The terms and conditions below shall apply in the commercial dealings with merchants. These shall apply to all delivery contracts of the supplier and also to other services in a corresponding manner. They shall also apply to subsequent deliveries in respect of contracts in which these terms and conditions have been incorporated. General terms and conditions of business of the ordering party shall be excluded to the extent that they contradict these provisions. Amendments or additions shall require written form.
2. Offer, order, amendments
Offers of the supplier shall be non-binding until the time of conclusion of the contract. The contract shall come into existence on acceptance of the offer of the ordering party. Contractual declarations of the supplier, in particular the acceptance of the order or additions/amendments to the contract, shall require written form. The performance of the order by the supplier shall be deemed to represent its acceptance. The supplier shall retain the right of interim sale, technical amendments and price changes, provided that the delivery contract has not yet come into effective existence. Contracts shall be subject to correct and timely self-delivery.
3. Transfer of risk, dispatch
The risk shall be transferred to the ordering party once the goods have left the factory or warehouse. Should the dispatch be delayed for reasons for which the supplier is not responsible, the risk shall be transferred to the ordering party on the day of readiness for shipping. Insurance shall only be concluded by special agreement and at the expense of the ordering party. The supplier shall choose the method of dispatch in accordance with its discretion.
4. Delivery time
Agreed delivery deadlines shall not be bindingly fixed dates as defined in § 376 of the German Commercial Code (HGB) unless an express agreement to the contrary has been concluded. The compliance with the delivery deadline shall be subject to all of the necessary documents for the order being available on time. The delivery deadline shall have been complied with if the item has left the factory or warehouse prior to its expiry or if readiness for dispatch has been notified.
In case of delay on the part of the supplier and impossibility for which it is responsible, the ordering party may rescind the contract if it has set the supplier a period of grace of at least 4 weeks and has declared that it will reject fulfilment after expiry of the said deadline.
Should a delivery delay be due to unforeseen circumstances, such as operational disruption, labour dispute, non-timely self supply, force majeure etc, the delivery deadline shall be reasonably extended. In such a case, the supplier can also rescind the contract. The right of rescission can be limited to the respective part of the delivery concerned, unless the only partial performance of the transaction is not reasonable for the ordering party. Partial deliveries shall be permitted. We shall only incur liability in respect of printed documents assigned to us, such as drafts, printing plates to the amount of the costs which would be incurred in the procurement of versions by us which are customary in the trade.
In case of deliveries in accordance with drafts of the ordering party, the latter shall provide an assurance that no third party property rights are infringed as a result and that any labelling requirements are complied with. The ordering party shall incur liability in relation to the supplier for all losses incurred by the latter due to a breach or non-compliance. The drafts sent or confirmed as ready for printing by the ordering party shall be decisive for the printing process. Technical deviations which are customary in the trade shall be permitted. By means of participation in costs connected to reproductive drafts, such as films, printing plates, print and embossing rollers, the order shall not acquire any rights in relation to the said objects. The proofs submitted by us which were confirmed as ready for print by the ordering party shall be decisive for the printing process in respect of text and print status. We shall only incur liability in respect of printed documents assigned to us, such as drafts, printing plates to the amount of the costs which would be incurred in the procurement of versions by us which are customary in the trade.
Defect complaints shall be excluded in case of deviations concerning width (up to +/- 5%), length (up to +/- 3%) and thickness (up to +/- 13%) which cannot be technically avoided. Measurement methods and tolerance values shall be in accordance with the GKV assessment and evaluation clause for polythene slides and products (issued by the German Association for Plastics Packaging and Films - umbrella association of the GKV and deposited with the Federal Institute for Materials Research and Testing, Berlin) in the respective valid version. In case of justified complaints, we shall have the choice between change, reduction, replacement delivery or improvement in case of guarantee. Any claims which go beyond the above, in particular for damages, shall be excluded. We shall only incur liability in respect of the suitability of our goods for unusual purposes of use if we have provided an express undertaking to this effect in writing. In all orders, we shall retain the right to a calculated additional or reduced delivery of approximately 10%. In case of a false statement concerning the value added tax identification number, the principal shall incur liability for value added tax related recourse claims.
Damages claims of the ordering party against the supplier for whatever reason, in particular for the reimbursement of consequential losses, as well as any claims due to actions performed without due authority, shall be excluded, unless such claims are expressly granted in the contract and these terms and conditions or in a mandatory manner by law. The above paragraph shall not apply should the loss be due to intent or gross negligence on the part of the supplier or its vicarious agents. An exclusion of approximately 10% in the case of printed bag deliveries is customary for the trade and shall not substantiate defect complaints.
8. Prices and payment
Unless otherwise stated, the prices shall always be subject to value added tax, free to the buyer's address and inclusive of packaging. Should no specific prices be agreed, the general prices set by the supplier on the day of delivery shall apply. Should specific prices be agreed, however if the delivery takes place more than 60 days following conclusion of the contract in accordance with the agreement or for reasons for which the ordering party is responsible, the supplier shall be able to reasonably adjust the prices accordingly in case of a change to the fee generally charged by it for the ordered goods
In case of products which are not contained in price lists of the supplier, in such a case the supplier may also be able to carry out a corresponding price increase. In case of exceeding of the payment deadlines, the amount of 6% above the respective base rate of interest of the European Central Bank may be charged as annual interest, without a notice of default being required and regardless of any additional default losses. Bills of exchange and cheques shall only be accepted on the basis of separate agreements. Discount and other charges shall be at the expense of the ordering party. An agreed discount can only be deducted by the ordering party if it is not in default with other liabilities in relation to the supplier. The setting off by the ordering party with counterclaims which are not legally recognised and which are disputed by the supplier, as well as rights of retention of the ordering party, with the exclusion of those in accordance with Number 6, shall be excluded.
9. Reservation of ownership
The supplier shall reserve ownership in respect of the delivered objects until receipt of all payments under the business relationship with the ordering party. A processing of the goods shall take place for the supplier. Should the goods be processed with other items which do not belong to the supplier, the supplier shall acquire co-ownership in the new item to the relationship of the value of the goods to the other processed objects at the time of processing. On handover of the goods, the ordering party shall assign the claims against its consumers arising out of a further sale of the (if applicable processed) goods to the supplier, in case of processing to the amount of the pro rata invoice amount. Until revocation, the ordering party shall be entitled to collect the claim. The ordering party shall not be permitted to pledge the object of delivery or hand it over as security prior to the transfer of ownership. In case of pledging, seizures or other disposals by a third party, the ordering party shall immediately inform the supplier and shall bear the costs which are incurred by the supplier due to an intervention. The ordering party shall be obliged to provide the supplier with all necessary information and documents for the assertion of the assigned claims and to inform its consumers of the assignment following a request by the supplier. The supplier shall be entitled to insure, at the expense of the ordering party, objects of delivery which are under reservation of ownership against fire, water or other damage, unless the ordering party can prove that it has taken out such an insurance policy and that it has assigned the claims under the said insurance contract to the supplier.Should a securing in accordance with the provisions above not be possible due to the applicable laws at the place of business of the ordering party, the ordering party shall be obliged to ensure an economically equivalent securing of the supplier which is realisable, taking into account the applicable legal regulations at its place of business and which, in case of its insolvency, allows the supplier access options against the consumer of the ordering party. Regardless of the effectiveness of the respective other means of security, the reservation of assignment of the customer claims shall be deemed to have been at least agreed.Should the value of the securities provided to the supplier exceed its claims by more than 20%, it shall be obliged, following a demand of the ordering party, to waver the securities to this extent.The assertion of the reservation of ownership, as well as the pledging of the object of delivery by the supplier, shall not represent rescission of the contract. Should the ordering party enter default or should it become incapable of making payment, the supplier shall be entitled to demand return of the goods in its ownership. The ordering party hereby irrevocably grants the supplier access to its premises or land for this purpose, as well as authority to collect the delivered goods. To the extent that the goods are taken back or utilised due to the reservation of ownership, this shall take place at the expense of the ordering party. In reservation of an additional loss, the supplier shall be entitled to charge 15% of the revenues from use as a fixed fee.
10. Endangerment of claims
In case of payment default on the part of the ordering party, regardless of additional claims, the supplier shall be entitled to demand, from the ordering party, the provision of security for all ongoing orders prior to their delivery. The same shall apply should the fulfilment of the claims of the supplier appear endangered due to circumstances which become known to the supplier following conclusion of the contract, for example due to an application of bankruptcy, court or out of court settlement proceedings, non immediately averted enforcement against the ordering party, protested bills of exchange or cheques concerning the ordering party or significant changes to the commercial structure of the ordering party which give rise to doubts concerning its creditworthiness.
11. Place of performance, place of jurisdiction, applicable law
The place of performance for both parties shall be Kempten/Allgäu, Germany.The exclusive place of jurisdiction for disputes in connection with the contract, including bills of exchange and cheque proceedings shall be Kempten/Allgäu; however, the supplier can also bring a lawsuit at the place of business of the ordering party or another competent court. German law shall apply exclusively to legal transactions between parties in Germany.
12. Partial invalidity
Should these provisions be shown to be ineffective in full or in part, the remaining clauses shall not be affected thereby. If applicable, the contracting parties shall be obliged to replace an ineffective provision by a valid clause which comes as close as possible to the purpose of the ineffective provision.
Hans Bresele KG, Waltenhofen