General Terms and Conditions of Sale, Delivery and Payment
I. General information
The following terms and conditions of sale, delivery and payment are decisive for both parties’ rights and obligations.
This applies to the present and all future contractual relationships, even if our General Terms and Conditions should contradict an order letter from the customer. Deviating terms and conditions of the customer are only binding for us if we expressly accept them in writing for the relevant transaction. The same applies to trade customs and industry practices. If no written acceptance of the customer’s deviating terms and conditions is made, you will not become part of the contract even if we do not expressly object to them.
Verbal, telephone or telegraphic collateral agreements, amendments or supplements to the following terms and conditions of sale, delivery and payment require our written confirmation in order to become effective.
II. Offers and conclusion
Our offers are non-binding. Conclusions and agreements shall only become effective upon our written confirmation. The illustrations in our brochures are not binding.
Our deliveries and services are provided at the prices and conditions of the written order confirmation and in accordance with the price list valid at the time the contract is concluded. In cases of doubt, the written order confirmation takes precedence. Unless otherwise agreed in individual cases, prices are ex works without discount and other discounts plus value added tax.
III. Delivery and delay in delivery
- Deliveries are made ex works including packaging. For small orders below EUR 50,-/net we charge a surcharge of EUR 15,- per order.
- We endeavour to meet delivery deadlines. However, the dates and deadlines stated by us are not binding, unless otherwise expressly agreed. If expressly binding delivery periods have been agreed with the customer in individual cases, they shall refer to the dispatch of the goods ex works. Delivery periods shall not commence before the customer has fulfilled his existing obligations to cooperate, such as, for example, the provision of documents to be procured by him and also not before the down payments agreed upon have been made.
- Force majeure and other events beyond our control for which we are not responsible, such as traffic and operational disruptions, strikes, lockouts, delays in delivery by our suppliers, shortages of raw materials, goods or energy, measures by government authorities as well as import and export restrictions, entitle us to postpone the delivery date or delivery period accordingly or, if the fulfilment of the order is seriously questioned or becomes impossible, to withdraw from the contract in whole or in part without the customer being entitled to claims for damages.
- We are entitled to perform the service to be rendered in partial deliveries and to invoice accordingly. Postage and shipping costs will be charged for each partial delivery.
- If the goods are sold on call, the call must be made within 6 months. After this period has expired, quantities that have not yet been accepted will be automatically delivered and invoiced.
- We reserve the right to deliver up to 10% more or less (in words: 10 %) of each order. In the case of custom-made products (packaging) and printed goods, we reserve the right to deliver up to 20% more or less (in words: twenty percent) of each order.
- Special conditions for plastic products:
Buyers and sellers are subject to the GKV inspection and evaluation clause for (high-pressure) polyethylene films and products thereof, drawn up by the Fachverband Verpackung und Verpackungsfolien aus Kunststoff im GKV:
Sheet I: Issue January 1988
Sheet II: September 1990 issue
Sheet III and IV: Edition January 1992
IV. Terms of payment
If no special agreements have been made, our invoices are due:
a) for payment within 10 days with 2% discount;
b) for payment within 30 days strictly net without any deduction.
c) We also reserve the right to make deliveries of goods only against prepayment. Agreed discounts presuppose that any current account balance has been settled and there are no receivables from earlier deliveries against the purchaser.
If the customer does not pay on the due date, we are entitled to demand interest at a rate of 3.5% above the respective Bundesbank discount rate from the due date. Our right to claim further damages shall remain unaffected. Furthermore, in this case we are entitled to make further deliveries only against advance payment.
Advance payments and advance payments do not bear interest.
Payments are only discharge of debts if they are made to our head office or to our employees with collection authority.
We may withdraw payment terms and credit lines granted at any time without giving reasons.
Offsetting against counterclaims is only permitted if these are legally established or undisputed. The assertion of rights of retention is excluded.
Delay of the customer or the knowledge of a significant deterioration of his financial circumstances entitle us to stop deliveries immediately, to refuse the fulfilment of current contracts and to make all claims from the business relationship due immediately. Under the same conditions, we may demand advance payments or the provision of security for all current transactions.
- The transport risk for all shipments – including any returns – and the costs of transport shall be borne by the customer. The risk shall pass to him upon dispatch of the delivery.
- Transport insurance shall only be taken out on the instructions and at the expense of the customer.
VI. Complaints and Notices of Defects
- Complaints due to incomplete or incorrect delivery or complaints due to recognizable defects must be reported in writing immediately, hidden defects at the latest 6 days after receipt of the goods. The goods must still be in the condition of delivery; in particular, they must not yet have been processed.
- Other defects must be reported in writing immediately after discovery.
Warranty claims are excluded if complaints or notices of defects are not made in due time.
VII. Liability and Warranty
- The statutory warranty provisions apply to our products. The warranty periods for various products are specified in the applicable technical data sheets. Our products are subject to an aging process depending on the type and duration of their use. No liability is assumed for signs of wear. Costs incurred by us due to unauthorized returns will be invoiced to us.
- a) We may choose between rectification of defects or replacement delivery. The customer can only demand a reduction in the remuneration or cancellation of the contract if we are not in a position to remedy the defect or make a replacement delivery, or if the repair or replacement delivery is deemed to have failed. The customer is obliged to send us the goods at our request for the purpose of subsequent improvement. The goods must be properly packed – if possible in the original carton. We shall bear the costs of shipment if the complaint proves to be justified; otherwise they are to be borne by the customer.b) Claims for damages due to warranted characteristics are not affected by the regulation under Section VII. 1.a). They are in accordance with the statutory provisions. However, we do not accept any liability for consequential damage caused by defects outside the warranty, which would have to be compensated according to the rules of a positive breach of contract.c) We do not accept any liability for goods which have been modified by third parties or by the installation of parts from other sources if the damage is causally connected with this modification. The warranty also expires if our instructions regarding the handling of the delivery item have not been followed.d) We do not assume any warranty for goods that are not new, II A goods and special items.e) Goods for which we provide replacement become our property.
- a) We are liable without limitation for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence on the part of our board members and executive employees. Liability for slight negligence is excluded. In the case of non-executive employees, we are only liable for intent and gross negligence and this only under the condition that essential contractual obligations have been violated and the achievement of the purpose of the contract is thereby endangered. In these cases the orderer’s claim for damages is limited in amount to the compensation of the typical foreseeable damage.b) The liability due to mandatory legal regulations, in particular due to the Product Liability Act, remains unaffected.
VIII. Retention of title
- a) We reserve title to all goods delivered by us until payment of all claims against the customer to which we are entitled and still arising from the business relationship.b) The customer is entitled to process the delivered goods or their combination with other products within the framework of his normal business operations. We acquire co-ownership of the objects resulting from the processing or combination to secure our claims mentioned under Clause VIII.1.a), which the customer hereby assigns to us and which is then deemed to be reserved goods within the meaning of this condition. The amount of our co-ownership share shall be determined in proportion to the value of our goods and the object resulting from the processing or combination.c) The customer shall store the reserved goods free of charge and with commercial care for us and undertakes to provide us with the information required to assert our rights and to grant us access to his documents in this respect.
- a) The customer’s claims from the resale of the reserved goods are already now assigned to us with all ancillary rights. If foreign goods are resold together with the reserved goods at the total price, the assignment of that claim duly only covers the amount of the price for the goods delivered by us.
If the assigned claim against the third-party debtor has been included in a current account, the agreed assignment also relates to claims from current accounts.
The assigned claims serve to secure all rights and claims according to Clause VIII 2.a).b) The customer is entitled to collect the claims as long as he meets his payment obligations. Upon our justified request, the customer must inform us of the debtors of the assigned claims, provide the necessary information and documents and notify the debtors of the assignment.
- If the value of all securities existing for us demonstrably exceeds our claims by more than 20%, we shall be obliged to release securities of our choice at the request of the customer.
- a) The customer’s right to collect the claim and the right to resell the reserved goods in regular business transactions shall end in the cases specified under item IV. 6.b) As long as the customer is in default, we shall also be entitled to withdraw from the contract. The collection of the reserved goods shall only be deemed as withdrawal if we expressly declare this.c) If we are entitled, e.g. in accordance with § 326 BGB, to claim damages for non-performance, we shall be entitled to sell the collected reserved goods by private contract or have them auctioned. The proceeds will be offset against the claim for damages. All costs of taking back and selling the object of purchase shall be borne by the customer.
- The customer is not entitled to pledge the delivery item or to assign it as security. He must notify us immediately in writing of third party access to the reserved goods or to the claims assigned to us and support us in every way in our intervention.
IX. Customs clearance
If deliveries are made duty unpaid at the customer’s request, the customer shall be liable to us for any additional claims of the customs administration.
X. Applicable law, place of performance and place of jurisdiction
- Place of performance is the registered office of the respective supplying or performing company. The place of jurisdiction for all disputes arising from the business relationship, including disputes arising from bills of exchange and cheques, shall be Mainz at our discretion. However, we also have the right to sue the customer at his general place of jurisdiction.
- The entire legal relationship is subject to the law of the Federal Republic of Germany. The application of the Hague Uniform Laws on the International Sale of Goods, the United Nations Convention on Contracts for the International Sale of Goods or any other agreement on the law governing the sale of goods is excluded.
- The customer may transfer the rights and obligations resulting from the contract to third parties only with our written consent.
- The customer agrees that his data required for order processing may be processed within our company with the aid of automated data processing systems.
- Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of all other provisions and agreements.