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Business to Business Terms and Conditions – Boska-USA Corporation
Article 1 - Scope of Application
1.1. These General Terms and Conditions (the “Terms”) apply to all offers and quotations by Boska-USA Corporation and/or any of its affiliated companies (“Boska”), the use of Boska’s websites, and in general the business relationship and all contracts between Boska and its Customers (which means for the purpose of these Terms: any natural person, company and/or corporation with whom Boska and its employees deal in the course of its business, including representative(s), agent(s), successor(s) and including visitors of Boska’s website).
1.2. No other terms and conditions shall be binding upon Boska unless accepted by it in writing. Boska expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind Boska.
1.3. Wherever Boska does not insist on strict compliance of these Terms, this will not mean that such provisions do not apply, or that Boska will waive the right to demand strict and timely compliance with such provisions.
1.4. Wherever these Terms refer to the (supply of) goods, this will also mean the provision of services and performance of work of any nature whatsoever, as may be applicable.
1.5. If any provision of these Terms or any other agreement between the parties is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
Article 2. Offers, Products, Prices and Taxes
2.1. All offers by Boska are non-binding and may be revoked at any time without liability to damages or expenses incurred by Customer, unless Boska stated otherwise in writing. Any amendments made by Boska in writing or verbally, shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of a Boska offer, will be deemed a new offer by Customer, which Boska may accept or reject at its sole discretion. An offer expires without further notice if the relevant goods to which the offer relates have become unavailable.
2.2. Product configurations and prices are subject to change at any time. Calculation, transcription, typographical and other errors in offers, prospectuses, publications, brochures, order confirmations, invoices and other documents submitted by Boska, will not bind Boska. Test models, drawings and other samples shown or provided are only non-binding indications of the products in question
2.3. Prices are based on delivery ex warehouse/works, unless otherwise agreed in writing, and do not include accommodation, shipping, delivery, service, postage, administrative, packaging, insurance, and any other additional costs, costs of quality control and import duties. All listed and quoted prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Boska or on Customer by any taxing authority (other than taxes imposed on Boska’s income), related to Customer’s order, unless Customer has provided Boska with an appropriate resale or exemption certificate for the delivery location, which is the location where Boska transfers title or possession of products to Customer.
2.4. A multi-part offer will not bind Boska to execute part of the offer for a corresponding part of the quoted price. Offers will not automatically apply to future orders.
2.5. Agreements and/or commitments entered into and/or made by or on behalf of Boska, will only bind Boska if these are expressly confirmed in writing by duly authorized officers of Boska.
Article 3. Payments
3.1. All payments by Customer shall be effected in U.S. Dollars, unless otherwise stated on Boska’s invoice. Customer agrees to pay, without the right to set-off any amounts, all invoiced amounts within fourteen (14) days of the invoice date. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any Federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
3.2. Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, whichever is higher, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month. If Customer is in default with its payment obligations toward Boska, it will be liable to pay all collection costs, including reasonable attorney and court expenses.
3.3. Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
3.4. Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged defects of products or on any other account whatsoever.
3.5 Boska may require a purchase money security interest or any other form of security, including advance payments, at all times. If requested by Boska, Customer will authorize Boska to file a financing statement reflecting a purchase money security interest and Customer will record such purchase money security interest on its books. If Customer does not meet Boska’s request to provide security, Boska shall be entitled to cancel any order and terminate any agreement or to suspend its obligations.
Article 4. Orders, Shipping, and Delivery
4.1. All orders are subject to product availability. Customer is aware that products are shipped through third party carriers and that delivery times and dates are merely estimates. BOSKA CANNOT BE HELD LIABLE FOR ANY DAMAGES AS A RESULT OF DELAY IN DELIVERY OF PRODUCTS.
4.2 Unless otherwise agreed in writing, delivery shall be made ex warehouse/works. Boska is entitled to make partial deliveries. Customer must accept delivery of products during normal business hours, failing which all costs arising thereof (including storage charges and freight charges) shall be charged in conformity with Boska’s rates or local rates.
4.3 The risk of loss or damage of products shall pass to Customer at the moment of delivery ex warehouse/works, even if Boska has not yet transferred the ownership thereof. Title to a product will transfer to Customer immediately after the full purchase price has been received by Boska, provided that Customer is not otherwise in default of the purchase agreement and these Terms.
4.4. If Boska requires information relating to the Customer for the execution of any order, the execution period will only begin after the Customer provides accurate and complete information to Boska as required.
4.5. Boska has the right to have certain works carried out by third parties and have products directly shipped and delivered by third parties.
4.6 Except after Boska’s express written consent, Customer is not permitted to assign its rights and/or obligations under any order or agreement to third parties, not including affiliated companies.
4.7 If orders or agreements are executed by two or more Customers jointly, all of these Customers will be jointly and severally liable for the performance of any obligation in connection to such orders or agreements.
4.8. If Customer fully or partially cancels an order, section 5.3 will apply.
4.9. If Boska provided a fixed price, Boska will nevertheless have the right at all times to increase such price, if the increase is the result of a mandatory obligation under applicable laws or regulations, or is due to an increase in the price of raw materials, wages, etc., or on other grounds that were not reasonably foreseeable at the time of making the offer.
4.10. The Customer may cancel an order, if the price increase mentioned in the previous paragraph is 10% or more. However, Boska will not be liable for Customer’s related expenses or damages. If the goods have already been delivered, they should be returned immediately after the cancellation, according to Boska’s instructions and at Boska’s expense. Customer remains fully responsible for deterioration, damage, theft, etc., until the products are returned and received by Boska.
Article 5. Inspection, Acceptance of Products, Returns
5.1 Claims in connection to shortages or errors in shipping must be reported to Boska within two (2) days of receipt of such shipment. If Customer fails to report shortages or errors timely, Boska will have no obligation to correct such shipments, unless Customer bears all the expenses thereof.
5.2 Immediately upon receipt of a product, Customer shall test and inspect it for defects and non-conformance with the written specifications provided by Boska and will notify Boska in writing within seven (7) days of receipt of a product, of any defects or non-conformance. After such seven (7) day period, Customer shall be deemed to have irrevocably accepted the products, if not already previously accepted. After acceptance, Customer shall have no right to reject the products for any reason or to revoke acceptance. Customer hereby agrees that a seven (7) day period is a reasonable amount of time for inspection and revocation.
THE SOLE AND EXCLUSIVE REMEDY FOR ALLEGEDLY DEFECTIVE PRODUCTS IS THE REPLACEMENT OR REPAIR OF SUCH PRODUCTS OR PARTS OF SUCH PRODUCTS, AT NO COSTS FOR CUSTOMER.
5.3 Customer may return products with a minimum value of $100 within seven (7) days of receipt after giving advance written notice to Boska, if: (i) it is in new condition, without Customer’s price tags, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns shall be subject to the following deductions: (i) cost of putting items in saleable condition; (ii) transportation charges, if not prepaid; and (iii) handling and restocking charges. Discounted products may not be returned, unless agreed by Boska in writing. Custom made products may not be cancelled or returned, and no refund will be made.
Article 6. Suspension of Performance, Cancellation of Orders, Termination of Agreements
6.1. Boska is entitled to suspend its performance (including future partial deliveries) if Customer fails to meet any of its obligations or if Boska reasonably expects that Customer will not fulfill its obligations.
6.2. Boska has the right to cancel any order and terminate any agreement for any and all reasons without being liable for damages or costs incurred by Customer.
6.3 In case of cancellation of an order or termination of an agreement, the risk relating to goods already shipped and/or delivered will remain with Customer
Article 7. Representations and Warranties
7.1. Boska represents and warrants that its products materially meet the specifications and specifically agreed upon quality, both as stated in writing by Boska for a period of twelve (12) months, as of the date of invoice.
7.2 The period of warranty for products of suppliers of Boska, as from the date on which these products are accepted, is equal to the period for which the supplier of Boska is responsible and/or liable towards Boska.
7.3 The representations and warranties hereunder do not cover faults or damages arising from natural wear and tear, faulty or careless treatment, faulty and unauthorized commissioning, installation or setting into operation by Customer or a third party, improper storage or unloading and unauthorized unpacking of products, improper or defective environmental circumstances and unauthorized relocation of products. Unauthorized modifications, repairs, or additions to products, and wrong maintenance or maintenance by unauthorized people shall invalidate all warranties in connection thereto.
7.4 The rights of the Customer with respect to this warranty clause are restricted to a lack of conformity caused by defects, faulty materials and failures in the products or workmanship which appear under proper use, in conformity with the operational and first-line-maintenance manual, if any.
7.5 A warranty period of 3 (three) months is applicable to repairs conducted by or on behalf of Boska. For replaced parts, no additional warranty period is applicable, but the period mentioned in section 7.1 on the original product, will include those parts. Defective parts shall become Boska’s property as soon as they have been replaced. No warranties are made in connection to consumables and/or spare parts.
7.6 EXCEPT AS UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, BOSKA MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION TO ITS PRODUCTS, INCLUDING WARRANTIES ABOUT ITS PRODUCTS’ MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT (WHETHER EXPRESS, IMPLIED OR STATUTORY), UNLESS EXPLICITLY MADE AND PROVIDED BY BOSKA IN WRITING TO CUSTOMER.
Article 8. Liability and Limitation of Damages
8.1 IN NO EVENT WILL BOSKA BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE RELATIONSHIP BETWEEN THE PARTIES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF BOSKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 BOSKA’S MAXIMUM AGGREGATE LIABILITY FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE PURCHASE AMOUNTS PAID TO BOSKA IN CONNECTION TO THE PRODUCTS SUBJECT TO THE CLAIM. .
8.3 Customer agrees to defend and indemnify Boska, its present and future officers, directors, shareholders, employees and agents, and to hold each of them harmless from and against any claim, demands, causes of action, damages, liabilities, costs and expenses, including reasonable attorney’s fees, arising from unauthorized maintenance, repairs or modification of Boska’s products by or on behalf of Customer or its customers, or products that are out of the ordinary course of business of Boska and that were explicitly requested and/or designed by Customer.
8.4. Customer furthermore indemnifies Boska against any claims of third parties in connection with damage caused in connection with the execution of the agreement, and the cause of the same cannot be attributed to Boska. If a third party makes a claim against Boska in this regard, Customer will indemnify and defend Boska. If Customer does not adequately defend Boska in this respect, Boska will have the right to take such measures on its own, without the need to issue a notice of default to Customer. All costs and expenses incurred by Boska in connection to its defense will be for the account of Customer.
- Intellectual Property Rights and Confidential Information
9.1. All intellectual property rights relating to Boska’s products, services, and websites, e.g. patents, copyrights, data protection, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights are owned by Boska or its suppliers and licensors. No transfer, license or other grant of rights are given to Customer.
9.2. Customer may not, nor may enable and/or allow third parties to (i) copy, modify, translate, or reverse engineer any of the Boska products; (ii) remove any copyright, trademark or other proprietary rights notices on Boska’s products; (iii) infringe intellectual property rights of Boska or of its suppliers and licensors; and (iv) attack, challenge or claim any of Boska’s or its suppliers and licensors’ (claimed) proprietary rights.
9.3. Confidential Information means (i) the existence and terms of any order and agreement and (ii) any non-public, confidential or proprietary information relating to a disclosing party, whether or not technical in nature, including any that is designated by the disclosing party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving party at the time of disclosure by the disclosing party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing party; or (v) is developed independently and separately by either party without use of the disclosing party’s Confidential Information.
9.4 Each party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other party and that it will observe the same due care with respect to such information as they would observe with respect to its own Confidential Information. The other party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without de disclosing party’s prior written consent, which consent may be granted or withheld in such party’s sole and absolute discretion.
9.5 Each party agrees that it will restrict the circle of employees or third parties it retains who have access to the other party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in this Agreement.
9.6 Immediately following the receipt of a written request to this effect by the disclosing party the receiving party will return any and all Confidential Information received from the disclosing party or destroy such Confidential Information, if the disclosing party so requests.
9.7 Boska has the right to use the knowledge it has gained through the performance of any order or agreement for any and all purposes, provided that Confidential Information of Customer is not disclosed to third parties.
Article 10 - Force Majeure
Boska will not be liable for any delay in performing or failure to perform any of its obligations under an order or an agreement caused by events beyond its reasonable control. Boska will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
Article 11. Applicable Law and Jurisdiction
Unless stated otherwise in writing, all orders, agreements and in general the business relationship between Boska and Customer, shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. With respect to any disputes arising between the parties, parties hereby submit exclusively to the personal jurisdiction of the Federal courts in New York, New York. The parties consent and agree that each such court is a convenient forum for, and has proper venue over, the resolution of all legal actions, proceedings and disputes arising out of or relating to their relationship. ANY CAUSE OF ACTION AGAINST BOSKA, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.