General Terms and Conditions
General terms and condition
1. Applicability of sales conditions
1.1 Our Terms and Conditions of Sale which follow below and which are based on the model terms and conditions of the Fachverband[...] Faltschachtel-Industrie e.V. apply solely and exclusively to any and all contracts which we conclude with companies, legal entities under public law or public-law special funds (hereinafter: ""Buyer""). Buyer's terms and conditions of business as a whole do not apply unless we have expressly agreed to their application in writing. This provision also applies to clauses in the Buyer's terms and conditions of business which are not contrary to our terms and conditions. Our General Terms and Conditions apply even if we, being aware of conditions of the customer that are contrary to or deviate from our General Terms and Conditions, carry out deliveries without reservations. Our terms and conditions of sale shall also apply for all future business transactions.
2. Offers, Order and Prices
2.1 Our offers are subject to confirmation in terms of price and delivery possibility. A contract is deemed to be concluded with our written order confirmation per e-mail or with the immediate completion of the relevant work.
2.2 Expenses which we incur during the preparation of the offer, such as costs for development, technical services, samples and corrections, shall be borne by the Buyer in the event that no order is placed.
2.3 The Buyer submits a binding offer by the action of ordering the merchandise. We are entitled to accept this offer within two weeks upon receiving the same.
2.4 We do not assume any procurement risk with regard to our being supplied by our own suppliers unless we are accountable for such provisions not being delivered in good time or not being delivered correctly.
2.5 Prices are quoted in euros, excluding statutory value-added tax, unless express agreement stipulating a different currency has been reached.
2.6 All prices are ex-works The costs of transport, shipping, loading and packaging are not included in the given prices and are charged individually. If and when the Parties have agreed to FOB prices, such prices do not include the port and customs duties.
3. Intellectual Property, Industrial Property Rights, Title to Working Materials
3.1 We have the exclusive intellectual property rights or industrial property rights related to designs, template designs, drawings, samples, films, lithographies, clichés, embossing, punching dies, negatives, plates, rollers, forming tools, digital data, pressure cylinders, etc. (hereinafter
: work materials). The Buyer may not use these working materials without an express, prior, written agreement in which a reasonable utilization fee is stipulated.
3.2 The Buyer is liable for any infringement on any third-party rights, in particular, but not limited to, intellectual property rights or industrial property rights, which results from the merchandise which we have manufactured in accordance with his working materials or other specifications or instructions. The Buyer agrees to indemnify and hold us harmless, upon first request, from and against any and all claims asserted against us by third parties on the basis of alleged or actual infringement of intellectual property and/or industrial property rights to the extent that we have manufactured the merchandise in accordance with his working materials or other specifications or instructions.
3.3 Working materials which are required for the manufacture of the merchandise and which we have produced remain our property, [...] even if and when the Buyer has contributed financially to the production costs. A duty for the publication of information does not exist.
3.4 We will store any working materials and data records provided by the Buyer solely at the Buyer's risk. We are liable solely for the same care in our own affairs. We will insure such working materials and data records solely upon the express request of the Buyer and solely at his expense. If and when the Buyer does not request return of working materials within one year or of data records within three years [...] after our last use, we are entitled to destroy the materials or records after previously notifying the Buyer.
4.1 Delivery dates are binding solely if and when we have expressly assumed in writing a commitment to compliance with them. The delivery term is subject to unforeseen events, we are not liable for. We will be deemed in compliance with the delivery date if and when the merchandise is handed over to the freight company well enough in advance that delivery in compliance with the delivery date can be expected under normal circumstances.
4.2 If the Parties have agreed to a release order or delivery schedule, any such schedule shall be binding on both Parties. Deviations are subjecgt to the express written acknowledgement by the other Party. All additional costs originated by such deviations (such as storage costs, financing costs) or material changed are borne by the party requesting the deviation from the purchase or delivery schedule.
4.3 If and when we do not comply with the delivery date, the Buyer is entitled and obligated to set in writing a reasonable subsequent period for the delivery. In general, the respite must be at least 12 working days. The Buyer may withdraw from the contract if the duration of such events exceeds a reasonable time period. For continued or successive delivery contracts, such right of rescission shall be limited to the actual delivery, unless the continuance of the whole contract is no longer feasible for th Buyer.
4.4 The place of performance for our obligation to deliver is the place of the production factory, also if we assume the shipment of the merchandise, upon the Buyer's request. The risk transfers to the Buyer at assignment of the merchandise for shipping, unless otherwise provided This applies equally , when the delivery is ex-work or freight prepaid and/or we perform transportation ourselves.
4.5 In the absence of a written agreement regarding the packaging, its selection shall be at our discretion. We retain title of ownership to any and all pallets, drop-side mesh pallets, cover boards, wooden crates, cardboard boxes [...] and other suitable packaging and transport materials we have provided for repeated use. The Buyer is held to return these in perfect state and at Buyer's own costs within two weeks upon the use of the merchandise delivered in the the same. 4.6Unless otherwise is explicitly agreed in writing, partial deliveries are allowed.
4.7 During the manufacture of the merchandise, production conditions can result in overdelivery or underdelivery of as much as +/-20%. Possible deliveries higher or lower than this tolerance constitute due contractual performance. The Buyer is held to pay the price for the actually delivered quantity.
5. Terms of payment, charging to account, assignment
5.1 Unless otherwise agreed, the invoices are due and payable without deductions upon receipt. Discount payment and other departures are only permissible, as far as this was previously expressly agreed in writing. Should the Buyer not pay within 14 workdays, beginning from receipt of the invoice or the agreed payment term, the Buyer shall be in default irrespective of any reminder from us, n case of delay of payment on part of the purchaser, we are entitled to demand interest at the legal rate, but at least at a rate of 12% p.a. The enforcement of a higher claim for damages caused by delay remains unaffected.
5.2 Payment orders, bills of exchange and cheques will be accepted only on account of performance, i. e. not in lieu of performance of contract. Payment orders, bills of exchange and cheques performance is acknowledged only after they have been credited to the bank account. Collection costs as well as bank expenses for payment orders shall be for the account of the Purchaser. We do not assume any liability for submission in good time.
5.3 The Buyer shall be entitled to offset claims or to retention rights only if and when his counterclaims have been finally determined by a court of law, are undisputed or have been acknowledged by us.
5.4 If and when there is a significant worsening in the Buyer's financial situation following the conclusion of the contract or other circumstances indicate that the Buyer's solvency is in doubt, we are entitled to withhold performance until the Buyer has submitted the consideration or provided collateral. If the Purchaser fails to pay the full purchase price or collateral within one week of a corresponding request, we shall be entitled to withdraw from the contract.§ 323 BGB (German Civil Code) shall be applied accordingly. Our right to claim damages according to the legal provisions, remains unaffected.
5.5 The assignment of the Buyer's claims from the business relationship without our express, written consent is prohibited. § 354 a HGB (German Commercial Code) remains unaffected.
6. Provision of Labelling
We are entitled to affix our company logo, companies' logo or our identification number on the manufactured goods, in a manner whereby the design of the merchandise remains unaffected.
7. Condition of the merchandise
7.1 We are required to provide merchandise with specific properties solely if and when we expressly warrant in writing specific features. If not otherwise is agreed, the suitability of the packing for direct contact with foodstuff is not required. We are not liable for any damages of merchandise or of the packaged goods due to a direct contact, unless otherwise agreed in writing.
7.2 The printing and processing of the merchandise complies with the contract, provided the print result and processing quality are within the tolerances subject to the state-of-the art technology.
7.3 The samples we provide are drafts or plotter samples which may deviate from the products produced on machines with respect [...] to material, appearance (e.g. punching bridges, colour) and processibility (e.g. groove resistance). We shall not be liable for such variations.
7.4 The Buyer is aware that processing the merchandise after it has been stored for a longer period of time may lead to sensory problems and exterior problems such as breakage along groove edges and colour changes as well as to technical problems such as worsened run properties, adhesiveness, colourfastness and flatness. If the Purchaser arranges for the extension by more than 6 months,of the originally agreed call-off date or delivery dates, Purchase shall accept such agein phenomena as subject to the agreed condition of the merchandise.
8. Guarantee for damage, compensation of damage, notice of defects
8.1 The Buyer shall inspect the delivered merchandise immediately, as a rule within 3 workdays after its receipt, for completeness and freedom from defects. We must be immediately notified in writing of any defects. If the buyer does not comply with his duties within a suitable time period, goods shall be deemed in compliance with the contract, unless such a defect could not be recognized during examination.
8.2 Recognized shortfall and merchandise with external recognizable damages must be noted immediately on the receipt. If the Purchaser does not fulfill this obligation, goods shall be deemed in compliance with the contract.
8.3 The Buyer is obligated to inspect the merchandise before use to determine its suitability for its intended use.All issues of complaints determined in these checks must be notified to us immediately in writing. If the Purchaser does not fulfill this obligation, goods shall be deemed in compliance with the contract.
8.4 The Buyer is obligated to submit complaint of hidden defects immediately upon their discovery, as a rule, within 3 workdays. If the Purchaser does not fulfill this obligation, goods shall be deemed in compliance with the contract.
8.5 Complaints and objections which are submitted to third parties such as sales representatives or feeders, shall not be deemed as notifications of defect or claims received in due time and form. 8.6Warranty rights shall not arise solely in the case of insubstantial deviation from the agreed quality or in the case of a merely insubstantial detraction from usability.
8.7 Buyer's claims due to defects will not be accepted unless he proves that the cause of the defect existed at the point in time of the transfer of risk.
8.8 We shall not be liable for buyer's claims due to defects by inappropriate storage and/or processing of the goods.
8.9 We are not accountable for any defects resulting from our being required to use materials (e.g. cardboard, adhesives, paints, enamels or press molds) specified by the Buyer. The same applies in the event that the Buyer brings claims of certain services against us performed by a third party. In these case, the Purchaser must rather guarantee that Purchaser's instructions do not affect the suitability of the merchandise for their intended use, unless the unsuitability of the specified materials or service provider was known to us and we have deliberately not mentioned the defect to the Purchaser.
8.10 We do not assume any responsibility for the texts, pictures, graphic representations, barcodes, etc. which we print on the folding boxes pursuant to the Buyer's instructions. The buyer is responsible for ensuring that rights of third persons, e.g. intellectual property rights or copyrights, or any statutory or sub-statutory provisions are infringed.
8.11 Any declarations of conformity, agreements regarding properties or specifications shall not be interpreted as warranties and shall not establish any no-fault liability. They specifically do not exempt the Purchaser from its duty to conduct its own checks and tests regarding the suitibilityfor the respective packaged product of the delivered items before their processing - also through performance analyses.
8.12 If legitimate complaint has been submitted in due time, we are entitled, at our discretion, to take back the defective merchandise and replace it with merchandise in conformity with the contract or to improve subsequently the delivered merchandise, provided that such improvement is possible and reasonable for the Buyer.
8.13 If neither subsequent improvement or replacement delivery is carried out within a reasonable period, the Buyer is entitled, at his discretion, to cancel the contract or to request reduction of the purchase price.
8.14 Our liability to pay compensation for damages, regardless of whatever legal reasons (including tortuous claims), is based on the statutory provisions, if the damage has been caused by deliberate intent or gross negligence by us, our representatives or our vicarious agents Liability for slight negligence is excluded except in the case of negligent breach of a material provision of the contract or if we took over a guarantee or a risk for the state of the material. The limitation of liability is also not applicable in cases involving death, bodily or health injuryof a human being. The provisions of the German Product Liability Act shall remain unaffected by this.
8.15 Claims for damages are limited to the typical and foreseeable damages. This does not apply to claims, which are due to intentional or grossly negligent behavior by us, our representatives or our vicarious agents. In addition, the limit does not apply to the liability for damages due to the loss of life, bodily injury or damage to the health of a human being or in the case of liability according to the provisions of the Product Liability Law. 8.16If the delivered merchandise is objected by the Buyer or one or more parties, we must be notified immediately. This also applies to internal errors, recalls or public warnings with regards to the merchandise delivered by us.
9. Limitation period
9.1 Any and all of the Buyer's warranty claims related to defects in the delivered merchandise (including damage compensation claims) shall be subject to the cases governed by Section 438 (1) Item 3 BGB (German Civil Code). The term starts with the delivery of the merchandise.
9.2 Claims by the Purchaser for compensation of damages on account of breaching of obligations, not due to any defect of the delivered merchandise shall be barred by limitation after one year (§ 280 BGB, German Civil Code). The start of the limitation period shall be governed by law.
9.3 The limitation provisions in the above sections 9.1 and 9.2 do not apply in the cases of the right of recourse for a delivery (§§ 478, 479 BGB of the Civil Code), or for damage claims resulting from loss of life, bodily injury or damage to the health of a human being. The further do not apply in the cases of intent or gross negligence by us, our representatives or our vicarious agents.
10. Retention of title
10.1 The delivered merchandise remains our property, until the Purchaser has paid the full purchase price and complied with all claims existent from the business relationship and all additional claims in close relationship with the delivered merchandise (default interests, default damages, etc. The adjustment of individual claims for current invoices or account balancing does not affect the reservation of ownership.
10.2 Should reserved goods be processed or incorporated to form a new moveable article by the Buyer, or by a third party instructed by the same, the processing is effected on behalf of the supplier, without the latter being bound thereby. The new article becomes our property. In case of processing jointly with merchandise not delivered by us, we shall be entitled to co-ownership of this new article in the share which arises from the proportion of the value of the goods subject to the retention of title and of the processing value to the value of the finished article. If the goods subject to retention of title are combined, mixed or processed with other goods not belonging to this group, subject to §§ 947, 948 BGB, German Civil Code, we shall be entitled to co-ownership subject to the statutory provisions. If the buyer acquires sole property by combination, mixture or processing, then he transfers co-ownership already to us in accordance with the relationship of the value of the goods subject to the retention of title to the other goods at the time of the combination, mixture or processing. In this case the purchaser the article owned or co-owned by us shall also be deemed as goods subject to retention of title, within the meaning of the provisions below.
10.3 The Purchaser shall be obliged to store the goods subject to retention of title, at no cost and take out an insurance of the same for which it shall bear the costs.
10.4 The Seller is entitled to resell or utilize the goods subject for retention of title only in the usual proper course of business. However, the above provision applies subject to the proviso that the advance assignments pursuant to section 10.5 are actually transferred to us. The Buyer is not entitled to any other authorizations regarding these goods suject to retentin, in particular authorizations for pledging or transfer of security. In case of payment default, the Buyer shall be only entitled to resell the goods subject to retention, if he instructs its purchaser on the direct payment of the purchase price to us. Should we have a co-ownership on the goods subject to retention, the Purchaser shall only instruct its buyer, to pay us directly such a share of the purchase price, corresponding to the value of the goods subject to retention delivered by us.
10.5 The Purchaser assigns to us as of now and in advance all claims arising from any re-sale of the goods subject to retention of title. We hereby accept this assignment. If we have only acquired co-ownership pursuant to the advanced assignment as agreed according to section 1 and 2, the claim to the purchase price of the buyer shall only be assigned to us according to the value of the goods subject to retention delivered by us.
10.6 The Purchaser shall be entitled to collect the assigned claims. Our authorization to collect the receivables ourselves shall remain unaffected thereby. However, we will not collect the claims as long as the Buyer fulfils his payment obligations to us from the received income, [...] is not in default of payment and, in particular, no petition for the initiation of bankruptcy proceedings has been filed or has been dismissed due to lack of assets We shall be given, upon request, the names and addressed of the debtors of any assigned claims and these shall be informed of said assignment. We are entitled to notify the debtors of the assignment ourselves.
10.7 If we are entitled to cancel the contract due to failure of his obligations by the Purchaser, specifically with regards to default of payment, the goods under title of retention shall be immediately returned by the Purchaser upon the notification of our cancellation and claim to release the goods. The costs for return are borne by the Purchaser.
10.8 The Buyer must inform the seller immediately about any foreclosure proceedings of third parties against the aforementioned goods subject to retention of title or assigned claims, while handing over all required documents, such as a copy of the execution protocol. At the same time, the buyer shall enclose an affidavit with his notification stating that the attached goods are the goods delivered by us and subject to retention of title. The Purchaser shall bear the costs incurred for our action taken against the foreclosure measures, insofar they are not reimbursed by third parties.
10.9 We undertake to release the securities due to us at the request of the Purchaser, insofar as the value of the securities exceeds the secured accounts receivable by more than 10 %; The selection of the securities released shall be at our discretion. With the payment of all our claims from the business relations, the title in the goods under retention of title and the transferred claims pass over to the Buyer.
11. Force majeure
We shall be relieved of our duty to deliver in the event of force majeure, such as strikes, riot, civil commotion, war and other occurrences over which we have no influence and which can hinder delivery or performance of contractual duties. Provided this is allowed by the circumstances, we shall inform the Buyer within the shortest time as possible.
12. Governing law, jurisdiction
12.1 These general terms of delivery and the whole contractual relationship between the parties, the Law of the Federal Republic of Germany, excluding the German international private law and the UN-Convention on Contract for the International Sale of Goods (CISG). The above provision also applies to deliveries across national borders.
12.2 Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract is München, provided the Purchaser is a merchand, legal entity under public law or public-law special fund.