1.1 The following terms and conditions of sale shall apply exclusively to all our deliveries and services as well as to all contracts concluded with us. Any terms and conditions of the Buyer which are contrary to or deviate from our Terms and Conditions of Sale and which we do not expressly accept in writing shall not be valid for us, even if we do not expressly object to them. Our Terms and Conditions of Sale shall also apply in current business relationships to all contracts concluded in the future.
1.2 Third-party property rights must be observed when using the delivered goods.
2 Offer, conclusion of contract:
Our offers are subject to change and non-binding. Orders are only binding for us if we confirm them in writing or fulfill them by sending the goods. Verbal subsidiary agreements, supplements and amendments shall also require our written confirmation in order to be effective.
3 Delivery, Delay:
3.1 Unless otherwise agreed, delivery dates stated are generally non-binding.
3.2 We shall be entitled to make partial deliveries insofar as this is reasonable for the Buyer under the circumstances of the individual case. The invoices issued in this respect shall be payable irrespective of the total delivery.
3.3 In the event of a delay in delivery, the Buyer may set us a reasonable grace period in writing, stating that it will refuse to accept the delivery item after expiry of the grace period.
After unsuccessful expiry of the grace period, the purchaser shall be entitled to withdraw from the purchase contract by written declaration or to claim damages instead of performance. Upon our request, the Buyer shall be obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery, claim damages instead of performance or insist on delivery.
3.4 The date of delivery shall be the date on which the goods leave the factory or a warehouse.
3.5 Our liability shall be determined in accordance with clause 9. In addition, in the event of slight negligence, our liability shall be limited to the invoice value of the respective delivery item.
4.1 The Seller reserves the right to choose the shipping route and the shipping method.
4.2 Additional costs caused by special shipping requests of the Buyer shall be borne by the Buyer.
5 Return of loaned packaging:
5.1 In the event of late return (after the expiration of the rental-free period) of returnable packaging, we reserve the right to charge the Buyer a monthly rental fee in accordance with special conditions.
5.2 The returnable packaging must be handled with care and may not be used for other filling goods. The purchaser shall be liable for any damage caused during the rental period or the costs of any resulting disposal.
6.1 In the absence of agreements to the contrary, our prices are ex works, excluding packaging and plus delivery and shipping costs and plus statutory value added tax.
6.2 The prices valid on the day of delivery shall always apply for invoicing. If these are higher than at the time of conclusion of the contract, the customer shall be entitled to withdraw from the contract with regard to the quantities not yet accepted within 14 days after notification of the price increase.
7.1 Payment shall be made in euros to one of our specified bank accounts.
7.2 In the event of default in payment, interest shall be charged at a rate of 12%, but at least 8% above the respective base interest rate, subject to the assertion of further damages. If we charge higher interest than the statutory default interest, the Buyer shall be at liberty to prove that the damage was lower, and we shall be at liberty to prove that a higher damage actually occurred.
7.3 In the event of default in payment and justified doubts about the solvency or creditworthiness of the Buyer, we shall be entitled – without prejudice to our other rights – to demand securities or advance payments for outstanding deliveries and to make all claims arising from the business relationship due immediately.
7.4 Bills of exchange and checks shall be accepted by special agreement and only on account of payment. All expenses incurred in this regard shall be borne by the Buyer.
7.5 Only undisputed or legally established claims shall entitle the Buyer to set-off or retention.
8. force majeure:
Cases of force majeure, in particular strikes, lockouts, operational or transport disruptions, including at our suppliers, shall suspend the contractual obligations of the affected parties for the duration of the disruption and to the extent of its effect. If delays resulting therefrom exceed the period of six weeks, both contracting parties shall be entitled to withdraw from the contract with regard to the affected scope of performance. No other claims shall exist.
9.1 All information, in particular on the suitability, processing and application of our products as well as our technical advice, is given to the best of our knowledge, but does not exempt the Buyer from carrying out his own tests and trials.
9.2 The Buyer shall inspect the delivered goods immediately for defects with regard to quality and intended use – also by means of a trial processing, if reasonable – and shall give notice of any defects that can be detected. Otherwise the goods shall be deemed to have been approved.
9.3 Complaints shall only be considered if they are made in writing within eight days of receipt of the goods – in the case of hidden defects immediately after their discovery, but no later than one year after receipt of the goods – and are accompanied by supporting documents. Timely dispatch shall be sufficient to meet the deadline.
9.4 We shall not be liable for defects which only insignificantly reduce the value or the suitability of the item. An insignificant defect shall be deemed to exist in particular if the defect can be remedied by the Buyer himself at quite insignificant expense.
9.5 If the Buyer demands subsequent performance due to a defect, we may choose whether to remedy the defect ourselves or to deliver a defect-free item as a replacement. The right to reduce the price or to withdraw from the contract in the event of failure of subsequent performance shall remain unaffected.
9.6 In the event of justified complaints, the goods may only be returned at our expense if we do not offer collection or disposal by us after notification of the defect.
9.7 If increased expenses are incurred because the Buyer has taken the goods to a place other than his commercial establishment after delivery, we shall invoice the Buyer for the increased expenses for the rectification of the defect, unless the transfer corresponds to the intended use of the item.
9.8 Claims for damages and reimbursement of expenses shall remain unaffected unless excluded under clause 9.
9.9 All claims based on a defect shall become statute-barred within one year from delivery of the item. The warranty for used items is excluded. The statutory limitation period for items which are used for a building in accordance with their customary use and which cause the building to be defective shall remain unaffected.
9.10 Buyer’s rights under §§ 478, 479 BGB shall remain unaffected.
Our liability, on whatever legal grounds, is excluded. This shall not apply in the case of intent or gross negligence by us or our legal representatives or vicarious agents or in the case of breach of material contractual obligations. In the event of a slightly negligent breach of material contractual obligations, we shall only be liable up to the amount of twice the invoice value of the respective delivery item. In addition, for damages caused by delay, clause 3.4 shall apply. Our liability for damages resulting from injury to life, body or health, our liability based on warranty as well as according to mandatory statutory provisions, in particular the Product Liability Act, shall remain unaffected.
11 Technical advice:
Technical advice on application, both verbally and in writing, as well as by means of trials, shall be given to the best of our knowledge, but shall be deemed to be non-binding advice only, also with regard to any third-party property rights. The advice does not release the buyer from his own examination of the advice and the products with regard to their suitability for the intended processes and purposes. Application, use and processing of the products supplied by us are beyond our control and are therefore the sole responsibility of the buyer.
12 Retention of title:
12.1 Until full payment of our claims arising from the business relationship with the Buyer, the goods sold shall remain our sole property. Until revocation, the buyer is authorized to dispose of the purchased goods in the ordinary course of business or to process them.
12.2 Retention of title and power of disposal pursuant to Clause 10.1 shall also extend to the products resulting from processing, mixing or combining the goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their title remains, we shall acquire co-ownership in proportion to the invoice values of these processed goods. Insofar as the security rights of third parties actually or legally remain below this proportion, the difference shall accrue to us.
12.3 The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale – in the event of a current account agreed with such third parties, the respective balance claims – in total or in the amount of our possible co-ownership share (cf. clause 10.2). He is authorized to collect these until revocation or cessation of his payments to us. The Buyer shall only be entitled to assign these claims – even only for the purpose of collecting the
factoring – only with our express written consent.
12.4 The Buyer shall notify us immediately of any seizure of the goods and claims by third parties.
12.5 If the value of the securities exceeds our claims by more than 20%, we shall, at the Buyer’s request, release securities in an appropriate amount at our discretion.
12.6 We may take back goods on the basis of the retention of title even if we have not previously withdrawn from the contract. The taking back of goods in exercise of the retention of title shall not be deemed a withdrawal from the contract. The Buyer shall grant us or our authorized representatives access to the place where the goods are located.
12.7 If the law in whose jurisdiction the sold goods are located does not permit the retention of title, but allows the Seller to reserve other similar rights to the delivery item, the Buyer shall provide us with other adequate security. The Buyer undertakes to cooperate in the fulfillment of any formal requirements that may be necessary for this purpose.
13 Place of performance, applicable law and place of jurisdiction:
13.1 The place of performance for the delivery shall be the respective place of departure of the goods, for the payment Hofheim a.Ts..
13.2 The law of the Federal Republic of Germany shall apply exclusively between the contracting parties. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
13.3 If the Buyer is a merchant or has no general place of jurisdiction in Germany, the place of jurisdiction shall be Frankfurt. However, we shall also be entitled to sue the Buyer at its general place of jurisdiction.
14 Miscellaneous, severability clause:
14.1 Subsidiary agreements, assurances, amendments or supplements to the contract shall require the written confirmation of L. Böwing GmbH.
14.2 Should individual clauses of these General Terms and Conditions not become part of the contract in whole or in part or be or become invalid, void or contestable in whole or in part, this shall not affect the validity of the remaining clauses or of the contract itself. The provision in question shall then be replaced by a valid one which comes as close as possible to the intended economic sense and purpose of the invalid, void or contestable provision, taking into account the mandatory statutory provisions. The same shall apply to any loophole.
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