General Terms and Conditions
for transactions between
BOWA-electronic GmbH & Co. KG – hereinafter referred to as “BOWA” –
the customer specified under Section 2 of these General Terms and Conditions – hereinafter referred to as the “Buyer” –
Section 1 Scope of application, definitions
(1) The following General Terms and Conditions in the version valid at the time the order is placed shall apply exclusively to the business relationship between BOWA and the Buyer. Any conflicting general terms and conditions of the Buyer shall not be recognised unless BOWA expressly agrees to their validity in writing.
(2) Any individual agreements concluded with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to evidence to the contrary, a written agreement or written confirmation from BOWA shall be authoritative for the content of such agreements.
(3) Legally relevant declarations and notifications from the Buyer in relation to the contract (e.g. deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formalities and further evidence, particularly if there are doubts as to the legitimacy of the declaring party, shall remain unaffected.
(4) These General Terms and Conditions shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB) and Section 14 BGB.
Section 2 Conclusion of contract
(1) The presentation and promotion of products in the BOWA online shop does not constitute a binding offer to conclude a purchase agreement.
(2) BOWA has copyright to all images, films, drawings and texts that are published on the online shop. The use of such images, films, drawings and texts is strictly prohibited without the express consent of BOWA.
(3) The Buyer can select goods from the product range available and collect these in a virtual shopping basket using the button “Add to cart”. By clicking on the button “Order now”, the Buyer makes a binding request to purchase the goods in the cart. Before the order is sent, the Buyer can change and view the data at any time. However, the request can only be made and sent if the Buyer accepts these contractual conditions by clicking on the button “Yes, I hereby agree to the General Terms and Conditions and to the Privacy Statement”, thereby incorporating them into their request.
(4) In response to an order request, BOWA shall send the Buyer an automatic order acknowledgement by e-mail, which shall list the Buyer’s order again. The automatic acknowledgement only documents that the Buyer’s order has been received by BOWA and does not constitute acceptance of the request. The contract shall only be concluded upon submission of a declaration of acceptance by BOWA. The declaration of acceptance shall be in the form of either a separate e-mail (order confirmation) or delivery of the ordered products.
Section 3 Delivery, availability of goods
(1) If a product selected by the Buyer is unavailable at the time the order is placed, BOWA shall immediately inform the Buyer accordingly. If a product is permanently unavailable, BOWA shall not provide a declaration of acceptance. In this case, a contract shall not be concluded. If a product in an order is only temporarily unavailable, BOWA shall inform the Buyer of this in the order confirmation.
(2) The delivery date shall be agreed individually or indicated upon acceptance of the order (order confirmation).
(3) If BOWA cannot meet a binding delivery date due to reasons beyond the control of BOWA (unavailability of performance), BOWA shall inform the Buyer of this immediately and, at the same time, communicate the expected new delivery date. If performance is unavailable even by the new delivery date, BOWA shall be entitled to withdraw from the contract in whole or in part; any advance payment already made by the Buyer shall be immediately reimbursed. In this context, performance shall be deemed unavailable in particular if self-delivery by a supplier of BOWA is late, provided that BOWA has concluded a congruent hedging transaction, neither BOWA nor their supplier are at fault or BOWA has no procurement obligation in the individual case.
(4) If BOWA does not meet binding, agreed delivery dates and BOWA is responsible for this, BOWA shall be liable for compensation for damages proven by the Buyer, unless the delay is caused by a force majeure.
(5) The Buyer’s rights under Section 9 of these General Terms and Conditions and BOWA’s statutory rights, particularly if the obligation to perform is excluded (e.g. performance and/or subsequent performance become(s) impossible or unreasonable), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default in acceptance, return
(1) The ordered goods shall be delivered as a mail order purchase and delivery shall be ex warehouse (Gomaringen, Germany), which shall also be the place of performance for delivery and any subsequent performance. Unless agreed otherwise, BOWA shall be entitled to determine the dispatch method (in particular the transport company, dispatch route and packaging).
(2) The risk of accidental loss or accidental impairment of the goods shall be passed to the Buyer at the latest upon handover. However, in the case of mail order purchases, the risk of accidental loss or accidental impairment of the goods and the risk of delay shall be passed to the Buyer immediately upon delivery of the goods to the forwarding agent, the freight carrier or any person or institution assigned to carry out the dispatch. If an acceptance procedure has been agreed upon, this shall be authoritative for the transfer of risk. Handover or acceptance shall be deemed to occur if the Buyer is in default of acceptance.
(3) Exchange or return of the goods delivered by BOWA is excluded in principle. In all cases, sterile packaged goods cannot be exchanged or returned. This shall not apply if the goods are defective. If, by way of exception, a return is accepted by BOWA, this shall only be possible within two (2) weeks of the goods being handed over to the Buyer in their original condition or original packaging. The Buyer shall bear the risk and costs of transporting any returned goods.
Section 5 Reporting obligation in accordance with the German Medical Devices Safety Plan Ordinance (MPSV)
(1) The persons responsible for placing medical devices on the market for the first time (manufacturer, authorised representative or importer) are obliged under the provisions of the German Medical Devices Safety Plan Ordinance (MPSV) to report all incidents that have occurred in Germany (under certain conditions, also incidents that have occurred in third countries) as well as all recalls to the Federal Institute for Drugs and Medical Devices (BfArM) or, depending on the area of responsibility, to the Paul-Ehrlich-Institut (PEI). Professional operators and users (e.g. physicians and dental surgeons) and persons who professionally or commercially or for the fulfilment of legal tasks or obligations distribute medical devices to end users for self-administration are also subject to a reporting obligation.
(2) Incidents are, for example, any malfunction, failure or change in the characteristics of a medical device which has led, could have led or might possibly lead, directly or indirectly, to the death or serious deterioration in the state of health of a patient, user or other person, cf. Section 2 no. 1 MPSV.
(3) So that BOWA can comply with its statutory reporting obligation, every Buyer shall undertake to inform BOWA immediately in writing of any incident and/or recall within the meaning of Section 2 MPSV if any incident or recall occurs that is associated or could be associated with a product supplied by BOWA. The Buyer shall also undertake, upon request from BOWA, to fully inform BOWA, without omissions, as to where the medical device supplied by BOWA is located; traceability of the medical device must be ensured.
Section 6 Prices, transport costs and terms of payment
(1) All prices quoted on the BOWA website are exclusive of the applicable VAT, currently 19%. VAT shall be shown separately on the invoice.
(2) The Buyer shall bear the dispatch costs. For orders with a goods value exceeding EUR 99, BOWA shall deliver to the Buyer at no extra cost.
(3) Unless otherwise stated in the order confirmation, the purchase price shall be due and payable within 30 days from invoicing and delivery (or acceptance) of the goods. However, BOWA shall be entitled at any time, even in the context of an ongoing business relationship, to demand advance payment for delivery in part or in full. BOWA shall declare such a reservation no later than upon order confirmation.
(4) The Buyer shall be in default upon expiry of the payment deadline. During the period of default, interest shall be charged on the purchase price at the respective applicable statutory default interest rate. BOWA reserves the right to claim additional damages for default. Our right to charge commercial maturity interest (Section 353 of the German Commercial Code (HGB)) vis-à-vis traders shall remain unaffected.
(5) The Buyer shall be entitled to rights of set-off or retention only if their claim has been legally determined or is indisputable. In the event of defects in the delivery, the Buyer’s reciprocal rights, particularly those under these General Terms and Conditions, shall remain unaffected.
(6) If, after conclusion of the contract, it becomes clear (e.g. through an application to open insolvency proceedings) that BOWA’s claim to the purchase price is at risk due to the Buyer’s lack of solvency, BOWA shall be entitled in accordance with the statutory provisions to refuse to render performance and – after setting a deadline where applicable – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), BOWA may withdraw from the contract immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
Section 7 Retention of title
(1) BOWA shall retain title to the sold goods until all of BOWA’s current and future claims under the purchase contract and ongoing business relationship (secured claims) are paid in full.
(2) The goods subject to retention of title must not be pledged by the Buyer to third parties or transferred as collateral before the full payment of the secured claims. The Buyer must inform BOWA immediately in writing if an application to open insolvency proceedings is filed or if third parties have access to the goods belonging to BOWA (e.g. in the case of seizures).
(3) In the event of a breach of contract by the Buyer, in particular if Buyer defaults on paying the due purchase price, BOWA shall retain the right to withdraw from the contract and/or demand the return of the goods subject to retention of title in accordance with the statutory provisions. A request for the return of goods shall not automatically be deemed a declaration of withdrawal from the contract; BOWA shall instead be entitled to demand solely the return of the goods and shall reserve the right of withdrawal. If the Buyer fails to pay the due purchase price, BOWA may assert these rights only after having set a reasonable grace period for the Buyer to pay and after expiry of such a deadline without result or if such a grace period is dispensable according to the statutory provisions.
(4) Until revocation in accordance with (c) below, the Buyer shall be authorised to sell and/or process the goods subject to retention of title as part of the ordinary course of business. In this case, the following supplementary provisions shall apply.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the goods supplied by BOWA, whereby BOWA shall be considered the manufacturer. If the goods supplied by BOWA are processed, mixed or combined with the goods of a third party and the third party’s right of ownership remains, BOWA shall acquire co-ownership proportional to the invoice value of the processed, mixed or combined goods. In all other cases, the resulting product shall be treated in the same way as the goods delivered under retention of title.
(b) The Buyer hereby assigns to BOWA by way of security any claims against third parties resulting from the resale of the goods or the products, either in their entirety or in the amount of BOWA’s co-ownership share in accordance with Section 7 (4)(a) of these General Terms and Conditions. BOWA hereby accepts the assignment. The Buyer’s obligations set out under Section 7 (2) of these General Terms and Conditions shall also apply in consideration of the assigned claims.
(c) The Buyer shall remain authorised to collect any claim alongside BOWA. BOWA shall undertake to not collect any claim as long as the Buyer fulfils their payment obligations to BOWA, there are no solvency problems and BOWA does not assert the retention of title by exercising its right under Section 7 (3) of these General Terms and Conditions. However, if this is the case, BOWA shall be entitled to demand that the Buyer informs BOWA about any assigned claims and their debtors, provides all information required to collect the debts, hands over the corresponding documents and notifies the debtors (third parties) about the assignment. Furthermore, BOWA shall be entitled in this case to revoke the Buyer’s right to continue selling and processing the goods subject to retention of title.
(d) If the realisable value of the collateral exceeds BOWA’s claims by more than 10 %, BOWA shall release collateral at its discretion and at the Buyer’s request.
Section 8 Buyer’s claims for defects
(1) Unless specified otherwise hereinafter, the statutory provisions shall apply to the Buyer’s rights in the case of material defects or defects of title (including incorrect or insufficient delivery). In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has further processed these (recourse against the supplier pursuant to Section 478 et seq. BGB). Claims arising from recourse against the supplier shall be excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
(2) BOWA’s liability for defects shall be based above all on the agreement made on the quality of the goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or that were made public by BOWA (in particular in brochures or on BOWA’s website homepage) at the time of conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) If the quality of the goods was not agreed, the decision of whether or not there is a defect shall be based on the statutory provisions (Section 434 (1) sentences 2 and 3 BGB).
(4) The Buyer’s claims for defects shall be subject to the condition that the Buyer has fulfilled their statutory obligations to inspect the goods and give notice of any defects (Sections 377 and 381 HGB). If a defect is found upon delivery, during the inspection or at any later time, BOWA must be notified of this immediately in writing. In any case, any obvious defects must be reported immediately upon delivery (received by the Buyer) and any defects not identified during inspection must also be reported in writing immediately upon their discovery. If the Buyer fails to properly inspect the goods and/or notify BOWA about any defects, BOWA shall not be liable for any defect that was not reported or not reported in a timely manner or not reported in a proper manner in accordance with the statutory provisions.
(5) If the delivered item is defective, BOWA may in the first instance choose to rectify this either by fixing the defect (repair) or by delivering a non-faulty item (replacement). BOWA’s right to refuse subsequent performance under the statutory provisions shall remain unaffected.
(6) BOWA shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall retain the right to withhold a portion of the purchase price that is proportionate to the defect.
(7) The Buyer shall be required to give BOWA the time and opportunity needed for the due subsequent performance; in particular, the Buyer must hand over the rejected goods for examination purposes. In the event of a replacement, the Buyer shall return the defective item to BOWA in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if BOWA was not originally obliged to install it.
(8) If a defect actually exists, BOWA shall bear or reimburse the costs arising from the examination and subsequent performance, in particular transport, travel, labour and material costs as well as any removal and installation costs, where applicable, in accordance with the relevant statutory provision. If this is not the case and a defect does not exist, BOWA may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular examination and transport costs), unless the lack of defectiveness was not apparent to the customer.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect themselves and to demand reimbursement from BOWA for the objectively necessary expenses. BOWA must be notified immediately, if possible in advance, of any such self-remedy. The right to self-remedy shall not exist if BOWA would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or was not completed within the reasonable deadline set by the Buyer or a deadline for subsequent performance is deemed dispensable according to the statutory provisions, the Buyer shall be entitled to withdraw from the purchase contract or to reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(11) The Buyer’s claims for damages or reimbursement of futile expenses shall only exist in accordance with Section 9 of these General Terms and Conditions even in the case of defects and shall otherwise be excluded.
Section 9 Other liability
(1) Unless otherwise stated in these General Terms and Conditions, including the following provisions, BOWA shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) BOWA shall be liable for damages – irrespective of the legal basis – within the scope of fault-based liability in the event of wilful intent and gross negligence. In the event of simple negligence, BOWA shall only be liable subject to statutory limitations of liability (e.g. diligence in own affairs; insignificant breach of obligation) for
a) damage resulting from injury to life, body or health; and
b) damage resulting from the breach of a material contractual obligation (an obligation that must be fulfilled to enable the proper execution of the contract, compliance with which the contractual partner regularly relies and is entitled to rely upon); in this case, however, BOWA’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from Section 9 (2) shall also apply in the event of breaches of obligation by or for the benefit of persons for whose fault BOWA is responsible in accordance with the statutory provisions. They shall not apply if BOWA has fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Buyer under the German Product Liability Act (ProdHaftG).
(4) The Buyer shall only be entitled to withdraw from or terminate the contract due to a breach of obligation that does not consist of a defect if BOWA is responsible for the breach of obligation. The Buyer’s free right of termination (in particular in accordance with Sections 650 and 648 BGB) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
Section 10 Statute of limitations
(1) In derogation of Section 438 (1) no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one (1) year from delivery. If acceptance has been agreed, the statute of limitations shall begin upon acceptance.
(2) The above limitation periods of commercial law shall also apply to contractual and non-contractual claims for damages by the Buyer that are based on a defect of the goods, unless the application of the regular statutory limitation period (Section 195 and 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the Buyer in accordance with Section 9 (2) sentence 1 and sentence 2(a) as well as pursuant to the German Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
Section 11 Choice of law and place of jurisdiction
(1) These General Terms and Conditions and the contractual relationship between BOWA and the Buyer shall be subject to the laws of the Federal Republic of Germany to the exclusion of UN sales law.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of BOWA in Gomaringen, Germany. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 BGB. However, BOWA shall also be entitled in all cases to bring legal proceedings at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the Buyer’s general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
Section 12 Information on the identity of BOWA
BOWA-electronic GmbH & Co. KG
Heinrich-Hertz-Straße 4–10, 72810 Gomaringen, Germany
Tel.: +49 (0) 7072 6002-965
Fax: +49 (0) 7072 6002-3965
Legal form: Kommanditgesellschaft (limited partnership)
Registry court: Stuttgart
Commercial register number: HRA 381478
VAT ID number: DE 240259728
As at: 23 January 2020
Any previous terms and conditions of sale, delivery and payment are hereby no longer valid.