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BOGE KOMPRESSOREN
Otto Boge GmbH & Co. KG
Otto-Boge-Str. 1-7 * 33739 Bielefeld
Telefon (05206) 601-0 * Telefax (05206) 601-200
RG Bielefeld HRA 9554 * Persönlich haftende Gesellschafterin: Industrie-Beteiligungs-Gesellschaft mbH
RG Bielefeld HRB 7370 * Geschäftsführer: Wolf D. Meier-Scheuven, Rolf Struppek
General Terms and Conditions (12/2007)
A. Scope of BOGE Terms and Conditions
B. Terms of purchase and order
C. General terms of performance
D. Special terms for consignment goods
E. Special terms for assembly and commissioning
F. Special terms for repair work
G. Special terms for service agreements
H. Special terms for maintenance agreements
I. Special terms for full service agreements
J. Special terms for try and buy agreements
K. Special terms for compressed air - Contracting
L. Special terms for compressed air supply at a fixed price
M. Special terms for average agreements
A. Validity of BOGE General Terms and Conditions
These General Terms and Conditions shall be
valid at all times and for all transactions and contractual relations between BOGE and its business partners even if, in the event of individual transactions, no special reference is made to these terms.
B. Terms of Purchase and Order
B.1
All orders submitted by BOGE are exclusively subject to BOGE's terms of purchase and ordering.
B.2
All orders from and purchases made by BOGE shall – unless
present terms fail to clearly frame their extent – exclusively be effected in accordance with relevant legal regulations.
B.3
Complementary to the legal regulations, the following terms of payment shall apply.
B.3.01
For invoices received on or before the 10th day of the month, BOGE shall remit payment on the 20th day of the
month less 3% cash discount or effect net payment on the 10th day of the month after next.
B.3.02
For invoices received between the 11th and 20th day of the month, BOGE shall remit payment on the 30th day
of the month less 3% cash discount or effect net payment on the 20th day of the month after next.
B.3.03
For invoices received between the 21st and the last day of the month, BOGE shall remit payment on
the 10th day of the next month less 3% cash discount or effect net payment on the 30th day of the month after next.
B.4
For goods delivered before the scheduled delivery date, the invoice shall be valuated
on the date contractually agreed upon by BOGE. The value date shall be deemed the invoice date.
B.5
In case of faulty goods and/or partial shipment contrary to contract, the invoice shall be valuated at
the date the goods have been rendered faultless or complete delivery has been effected. The value date shall be deemed the date of receipt of invoice.
B.6
During the entire guaranteed period, our contract
partner shall be held legally liable for any warranty claims and/or lawful damages.
B.7
Bielefeld shall be the place of jurisdiction and venue. Likewise, but to the exclusion of any UN sales laws, the laws
of the Federal Republic of Germany shall apply exclusively.
C. General Terms of Performance
C.1. Order Confirmation / Minimum Order Value
C.1.01
All orders submitted by us (BOGE) are
exclusively based on the applicable legal regulations. As for the rest, present terms and conditions shall exclusively and at all times apply to the contractual relationship between BOGE and its partners, even if,
in the event of individual transactions, no special reference is made to these terms. Any General Terms and Conditions as may be stipulated by any of BOGE's partners are deemed to be null and void even if not
particularly objected to.
C.1.02
The content of the agreement shall be based on the pertaining written BOGE order confirmation and, if applicable, the BOGE performance specification. Any oral arrangements
as may have been made by nonauthorized BOGE personnel in conjunction with contractual agreements shall not be valid unless confirmed by BOGE in writing.
C.1.03
Any product properties related to any BOGE
products and/or performances shall only be attributed to BOGE if such statements are made by BOGE or by special order and/or authorization of BOGE or if such statements are deemed or supposed to have been known to
BOGE for more than four weeks without BOGE dissociating from such statements. As defined § 434, sub 1, BGB (German Civil Code) BOGE authorized distributors or customers acting as retailers shall not be considered
assistants of BOGE's. As defined in § 434, sub 1, BGB, said statements shall be deemed to be duly corrected if such correction is issued on the BOGE homepage at www.boge.de.
C.1.04
Any BOGE related product properties containing measurable values are subject to a ± 10% tolerance.
C.1.05
Minimum Order Value
a.]
In view of the considerable amount of work involved in any type
of purchase order, BOGE reserves the right to only accept such orders on condition that a minimum order value be reached.
b.]
The minimum order value is 100,00 € plus VAT, whereas the minimum value for online orders is only 50,00 € plus VAT.
c.]
Minimum order values do not apply to brochures and/or marketing items from the BOGE shop.
C.2. Continuing Rights / Property rights
C.2.01
Design drafts, models, erection plans, dispatching plans and
other drawings or blueprints, documents, etc. shall remain the sole property of BOGE, even if BOGE was remunerated by purchaser.
The right of use of these items shall be reserved exclusively for BOGE.
C.2.02
BOGE shall have the right to affix its own company name and trademarks. The purchaser shall be prohibited from removing such tags or labels affixed by BOGE.
C.2.03
The purchaser shall be liable for the rightful use of such documents, drafts, plans, texts, trademarks, etc.
C.2.04
BOGE has the sole copyright to the control software which is shipped together with the components.
The simple right of use of the software shall be transferred to the purchaser under the condition that it be
exclusively implemented for the operation of the individual components hereto.
C.2.05
Any copying and other usage of the software shall constitute a breach of contract.
C.2.06
The decompiling of
the software shall be prohibited. In cases in which the purchaser requires interface specifications, BOGE shall disclose the interface information regarding this software upon request of the purchaser. Only if BOGE
does not comply with this request within a reasonable term shall it be allowed to decompile the software for the necessary analysis. A reasonable term shall be at least four weeks.
C.3. Shipment / Passage of Risk
C.3.01
If a specific mode of shipment has not been stipulated, BOGE shall reserve the right to choose the type of shipment at its discretion.
C.3.02
As soon as
the goods have left BOGE’s plant or warehouse, the purchaser shall assume every risk. Transport insurance shall be closed only upon request of the purchaser and at purchaser's expense.
C.3.03
If the
shipment is delayed for reasons caused by the purchaser, the risk shall pass to the purchaser at notice of ready-shipment or with the availability of the goods on the scheduled date. This shall apply in all cases in
which the delay is not the fault of BOGE.
C.4. Term of Delivery
C.4.01
Unless specifically agreed upon, negotiated delivery times are deemed to be ex-works.
Such delivery times shall start on the
date scheduled in the order, but at the earliest after the purchaser has made available all documents, permits, requests for delivery and shipping addresses and after all details of the order have been clarified and
the purchaser has effected the agreed upon down payments and securities.
If a delivery time has been agreed upon, this shall be prolonged for an appropriate length of time if the purchaser is in default of making
available the necessary documents, permits, shipping addresses, down payments and securities.
If a delivery date has been agreed upon, this shall be postponed for an appropriate length of time if the purchaser is
in default of making available the necessary documents, permits, shipping addresses, down payments and securities. Respective postponements or extensions shall also take effect if the prerequisites to be fulfilled
by the purchaser himself or through third parties have not been effected in time and these are necessary for the fulfilment of BOGE’s obligations.
C.4.02
If the purchaser requests amendments to the order
after the order confirmation has been issued, the delivery time shall only begin upon BOGE’s confirmation of the amendment. The delivery date shall also be respectively postponed.
C.4.03
In case of
unpredictable circumstances beyond BOGE's reasonable control and despite appropriate action, e.g. subcontractor's partial or total non-performance, for which BOGE cannot be held responsible. In such a case BOGE
shall be entitled to cancel the contract.
C.4.04
As regards C.4.03, customer shall not be entitled to any claims for damages because of non-fulfilment or because of delay if BOGE did immediately inform
customer of any such frustration of contract.
C.4.05
The same shall apply for all fixed date agreements in cases in which the above mentioned delays are not solved in due time.
C.4.06
A claim for damages subsequent to delay against BOGE shall be limited to the negative interest.
C.5. Partial Shipments / Short – or Excess Shipments
C.5.01
BOGE shall be entitled to short and/or
excess shipments up to 10% which shall not be considered a breach of obligations. Partial shipments to a reasonable extent are deemed to be acceptable to customer.
C.5.02
In the event that BOGE exercise
its right to partial shipment and/or short or excess shipments, customer shall not be entitled to withhold payments for previously delivered goods.
C.6. Prices
C.6.01
Unless otherwise agreed, prices shall be quoted ex works or ex warehouse excluding packaging.
C.6.02
If packaging is necessary, BOGE shall pack the goods according to the current regulations and shall
adhere to §4 VerpV (packaging regulations).
C.6.03
The prices shall be quoted less currently applicable VAT. This shall also apply to interest and expenses.
C.6.04
If the period between order
confirmation and shipment is longer than 4 months, BOGE may adjust the prices if, cost factors, especially prices for raw or auxiliary materials and wages and transport costs change after the order confirmation.
C.6.05
BOGE’s hourly rates, premiums, etc, shall apply to every normal travelling, waiting, and working hour on the basis of the currently applicable collective labour agreement. Travelling time shall be invoiced
without overtime premiums. Travelling times with vehicles, however, shall be treated as normal working times with overtime premiums.
Field allowance (accommodation and meals in Germany) shall be invoiced for
every travelling and working day. If assembly or customer service need to be continued after a weekend, BOGE shall be entitled to invoice either travelling expenses or field allowances for the weekend at our
discretion unless otherwise agreed.
Premiums for public holidays and field allowances shall be invoiced for local public holidays.
Travelling expenses shall be invoiced as follows:
- Flights: Economy-Class
- Railway: 1st class
- Public traffic: Taxi and porter (if necessary)
- Company vehicle: Kilometre price according to our current rates.
C.6.06
Travelling hours and
travelling expenses for the return trip shall be recorded on the work slip or work record after the end of the trip.
C.6.07
BOGE’s above detailed expense rates are based on the currently valid collective
wage, salary and working hour agreement. In cases in which these agreements are changed, BOGE reserves the right to change the rates accordingly. The currently valid rates shall be made available to the purchaser
upon request.
C.6.08
If assembly, commissioning, repair, maintenance or any other performance are delayed because of circumstances beyond BOGE’s control, the purchaser shall bear all resulting costs,
especially costs for waiting times and the travelling and accommodation costs of any of BOGE's employees or any subcontractor(s) engaged by BOGE.
C.6.09
The consequences set forth in C.6.08 shall also apply if the reasons for delay are the fault of the purchaser.
C.7. Terms of Payment
C.7.01
As regards down payment, VAT regulations shall apply.
C.7.02
Unless otherwise agreed, all payments shall be due immediately.
C.7.03
All payments shall be made to BOGE not later than 10 days after invoice date. After said due date customer shall be
considered to be in arrears.
C.7.04
If customer is in default, BOGE shall be entitled to default interest of 10 % above base rate. Proof and claim of further damages shall none the less remain unimpaired.
C.7.05
The place of performance for payment is BOGE’s commercial domicile.
C.7.06
The purchaser shall offset payment only with undisputed or legally established counter claims.
C.7.07
Purchaser has no right of retention. The rights conferred by §320 BGB (Civil Code) shall remain unimpaired as long and inasmuch as BOGE has not fulfilled its warranty obligations.
C.7.08
Cheques and bills of exchange shall be accepted by BOGE only on account of performance.
C.7.09
Payments may not be made by bill of exchange; bills of exchange will not be accepted by BOGE for payment. In
the event that BOGE accept a bill of exchange by special arrangement, then this may only be offset against performance.
C.7.10
Bills of exchange accepted in exceptional cases must be discountable. Discount
expenses and other costs will be borne by the purchaser and are due in full on the date of the invoice.
C.7.11
If, in exceptional cases, payment is effected by bill of exchange, BOGE shall be entitled to
immediate payment on demand of all open and not yet due accounts as well as all other undisputed accounts receivable if invoiced discount fees are not paid within 8 days, or if received bills of exchange are not
honoured by BOGE’s bank, or if the amount of the bill of exchange is redebited to BOGE’s account or if a bill of exchange is not redeemed. The same shall apply if purchaser's cheque is not redeemed or if, in the
case of an instalment plan, the purchaser defaults on an instalment (two consecutive instalments if the instalment payment act is applicable).
C.7.12
If, after BOGE has concluded the contract - or, if
after BOGE’s final declaration of intent the purchaser's final declaration of intent is still pending - the purchaser's financial status suffers substantial deterioration, and/or a cheque is not honoured or a bill
of exchange is protested, BOGE shall be entitled to demand prepayment or collateral for all subsequent performances and shipments arising from the same legal relationship (§273 BGB). Should the purchaser refuse
this, BOGE shall be entitled to rescind or terminate the agreements hereto or, after setting a term, demand damage compensation for default of contractual obligations. This compensation of damages shall amount to
25% of the order value not yet executed without necessity of proof. Upon proof of higher damage, BOGE shall be entitled to demand further compensation because of default of contractual obligations.
C.8. Obligation of Inspection and of Lodging a Complaint
C.8.01
At collection, the purchaser shall, without delay, inspect BOGE’s shipments - including drawings, plans for execution, proposed projects
etc. - for conformity and usability.
C.8.02
Obvious faults or defects must be claimed with BOGE in writing within 6 days after arrival at final destination including exact details of the specific
complaint.
C.8.03
In the case of direct delivery to any third party, this obligation of lodging a complaint shall be extended to 14 days.
C.8.04
Upon discovery, hidden defects must be reported in this form by the customer without delay.
C.8.05
For BOGE distribution partners with written distribution partner terms, the procedures for reports of
defects for BOGE distribution partners shall apply in addition.
C.8.06
Should the purchaser fail to adhere to these provisions mentioned under C.8.01 to C.8.05, all warranty claims shall be ruled out.
C.9. Waranty
This warranty limitation does not apply where injuries of life, body or health are concerned and inasmuch as such damages are due to wilful and/or gross negligence by BOGE, its legal
representative or assistants. This shall equally be applicable for any other damages caused by wilful and/or gross negligence.
C.9.01
Present warranty extends over a period of 12 months. Petty negligence
or minor defects do not substantiate any reason for indemnification or warranty. If customer is entitled to replacement, BOGE shall decide if such replacement be effected by remedy of defects or by shipment of
flawless merchandise.
C.9.02
Work on shipments or services provided by BOGE shall only be deemed as warranty work or rework:
- if the claims have been expressly acknowledged by BOGE
- or, if complaints are evidenced
- and, if these evidenced complaints are justified.
Failing these prerequisites, such work shall be deemed as special performance.
C.9.03
In addition, repairs or
replacements by BOGE shall be deemed as special service if they have not been specifically performed subsequent to a rightful claim.
C.9.04
In the event that the warranty period is inhibited or interrupted
due to work carried out by BOGE or deliveries of spare parts, then such inhibition or interruption shall apply only for the operational unit affected by such work or deliveries.
C.9.05
The purchaser must
give BOGE sufficient time and opportunity to undertake the repairs or replacements arising from the warranty claim. Only in urgent cases, in which the operational security is endangered and to prevent unreasonable
high damage - in which case BOGE shall be informed immediately - or if BOGE is in default of the remedy of defect, the purchaser shall be entitled to remove the defect himself or through third parties and to demand
remuneration of the necessary costs from BOGE.
C.9.06
The purchaser shall be entitled to rescind the agreement if, after our choice of repair or replacement, our efforts at remedy fail after a reasonable
number of attempts. At least three attempts shall be deemed as reasonable. The number of attempts at remedy, after which the purchaser may rescind the agreement, must be directed at a specific functional unit of the
plant. Regardless of whether the identical functional unit of the plant is affected, the purchaser shall be entitled to rescind the agreement if the number of individual defects makes it unreasonable for the
purchaser to maintain the agreement.
C.9.07
If BOGE refuses to provide adequate replacement even though customer is entitled thereto, customer shall have a right to immediately cancel the contract.
C.9.08
The same shall apply if a repair or replacement, the right to which BOGE is entitled, has not been effected by BOGE within a term defined by the purchaser.
C.9.09
The purchaser shall be entitled to reduce the price (reduction) only if BOGE agree to this.
C.9.10
As far as is legally possible, all further claims by the purchaser shall be ruled out.
C.9.11
No
warranty shall be assumed for damages subsequent to the following: unsuitable or improper use, faulty assembly or commissioning through the purchaser or third parties, natural wear and tear, unsuitable or negligent
handling, the use of unsuitable consumables or replacement materials, faulty construction work, unsuitable ground, chemical, electro-magnetic, electro-chemical or electrical influences provided these have been
caused through no fault of BOGE.
C.9.12
BOGE shall assume no warranty for components supplied by the purchaser. The purchaser shall bear sole responsibility for the suitability and the condition of such
components unless otherwise specifically agreed upon.
C.9.13
In case the purchaser fails to adhere to the user's manual and the maintenance instructions, BOGE shall be held free of any liability or
warranty if such damages are due to purchaser's negligence.
C.9.14
In the event of non-compliance with the operating instructions on the part of the customer, it will be assumed that any damage that has
occurred is attributable to this. In such an event, the customer bears the burden of proof and demonstration.
C.9.15
In case BOGE’s delivered plant is erected and operated outside Germany although the
agreement hereto has been negotiated with a subsidiary or the headquarters within the bounds of Germany, the purchaser shall bear all additional costs in connection with warranty measures, transportation and travel
costs, and other expenses incurred outside the boundaries of the German Federal Republic.
C.9.16
For BOGE distribution partners with written distribution partner terms, the warranty is additionally subject
to the terms for BOGE distribution partners.
C.10. Damage Compensation
C.10.01
Any limitations of liability as described in present General Terms and Conditions shall not apply to damages resulting
from lethal bodily injury, personal injury, or injury to health. As for the rest, the following stipulations shall apply.
C.10.02
BOGE shall only be responsible for damages caused through wilful and/or
gross negligence by BOGE, its legal representative or subcontractor. As for the rest, no further responsibilities shall be assumed.
Should BOGE be obliged to compensate damages, BOGE shall be liable only for
the immediate damage. In other words, BOGE shall not be liable for the damage incurred to goods other than those delivered by BOGE.
C.10.03
No responsibility shall be assumed for consequential damages resulting from negligence even in case of replacement.
C.10.04
The same shall apply for faults in line with contractual initiation and unlawful act.
C.10.05
In expansion of above mentioned regulations, BOGE shall be liable for damages that have been incurred beyond
the damage to the goods hereto only in cases of intent and gross negligence within the framework of the product liability law as well as the lack of warranted properties if this warranty of properties had the
specific intention to protect the purchaser from damage incurred to items other than the goods hereto.
C.10.06
BOGE shall be liable for damages typical to the contract hereto and which are reasonably
foreseeable except in cases of intent or gross negligence
C.10.07
Also in the event of liability due to contravention of major contractual duties, liability shall not extend to cover consequential damages.
C.11. Call Orders
C.11.01
If orders are not called off within 4 weeks after expiry of the call-off term, BOGE shall be entitled to demand payment.
C.11.02
The same shall apply for
call orders without a specifically agreed upon call-off term if since receipt of cargo-ready-shipment notice 4 months have passed without call-off.
C.12. Storage / Delay of Acceptance
C.12.01
Should a limited storage term of completed goods have been negotiated with BOGE or has storage become necessary because of a delay in acceptance, BOGE shall not be liable for damages which occur in spite of a
reasonable amount of care.
C.12.02
BOGE shall not be obliged to insure the goods stored on our premises.
C.12.03
In case of delay of acceptance, BOGE shall be entitled to store the goods in a
commercial warehouse at the risk and cost of the purchaser.
C.12.04
In case the goods are stored in BOGE’s own premises, BOGE shall be entitled to invoice 0.5% of the invoice value monthly, but no less
than € 30.- plus an additional € 25.- from every second full cubic metre.
C.12.05
The previous two provisions shall also apply if the purchaser has expressed his desire to delay by at least 2
weeks beyond the ready-shipment date.
C.12.06
If in spite of the setting of a deadline the purchaser does not collect the goods, BOGE shall be entitled to demand a flat rate of 25% of the negotiated price
except the purchaser gives proof of a lower damage
C.13. Retention of title
C.13.01
All shipments shall be effected under retention of title.
C.13.02
This retention of title in addition
to the following elaboration shall apply until the payment of the entire claim arising from the business relationship with the purchaser and up until the complete release of secondary liabilities BOGE has entered
into in the interest of the purchaser.
C.13.03
A hypothecation of the shipped goods shall be ruled out.
C.13.04
For important reasons, especially in cases of delay of payment and under
consideration of the sales value, BOGE shall be entitled to demand back the reserved goods. This shall not be construed as a termination of contract.
C.13.05
If and to such an extent as returned goods are
resold by BOGE as new goods within the scope of an ordinary run of business, customer shall pay, for repurchase of goods and without any further submission of proof, 10% of the commercial invoice value. If goods can
not be resold as new within the scope of an ordinary run of business, customer shall pay another 30% of the commercial invoice value for reimbursement of depreciation. Customer shall at all times be entitled to
prove the existence of a lower percentage rate.
C.13.06
The claim of further depreciation or further costs shall remain unimpaired by this.
C.13.07
The processing or treatment of the goods hereto
shall always be subsequent to BOGE’s order so that the goods shall - under the exclusion of the consequences of §950 BGB - remain BOGE’s property as finished goods regardless of the stage of processing or treatment.
If the reserved goods hereto are processed together with other goods - also under exclusion of the consequences of §950 BGB - BOGE shall at least retain joint ownership rights to the new good pro rata the invoice
value of BOGE’s goods in relationship to the invoice value of the other processed goods.
C.13.08
The purchaser shall herewith assign in advance all accounts receivable arising from the reselling,
processing, installation and any other utilisation of BOGE’s goods. If the goods sold, processed, or installed by the purchaser contain any other goods not belonging to the purchaser, and for which other suppliers
have also retained title via sales clause and advance assignment, the assignment shall apply to the pro rata share of BOGE’s co-ownership of the demand, otherwise it shall apply in full amount.
C.13.09
The purchaser's right of collection of funds, although assigned, may be rescinded at any time by immediate rescission.
C.13.10
If the value of securities BOGE is entitled to rises to more than 20% above
the value of the accounts receivable against the purchaser, BOGE shall be obliged to release commensurate securities at our discretion at the request of the purchaser.
C.14. Place of Performance and Fulfilment
C.14.01
The place of performance and fulfilment for BOGE’s services is always BOGE’s manufacturing plant.
C.14.02
The place of performance for shipments
is always BOGE’s manufacturing plant or warehouse, especially and expressly so if BOGE shall undertake transport themselves.
C.15. Place of Jurisdiction and Substantive Law
C.15.01
Bielefeld shall
be the court of jurisdiction for all disputes with merchants, legal entities and utility funds arising from transactions based on the General Terms and Conditions hereto (including bills of exchange payable in
connection with these transactions).
C.15.02
Likewise, the laws of the Federal Republic of Germany shall apply exclusively. The application of CISG or other standardised laws shall be ruled out.
C.16. Definitions
C.16.01
Headings in BOGE’s General Terms and Conditions serve only improved legibility and have no influence on the meaning or interpretation of the individual provisions.
C.16.02
Written declarations of will and knowledge as defined in BOGE’s General Terms and Conditions are deemed to also include such declarations as may be transmitted by fax, telex or email.
C.16.03
Delivery dates denote a point in time such as a specific day or calendar week.
Delivery term denotes a timescale within which a delivery must be effected.
Delivery time is the generic term for delivery dates and delivery terms.
C.17. Special Terms and Conditions
Complementary to the above General Terms of Performance, BOGE’s individualised special terms
shall apply for (where relevant):
- consignment deliveries
- assembly jobs
- repair jobs
- inspection contracts
- maintenance contracts
- full Service contracts
- try and buy contracts
- for Compressed Air Contracting
- for Compressed Air Supply at a Fixed Price
- for Average Agreements
- and for relations with distribution partners.
D. Special Terms for Consignment Agreements
D.1. Object of agreement
Object of the agreement is the delivery of goods as consignment goods, either on the basis of a general agreement on conditional purchase agreements for consignment
transactions, or outside such a general agreement.
D.2. Consignment
D.2.01
The consignee shall purchase the consignment goods from BOGE under the condition subsequent that if by the 10th calendar
day of the month following the termination of the consignment term either
a) BOGE has not informed the consignee in writing that BOGE itself shall dispose of the consignment goods, or
b) the consignee has not
made the consignment goods available to the BOGE shipping warehouse by freight paid shipment.
In case a consignment term has not been agreed upon, the consignment term expires at the latest six months after
collection ready notice from the BOGE plant.
D.2.02
Consignment goods shall be made available by BOGE ex-works and excluding packaging.
D.2.03
BOGE shall be entitled, if necessary, to freely
dispose of the consignment goods against the consignee if at the time of the notice of disposal the goods have not been verifiably sold.
D.2.04
Necessary reworking costs of consignment goods returned to BOGE shall be invoiced to the consignee at cost.
D.3. Care of Goods
D.3.01
The consignee shall undertake to store the goods separate from
his own property or the property of any third party and mark the goods in such a way that they can be readily identified as consignment goods. The consignee shall undertake to store the goods with care and to insure
them against theft, fire and water. In addition, the consignee shall sign a machine breakage insurance.
D.3.02
The consignee shall neither disassemble the delivered components, its parts or other
accessories, nor change them in any way. The same shall apply commensurately for the control software.
D.4. Sale
D.4.01
The consignee shall undertake to report the sale of consignment goods immediately.
D.4.02
The consignee shall not be entitled to sell individual parts of the goods.
D.4.03
If goods are taken from
the store or if individual parts are sold, the sale of the system shall be noted and the total price for the entire system shall become due immediately.
D.4.04
Subsequent to the report of sale, BOGE shall
issue the fixed invoice. The purchase price is the list price valid on the day of the fixed invoice less any granted rebates or discounts.
D.4.05
For sale of consignment goods not reported immediately, the
accounts receivable arising from this fixed invoice shall be due as per the date of the sale.
D.4.06
In the case of article D.4.05, the consignee shall be subject to interest as specified in section C.7.04
of the General Terms of Performance beginning on the day after the invoice due date.
D.4.07
During business hours and upon request, the consignee shall grant BOGE access to the goods to enable stocktaking.
D.4.08
The provisions of our General Terms and Conditions regarding advance assignment of accounts receivable arising from resale shall also apply to the sale of consignment goods.
(C.13.08 and C.13.09).
D.5. General Conditions of Performance
Additionally, the contractual relationship of the parties hereto shall be governed by BOGE’s General Conditions of Performance.
E. Special Terms for Assembly and Commissioning
E.1. Object of Agreement
E.1.01
Object of the agreement are assembly orders or commissioning orders as may have placed with BOGE as
contracts for work as defined in the BGB (Bürgerliches Gesetzbuch) (civil code). The assembly may also include the commissioning of the plant.
E.1.02
For any work beyond the scope of the accepted contract
in accordance with C.1.01, C.1.02 and E.1.01 of BOGE’s general terms, our technician shall seek the prior consent from BOGE.
E.1.03
The commissioner shall receive one copy of the assembly report.
E.2. Execution
E.2.01
BOGE shall reserve the right of choice of technician regardless of whether the mission is issued by BOGE’s plant, one of BOGE’s subsidiaries or one of BOGE’s service points.
E.2.02
The technician shall be ordered in a timely manner, including an exact description of the locality, so as to facilitate immediate work commencement.
E.3. Calculation
Unless otherwise
specifically agreed upon and unless a flat rate has been negotiated, the assembly expenditures shall be invoiced on the basis of the currently valid hourly rates for customer service and assembly.
E.4. Duration of Work
E.4.01
All specifications made from BOGE’s side pertaining to the timescale of the work shall be approximate only, since the beginning and the duration of such work can be
postponed by unforeseeable circumstances beyond our control.
E.4.02
The work shall be carried out as quickly as possible.
E.5. Assembly in Foreign Countries
Unless otherwise agreed upon, all
risks typical of working in foreign countries and especially those typical of the country in which the assembly is to be completed, shall be borne by the purchaser.
E.6. Tools and Equipment
E.6.01
If, without fault of BOGE, equipment and tools supplied by BOGE are damaged or lost at the place of assembly and if the reasons lie beyond BOGE’s influence and control, the purchaser shall be obliged to replace this
damage.
E.6.02
The legal consequences arising from E.6.01 shall also apply to damage or loss during transport if the reasons lie beyond BOGE’s influence and control.
E.6.03
The legal consequences
arising from E.6.01 and E.6.02 shall also apply to damage or loss for reasons lying in the influence and control of the purchaser.
E.6.04
Damage arising from normal wear and tear shall be excepted.
E.7. Acceptance
E.7.01
The purchaser shall undertake to confirm the accuracy of the entries on the work slip and that the work has been executed in an orderly manner on both the acceptance report and order
confirmation.
E.7.02
Claims or complaints shall be noted on the acceptance report in writing.
E.7.03
For more extensive complaints, these shall be explained in more detail in a further document attached to the report.
E.7.04
The object hereto shall be deemed as having been accepted when:
- the purchaser commissions the machine;
- the purchaser makes changes to the object hereto independently or through third parties or
- the purchaser fails to facilitate the execution of an acceptance by BOGE within 10 days of the report of completion.
E.8. Regulations relevant to Labour Law
E.8.01
BOGE’s assembly personnel shall
be obliged to adhere to the provisions of the German legal working time regulations (AZO). The purchaser shall be obliged to ensure adherence to the AZO, especially with view to overtime.
E.8.02
When
BOGE’s assembly personnel sojourns in the plant of the purchaser, purchaser shall be obliged to ensure adherence to these regulations.
E.8.03
Legal consequences arising from breaches against the AZO shall
be borne by the purchaser. The purchaser shall hold BOGE harmless of demands and penalties arising from such breaches.
E.8.04
In cases of shifts of over 10 hours per day, the purchaser shall inform BOGE’s
assembly personnel by confirming that the executed jobs were necessary for the continuation of production in accordance with §14 AZO.
E.8.05
Unless otherwise stipulated, the provisions of the federal
collective agreement for special working conditions of assembly personnel for the iron, steel and electrical industries shall apply.
E.9. General Terms of Performance
Additionally, the contractual
relationship of the parties hereto shall be governed by BOGE's General Conditions of Performance.
F. Special Terms for Repair Work
F.1. Object of Agreement
Object of the agreement
are repair job orders as may have been submitted to BOGE as contract for work and services as defined in BGB (Bürgerliches Gesetzbuch) (civil code).
F.2. Cost Quotation
F.2.01
Upon request, a cost quotation shall be submitted to the purchaser.
F.2.02
The cost for the establishment of the scope of the repair work shall be borne by the purchaser.
F.2.03
The purchaser
shall also bear the costs mentioned in F.2.02 even if the purchaser decides to refrain from ordering the repair work.
F.3. Extension of Order
F.3.01
If, during the implementation of the repair work,
substantial defects not previously perceived are discovered, these shall be reported to the purchaser without delay. The purchaser may agree to the extension of the repair order or may cancel the repair order.
F.3.02
If the purchaser cancels the repair order according to article F.3.01, he must bear the costs incurred up to that time.
F.4. Returned Items for Repair
BOGE shall not be held liable for damage of items returned for repair arising from fire, water or theft.
F.5. General Terms of Performance
Additionally, the contractual relationship of the parties
hereto shall be governed by BOGE's General Conditions of Performance.
G. Special terms for Inspection and Service Agreements
G.1. Object of Agreement
G.1.01
Object of the agreement
shall be the inspection of the technical installation as listed in the service certificate as follows.
Cf. the service certificate for details of the scope of performance.
G.1.02
In cases in which BOGE
itself does not perform the service, BOGE shall be entitled to engage commensurate third party experts. Within the framework of the following provisions, the designation BOGE may also stand for third party experts
engaged by BOGE for the fulfilment of contractual obligations.
In every case, only original BOGE spare parts shall be used.
G.1.03
All units listed in the service certificate shall be subjected to an
operational safety inspection. This comprises all checks, examinations and test runs necessary for the registered units as specified in the BOGE operation and maintenance manuals and commensurate with the due
interval or age in terms of total operating hours of the respective unit.
G.2. Scope of Performance
G.2.01
The amount owed to BOGE according to the service certificate includes travelling and
accommodation expenses per service/inspection.
G.2.03
The service/inspection shall be automatically effected by BOGE in a 3 month cycle. After every service check, the purchaser shall receive a report on
the state of the unit.
G.2.04
Upon request of the purchaser, necessary minor repairs shall be done immediately. The invoicing shall include material needed and hours worked on the basis of the currently
valid BOGE price list or that of the third party company engaged by BOGE.
G.2.05
If, during a service check, it is discovered that, according to the maintenance and/or operator's manual, maintenance is
due, invoicing shall be on the basis of expenditure.
G.2.06
This inspection and service agreement does not waive the purchaser's responsibility of necessary maintenance and daily checks in accordance with
the maintenance and operator's manuals as well as with the accident prevention regulations.
Also, the purchaser's obligation to keep a maintenance record remains unimpaired.
G.2.07
As long as the
inspection and service agreement is in effect, the purchaser shall be entitled, at request, to purchase further maintenance and operator's manuals for his units from BOGE at cost.
G.2.08
In case the
maintenance and operator's manuals are not adhered to and this leads to damage to the unit, BOGE shall be exempt from any liability. Section C.9.14 of the General Terms and Conditions of Performance shall apply thus
far.
G.3. Term of Contract, Price Change, Termination
G.3.01 Term of Contract
The term of the contract shall be 24 months. This term shall be renewed by an additional 24 month term unless one of
both parties hereto terminates the contract three months prior to the end of the term by registered letter.
G.3.02 Price Change
BOGE shall be entitled to adjust the flat rate if wages, material or other
expenses change. Such an adjustment shall only be made at the beginning of a contractual year.
G.3.03 Termination
In the case of an increase in the flat rate, the purchaser shall be entitled to terminate
the contract for special reasons within one month of the notice of increase. Otherwise, the contract can be terminated after the first contractual period of 24 months upon three month's notice to the end of a
contractual year.
G.4. General Terms of Performance
Additionally, the contractual relationship of the parties hereto shall be governed by BOGE's General Conditions of Performance.
H. Special Terms for Maintenance Agreements
H.1. Object of Agreement
H.1.01
Object of the agreement shall be the maintenance of the technical installation as listed in the service certificate as
follows.
Cf. the service certificate for details of the scope of performance.
H.1.02
In cases in which BOGE itself does not perform the service, BOGE shall be entitled to engage commensurate third party
experts. Within the framework of the following provisions, the designation BOGE stands for third party experts engaged by BOGE for the fulfilment of contractual obligations.
In every case, only original BOGE spare parts shall be used.
H.2. Scope of Performance
H.2.01
The scope of performance comprises all checks, examinations, maintenance and test runs necessary for the
registered units as specified in the BOGE operation and maintenance manuals and commensurate with the due interval or age in terms of operating hours of the respective unit.
H.2.02
As long as the
maintenance agreement is in effect, the purchaser shall be entitled, at request, to purchase further maintenance and operator's manuals for his units at cost.
H.2.03
In case the maintenance and operator's
manuals are not adhered to and this leads to damage to the unit, BOGE shall be exempt from any liability. Section C.9.14 of the General Terms and Conditions of Performance shall apply thus far.
H.2.04
After each maintenance, BOGE shall submit a maintenance report to the purchaser.
H.3. Material, Repairs, Cost
H.3.01
The necessary material shall be invoiced to the purchaser according to actual
expenditure on the basis of the currently valid BOGE price list or that of the third party company engaged by BOGE.
H.3.02
Upon request of the purchaser, necessary minor repairs shall be done immediately.
The invoicing shall include material needed and hours worked on the basis of the currently valid BOGE price list or that of the third party company engaged by BOGE.
H.3.03
If a flat maintenance rate has
not been negotiated, the maintenance carried out shall be invoiced on the basis of the currently valid BOGE price list or that of the third party company engaged by BOGE.
H.4. Purchaser's Obligations and Cooperation
H.4.01
The purchaser shall be obliged to execute the checks between the maintenance intervals according to BOGE maintenance instructions. This also includes,
but not exclusively, daily oil and pressure checks.
The purchaser's obligation to keep the maintenance logbook, remains unimpaired.
H.4.02
In case no specific date has been agreed upon, the purchaser
shall inform BOGE of the maintenance date approximately 2 weeks in advance. Should work on an appointed day not be possible from the purchaser's side, BOGE must be informed of this at least 8 days in advance. The
decisive point in time for the timely notice shall be the receipt of notice at BOGE.
H.4.03
Maintenance should be effected during normal working hours. If, on the request of the purchaser, overtime shall
be necessary, BOGE shall invoice this in addition.
H.4.04
Should the operating conditions have substantially changed since the date of signature of the maintenance contract, the purchaser shall report this
to BOGE.
H.4.05
For the implementation of this service within the framework of the agreement hereto, the purchaser shall make available, if necessary, any auxiliary labour or units (e.g. lifting equipment)
free of charge.
H.4.06
This agreement shall not waive the purchaser's obligation of due care for the units.
H.5. Term of Contract, Price Change, Termination
H.5.01 Term of Contract
The
term of the contract shall be 24 months. This term shall be renewed by an additional 24 month term unless one of both parties hereto terminates the contract three months prior to the end of the term by registered
letter.
H.5.03 Price Change
BOGE shall be entitled to adjust the flat rate if wages, material or other expenses change. Such an adjustment shall only be made at the beginning of a contractual year.
H.5.04 Termination
In the case of an increase in the flat rate, the purchaser shall be entitled to terminate the contract for special reasons within one month of the notice of increase. Otherwise, the contract
can be terminated after the first contractual period of 24 months upon three month's notice to the end of a contractual year.
H.6. General Terms of Performance
Additionally, the contractual
relationship of the parties hereto shall be governed by BOGE's General Conditions of Performance
I. Special Terms for Full Service Agreements
I.1. Object of Agreement
I.1.01
Object of the agreement shall be the maintenance and the repair of technical installations as listed in the full service certificate. BOGE shall undertake to maintain trouble-free operation of the units listed in
the full service certificate without invoicing separate costs in accordance with the following detailed framework.
Cf. the full service certificate for details of the scope of performance.
I.1.02
In
cases in which BOGE itself does not perform the service, BOGE shall be entitled to engage commensurate third party experts. Within the framework of the following provisions, the designation BOGE may also stand for
third party experts engaged by BOGE for the fulfilment of contractual obligations.
In every case, original BOGE spare parts shall be used.
I.2. Scope of Performance
I.2.01
Within the framework of
the agreement hereto, BOGE shall undertake to execute all services and each maintenance as well as the necessary repairs and the replacement of worn parts as prescribed in the maintenance and operator's manuals.
I.2.02
As long as the full service agreement is in effect, the purchaser shall be entitled, at request, to purchase from BOGE further maintenance and operator's manuals for his units at cost.
I.2.03
In case the maintenance and operator's manuals are not adhered to and this leads to damage to the unit, BOGE shall be exempt from any liability. Section C.9.14 of the General Terms and Conditions of Performance
shall apply thus far.
This also means that all repairs necessary because of such damage shall be separately invoiced to the purchaser at the normal rates.
I.2.04
After each maintenance, BOGE shall submit a maintenance report to the purchaser.
I.3. Limitation of Performance Obligation
BOGE's obligation of performance shall be limited as follows:
I.3.01. Other Units
BOGE shall not be held liable from this agreement by damage arising from the combination of units hereto as listed in article I.1 with other damaged or deficient units.
I.3.02
For
defects arising from the interaction of units hereto as listed in I.1 with other units which were not delivered by BOGE or not delivered by BOGE for this purpose, BOGE shall be held liable for repairs as per the
agreement hereto only if the suitability of such an interaction was previously expressly declared by BOGE.
I.3.03
BOGE shall not be under obligation of repair within the framework of the flat rate
agreement and in the sense of article I.1 for defects resulting from external influences (fire, water, shock, jolt, fall, etc.), operator errors, power fluctuations or caused by persons not engaged by BOGE.
I.3.04
BOGE shall also not be under obligation of repair within the framework of the flat rate agreement and in the sense of article I.13.01 if the purchaser has defaulted on his obligation to report, and if this
obligation had been adhered to, a repair would have been unnecessary. If, through the neglecting of the obligation to report, the repair is more expensive than if the purchaser had adhered to his reporting
obligation, the purchaser shall pay the difference to BOGE.
I.3.05
Transport costs shall be assumed by BOGE only if the object hereto has been transported to their special workshop at BOGE's express
instruction.
I.3.06
This agreement does not waive the purchaser's obligation of due care for the units. The purchaser shall also undertake to at least make daily oil and pressure checks.
I.4. Place and Time of Full Service Performance
I.4.01
Service and repair work shall, if necessary, be effected in the BOGE special workshop. BOGE shall effect the due performance as per article I.1. and
I.2. upon advance announcement within as short a time as possible under consideration of its personnel capacity and other similar performances and the delivery lead times for spare parts.
I.4.02
Upon the
failure of the installation on week days, BOGE shall undertake to begin damage remedy and repair work within 24 hours after report. Not included, unless otherwise agreed upon, are Sundays and public holidays.
I.4.03
Approximately two weeks before a necessary maintenance or service, BOGE shall contact the purchaser in order to confirm the date of maintenance.
Should work on an appointed day not be possible from the
purchaser's side, BOGE must be informed of this at least 8 days in advance. The decisive point in time for the timely notice shall be the receipt of notice at BOGE.
If the purchaser desires the execution of
service work outside the normal working time, the additional costs shall be invoiced separately.
I.5. Exchange of Parts
The exchange of parts or entire components shall not be invoiced separately.
Exchanged parts shall become the property of BOGE; the purchaser shall not be entitled to remuneration.
Whether or not a defective part shall be repaired or replaced shall be at the sole discretion of BOGE. The
same shall apply to the question whether a spare may be new or also used.
I.6. Other Repairs
The purchaser shall be entitled to engage BOGE for repairs not covered and owed by articles I.1. and I.2.
These repairs shall be invoiced separately.
I.7. Prices
I.7.01
The flat rate is the remuneration for the on call preparedness owed by BOGE for maintenance. This rate shall be paid independent of the
necessity of the performance hereto.
I.7.02
If the agreement hereto is based on the basis of hours of operation, and if the respective unit exceeds the agreed upon hours of operation within a 12 month
contractual period, the purchaser shall pay the difference to the hourly rate of operation as specified in the agreement. Should the agreed upon basic operating time fall short by more than 2000 hours per machine,
the difference to the hourly rate of operation as specified in the agreement shall be deducted from the owed flat rate and offset in the payment of the next year.
I.8. Waiting Times
If waiting times
and necessary travelling expenses for the execution of announced jobs occur, and these are the fault of the purchaser, these shall then be additionally remunerated by the purchaser.
I.9. Due Payment and Late Payment
The flat rate shall be paid in advance on an annual basis and shall be due on the month and day specified as the beginning date of the agreement. In the case of delay,
formally constituted even without a payment reminder when the purchaser fails to pay on the appointed date, the purchaser shall owe BOGE interest for late payment as set forth in Section C.7.04 of the BOGE General
Terms and Conditions of Performance.
I.10. Limitation of Liability
Regardless of the limitations of liability as described in the general limitations of liability, BOGE shall not be liable for
disturbances arising from
- changes to the operating conditions in variance with those described in the full service certificate without BOGE's express consent
- actions of the purchaser, his personnel or third parties.
I.11. Partial Invalidity
This full service agreement is based on the master draft of the contract for works, labour and material. This,
however, shall apply under the condition that payment of the flat rate shall not be incumbent on an acceptance of the performance of BOGE.
Should individual provisions of this agreement be invalid or ineffective,
the balance of the agreement hereto shall remain unimpaired.
I.12. Term of Contract, Price Change, Termination
I.12.01. Term of Contract
The term of the full service contract shall be 24 months.
This term shall be renewed by an additional 12 month term unless one of both parties hereto terminates the contract three months prior to the end of the term by registered letter. Thereafter, this agreement may be
terminated upon six months notice to the end of the month.
I.12.02. Price Change
BOGE shall be entitled to adjust the flat rate if wages, material or other expenses change. Such an adjustment shall only be
made at the beginning of a contractual year.
I.12.03. Termination
In the case of an increase in the flat rate, the agreement hereto may be terminated by the customer for special reasons within one month
after the notice of increase.
I.13. Obligations and Cooperation of Purchaser
I.13.01
The purchaser shall inform BOGE without delay of following circumstances:
- increase of noise level or vibrations
- leaks which may cause the unit to fail
- failure out of measuring instruments
- change in thermal behaviour
- change in environmental conditions
I.13.02
The purchaser shall guarantee the employees of BOGE free access to the units and shall make available auxiliary materials such as
lifting devices, electricity, water, lubricants, operating materials, etc.
I.13.03
The purchaser shall maintain a continuing and complete maintenance book for every unit of the agreement hereto. This book shall be maintained without gaps and shall contain a record of daily operating
time and daily oil and pressure values.
I.14. General Terms of Performance
Additionally, the contractual relationship of the parties hereto shall be governed by BOGE's General Conditions of Performance.
J. Special Conditions for Try and Buy Agreements
J.1. Object of Agreement
The object of the agreement refers to orders made to BOGE, by which BOGE supplies to the customer a compressor
system for trial purposes, which the customer may then use for an initial period of one month; thereafter he may use the system for a further two months (90 days) for a usage charge, and then decide whether he
wishes to purchase the system.
On accepting the system, the customer also accepts all the responsibilities pertaining to inspection and complaint that would also have applied if he had purchased the system.
Reference is made to Section C.8 of the BOGE General Terms and Conditions of Performance.
J.2 Calculation of Time
J.2.01
One month, as defined in the try and buy agreement, is 30 days.
J.2.02
The calculated time for try and buy agreements starts on the date of commissioning (= day 1). The maximum period for try and buy is 90 days, i.e. three months.
J.3 Testing Costs
J.3.01
BOGE
shall bear the costs for delivery, installation and commissioning of the system. The customer shall bear the costs for any expendable and auxiliary materials, plus the energy costs for operating the system.
J.3.02
Should the customer notify in writing to BOGE no later than the 31st day, that he no longer wishes to have the system, then BOGE will remove the system at its own expense.
J.3.03
Should BOGE fail
to receive the notification referred to in section J.3.02 by the 31st day, then the system shall remain with the customer for a further 59 days, i.e. for a total time of three months. The customer pays the agreed
usage charge for the remaining period until the end of the try and buy agreement.
J.4. Purchase Decision
J.4.01
The customer must state in writing to BOGE by the end of the try and buy period
whether he wishes to purchase the system.
J.4.02
Should the customer fail to notify a decision to purchase, BOGE shall be entitled to repossess the system immediately. There is no obligation to collect,
unless the customer expressly demands it. From the time of the expiry of try and buy to the date of collection by BOGE the customer shall pay an increased usage charge of 50% above one sixtieth of the charge
specified in section J.3.03.
J.4.03
Should the customer notify his decision to purchase, the purchase agreement compliant with the General Terms and Conditions of Performance shall take effect from the
date the notification is received by BOGE.
J.4.04
The purchase price is due in full immediately. Interest owed by the customer in accordance with sections J.3.03 and J.4.02 will be settled on the purchase
price.
J.5. Due Diligence
From receipt of the system from BOGE or until purchase of the system by the customer, the customer must care for the system in compliance with the operating instructions, and
shall be liable for any damage sustained by BOGE in the event that the system is damaged or lost while in his safekeeping and where BOGE bears no culpability.
J.6 General Terms and Conditions of Performance
The contractual relations between the parties shall also be subject to the general Terms and Conditions for performance of BOGE.
K. Special Conditions for Compressed Air - Contracting
K.1. Object of Agreement
The object of the agreement refers to orders issued to BOGE to supply compressed air at m³ prices. Unless otherwise agreed, this shall be compressed air that is not preprocessed.
K.2 Scope of Service
Unless otherwise agreed, the systems with which the compressed air is to be produced, will be installed, operated and maintained by BOGE. The customer has a right to compressed air of the
agreed quality and quantity. The method by which this is achieved is left to the discretion of BOGE.
K.3 Services provided by the Customer
K.3.01
The customer agrees, at his own expense and on his
own responsibility, to provide the following conditions for the systems used to generate compressed air, according to specifications from BOGE:
a) an adequately sized, safe, temperate, dry installation room with a sufficient bearing ceiling and flat floor
b) the necessary piping for inlet and outlet of cooling water and delivery of compressed air
c)
the necessary power and data cables for the electricity supply and system control (particularly for remote maintenance)
d) cooling water of the required quality.
K.3.02
The customer must ensure that the
specifications made by BOGE with regard to sections K.3.01 a) to d) are maintained.
K.4 Measuring Point and Price Calculation
K.4.01
BOGE will install between the compressed air generation system
and the compressed air supply line a measuring device that measures the generated compressed air, relative to the intake condition and expanded condition, in accordance with PN2CPTC2 (measuring point). This measured
value shall be definitive for the amount of compressed air to be paid for by the customer.
K.4.02
The customer shall pay to BOGE the agreed price for each m³ of compressed air detected at the measuring point.
K.5 Customer’s Right of Choice
The customer decides on closing the contract whether he wishes
to obtain from BOGE the compressed air and the electricity required to produce it, or if he wishes to provide the electricity himself. He shall be bound by this decision for the remainder of the contract.
K.6 Invoicing and Due Dates
K.6.01
BOGE will invoice the customer on a monthly basis for the compressed air delivered in the previous month.
K.6.02
The customer agrees to effect payment within
the agreed target period. Should the customer be in default of payment, BOGE shall be entitled, having sent a reminder with notice period of four working days, to hold back supply of compressed air to the customer
until all accounts have been settled.
K.7 Accepted Quantities
K.7.01
The customer must accept the agreed annual minimum quantity of compressed air.
K.7.02
Should the customer fail to
accept this quantity, he is still obliged to pay the price for the difference between the minimum agreed quantity and that actually accepted. BOGE will invoice this difference no sooner than with the 12th invoice of
the corresponding 12 month period since the start of the agreement.
K.7.03
If fixed quantities are agreed, these quantities shall be fixed minimum and maximum quantities. This means that the customer has
no entitlement to additional supplies without this being provided for in a separate agreement.
K.8 Price Adjustment Clause
K.8.01
If the customer has decided on supply of compressed air including
electricity, and if the provision costs incurred by BOGE for providing this electricity change after closure of the agreement, through the introduction, abolition, increase or decrease of taxes, levies or dues
charged according to the amount of energy used (e.g., VAT, energy tax etc) then BOGE shall be entitled to adjust the prices for compressed air accordingly, if this is not prohibited by law.
K.8.02
Should
the wages for fitters and service technicians under the collective agreement with IG Metall (metalworkers’ union) change, the BOGE shall be entitled to adjust the prices for compressed air accordingly at the
beginning of a twelve month contract period since the start of the agreement, if this is not prohibited by law.
K.9 Additional Obligations of the customer
K.9.01
The customer must inform BOGE without delay in the event of the following:
- increased sound level or vibrations
- leaks and escaping liquids
- failure of measuring instruments
- change of thermal behaviour
- changes to environmental conditions
K.9.02
The customer must inform BOGE without delay by fax, telex or email if the quality of compressed air deteriorates or the FAD
falls.
K.9.03
The customer agrees to allow BOGE – including assistants nominated by BOGE – unimpeded access to the compressor system at all times. The customer must also ensure that the data lines used by
BOGE for remote maintenance and control are always available.
K.10 Sole Rights of BOGE
K.10.1
The customer recognises that the sole owner and proprietor of all entities installed by BOGE within the
framework of this agreement (compressed air system and accessories) is BOGE, that this also applies for the software, and that the customer has no rights with respect to these items.
K.10.02
The customer
agrees – except in extreme emergency – not to touch the equipment installed by BOGE unless authorised to do so, either generally or in individual cases, and never to make adjustments of any kind.
K.11 Compressed Air Supply
K.11.01
The agreement covering the supply of compressed air is based on the statutory purchase agreement contract type. Compressed air is thus seen as a commodity for which the
statutory rules concerning purchase agreements
K.11.02
If, in an exceptional case, the supply of preprocessed compressed air is arranged without there being express agreement concerning one of the quality
classes set forth in DIN ISO 8573-1, then BOGE will supply compressed air of medium type and quality. Compressed air of medium type and quality means that the compressed air has the quality of class 3 or 4 of the
six quality classes of compressed air defined in DIN ISO 8573-1.
K.12 General Terms and Conditions of Performance
BOGE’s general Terms and Conditions of performance shall also apply for contractual relations between the parties.
L. Special Terms for Compressed Air Supply at a Fixed Monthly Price
L.1 Subject-matter of present agreement
Subject-matter of present agreement refers to all orders placed with BOGE for supply of compressed air at a fixed monthly price. Unless otherwise specifically agreed
upon, reference is made to non-prepared compressed air.
L.2. Scope of Performance
BOGE shall supply the agreed quantity and quality of compressed air to customer. For this purpose, a compressor unit
will be installed at customer's facilities in order to supply the required amount of compressed air. Unless otherwise agreed upon, all such equipment which is intended for producing said compressed air, shall be
installed, operated and serviced by BOGE. Customer shall be entitled to the agreed quality and quantity of compressed air. BOGE shall be free to choose the appropriate means.
L.3. Customer's Obligations
L.3.01
In conformity with BOGE's request, customer shall accomplish at his cost and responsibility all measures as may be necessary for the operation of said compressed air units:
a) sufficiently large, evenly tempered, safe, and dry location with adequate load-bearing ceiling and horizontal floor
b) adequate piping for compressed air acceptance approval including cooling water supply and discharge.
c) adequate cabling for power supply and equipment control (remote servicing in particular)
d) required cooling water quality
L.3.02
Customer shall also ensure that BOGE's requirements with view to L.3.01 a) thru d) be observed.
L.4. Pricing
L.4.01
Customer shall pay to BOGE the fixed monthly price as agreed.
L.4.02
Said agreed fixed price shall be applicable irrespective of the amount of compressed air as may have actually been used by customer.
L.5. Invoicing and Due Date
L.5.01
BOGE shall send an invoice for the respective previous month on a monthly basis.
L.5.02
Customer shall effect payment within the agreed terms of payment. In
case of customer's default, BOGE, after request for payment and due warning of a 4 days' notice, shall be entitled to withhold any further compressed air supplies pending customer's settlement of all BOGE
receivables.
L.6. Additional Obligations of Customer
L.6.01
Customer shall immediately inform BOGE of the following:
- increased sound level or vibrations
- leakage and discharge of liquids
- failure of measuring instruments
- changes of thermal behaviour
- changes of environmental conditions
L.6.02
Customer shall immediately inform BOGE by fax of any decrease of the compressed air
quality or any reduction of the supplied quantity.
L.6.03
Customer shall be responsible for providing to BOGE – and to its subcontractors – at all times unhampered access to the compressed air unit.
Customer further agrees to ensure that all data lines used by BOGE for remote servicing and control are available at all times.
L.7. BOGE Exclusive Rights
L.7.01
Customer hereby accepts that BOGE is
the sole proprietor and owner of all items provided within the scope of present agreement (compressed air unit including accessories), which is equally true for the respective software, and customer further agrees
that he does not have whatever property rights in this respect.
L.7.02
Customer agrees – except in a case of emergency – neither to touch nor to manipulate in any way any BOGE installations unless
specifically or generally authorized to do so by BOGE.
L.8. Compressed Air Supply
L.8.01
Present agreement with regard to the supply of compressed air at a fixed price is based on the legal type of
a purchase contract. As a matter of fact, compressed air in this conjunction is considered an object to which the legal regulations of a purchase contract do apply.
L.8.02
If, by way of exception, the
supply of prepared compressed air has expressly been agreed upon without, however, expressly specifying one of the quality classes according to DIN ISO 857-1, BOGE shall supply medium quality type compressed air.
Such medium type compressed air is considered to be supplied when said compressed air meets the quality requirements of Class 3 or 4 of the 6 compressed air quality classes according to DIN ISO 8573-1.
L.9. General Performance Conditions
As for the rest of the contractual relationship between the contracting parties, the General Terms and Conditions of BOGE shall be applied.
M. Special Terms for Average Agreements
M.1 Object
BOGE's stand-by commitment toward customer is considered the object of present agreement. In case of improper functioning, BOGE shall
immediately service all such compressed air units as outlined in the service check sheet as per respective agreement and ensure that proper compressed air supply be restored at customer's facility.
M.2. Scope of Performance
Unless specifically agreed upon, both scope of performance as well as terms and conditions and their cost shall be such as defined in the pertaining performance description and in
accordance.
M.3. Flat Rates or Individual Prices
M.3.01
In return of BOGE's average commitment, customer shall pay in advance such flat rate as has been stipulated on an annually basis.
M.3.02
If, after conclusion of contract, cost factors such as prices for raw and/or auxiliary materials or labour and transportation should rise, BOGE shall be entitled, under observance of 4 months' notice, to
accordingly adapt subject flat rate for the following contract year.
M.3.03
All individual performances effect by BOGE within the scope of present agreement shall be invoiced separately.
M.4. Individual Performances
As regards individual repair works effected within the scope of present agreement, the Special terms for repair works (part F of the BOGE General Terms and Conditions) shall be
applicable.
M.5 Duration / Termination
M.5.01
The initial term of present agreement shall extend over a period of five years.
M.5.02
Present agreement shall be renewed automatically for
another 24 months unless terminated by one of the contracting parties prior to its termination under observance of a 3 months' notice.
M.5.03
Customer shall be entitled to terminate present agreement by
the end of the current contract year giving one month's notice after receipt of the respective notification that said flat rate is to be increased according to M.3.02.
M.6. General Terms of Performance
As for the rest of present agreement, the contractual relationship of the parties hereto shall be governed by BOGE's General Conditions of Performance.
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