commercial practice as Boll & Kirch chooses taking into account the mode of transport (transport by see, air or land). The cost of packaging will be borne by the customer.

5.4 Deliveries and where applicable the return transport of items provided by the customer will be made at the cost and risk of the customer. The return transport of items provided by the customer will only be made at  the customer’s express request in writing.

5.5 The customer has to check the goods delivered and services performed by Boll & Kirch immediately upon their delivery or performance, if this is possible in the ordinary course of business. It has to notify Boll & Kirch in writing of any noticeable defects immediately, and within no more than five (5) working days of delivery and or performance. The customer has to notify Boll & Kirch in writing of any defects that are not noticeable and are discovered at a later date immediately, and within no more than five (5) working days of their discovery. The customer has to describe the respective defects in as much detail as possible. If the customer fails to notify the defects, the goods or service performed will be  considered to be approved in respect of the defect concerned.

5.6 If the goods are delivered by a carrier contracted by Boll & Kirch, the customer has to notify any damage and/or losses in transit and late deliveries as described below:

5.6.1 The customer has to inspect the goods upon delivery for any externally identifiable damage and/or losses in transit and notify the carrier in writing of any damage and/or losses at the time of delivery.

5.6.2 The customer has to notify the carrier of any damage and/or losses in transit that are not externally identifiable immediately at the time of delivery, and within no more than 5 working days of discovery of the damage in transit.

5.6.3 The customer has to describe the damage in detail and send immediately a copy of the notification to Boll & Kirch.

5.6.4 The customer has to notify Boll & Kirch immediately in writing of any late deliveries.

5.7 If the customer fails to notify in good time as per 5.6, it will be assumed that the goods have been delivered in a condition as required under the contract.

5.8 Unless otherwise has been expressly agreed in writing and if permitted by law, the packaging material will become the property of the customer upon receipt of the goods. This concerns in particular outer packaging, transport and product packaging.

6 Prices
6.1 The prices for the services to be provided and goods to be supplied by Boll & Kirch are stated in the respective order confirmation.

6.2 If no price is stated in the order confirmation, the services to be performed by Boll & Kirch will be provided based on the standard pricelist as amended.

6.3 Unless otherwise is expressly agreed, the customer will be charged transit time (including waiting time) and travel costs separately. Travel costs include in particular, but not only, the actual transport and accommodation costs and the statutory meal allowances.

6.4 Unless otherwise is agreed in writing or stated in these general terms and conditions of delivery and service, all prices are net in euros and do not include shipping or packaging costs.

7 Payment terms
7.1 Unless otherwise expressly agreed in writing, the invoice shall be paid immediately. Payment has to be made within thirty (30) calendar days of the invoice date unless otherwise agreed in writing. If applicable, the customer must pay the applicable statutory VAT. Any other taxes or duties, such as source tax or import duties that Boll & Kirch is charged in relation to the services or goods will be borne by the customer. If any claims are made against Boll & Kirch for such taxes and duties, the customer will indemnify Boll & Kirch against these claims.

7.2 Regardless of the means of payment used, the payment will not be considered to have been made until the full amount has been irrevocably credited to Boll & Kirch's account.

7.3 If the customer defaults on its payment, Boll & Kirch has the right to claim interest in the amount of eight (8) percentage points above the applicable base rate of the Deutsche Bundesbank from the customer.

7.4 If the customer falls into arrears by more than three (3) months with its outstanding payments, Boll & Kirch may notify the customer in writing of its termination of the contract without notice and/or withdrawal from the contract. Boll & Kirch’s right to make further claims remains unaffected.

7.5 If, after the conclusion of a contract, reasonable doubts emerge concerning the customer’s ability to perform it obligations, in particular its ability to pay or its creditworthiness, and if the customer, despite having received a corresponding request in writing, is not willing to pay in advance or provide a suitable security, Boll & Kirch will have the right, after a reasonable extended deadline has passed without success, to terminate the respective contract without notice and/or withdraw from the contract.

8 Retention of title
8.1 The delivered goods will remain the property of Boll & Kirch until all receivables from the business relationship have been paid in full.

8.2 If the goods are processed, combined or mixed with other goods, Boll & Kirch will acquire joint ownership of the new item in proportion to the invoice value of the goods provided by Boll & Kirch to these other goods at the time of the processing, combining or mixing. The goods will always be processed or combined by the customer on behalf of Boll & Kirch. For joint ownership, 8.1 above applies accordingly.

8.3 The customer may only dispose of, and in particular sell, assign as security or pledge the goods that are subject to retention of title with Boll & Kirch’s prior consent in writing.

8.4 If the value of the securities to which Boll & Kirch is entitled exceeds the outstanding receivables to be secured by more than 20%, Boll & Kirch will be obliged to release securities to this extent as it chooses. The value will be based on the net invoice value that Boll & Kirch has charged the customer.

8.5 In the event of default of payment, the risk of cessation of payment, unsatisfactory information about the solvency and/or financial position of the customer, or if the customer is the subject of seizure by way of execution or protests against bills of exchange or an application is made to open insolvency proceedings for the customer's assets, Boll & Kirch will have the right to terminate the contract or withdraw from the contract and take possession of the goods that are subject to retention of title without further ado. The customer will be obliged to hand over the goods.

8.6 If Boll & Kirch’s ownership rights are impaired by a third party, in particular by way of confiscation or seizure of the goods that are subject to retention of title, the customer has to inform Boll & Kirch immediately sending the documents in its possession (e.g. pledge document) and advise the third party of Boll & Kirch’s ownership rights. The customer has to bear all of the costs that are necessary to remove the impairment of Boll & Kirch’s rights.

8.7 The customer has to store with care, keep in good condition and repair the goods that are subject to retention of title and insure them against deterioration, destruction and loss with the due diligence of a prudent businessman. The customer herewith assigns any insurance claims or other claims for compensation due to deterioration, destruction or loss to Boll & Kirch; Boll & Kirch accepts this assignment.

8.8 The customer will inform Boll & Kirch immediately in writing of any changes to the set-up site or installation site of the goods that are subject to retention of title.

9 Acceptance
9.1 If acceptance is required by law or has been expressly agreed in writing, the customer has to declare its acceptance or rejection within fourteen (14) calendar days of completion of the work by Boll & Kirch.

9.2 The customer does not have the right to reject due to minor defects.

9.3 If the customer declares its rejection, it has to inform Boll & Kirch of the reasons for this in writing and, so far as possible, state the changes required for acceptance. If a defect actually exists, Boll & Kirch will make the changes required under the contract within thirty (30) calendar days of receipt of the customer's declaration in writing.

9.4 If the customer again declares its rejection, the procedure as described in 9.1 is to be followed again.

9.5 If the customer again refuses to accept the goods after the second rework, the customer may declare its acceptance under protest with a reduction in the price to be charged by Boll & Kirch. This acceptance under protest will be considered to be acceptance as defined by § 640 of the German Civil Code (BGB). Boll & Kirch may refuse a request by the customer for a further rework.

9.6 Declarations of acceptance have to be made in writing. Rejections have to be made in writing with the reasons stated in writing.

9.7 If partial acceptance has been agreed in writing, the above provisions apply accordingly for the respective partial acceptance.

9.8 Boll & Kirch’s performance will be considered to have been accepted, even if the customer has not expressly declared its acceptance and if Boll & Kirch has not requested acceptance,

9.8.1 if the customer uses the work performed, or

9.8.2 with payment, unless the customer has justifiably rejected the work performed, or

9.8.3 if the customer neither accepts nor rejects the work performed by the deadline stated in 9.1. 

10 Liability for defects
10.1 The quality, nature and scope of the goods and services are defined exclusively and conclusively in the respective order confirmation or any product description attached to the order confirmation. The information included in the respective order confirmation and/or in the product description does not constitute any guarantee.

10.2 Boll & Kirch provides no guarantee for quality, durability or any other guarantee, unless Boll & Kirch has made a written commitment referred to as a guarantee in a given case.

10.3 When an order for goods is placed, Boll & Kirch does not guarantee that the delivered goods are suitable for the purpose intended by the customer, unless the purpose is expressly stated in writing in the respective order confirmation.

10.4 In the event of a slight reduction in the value and/or suitability of the goods or service, the customer will not have the right to make a claim for liability for defects.

10.5 In the event of any defects that are attributable to external influences, operator error or changes, additions, installations, extensions, attempted repairs or any other manipulations not made by Boll & Kirch and also not approved by Boll & Kirch, the customer will not have the right to make a claim for liability for defects.

10.6 If a justified defect is notified in good time, Boll & Kirch will either rectify the defect or deliver a defect-free item, as it chooses. Boll & Kirch is entitled to at least three attempts at supplementaryperformance.

10.7 For the rest, the customer is entitled to its statutory rights subject to 10.8 below.

10.8 For claims for compensation, the general limitations of liability defined under no.11 apply.

10.9 The liability for defects expires 12 months after delivery or, where relevant, after acceptance. If Boll & Kirch is liable for damages defined in 11.7 of the general liability provisions, the statutory limitation periods will apply.

10.10 The customer has to provide Boll & Kirch with the necessary support free of charge in the course of the work to rectify the defects.

11 Liability
11.1 Subject to the provisions in 11.2 - 11.8 below, Boll & Kirch will only be liable, regardless of the legal grounds, for damage and/or costs due to the wilful intent or gross negligence of Boll & Kirch, ist legal representatives or executives.

11.2 For damages and costs due to the gross negligence of other vicarious agents, Boll & Kirch’s liability will be limited to the damage and costs that can be typically expected in the respective contract.

11.3 For damages and costs caused by Boll & Kirch, its legal representatives, executives or any other vicarious agents without wilful intent or gross negligence, Boll & Kirch will only be liable in the event of the culpable breach of an obligation that is of particular importance for the achievement of the purpose of the contract (cardinal obligation). In the event of a breach of a cardinal obligation, the limitation of liability of 11.2 of these liability provisions apply.

11.4 Liability for loss of data will be limited to the typical cost of recovery that would also have been incurred if the data were backed up regularly and in a manner appropriate for the level of risk.

11.5 Maximum liability limits may be defined in the respective offer by Boll & Kirch.

11.6 Any liability of Boll & Kirch for damages due to injury to life, limb or health, the assumption of a guarantee or a procurement risk and under the German Product Liability Act (Produkthaftungsgesetz)remains unaffected.

11.7 In the event of the wilful intent or gross negligence of Boll & Kirch, its legal representatives or executives and in the event of the wilful intent of other vicarious agents and in the event of damages due to injury to life, limb or health, the statutory limitation periods will apply in place of the limitation period for liability for defects stated in 10.9.

11.8 If Boll & Kirch’s liability is excluded or limited under the above 11.1 - 11.7, this also applies for Boll & Kirch’s staff in the event of the customer making a claim directly against Boll & Kirch’s staff.

11.9 The customer has to notify Boll & Kirch immediately in writing if there is the threat of a product liability claim by a third party or if a product liability claim is made by a third party that concerns or might concern work to which Boll & Kirch has contributed. The customer will give Boll & Kirch the opportunity to make a statement in writing by a reasonable deadline before taking further measures such as in particular product recalls or replacement actions.

12 Force majeure
12.1 If Boll & Kirch is temporarily prevented from providing its service due to force majeure and as a result agreed performance times cannot be met, Boll & Kirch will have the right to catch up on its performance at a later date. The agreed performance time will be extended appropriately as a result of the force majeure. In this respect the customer does not have the right to make any claims for nonperformance or late performance. Boll & Kirch will inform the customer immediately should force majeure occur. In particular the following events are considered to be force majeure: war, disasters, pandemics, epidemics and/or plagues, sabotage, riot, strike and lockouts in the company’s own plants, distribution facilities, suppliers or transport carriers and intervention by public authorities, regardless of whether this intervention is in the territory of the Federal Republic of Germany or territories from which and/or through which Boll & Kirch itself is supplied.

12.2 If one of the events listed in 12.1 occurs before or after the contract is concluded, it will only entitle Boll & Kirch to suspend the performance of its contractual obligations in this respect if its effects on the performance of the contract could not be foreseen at the time of the contract was concluded.

12.3 If the force majeure event lasts continuously for longer than six (6) months, each party will have the right to withdraw from the respective service specification by informing the other party in writing.

13 Granting of rights
13.1 If this is necessary for the agreed use of the work performed by Boll & Kirch, and unless otherwise is expressly agreed in writing, Boll & Kirch grants the customer a non-exclusive and nontransferrable right to use the work protected by copyright after payment has been made by the customer to the extent that this is necessary for the agreed use of the work performed by Boll & Kirch.

13.2 The passing on and use of Boll & Kirch’s work for purposes other than those specified in the contract, in particular its publication, is only allowed with Boll & Kirch’s prior consent in writing.

14 Confidentiality
14.1 The parties agree to maintain strict confidentiality concerning any information that they obtain in writing, verbally or in any other form in connection with these general terms and conditions of delivery and service and the contracts of Boll & Kirch, in particular, but not limited to, technical documents, documents, drafts, plans, data, know-how and any other form of business secret.

14.2 The parties will use this information exclusively for the purpose of meeting the obligations under these general terms and conditions of delivery and service and the contracts. The parties will also suitably place their staff and other persons who are involved in the meeting of these obligations under obligation to maintain confidentiality.

14.3 The obligation to maintain confidentiality will no longer apply if the party under obligation to maintain confidentiality proves that

14.3.1 it knew a particular piece of information before the cooperation began,

14.3.2 it obtained his information from another third party entitled to use the information,

14.3.3 the information was generally available, and the party under obligations to maintain confidentiality was not responsible for this generally availability,

14.3.4 it has developed the information itself independent from the current cooperation,

14.3.5 or it was obliged to disclose the information due to an official order or legal requirement.

14.4 The obligation to maintain confidentiality will continue indefinitely after the contract has come to an end. The parties will be liable for all losses incurred by the other party due to a breach of one of these obligations.        

 

 

15 Miscellaneous

15.1 The customer does not have the right to offset claims against Boll & Kirch. This does not apply for claims against Boll & Kirch that are undisputed, established in law or have been recognised by Boll & Kirch.

15.2 Rights of retention or other rights to refuse performance can only be asserted against Boll & Kirch if they are based on claims by the customer relating to the respective contract under which Boll & Kirch is claiming payment from the customer.

15.3 The assignment and/or transfer of rights and/or obligations under these general terms and conditions of delivery and service and the contracts by the customer requires Boll & Kirch’s prior consent in writing.

15.4 Boll & Kirch will decide as it sees fit on the deployment and exchange of its own staff in the course of the performance of its obligations under the terms and conditions of delivery and service below. If performance takes place at the customer, Boll & Kirch will remain the sole party authorised to issue instructions to the staff it deploys. Boll & Kirch’s staff will not be integrated into the customer’s operations.

15.5 German law applies exclusively to these general terms and conditions of delivery and service, to all contracts and to all disputes arising from and/or relating to these general terms and conditions of delivery and service and the contracts, including their formation, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980.

15.6 The sole place of jurisdiction for all disputes arising from and/or relating to these general terms and conditions of delivery and service and the contracts, including their formation, and for all types of legal action is the location Boll & Kirch’s registered office. Boll & Kirch also has the right to bring an action against the customer at its general place of jurisdiction.

15.7 Boll & Kirch reserves the right to make amendments or additions to these general terms and conditions of delivery and service from time to time. For continuing obligations, the general terms and conditions of delivery and service will apply as amended. Other obligations are governed by the version applicable at the time the respective contract was formed. The current version can be viewed at and downloaded from www.bollfilter.de.

15.8 If any provision in these general terms and conditions of delivery and service or the respective contract should be or become ineffective in whole or in part, this will not affect the validity of the remaining provisions. Any ineffective provision is to be replaced by a provision that is legally possible and is as close as possible in terms of content to the ineffective provision and the well-understood economic interests of the parties in the ineffective provision. The same applies for any gap in the provisions.

Last updated: July 2015

General Terms and Conditions of Delivery and Service of Boll & Kirch Filterbau GmbH

1 General
1.1 These general terms and conditions of delivery and service apply for all contracts that involve the ordering of goods and services by the contract partner (hereinafter referred to as the "customer") from Boll & Kirch Filterbau GmbH (hereinafter referred to as "Boll & Kirch").

1.2 These general terms and conditions of delivery and service apply for all future contracts with the customer, even if the general terms and conditions of delivery and service are not agreed separately again.

1.3 Conflicting, differing or supplementary terms and conditions of the customer are not recognised by Boll & Kirch, unless Boll & Kirch has expressly recognised them in writing in a given case in place of these general terms and conditions of delivery and service with the signature of one of the managing directors who are authorised to do this.

1.4 The general terms and conditions of delivery and service of Boll & Kirch also apply if Boll & Kirch provides its services without reservation in the knowledge of conflicting or differing contract terms and conditions of the customer.

1.5 Unless otherwise expressly stated in these general terms and conditions of delivery and service, all declarations and notifications made in the course of the contractual and business relationship with the customer need to be made in writing (including by fax) or electronic form.

1.6 These general terms and conditions of delivery and service constitute conclusively together with the respective contract (i.e. the order and/or order confirmation) the agreements of the parties in relation to the respective object of the contract. No additional verbal agreements have been made.

1.7 Amendments and additions to these general terms and conditions of delivery and service and the contracts, additional agreements, declarations and any other agreements need to be made in writing in order to be effective. This also applies for any amendment of this clause requiring the written form.

2 Conclusion of contract
2.1 Unless otherwise is expressly stated in writing, Boll & Kirch’s offers are non-binding and without obligation, this applies in particular for any prices and times stated in the offers.

2.2 An order placed by the customer (order) is a binding offer to enter into a contract with Boll & Kirch. Unless otherwise is stated in the order, Boll & Kirch has the right to accept this offer to enter into a contract within fourteen (14) days of its receipt.

2.3 The order will be confirmed to the customer by Boll & Kirch in writing (including by fax or in electronic form). The customer has to check the order confirmation carefully. Boll & Kirch has to be notified immediately of any deviations from the order.

2.4 The details concerning the services will be specified in the respective order confirmations.

2.5 Cost estimates and information provided by Boll & Kirch concerning the scope, nature and duration of the services to be performed and the expected costs are non-binding and can only be approximate. They do not constitute an undertaking. They can only become a binding part of the contract if Boll & Kirch provides such cost estimates and information in writing without any reservation. Detailed cost estimates are only provided at the express wish of the customer. There will be a charge for this.

3 Duties of cooperation of the customer
3.1 The customer has to inform Boll & Kirch of any circumstances that are relevant for the performance of the services that are the object of the contract. Unless otherwise is expressly agreed in writing, Boll & Kirch is under no obligation to check data, information or any other performance provided by the customer for completeness and accuracy.

3.2 If cooperative acts need to be performed by the customer in order for Boll & Kirch to provide its services, it has to perform these at its own cost. Unless otherwise is expressly agreed in writing, Boll & Kirch will not refund any costs to the customer.

3.3 If the customer needs to provide equipment and/or components in order for Boll & Kirch to provide its services, the customer will make these available to Boll & Kirch in good time at its own cost. Unless otherwise is expressly agreed in writing, Boll & Kirch will not refund the costs of supplying the equipment and/or components to the customer.

3.4 If the customer fails to meet its duties of cooperation or fails to meet them in good time or properly, Boll & Kirch will be released from its own obligation to perform; Boll & Kirch will also have the right to charge the customer for the additional cost incurred as a result. The right to make further claims is expressly reserved.

3.5 If Boll & Kirch carries out work on the premises of the customer, the customer will have a duty to implement all of the measures required in order to maintain safety, unless the nature of the business or an agreement with the customer requires otherwise. So long as the customer has not taken the necessary measures, Boll & Kirch will be released from its duty to provide the service.

3.6 If Boll & Kirch provides services or goods on behalf of the customer, the customer must, at the request of Boll & Kirch, perform the cooperative acts required for export and import at its own cost.

3.7 The customer must, upon written request by Boll & Kirch, issue a confirmation of arrival and send this to Boll & Kirch.

3.8 Further duties of cooperation may be stated in the respective order confirmations.

4 Performance time
4.1 The performance time will be stated in the respective order confirmation. If the service is to be performed within a period of time allowed for performance, the period of time will be calculated from the date of the order confirmation by  Boll & Kirch or from the start of the period stated in the order confirmation, but not before all of the cooperative acts to be performed by the customer have been performed in full, the receipt of an agreed instalment or advance payment or before an agreed letter of credit has been opened.

4.2 Performance times are only binding if it has been expressly confirmed in writing, by fax or in electronic form that they are binding by the contact designated by Boll & Kirch.

4.3 If a binding performance time cannot be met for reasons for which Boll & Kirch is responsible, the customer may grant Boll & Kirch a reasonable extended deadline in order to perform the service, stating that it will reject the performance after the extended deadline has passed. The extended deadline set by the customer must not be less than four (4) weeks.

5 Delivery of goods
5.1 Unless otherwise agreed in writing, all deliveries by Boll & Kirch are EXW (Incoterms 2010) Boll & Kirch. Unless otherwise is agreed in writing, the place of fulfilment for all obligations arising from these general terms and conditions of delivery and service is the registered office of Boll & Kirch.                                     
5.2 Boll & Kirch has the right to make partial deliveries and deliveries are also subject to Boll & Kirch itself being supplied in good time and correctly.

5.3 The goods will be packed in accordance with commercial practice as Boll & Kirch chooses taking into account the mode of transport (transport by see, air or land). The cost of packaging will be borne by the customer.

5.4 Deliveries and where applicable the return transport of items provided by the customer will be made at the cost and risk of the customer. The return transport of items provided by the customer will only be made at  the customer’s express request in writing.

5.5 The customer has to check the goods delivered and services performed by Boll & Kirch immediately upon their delivery or performance, if this is possible in the ordinary course of business. It has to notify Boll & Kirch in writing of any noticeable defects immediately, and within no more than five (5) working days of delivery and or performance. The customer has to notify Boll & Kirch in writing of any defects that are not noticeable and are discovered at a later date immediately, and within no more than five (5) working days of their discovery. The customer has to describe the respective defects in as much detail as possible. If the customer fails to notify the defects, the goods or service performed will be  considered to be approved in respect of the defect concerned.

5.6 If the goods are delivered by a carrier contracted by Boll & Kirch, the customer has to notify any damage and/or losses in transit and late deliveries as described below:

5.6.1 The customer has to inspect the goods upon delivery for any externally identifiable damage and/or losses in transit and notify the carrier in writing of any damage and/or losses at the time of delivery.

5.6.2 The customer has to notify the carrier of any damage and/or losses in transit that are not externally identifiable immediately at the time of delivery, and within no more than 5 working days of discovery of the damage in transit.

5.6.3 The customer has to describe the damage in detail and send immediately a copy of the notification to Boll & Kirch.

5.6.4 The customer has to notify Boll & Kirch immediately in writing of any late deliveries.

5.7 If the customer fails to notify in good time as per 5.6, it will be assumed that the goods have been delivered in a condition as required under the contract.

5.8 Unless otherwise has been expressly agreed in writing and if permitted by law, the packaging material will become the property of the customer upon receipt of the goods. This concerns in particular outer packaging, transport and product packaging.

6 Prices
6.1 The prices for the services to be provided and goods to be supplied by Boll & Kirch are stated in the respective order confirmation.

6.2 If no price is stated in the order confirmation, the services to be performed by Boll & Kirch will be provided based on the standard pricelist as amended.

6.3 Unless otherwise is expressly agreed, the customer will be charged transit time (including waiting time) and travel costs separately. Travel costs include in particular, but not only, the actual transport and accommodation costs and the statutory meal allowances.

6.4 Unless otherwise is agreed in writing or stated in these general terms and conditions of delivery and service, all prices are net in euros and do not include shipping or packaging costs.

7 Payment terms
7.1 Unless otherwise expressly agreed in writing, the invoice shall be paid immediately. Payment has to be made within thirty (30) calendar days of the invoice date unless otherwise agreed in writing. If applicable, the customer must pay the applicable statutory VAT. Any other taxes or duties, such as source tax or import duties that Boll & Kirch is charged in relation to the services or goods will be borne by the customer. If any claims are made against Boll & Kirch for such taxes and duties, the customer will indemnify Boll & Kirch against these claims.

7.2 Regardless of the means of payment used, the payment will not be considered to have been made until the full amount has been irrevocably credited to Boll & Kirch's account.

7.3 If the customer defaults on its payment, Boll & Kirch has the right to claim interest in the amount of eight (8) percentage points above the applicable base rate of the Deutsche Bundesbank from the customer.

7.4 If the customer falls into arrears by more than three (3) months with its outstanding payments, Boll & Kirch may notify the customer in writing of its termination of the contract without notice and/or withdrawal from the contract. Boll & Kirch’s right to make further claims remains unaffected.

7.5 If, after the conclusion of a contract, reasonable doubts emerge concerning the customer’s ability to perform it obligations, in particular its ability to pay or its creditworthiness, and if the customer, despite having received a corresponding request in writing, is not willing to pay in advance or provide a suitable security, Boll & Kirch will have the right, after a reasonable extended deadline has passed without success, to terminate the respective contract without notice and/or withdraw from the contract.

8 Retention of title
8.1 The delivered goods will remain the property of Boll & Kirch until all receivables from the business relationship have been paid in full.

8.2 If the goods are processed, combined or mixed with other goods, Boll & Kirch will acquire joint ownership of the new item in proportion to the invoice value of the goods provided by Boll & Kirch to these other goods at the time of the processing, combining or mixing. The goods will always be processed or combined by the customer on behalf of Boll & Kirch. For joint ownership, 8.1 above applies accordingly.

8.3 The customer may only dispose of, and in particular sell, assign as security or pledge the goods that are subject to retention of title with Boll & Kirch’s prior consent in writing.

8.4 If the value of the securities to which Boll & Kirch is entitled exceeds the outstanding receivables to be secured by more than 20%, Boll & Kirch will be obliged to release securities to this extent as it chooses. The value will be based on the net invoice value that Boll & Kirch has charged the customer.

8.5 In the event of default of payment, the risk of cessation of payment, unsatisfactory information about the solvency and/or financial position of the customer, or if the customer is the subject of seizure by way of execution or protests against bills of exchange or an application is made to open insolvency proceedings for the customer's assets, Boll & Kirch will have the right to terminate the contract or withdraw from the contract and take possession of the goods that are subject to retention of title without further ado. The customer will be obliged to hand over the goods.

8.6 If Boll & Kirch’s ownership rights are impaired by a third party, in particular by way of confiscation or seizure of the goods that are subject to retention of title, the customer has to inform Boll & Kirch immediately sending the documents in its possession (e.g. pledge document) and advise the third party of Boll & Kirch’s ownership rights. The customer has to bear all of the costs that are necessary to remove the impairment of Boll & Kirch’s rights.

8.7 The customer has to store with care, keep in good condition and repair the goods that are subject to retention of title and insure them against deterioration, destruction and loss with the due diligence of a prudent businessman. The customer herewith assigns any insurance claims or other claims for compensation due to deterioration, destruction or loss to Boll & Kirch; Boll & Kirch accepts this assignment.

8.8 The customer will inform Boll & Kirch immediately in writing of any changes to the set-up site or installation site of the goods that are subject to retention of title.

9 Acceptance
9.1 If acceptance is required by law or has been expressly agreed in writing, the customer has to declare its acceptance or rejection within fourteen (14) calendar days of completion of the work by Boll & Kirch.

9.2 The customer does not have the right to reject due to minor defects.

9.3 If the customer declares its rejection, it has to inform Boll & Kirch of the reasons for this in writing and, so far as possible, state the changes required for acceptance. If a defect actually exists, Boll & Kirch will make the changes required under the contract within thirty (30) calendar days of receipt of the customer's declaration in writing.

9.4 If the customer again declares its rejection, the procedure as described in 9.1 is to be followed again.

9.5 If the customer again refuses to accept the goods after the second rework, the customer may declare its acceptance under protest with a reduction in the price to be charged by Boll & Kirch. This acceptance under protest will be considered to be acceptance as defined by § 640 of the German Civil Code (BGB). Boll & Kirch may refuse a request by the customer for a further rework.

9.6 Declarations of acceptance have to be made in writing. Rejections have to be made in writing with the reasons stated in writing.

9.7 If partial acceptance has been agreed in writing, the above provisions apply accordingly for the respective partial acceptance.

9.8 Boll & Kirch’s performance will be considered to have been accepted, even if the customer has not expressly declared its acceptance and if Boll & Kirch has not requested acceptance,

9.8.1 if the customer uses the work performed, or

9.8.2 with payment, unless the customer has justifiably rejected the work performed, or

9.8.3 if the customer neither accepts nor rejects the work performed by the deadline stated in 9.1. 

10 Liability for defects
10.1 The quality, nature and scope of the goods and services are defined exclusively and conclusively in the respective order confirmation or any product description attached to the order confirmation. The information included in the respective order confirmation and/or in the product description does not constitute any guarantee.

10.2 Boll & Kirch provides no guarantee for quality, durability or any other guarantee, unless Boll & Kirch has made a written commitment referred to as a guarantee in a given case.

10.3 When an order for goods is placed, Boll & Kirch does not guarantee that the delivered goods are suitable for the purpose intended by the customer, unless the purpose is expressly stated in writing in the respective order confirmation.

10.4 In the event of a slight reduction in the value and/or suitability of the goods or service, the customer will not have the right to make a claim for liability for defects.

10.5 In the event of any defects that are attributable to external influences, operator error or changes, additions, installations, extensions, attempted repairs or any other manipulations not made by Boll & Kirch and also not approved by Boll & Kirch, the customer will not have the right to make a claim for liability for defects.

10.6 If a justified defect is notified in good time, Boll & Kirch will either rectify the defect or deliver a defect-free item, as it chooses. Boll & Kirch is entitled to at least three attempts at supplementaryperformance.

10.7 For the rest, the customer is entitled to its statutory rights subject to 10.8 below.

10.8 For claims for compensation, the general limitations of liability defined under no.11 apply.

10.9 The liability for defects expires 12 months after delivery or, where relevant, after acceptance. If Boll & Kirch is liable for damages defined in 11.7 of the general liability provisions, the statutory limitation periods will apply.

10.10 The customer has to provide Boll & Kirch with the necessary support free of charge in the course of the work to rectify the defects.

11 Liability
11.1 Subject to the provisions in 11.2 - 11.8 below, Boll & Kirch will only be liable, regardless of the legal grounds, for damage and/or costs due to the wilful intent or gross negligence of Boll & Kirch, ist legal representatives or executives.

11.2 For damages and costs due to the gross negligence of other vicarious agents, Boll & Kirch’s liability will be limited to the damage and costs that can be typically expected in the respective contract.

11.3 For damages and costs caused by Boll & Kirch, its legal representatives, executives or any other vicarious agents without wilful intent or gross negligence, Boll & Kirch will only be liable in the event of the culpable breach of an obligation that is of particular importance for the achievement of the purpose of the contract (cardinal obligation). In the event of a breach of a cardinal obligation, the limitation of liability of 11.2 of these liability provisions apply.

11.4 Liability for loss of data will be limited to the typical cost of recovery that would also have been incurred if the data were backed up regularly and in a manner appropriate for the level of risk.

11.5 Maximum liability limits may be defined in the respective offer by Boll & Kirch.

11.6 Any liability of Boll & Kirch for damages due to injury to life, limb or health, the assumption of a guarantee or a procurement risk and under the German Product Liability Act (Produkthaftungsgesetz)remains unaffected.

11.7 In the event of the wilful intent or gross negligence of Boll & Kirch, its legal representatives or executives and in the event of the wilful intent of other vicarious agents and in the event of damages due to injury to life, limb or health, the statutory limitation periods will apply in place of the limitation period for liability for defects stated in 10.9.

11.8 If Boll & Kirch’s liability is excluded or limited under the above 11.1 - 11.7, this also applies for Boll & Kirch’s staff in the event of the customer making a claim directly against Boll & Kirch’s staff.

11.9 The customer has to notify Boll & Kirch immediately in writing if there is the threat of a product liability claim by a third party or if a product liability claim is made by a third party that concerns or might concern work to which Boll & Kirch has contributed. The customer will give Boll & Kirch the opportunity to make a statement in writing by a reasonable deadline before taking further measures such as in particular product recalls or replacement actions.

12 Force majeure
12.1 If Boll & Kirch is temporarily prevented from providing its service due to force majeure and as a result agreed performance times cannot be met, Boll & Kirch will have the right to catch up on its performance at a later date. The agreed performance time will be extended appropriately as a result of the force majeure. In this respect the customer does not have the right to make any claims for nonperformance or late performance. Boll & Kirch will inform the customer immediately should force majeure occur. In particular the following events are considered to be force majeure: war, disasters, pandemics, epidemics and/or plagues, sabotage, riot, strike and lockouts in the company’s own plants, distribution facilities, suppliers or transport carriers and intervention by public authorities, regardless of whether this intervention is in the territory of the Federal Republic of Germany or territories from which and/or through which Boll & Kirch itself is supplied.

12.2 If one of the events listed in 12.1 occurs before or after the contract is concluded, it will only entitle Boll & Kirch to suspend the performance of its contractual obligations in this respect if its effects on the performance of the contract could not be foreseen at the time of the contract was concluded.

12.3 If the force majeure event lasts continuously for longer than six (6) months, each party will have the right to withdraw from the respective service specification by informing the other party in writing.

13 Granting of rights
13.1 If this is necessary for the agreed use of the work performed by Boll & Kirch, and unless otherwise is expressly agreed in writing, Boll & Kirch grants the customer a non-exclusive and nontransferrable right to use the work protected by copyright after payment has been made by the customer to the extent that this is necessary for the agreed use of the work performed by Boll & Kirch.

13.2 The passing on and use of Boll & Kirch’s work for purposes other than those specified in the contract, in particular its publication, is only allowed with Boll & Kirch’s prior consent in writing.

14 Confidentiality
14.1 The parties agree to maintain strict confidentiality concerning any information that they obtain in writing, verbally or in any other form in connection with these general terms and conditions of delivery and service and the contracts of Boll & Kirch, in particular, but not limited to, technical documents, documents, drafts, plans, data, know-how and any other form of business secret.

14.2 The parties will use this information exclusively for the purpose of meeting the obligations under these general terms and conditions of delivery and service and the contracts. The parties will also suitably place their staff and other persons who are involved in the meeting of these obligations under obligation to maintain confidentiality.

14.3 The obligation to maintain confidentiality will no longer apply if the party under obligation to maintain confidentiality proves that

14.3.1 it knew a particular piece of information before the cooperation began,

14.3.2 it obtained his information from another third party entitled to use the information,

14.3.3 the information was generally available, and the party under obligations to maintain confidentiality was not responsible for this generally availability,

14.3.4 it has developed the information itself independent from the current cooperation,

14.3.5 or it was obliged to disclose the information due to an official order or legal requirement.

14.4 The obligation to maintain confidentiality will continue indefinitely after the contract has come to an end. The parties will be liable for all losses incurred by the other party due to a breach of one of these obligations.                                                                                                                                                             

15 Miscellaneous
15.1 The customer does not have the right to offset claims against Boll & Kirch. This does not apply for claims against Boll & Kirch that are undisputed, established in law or have been recognised by Boll & Kirch.

15.2 Rights of retention or other rights to refuse performance can only be asserted against Boll & Kirch if they are based on claims by the customer relating to the respective contract under which Boll & Kirch is claiming payment from the customer.

15.3 The assignment and/or transfer of rights and/or obligations under these general terms and conditions of delivery and service and the contracts by the customer requires Boll & Kirch’s prior consent in writing.

15.4 Boll & Kirch will decide as it sees fit on the deployment and exchange of its own staff in the course of the performance of its obligations under the terms and conditions of delivery and service below. If performance takes place at the customer, Boll & Kirch will remain the sole party authorised to issue instructions to the staff it deploys. Boll & Kirch’s staff will not be integrated into the customer’s operations.

15.5 German law applies exclusively to these general terms and conditions of delivery and service, to all contracts and to all disputes arising from and/or relating to these general terms and conditions of delivery and service and the contracts, including their formation, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980.

15.6 The sole place of jurisdiction for all disputes arising from and/or relating to these general terms and conditions of delivery and service and the contracts, including their formation, and for all types of legal action is the location Boll & Kirch’s registered office. Boll & Kirch also has the right to bring an action against the customer at its general place of jurisdiction.

15.7 Boll & Kirch reserves the right to make amendments or additions to these general terms and conditions of delivery and service from time to time. For continuing obligations, the general terms and conditions of delivery and service will apply as amended. Other obligations are governed by the version applicable at the time the respective contract was formed. The current version can be viewed at and downloaded from www.bollfilter.de.

15.8 If any provision in these general terms and conditions of delivery and service or the respective contract should be or become ineffective in whole or in part, this will not affect the validity of the remaining provisions. Any ineffective provision is to be replaced by a provision that is legally possible and is as close as possible in terms of content to the ineffective provision and the well-understood economic interests of the parties in the ineffective provision. The same applies for any gap in the provisions.

 

 

Last updated: July 2015