§ 1 Conclusion of Contract
1. Any and all delivery and supply contracts shall be concluded on the basis of these present General Business Terms and Conditions only, but may be made subject to individually diverging contractual covenants and agreements. These Terms and Conditions shall be applicable and governing for corporations, legal entities under public law and separate estates or funds which are organized under public law.
2. None of the Buyers’ diverging or supplementary Purchasing Terms and Conditions shall be applicable and governing, unless they will have been acknowledged by the Supplier in writing.
3. All offers shall be subject to change and shall not be valid and effective, unless and until they will have been confirmed in writing. Unless it is otherwise stated the prices as quoted do not include the statutory value-added tax.
§ 2 Execution of Delivery
1. The transport risk shall be borne by the Buyer. Orders having a value of less than 1.000.- Euros shall be delivered freight forward.
2. The Supplier shall be entitled to make deliveries of excess or short quantities, allowances to be made within the following tolerance ranges:
- Corrugated board up to 500 units ± 20%, up to 3 000 units ± 15%, more than 3000 units ±10%.
- Cardboard up to 5 000 units ± 25%, up to 30 000 units ±20%, more than 30 000 units ±10%.
Merchandise will be invoiced on the basis of the quantity or quantities which were actually delivered.
3. Partial deliveries shall be permissible in so far and to the extent which is reasonably acceptable for the Buyer, with due account to be taken of the Supplier’s interests.
4. Tools, printing blocks or other auxiliary means shall become and remain the Contractor’s property once the order will have been executed and finalized, even if they were originally produced by the Customer or upon the Customer’s instructions and at the Customer’s cost. Invoices which are due for these objects shall be paid by the Customer without any deductions. The Contractor shall more particularly not be obliged to return or surrender or to store and preserve the same after the respective order will have been executed. The Contractor shall, however, be obliged to use such objects for nothing but the Customer’s orders. It shall at the latest be two years after the complete execution of the respective order that all tools, printing blocks and other auxiliary means concerned may be disposed of for reasons of storing capacity clearance without any prior notice.
5. The responsibility for the observation and respect of any and all proprietary, industrial and intellectual rights and titles and of any and all copyrights concerning the get-up and design as ordered for the products concerned shall be on the part of the Buyer. In so far as the Buyer is aware and/or knows of any third party’s or parties‘ proprietary, industrial and intellectual rights and titles and copyrights, the Buyer shall duly inform the Supplier of the same.
§ 3 Palletizing
1. Delivery of the merchandise to the Customer shall, as a rule, be made with the respective merchandise being packed on new exchange pallets which belong to the Contractor. The Customer shall be obliged to acknowledge receipt of the paletts which are respectively received from the Contractor by signing for the receipt thereof on the pertinent shipping document and the Customer shall also instruct its vicarious agents to do so. At the time of the takeover and acceptance of such palettized merchandise the Customer shall be obliged to concurrently return the same number of empty pallets of the same type and quality to the Contractor. If the pallets received by the Customer will not be exchanged back on the spot, then the Customer shall be obliged to deliver the same number of exchange pallets of the same quality back to the Contractor at Customer’s costs. If and when the Customer will fail to make such return delivery although such return will have been requested in writing by the Contractor to do so and if the given deadline will not have been respected, the Customer shall be obliged to pay the price which will be due for the replacement of the exchange pallets which were shipped to the Customer, by new pallets, such payment to be made within two weeks after the date of the given deadline.
2. The Contractor shall maintain a pallet account concerning its Contractor-owned pallets and cover boards for the Customer, which account shall be kept on the basis of the shipping documents, with this account providing binding information for both parties as far as the respectively existing stock of pallets is concerned which is owed to the Contractor by the Customer. Upon its request the Customer shall receive a current extract statement from such pallet account so that the parties’ pallet accounts can be reconciled.
3. As far as pallet-related claims and consequential claims are concerned it shall be deemed that the regular period of limitation as defined and specified by the provisions of Section195 and the following Sections of the German Civil Code has been agreed upon by and between the parties as being the governing provisions.
§ 4 Buyer’s Default in Taking Delivery
If the Buyer refuses to take delivery of the entirety or of part of the products at the agreed-upon delivery date the Supplier shall be entitled to demand either performance and fulfilment of the contract or to assert claims for damages on the grounds breach of contract, once a reasonable respite fixed by the Supplier will have expired.
§ 5 Term or Terms Allowed for Delivery
1. Terms and delays by which deliveries will have to be made shall be valid approximatively only unless they were expressly and in writing specified as being binding.
2. The term and time period allowed for delivery shall begin as per and with the date when the order is or will have been placed. In the event where any change or modification will be made with respect to any confirmed order or orders, the term for delivery shall begin with the confirmation of such change or modification.
3. If delivery will be delayed upon the Buyer’s instigation the Supplier shall, beginning 14 days after the notice of readiness of the products for delivery, be entitled to charge and invoice storage costs so incurred by it, the minimum, however, to be 1.-- € per pallet and day, also in those cases where such products are or will be stored in the Supplier’s own plants or premises. The right to assert further claims is reserved, the Buyer being at liberty to submit evidence to prove that the Supplier did not suffer any or only a much lesser damage on account of such delay.
4. In those cases which are specified in No. 3 above the Supplier shall also have the right to otherwise dispose of such products once a reasonable respite will have unsuccessfully elapsed and expired, and it may then make delivery to the Buyer within an appropriately extended time period.
§ 6 Force Majeure
1. In the event where it is under the influence of force majeure or acts of God that the execution of any one order will be delayed, the agreed-upon delivery term shall be extended by the time period during which such disturbance will be lasting. The Supplier shall immediately advise the Buyer of the occurrence of any case of force majeure or act of God. Apart there from and for the rest the Contract shall remain valid without any change or changes.
2. If the disturbance will last for a period of time which will be longer than 6 weeks, both Contracting Parties shall be entitled to rescind the Contract.
§ 7 Warranty, Liability
1. Claims or complaints regarding products delivered by the Supplier shall be submitted in writing immediately, at the latest, however, within a delay of 8 work days after receipt of the products concerned, while latent defects or deficiencies shall be reported in writing at the latest within 8 work days after their detection. The right to give notice of and complain about latent defects or deficiencies shall become extinct and expire 2 months after the arrival of the products concerned. The notice of such complaints shall be accompanied by samples of the so objected-to products.
If and when defects or deficiencies were to be found in part of any one delivery only, then this shall not result in a complaint concerning and covering the entirety of the delivery so made, unless it were to be unacceptable for the Buyer to accept the non-defective or non-deficient part of the delivery.
2. In the event where the products delivered were to be affected by any defects or deficiencies, the Supplier may at its option and for purposes of remedy either repair or replace such products by non-defective products. It shall only be in the event where this were to repeatedly be unsuccessful or turn out as a failure or if this were not to be reasonably acceptable for the Buyer, and if the defects or deficiencies are of a type which is not of a merely insignificant nature, that the Buyer shall be entitled to either rescind the contract or to reduce the purchase price subject to statutory provisions. The applicability of Section 478 of the German Civil Code shall not be affected thereby. The Buyer shall be entitled to claims for damages in line with the provisions of Article 7 No. 6 of these Terms and Conditions.
3. The Supplier shall not be liable for the qualities of a packaging product to ensure its fitness for use for a predetermined purpose, unless a written guarantee has or will have been given in that respect.
4. The Supplier shall not be liable for such divergences or differences in sizing, smoothness and purity of the paper material, in adhesive quality, stitching, colourings and print, which are customary in this industry.
5. Over and above that it shall be the “Catalogues for Testing Corrugated or Cardboard Boxes” as well as the “DIN Standard for Corrugated Cardboard Packaging” in their respectively valid versions as published by the industrial association „Verband der Wellpappen-Industrie e.V.“, a registered association located at 22 Hilpertstrasse, 64295 Darmstadt, which the Supplier has and which shall be the basis for any evaluation and assessment of divergences or deviations which are either customary in this industry or technically unavoidable.
6. The Supplier shall have and assume an unlimited liability under the provisions of the German Product Liability Act in cases where a guaranty has been given or in cases where a procurement risk has been taken, and also in cases where wilful or grossly negligent neglects of duty are involved. The Supplier’s liability shall also be unlimited in cases of wilfully or negligently caused injury or affectation of the life, the limb, the body or the health of any one person. As far as material or property damage or financial losses are concerned, which were caused by slight negligence, the Supplier shall only be held liable if essential contractual duties (cardinal duties) and obligations will not have been complied with, but this shall nevertheless be limited to the typical damage which is foreseeable for the type of contract involved at the time when the contract is concluded.
If and when, in case of a delay in delivery caused by slight negligence on the Supplier’s part and following the expiration of an appropriate respite, the Buyer will assert claims for damages rather than insist on performance of contract, such claim shall be limited to the amount of the extra or additional cost which will have to be incurred for a purchase of goods in replacement of non-delivered products, the maximum to be the amount of the value of the order which was originally passed to the Supplier.
Any and all liability for damages, which goes beyond the liability as defined in and by the foregoing paragraph 6 of this Article 7 shall be barred and precluded regardless of the legal nature of the underlying claim.
It shall be both on the same grounds and for the same amounts that the foregoing limitations of the Supplier‘s liability shall also be valid and applicable for the benefit of the Supplier‘s legal representatives, staff and other vicarious agents and/or persons employed by the debtor in the performance of its obligations.
7. Claims regarding quality or material defects or deficiencies and/or defects or deficiencies in title shall be subject to the statute of limitations after 12 months counted from the date of the passage of risk on. In cases of wilful neglect of duty, fraudulent concealment or non-disclosure of defects or deficiencies, in cases of claims resulting from tortious act, of lack of guaranteed qualities, in cases of the occurrence and taking of procurement risks, and in cases of injury of persons it shall be the statutory periods of limitation which shall apply. The applicability of the provisions of Sections 479, 634 a paragraph 1 No. 2 of the German Civil Code shall remain unaffected.
§ 8 Invoicing, Due Date for Payment, Payment
1. In the absence of diverging written agreements it shall be the Supplier‘s prices ex warehouse or ex works inclusive of loading and packaging which shall be valid and governing. These prices are to be understood as being exclusive of the statutory value-added tax. If the merchandise is to be delivered more than 4 months after the conclusion of the contract, the Parties shall agree on an appropriate correction and adjustment of the price, if the basis for the Supplier‘s calculation of its prices has in the meantime provably changed, more particularly if and when raw material prices will have increased.
2. The invoiced amount shall be due for payment either with a 2% discount when paid within a term of 14 days after the date of the invoice or at its net value when paid within a 30 days term.
3. All payments shall be made either in cash or by way of check, bank transfer or postal remittance. In so far as bills of exchange will be given in payment in line with agreements made by and between the parties, such bills of exchange must be negotiable. Any and all costs and expenses which will be incurred in connection with the same shall be paid for by the Buyer. Payments made by way of bill(s) of exchange shall not entitle the Buyer to deduct any discount. Bills of exchange will be accepted as payment only.
§ 9 Default in Payment
1. In case of default in payment the Supplier will charge interest in the amount of 9 percentage points per annum above the respectively valid basic interest rate (Section 247 of the German Civil Code) which shall then be due for payment. The Supplier‘s right to submit evidence to prove a higher damage is being reserved.
2. In case of default in payment on the Buyer’s part the Supplier shall not be obliged to make any further delivery or deliveries under any one contract or agreement up to the time where any and all due and invoiced amounts inclusive of their respective default interests will have been paid.
3. If the Buyer is or will be in default with its payment by agreed-upon due dates and deadlines or in case of the occurrence of circumstances which, when considered in the light of customary banking benchmarks, allow for the conclusion that there is or has been a substantial deterioration of the Buyer’s financial situation and status and/or its creditworthiness, the Supplier shall, following the unsuccessful lapse of a reasonable respite, be entitled to demand immediate payment for the delivery or deliveries already made by it, and as far as future deliveries are concerned it shall, at its option, be entitled to either demand payment in cash before delivery or payment at the time of delivery. Alternatively the AN may ask for and demand that it be given securities such as they are customary in banking operations.
4. The Supplier shall, at its option, be entitled to rescind delivery contracts concluded with the Buyer or else to assert claims for damages instead of contract performance, if the Buyer will not have made the due payment within a 10 day time period and deadline after receipt of a reminder and dunning letter.
5. All of the Supplier’s claims shall become due for immediate payment if and when the Buyer declares itself insolvent by requesting the opening of insolvency proceedings or if he does so in any other manner and way.
§ 10 Retention of title
1. The products delivered shall remain the Supplier’s property up to the time where all claims resulting from the business relationship will have been paid in full.
2. The retention of title shall not bar or preclude the Buyer’s right to use the product or products delivered to it within the setting and limits of its due and proper business operations, or to process and to alienate and sell the same. The Buyer shall, however, neither transfer such title for purposes of providing security, nor pledge or hypothecate the same as long as the Supplier‘s retention of title is still valid and in force.
3. If the merchandise so delivered will be used as packaging or if it is processed and worked into packaging material, the Supplier‘s property right and title shall not become extinct as a result thereof. The Supplier shall then become proprietor or co-proprietor of the new object or product at the ratio of the invoiced value of the product or products so sold subject to retention of title in relation to the packaged goods and/or the packaging so produced.
4. If and when the so delivered merchandise or the packaging means and material made and produced from the same will be resold, the Buyer shall henceforth transfer, cede and assign to the Supplier all of its claims to the purchase price to which it is or will be entitled from its customers, such transfer, cession and assignment to be valid up to the time of the full and complete payment of the Supplier’s claim or claims in the amount of the value of the so delivered products which had been sold subject to retention of title. The Supplier herewith accepts such transfer, cession and assignment.
5. If the value of the above-described security will amount to 20% in excess of the value of the claims which are to be secured thereby, the Supplier shall, at its option and upon the Buyer’s request, release those deliveries which will have been paid in full. The Buyer shall be obliged to object to any and all acts of seizure or attachment undertaken or to be undertaken by any third party or parties with reference to such security collateral (goods sold subject to retention of title and claims), by pointing out and underlining the Supplier’s rights and titles and it shall be obliged to immediately advise the Supplier accordingly. It shall also be obliged to provide insurance coverage for such goods which were sold subject to retention of title, such insurance coverage to be provided for within customary limits.
§ 11 Place of Performance, Place of Jurisdiction and Choice of Law
1. The place of performance and of jurisdiction or venue for any and all duties and obligations or cases of legal disputes and litigation inclusive of actions arising out of checks and bills related to the Delivery Contract shall be at the place of that particular business establishment of the Supplier, by which the order will have been confirmed. This shall only apply in so far as the Buyer is a merchant doing business under German commercial law, a legal entity under public law or a separate fund or estate under public law, or has its registered headquarters outside the Federal Republic of Germany.
2. It shall exclusively be German law which shall be applicable and governing, the applicability of the United Nations Convention on the International Sale of Goods being barred and precluded. In case of doubt it shall be the German version hereof which shall apply.
§ 12 Invalidity of Provisions
1. If any one of the provisions of these Terms and Conditions were to be or become invalid on any legal or statutory grounds, then this shall not affect the validity of the other remaining provisions thereof.
2. Invalid provisions shall by common consent be replaced by valid provisions which shall come as close as possible to the economic purpose of the invalid provisions.
Schumacher Packaging 2015/11