1. SCOPE
1.1. The following terms and conditions shall apply to all deliveries and services of BOLTLIV INC (hereinafter referred to as “Boltliv”). The version being in force at the time of the conclusion of the contract shall apply in each case.
1.2. No deviating, conflicting or supplementary general terms and conditions of the Buyer shall become part of the contract, even if they are known to Boltliv, unless their application is expressly agreed in writing. Therefore, no failure on the part of Boltliv to express itself with regard to the Buyer’s general terms and conditions of business, and in particular with regard to any terms and conditions of purchase, shall be deemed to constitute consent under any circumstances.
2. CONCLUSION OF THE CONTRACT
2.1. Unless agreed otherwise, our offers are of a non-binding nature. No binding contract is concluded until we have confirmed the order in writing or until the parties have signed an individual contract.
2.2 No contract amendments, cancellations or suspension of orders shall be binding without our express consent in writing. In the absence of an agreement to the contrary, all costs and disadvantages caused as a result thereof shall be borne by the Buyer. In any event, a cancellation of the contract on the part of the Buyer, if applicable, is only possible as long as we have not undertaken any performance activities. If the Buyer does not withdraw from the contract in due time, it is liable to compensate us for any actually accrued losses or expenses, in particular the incurred production costs.
2. 3 All documents attached to the offer, if any (e.g. technical documents, samples, drawings, etc.), shall remain the property of Boltliv; consequently, any use thereof – such as editing or forwarding the offer documents to third parties – is strictly subject to our express consent in writing.
3. OBJECT OF THE CONTRACT
3.1. The object, quantity and quality of the deliveries and/or services of Boltliv shall be governed by the relevant contractual agreements with the Buyer. In the absence of an express agreement to the contrary, production technology-related deviations in terms of dimensions, weights, technical characteristics and specifications are always permissible, as long as they do not exceed the generally accepted industry-specific tolerance limits or the tolerance limits specified in the applicable technical standards.
3.2. Unless agreed otherwise, production-related deviations from the total order quantity of plus or minus 10% are permissible.
4. PRICES AND TERMS OF PAYMENT
4.1. The prices and terms of payment indicated on the order confirmation of Boltliv or in the contractshall apply. Unless expressly agreed otherwise, all prices for deliveries and/or services are net prices free of any deductions. All prices are quoted in euros or US dollars. Fees and charges, if any, shall be borne by the Buyer.
4.2. Payments shall be made free of any deductions to the account specified by us. Unless agreed otherwise, they shall be paid prior to order.
4.3. The Buyer expressly agrees, that Boltliv may also issue and send invoices to it through electronic transmission channels.
4.4. In the event of a default in payment, Boltliv may charge interest on arrears at the statutory rate plus reminder and collection fees, to the extent necessary for appropriate legal prosecution and reasonable in view of the claim.
4.5. If the Buyer defaults on a payment in whole or in part, or if Boltliv becomes aware of circumstances which, in its own opinion, are likely to have a negative impact on the credit rating of the Buyer or which may seriously jeopardize the enforcement of payment claims, Boltliv may make the performance of outstanding services conditional upon advance payment or the provision of other appropriate and acceptable collateral, and/or upon the setting of a reasonable period of grace it may withdraw from the contract (if applicable only partially) and claim damages, in particular on the grounds of non-fulfillment of the contractual purchase commitment. The aforesaid shall be without prejudice to any other contractual and statutory rights of Boltliv.
4.6. No counterclaims of the Buyer against other companies affiliated with Boltliv, if any, shall be offset against Boltliv. It is further understood that offsetting against counterclaims is only permissible if the Buyer’s counterclaims have been established in accordance with the law or are recognized by us. The Buyer is not entitled to withhold payments, e.g. on account of warranty claims.
5. COLLATERAL AND RETENTION OF TITLE
5.1. Boltliv is entitled to appropriate, customary and recoverable securities for receivables based on the type and scope of supplies and/or services, especially with respect to payment claims. In any case, individually or intermittently non-enforced security claims shall not constitute a waiver by Boltliv.
5.2 All deliveries shall remain the unrestricted property of Boltliv until the purchase price shall have been paid in full. If the goods are processed by the Buyer, Boltliv shall acquire co-ownership in the new goods item in proportion to the value of the goods delivered by it. The same applies if the goods items are processed or mixed with other items that do not belong to Boltliv.
6. SHIPPING AND TRANSFER OF RISK
6.1. Deliveries of Boltliv shall be made in accordance with the Incoterm clause 2020 to be agreed in each individual contract. The risk shall pass in accordance with the applicable Incoterm clause 2020.
6.2. Unless expressly agreed otherwise, loading site shall always be carried out by the loading company commissioned by Boltliv. In this context, Boltliv reserves the right to deny the loading of transport vehicles that are not operationally safe or not suitable for transport (e.g. defective general condition, without load securing equipment, etc.) in individual cases following appropriate inspection.
6.3. Unless agreed otherwise, Boltliv shall be entitled to make reasonable partial deliveries.
6.4. If, according to the agreed Incoterm clause, unloading is the Buyer’s responsibility, the goods must always be unloaded without undue delay, completely and without damage/special contamination of the transport vehicle. Any special contamination caused by loose materials or packaging materials must be removed accordingly. As a matter of principle, Boltliv does not take back packaging materials that merely serve packaging purposes.
6.5 Irrespective of the agreed Incoterm clause, it is the obligation of the Buyer to notify us of all transport damages with full particulars.
7. FORCE MAJEURE AND OTHER DELIVERY HINDRANCES
7.1. Boltliv shall be released wholly or partly from the performance of the contract if such performance is prevented by events of force majeure. Such events entitle Boltliv to postpone the fulfillment of the contract accordingly, or to withdraw from the contract entirely or from that part that has not yet been fulfilled, without the Buyer having the right to raise legal claims against Boltliv. Events of force majeure shall include but shall not be limited to war, riots, political unrest, forces of nature, explosions and fire, as well as strikes, lockouts, major operational disruptions, decisions by the authorities, sanctions, embargoes, pandemics, epidemics and other unforeseeable circumstances that make it significantly more difficult or impossible for Boltliv to deliver goods or render services, such as severe breakdown of machinery, shortages of input materials, severe obstruction of transport, energy shortage etc, irrespective of whether the affected party is Boltliv itself or one of its subcontractors.
7.2. Boltliv shall inform the Buyer as soon as possible of the existence of an event of force majeure, and it shall make every effort to remove the force majeure and to minimize losses.
7.3 If an event of force majeure exceeds a period of 3 months, the Buyer may withdraw from the contract with regard to the parts of the agreed scope of delivery whose production has not yet begun. There is no entitlement to compensation in connection with an event of force majeure against Boltliv.
8. DELIVERY PERIODS AND DEADLINES
8.1. Irrespective of other contractual agreements, all delivery periods and deadlines apply expressly subject to the absence of unforeseeable production disruptions and subject to sufficient supply with the necessary raw materials, and other external services required for Boltliv’s performance. Non- compliance with delivery dates and deadlines in this respect shall not constitute infringement by Boltliv on contractual obligations or other responsibilities.
8.2. Unless agreed otherwise, the indicated delivery periods and deadlines are generally of a non- binding nature and do not entitle the Buyer to compensation for any losses incurred by it as a result of a delay in delivery and performance of services, irrespective of the cause in law. However, in the event of prolonged delays in delivery attributed to Boltliv, the Buyer may withdraw from the contract upon the unsuccessful expiry of a reasonable grace period set previously in writing.
9. DEFAULT IN ACCEPTANCE
9.1. In any case, the Buyer is contractually obliged to call off and accept the deliveries and/or services ordered by it as agreed in the contract. In all cases of a delayed call-off/default in acceptance by the Buyer contrary to the contract, Boltliv is entitled to store the relevant deliveries and/or outputs at the expense and risk of the Buyer, and it may invoice the agreed purchase price without setting a further deadline.
9.2. In addition, Boltliv reserves the right – in the event of a default in acceptance and after the unsuccessful expiry of a period of grace of 30 days – to sell or dispose of the affected deliveries and/or outputs otherwise (scrapping, etc.) and to invoice the Buyer for the resulting costs and, in particular, for reduced income. Other legal and contractual rights are expressly reserved.
10. WITHDRAWAL/RESCISSION OF THE CONTRACT
10.1. Boltliv is entitled to withdraw from the contract with immediate effect
a) if the Buyer violates material contractual obligations and does not establish/restore compliance with the contract within a reasonable period of grace in spite of having been requested to do so, or if it violates Boltliv’s Code of Conduct, pursuant to clause 15,
b) if unfavorable circumstances regarding the credit rating of the Buyer or its economic situation come to light after the conclusion of the contract, and if the Buyer refuses to make advance payment at Boltliv’s request,
c) if reorganization or insolvency proceedings or equivalent proceedings with a similar effect are applied for/initiated with respect to the assets of the Buyer – insofar as legally permissible – or if the initiation of any such proceedings is rejected for want of sufficient assets,
d) if there is a significant change with regard to the circumstances of the Buyer’s company which makes it unreasonable for Boltliv to continue with the contract in question for understandable reasons, or
e) if the technical, legal or economic framework conditions change in such a negative way during the term of a supply agreement that it becomes unreasonable for Boltliv to continue with the supply agreement.
10.2 No claims against Boltliv can be derived from such a declaration of withdrawal in accordance with Clause 10.1. above. By contrast, in cases 10.1. a to d above, Boltliv may claim compensation for any resulting incurred losses from the Buyer.
11. WARRANTY
Quality: Quality shall be determined in accordance with the following provision (whichever is appropriate):
a) Consensus Standard: ISO, DIN, SAE, etc. b) Agreed upon PPAP Documents and/or drawings as communicated by Manufacturer and agreed between Buyer and Boltliv. c) Manufacturer’s specifications as communicated by Manufacturer.
11.1. Boltliv warrants that the deliveries and/or services are in compliance with the contractually agreed requirements and specifications. Boltliv does not warrant or accept any liability for specific characteristics or the usability of the deliveries and/or services for a specific purpose other than those explicitly agreed to in written by Boltliv. No warranty cover is provided, if the defect is due to normal wear and tear, improper storage or use, inadequate maintenance, unusual environmental influences or transport damages. In the case of contract work, Boltliv’s liability for defects in workmanship is limited to the labor costs invoiced by us – insofar as legally permissible.
11.2. Unless agreed otherwise, the warranty period shall be 12 months from delivery/arrival of the goods.
11.3. The Buyer is obliged to inspect the goods immediately after their delivery and it shall notify Boltliv in writing – within a reasonable period of time, but max. within 30 working days – of all defects in the deliveries and/or services that were detectable at the relevant time after delivery in the normal course of business. Transport damages and obvious, visible damages as well as quantity-related differences must be brought to our attention in writing within max. seven (7) working days. Defects, which could not be recognized after delivery (hidden defects) must be reported by the Buyer within a reasonable period of time after having become recognizable, but at the latest within the warranty period. Processing or treatment of the affected goods must be stopped immediately. The notice must clearly specify the kind of the alleged defect. Goods for which no notice of defect is made (or made in due time) shall be deemed to have been duly approved. Therefore, if the notice of defect is not made in due time, the Buyer is no longer entitled to assert warranty claims or claims for damages due to a defect, or based on an error regarding the absence of defects of the item.
Throughout the entire warranty period, the burden of proof that defects in the deliveries and/or services, if any, were already present at the time of handover lies with the Buyer.
11.4. Boltliv is entitled to thoroughly inspect (or have inspected) any goods rejected or objected to by the Buyer. The Buyershall provide all documents requested by Boltliv, which are necessary for the inspection of the rejected goods. The Buyer loses all claims for defects if it does not allow us to convince ourselves of the defect, or if it violates its aforementioned duties to cooperate.
11.5. In the event of justified defects for which a notification was provided in due time, Boltliv shall proceed as follows, duly taking into account the justified interests of the Buyer: always at its own discretion it shall either replace the defective deliveries and/or services within a reasonable period of time (in due consideration of the customary production times in the industry) with (the same extent of) faultless deliveries and/or services, or it shall cure/repair any defects by means of improvement, or it shall apply a reasonable price reduction (if necessary also by means of a credit note procedure). If an improvement or a replacement of a defect that is not minor is either impossible or fails, the Buyer may demand rescission/cancellation of the contract.
Claims for compensation over and above the aforesaid, of any kind whatsoever, are excluded. In any event, our warranty obligationshall expire upon expiry of the warranty period.
12. LIMITATION OF LIABILITY
12.1. To the extent permitted by law, Boltliv (including its legal representatives, employees, vicarious agents, etc.) does not accept liability for slight negligence. In any case, compensations for indirect damages or consequential damages (in particular from production downtime or business interruptions), as well as for loss of profit, unrealized savings or loss of interest and pure financial losses are all excluded.
12.2. To the extent permitted by law, the total liability of Boltliv, irrespective of the legal grounds, shall be limited to the total amount of the net order value of the respective delivery causing the damage.
12.3. However, this limitation of liability does not include mandatory claims under the Product Liability Act and/or personal injury.
13. CONFIDENTIALITY
13.1. The following applies unless a separate non-disclosure agreement (NDA) has been concluded by the parties:
The Buyershall observe strict confidentiality – throughout the term of the contract plus 5 years after its termination – with respect to all information of which it shall become aware in the course of the execution of the contract, or which shall be provided to it by Boltliv orally, in writing or in electronic format, for example all technical, commercial and/or business information, including price and payment conditions, formulas and product compositions, ideas, designs, electronically recorded data and product samples, etc. (hereinafter collectively referred to as “Information”). No such information shall be made available to third parties without Boltliv’s prior written consent, and it shall not be used for any other than contractual/order-related purposes.
13.2. This obligation does not extend to
a. information that is already known to the general public or that is in the public domain at the time of its disclosure to the Buyer,
b. information that was already lawfully in the possession of the Buyer at the time of its disclosure and that was not subject to any confidentiality obligation,
c. information the Buyer has received from a third party who was lawfully entitled to disclose it without restriction, or
d. information developed independently by the Buyer without relying on the disclosing party’s information.
13.3. Any advertising measures or reference agreements shall in any case require the prior written agreement of both parties.
13.4. To the extent that Boltliv provides information to the Buyer or makes it available to it pursuant to Clause 13.1, Boltliv expressly reserves all rights, in particular intangible rights (including intellectual property rights, copyrights/trademarks and design rights, etc.), to this information, and in the absence of an express agreement to the contrary, the provision of this information does not involve the transfer of a license or any other permission to use the information.
13.5. With a view to the protection of sensitive corporate information and data (e.g. technical and commercial know-how meriting protection) as well as in connection with any existing confidentiality obligations on the part of Boltliv vis-à-vis third parties, Boltliv expressly reserves the right to limit the exercise of contractually agreed audit rights or rights to inspect business documents, if any, to the extent necessary in this respect by type, content, scope and individual auditor. Audits/inspections can only take place after a written notice has been provided in advance (at least 14 working days) and after an appointment has been made with Boltliv. Such audits/inspections shall be carried out during normal business hours, duly considering and respecting the visitor and safety regulations that apply on Boltliv’s premises and have been brought to the Buyer’s attention. Under no circumstances is it tolerable, that audits/inspections cause disturbances or interruptions of the production process or create safety risks. All information, of any kind whatsoever, of which the Buyer or the auditor gains knowledge in the course of audits/inspections shall be treated as strictly confidential by the auditor and shall be used exclusively for the purposes of the contract. The costs incurred in connection with any audits or inspections shall be the responsibility of the Buyer.
14. DATA PROTECTION
14.1. All information with relevance for data protection purposes, in particular personal data which Boltliv or an affiliated company obtains in the course of its business activities, shall be processed exclusively in conformity with the applicable data regulation provisions. These data shall be used exclusively to fulfill the applicable contractual and statutory obligations of Boltliv in connection with the specific business relationship with the Buyer.
15. COMPLIANCE
15.1. The Buyer expressly acknowledges and accepts the principles and guidelines defined in the “Code of Conduct of Boltliv” and the “Code of Conduct for Boltliv Business Partners” derived from it, for a sustainable, ethically/morally and legally unobjectionable business conduct.
15.2. If the Buyer violates a provision of the Code of Conduct for Boltliv Business Partners, Boltliv may terminate the contract with the Buyer with immediate effect and claim damages.
16. EXPORT REGULATIONS
16.1. The fulfillment of the contract by Boltliv is subject to the absence of obstacles to its fulfillment as a result of national or international regulations under the Foreign Trade and Payments Act, and subject to the absence of embargos (and/or other sanctions). In this case, Boltliv is entitled to withdraw from the contract immediately, whereby mutual claims for damages are excluded. If required for export control inspections, the Buyershall submit to Boltliv any documents and information that may be required in connection with export control procedures, including information on the final customer, final destination and end use, within a reasonable period of time.
16.2. In connection with the transfer of deliveries and any related services to third parties, the Buyer shall comply with all national and international export control regulations, in particular those under Community law, and in particular it shall refrain from reselling the goods to third parties whose intention, it has reason to believe, is to disregard or circumvent such regulations.
16.3. The Buyer is fully responsible vis-à-vis Boltliv for any losses arising to the latter as a result of the culpable non-compliance by the customer with European or US or other applicable export regulations. In this respect, the Buyershall release Boltliv from any liability vis-à-vis third parties.
16.4 It is explicitly pointed out, that applicable US sanctions prohibit Boltliv from delivering to Iran or to an Iranian company. The Buyershall ensure full conformity with these regulations, whether or not they are directly applicable to it, and it will neither deliver our goods to Iran, nor resell them to a third party whose intention to deliver to Iran is known to it, nor circumvent this prohibition in any way. If the Buyer does not comply with these requirements, Boltliv may terminate the contract with immediate effect and demand compensation from the Buyer for all losses arising as a result.
17. APPLICABLE LAW, VENUE, PLACE OF PERFORMANCE
17.1. The place of performance for all contractual obligations is Boltliv’s registered office.
18. MISCELLANEOUS
18.1. No present or future invalidity or unenforceability of individual provisions of these Terms and Conditions, whether wholly or partly, shall affect the validity or enforceability of its remaining commercial provisions. The parties shall replace the legally invalid or unenforceable provision with another valid and enforceable provision that reflects the content and purpose of the invalid or unenforceable provision as closely as possible.
18.2. Claims of the Buyer can only be assigned with the express written consent of Boltliv.