1. Validity of the GTC
1.1 These GTC apply for all deliveries and any related services between us and the Customer, insofar as the Customer is a business owner (§14 German Civil Code [BGB]), a legal entity under public law, or a special fund under public law. These GTC shall apply exclusively. Any General Terms of the Customer that conflict with, deviate from or supplement our GTC - in particular as contained in conditions of purchase - shall not be recognised, unless we have given our express written consent to their validity in individual cases. This requirement of consent applies in all cases, even if we are aware of the Customer’s GTC and carry out the delivery of goods or the provision of services, or accept payments.
1.2 These GTC shall apply for all future transactions with the Customer without any requirement on our part to repeat reference to them in each individual case.
2. Offers and Orders
2.1 Our offers are both non-binding and subject to change without notice, as long as the offers are not explicitly identified as binding or contain a specific acceptance period. Customer orders are only binding upon our confirmation in written or text form, or upon delivery by us.
2.2 In the case of missing, incorrect, or untimely self-deliveries, we are entitled to rescind the contract. We are further entitled to rescind the contract if a petition has been made for the commencement of insolvency proceedings against the Customer’s assets, an affidavit has been issued, or the petition to open insolvency proceedings has been dismissed due to a lack of assets.
2.3 Any agreement on a guarantee must be made in writing and is only effective insofar as it describes the content of the guarantee and the duration and physical scope of the guarantee protection in sufficient detail.
Our prices apply “ex works (EXW)”; packaging costs are not included. The decisive factors when determining the price shall be our current prices at the respective time of delivery and/or provision of services, plus applicable taxes. If we raise our prices in general for the product to be delivered or the service to be performed between the time of contract conclusion and delivery and/or provision of services, the Customer is entitled to withdraw from the contract in respect of the amount that has not yet been delivered within 14 days of notification of the price increase.
4. Terms of Payment
4.1 Upon receipt of the invoice, payments are due immediately and shall be paid by means of a bank debit entry or pursuant to the conditions agreed upon in the order confirmation or in the invoice. Payment periods named in the order confirmation and/or the invoice, in particular also for the time-limit calculation with respect to the discount deductions, shall begin with the invoice date. Discount deductions agreed upon for the Customer shall only apply if the Customer is not in default of payment for any other invoices issued by us. Deposits and pre-payments are to be made plus value added tax. Payment shall only be considered as effected once the amount is irrevocably paid in our account.
4.2 If the Customer delays payment, we have the right to charge interest of 9% over the basic interest rate in addition to a €40.00 processing fee. The right to assert additional damages shall remain reserved.
4.3 The Customer may only have the right to set off claims that have become final or are uncontested. The exercise of the Customer’s right to refuse performance and rights of retention is excluded.
4.4 In the event of any justified doubts regarding the Customer’s ability to pay or the Customer’s creditworthiness, in particular in the case of outstanding payments, we shall be entitled to revoke any terms of payment and to demand payment in advance or security for further deliveries. The right to assert further damages shall remain reserved.
5. Retention of Title
5.1 The delivered goods shall remain our property (“reserved goods”) until all outstanding claims arising from the business relationship have been fully settled. In the presence of a current account in the context of the business relationship with the Customer, this shall apply until the fulfilment of the respective balance claims.
5.2 Even if the reserved goods are processed, we still remain the manufacturers and acquire joint ownership of the newly produced goods. If processing, combining, or mixing of the reserved goods occurs with goods belonging to a third party, we shall also acquire joint ownership of the resulting goods, in proportion to the invoice value of the reserved goods to that of the other material. If processing, combining or mixing of the reserved goods occurs with a principal item that is the Customer’s property, the Customer shall now transfer his ownership and co-ownership rights of the new item to us.
5.3 The Customer has the right to dispose of the goods subject to our ownership rights in the ordinary course of business, as long as he/she meets his/her obligations arising from the business relationship with us in good time. The Customer cedes all claims arising from the sale of goods to which we retain title at the time of the conclusion of the contract; provided that we have acquired joint ownership in the case of processing, combining or mixing, the transfer of claims shall occur in proportion to the value of the goods delivered under retention of title to the value of the goods with a third party retention of title. Recognised balance claims arising from current account agreements in the amount of outstanding debts shall be ceded by the Customer to us upon conclusion of the contract. However, the Customer does not have the right to pledge the reserved goods or the assigned claims to third parties nor to transfer such as security.
5.4 The Customer is obliged to keep the reserved goods at his/her own expense with the diligence of a prudent businessperson, and to insure them against the usual storage risks. He/she now hereby assigns his claims from the insurance company to us.
5.5 If the value of the securities exceeds our claims by more than 15%, we abandon said securities to this extent.
5.6 We are to be informed without undue delay in case of a third party’s pledging of the reserved goods as well as any other impairments of rights. Upon request the Customer shall immediately advise us in writing as to the debtors of the assigned debts and notify the assignment to the debtor.
6. Delivery Period
6.1 Our deliveries are subject to the provision that we are correctly and punctually supplied by our own suppliers.
6.2 If the provision of our services is dependent upon the cooperation of the Customer, delivery, execution and completion deadlines shall only begin upon fulfilment of the necessary cooperation.
6.3 Unless otherwise agreed upon between the parties, EXW (Incoterms 2010) shall apply.
6.4 The risk of accidental loss or deterioration of goods shall be transferred to the Customer, in accordance with the respective agreed upon Incoterms. Upon the Customer’s request, the delivery will be insured against theft, breakage, transport and other insurable risks at his/her own cost.
7.1 Packaging shall be invoiced separately.
7.2 If we use reusable transport packaging for delivery to the Customer, a system partner of ours will pick up the reusable transport packaging in consultation with the Customer, depending on the accumulation. The Customer declares his/her consent to the disposal of the reusable transport packaging by a system partner of ours and/or their assistants, after respective consultation during normal business hours. The Customer agrees to store the reusable transport packaging properly up until disposal, and to make it ready for collection generally on the 2nd business day but not later than 14 days after delivery.
7.3 The Customer is obliged to treat the reusable transport packaging with due care, to protect it from contamination, damages and loss, and to use it exclusively for the transport and storage of the delivered products upon his business premises. The Customer is further obliged to inspect our system partner’s information on the nature and quantities of delivered or picked up reusable transport packaging. Should no complaint about this information arise within a reasonable time period, this information is binding for the Customer, provided that our system partner indicates that the omission of a complaint about the information provided by the system partner applies as acceptance of this information within a reasonable time period.
8.1 The Customer must inspect the goods immediately upon delivery and contest in writing any defects, false deliveries or quantity deviations immediately, or at the very latest within one week of delivery. In partial deliveries, the obligation of the Customer refers to each and every instalment of parts. The Customer must contest any hidden defects immediately after discovery, or at the very latest within twelve months of delivery. We accept no liability for rust, buckling and breakage during transportation. When using glass closures, the Customer shall inform us of the respective specific purpose, in order to find the most suitable closure. Otherwise the Customer has sole responsibility to carry out packing and filling experiments to determine the suitability of the packaging.
8.2 Notification of defects shall not entitle the Customer to withhold due payments or refuse to accept further deliveries.
8.3 If the notification of defect is submitted in a timely and justified matter, the Customer’s claims arising from the defects shall be restricted to the right to subsequent fulfilment. Within the context of subsequent fulfilment, we have the right to choose between a new delivery and rectification. If the subsequent fulfilment fails, the Customer may reduce the purchase price or, at his/her discretion, withdraw from the contact. Claims for damages according to this Clause remain unaffected. The guarantee period is one year from delivery of the item, unless mandatory statutory provisions provide for a longer period of limitation.
8.4 We give no warranty to the effect that the product is free of patents or other protected rights of third parties. Any shape and template designs made by us remains our property and may only be used as a pattern for third parties with our express written consent. Designs and drawings are, if no order is placed, calculated at cost price.
8.5 Release for production and publishing is at the discretion of the Customer. With said release, the Customer assumes responsibility for the accuracy of image and text. After release and declaring that the products are ready for printing by the Customer, we are released from any liability for the accuracy and flawlessness of the documents submitted. The Customer guarantees that the graphics, images and content provided to us do not infringe any copyright, trademark or other related rights of third parties. We are not required to examine third-party property rights. The Customer shall exempt us from any third-party claims and shall make good any damages we suffer that arise from third-party rights. Furthermore, for technical reasons of processing, slight colour variations may occur. These are part of the technical design and are not objectionable.
8.6 We cannot accept liability if the delivered product is packaged or filled with other materials or goods than those we explicitly designated as permissible.
8.7 Irrespective of the legal cause, we are only liable for damages in the following cases:
Contractual and non-contractual claims for damages on the part of the Customer arising from our minor breaches of duty, our management personnel or our auxiliary agents, are excluded. This shall not apply when a duty has been breached that is of material importance for achieving the purpose of the contract;however, our liability shall be limited to the foreseeable damage typical for the contract. The previous restrictions do not apply to damages relating to life, limb or health. Mandatory legal liability requirements remain unaffected.
9. Force Majeure
Should any event or circumstance occur beyond our reasonable control, such as natural phenomena, labour disputes, unforeseeable lack of labour forces, raw materials, energy or auxiliary materials, traffic or operations interruptions, fire and explosion damages, strikes, lockouts, war, political unrest, acts of terrorism, official decrees or any other cases of force majeure reduce the availability of goods at the plant from which we receive our goods, such that we cannot fulfil our contractual obligations (taking into account on a pro rata basis other internal or external delivery obligations), we are released from said contractual obligations for the duration of the disturbance and to the extent of its consequences, and are not obliged to procure goods from other sources.
The aforementioned shall also apply if the event or circumstance renders the performance of the applicable undertaking commercially unsustainable or occurs with our suppliers. If the events last longer than 3 months, we have the right to rescind the respective contract. In the event of impediments that are of temporary duration, the deadlines for delivery or performance shall be extended or the delivery or performance dates shall be postponed by the period of the impediment plus a reasonable starting period.
10. Final Provisions
10.1 Should any of the above terms and conditions prove to be invalid, either wholly or in part, this shall not affect the validity of the remaining terms and conditions.
10.2 The place of jurisdiction is, at our discretion, our domicile or the general jurisdiction in the Customer’s domicile.
10.3 The laws of the Federal Republic of Germany shall exclusively govern the relationship between us and the Customer to the exclusion of the UN Sales Convention/CISG. The customary clauses are to be construed in accordance with Incoterms 2010.
Hilden, August 2016