General Terms and Conditions of Business of the company EK-Pack Folien GmbH:
Terms of purchase, delivery and payment (TPDP)
§1 General - Field of Application
(1) Our terms and conditions for sales shall apply exclusively; we will not accept any contradictory terms and conditions of the customer or any terms and conditions of the customer differing from our terms and conditions for sales, unless we have expressly agreed to their validity in writing. Our terms and conditions for sales shall apply even if we carry out the delivery to the customer without reservation, being aware of contradictory terms and conditions of the customer or terms and conditions of the customer differing from our terms and conditions for sales.
(2) All agreements that are made between us and the customer for the purpose of the execution of the present contract have been set forth in the present contract in writing.
(3) Our terms and conditions for sale shall only apply towards merchants as defined by section 310 para. 1 BGB [German Civil Code].
In addition, if ongoing business relationships with the respective customer are sure:
(4) Our terms and conditions for sales shall also apply to any future business with the customer.
§2 Offer - Offer Documents
(1) If the order has to be qualified as offer according to section 145 BGB, we may accept it within 2 weeks.
(2) Our offer will be without engagement unless stated otherwise in the order acknowledgement.
(3) We reserve property rights and copyrights regarding figures, drawings, calculations and other documents. The same shall apply to such written documents that are described as “confidential”. The customer shall require our express written consent before disclosing them to third parties.
§3 Prices - Terms of Payment
(1) Unless otherwise stated in the order acknowledgement, our prices are stated “ex works” excluding packing; this will be charged for separately.
We reserve the right to modify our prices accordingly if, after conclusion of the contract, reductions of or increases in costs occur, in particular due to collective agreements or changes in material prices. We will prove them to the customer on request.
(2) Our prices do not include statutory value-added tax; it will be stated separately in the invoice at its statutory rate on the day of invoicing.
(3) Deduction of discount requires express written agreement.
(4) Unless otherwise stated in the order acknowledgement, the purchase price will be due for payment net (without deduction) within 30 days after the invoice date. The statutory rules regarding the consequences of default of payment shall apply.
(5) The customer will only be entitled to set-off rights if their counterclaims have been established as final and absolute, are undisputed or have been accepted by us. Moreover, the customer will be authorised to exercise a right of retention to the extent to which their counterclaim is based on the same contractual relationship.
§4 Delivery Period
(1) The delivery period specified by us shall start only when all technical questions have been clarified.
(2) Moreover, compliance with our duty to deliver shall be contingent on the timely and proper fulfilment of the customer’s obligation. We reserve the right to make a plea of non-performance.
(3) In the event that the customer delays acceptance or breaches any other duties to cooperate incumbent upon them, we shall be entitled to demand compensation for any losses sustained by us, including any additional costs incurred. We reserve the right to assert further claims and exercise further rights.
(4) To the extent that the conditions of paragraph (3) are given, the risk of accidental loss or an incidental deterioration of the object of sale shall be transferred to the customer from the moment when the customer delays acceptance or defaults on payment.
(5) We shall be liable in accordance with the legal provisions where the underlying sales contract is a transaction for delivery by a fixed date as defined by § 286 para. 2 no. 4 BGB or § 376 HGB [German Commercial Code]. We shall also be liable in accordance with the legal provisions where, as a result of a delay in delivery attributable to us, the customer is entitled to claim that they no longer have any interest in the further performance of the contract.
(6) Furthermore, we shall be liable in accordance with the legal provisions where the delay in delivery is due to a wilful or grossly negligent breach of contract attributable to us; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is attributable to a wilful breach of contract attributable to us, our liability for damages shall be restricted to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the legal provisions to the extent the delay in delivery attributable to us is due to a culpable breach of a material contractual obligation; in this case, however, liability for damages shall be restricted to the foreseeable, typically occurring damage.
(8) Further legal claims and rights of the customer shall be reserved.
§5 Passing of Risk - Packing Costs
(1) Unless stated otherwise in the order acknowledgement, delivery “ex works” shall be agreed on.
(2) Separate agreements shall apply to the return of packaging.
§6 Liability for Defects
(1) The validity of customer claims based on defects shall be contingent on the customer having duly fulfilled their obligation to inspect the goods and notify us of any defects, as required by § 377 HGB.
(2) Where the object of sale is defective, we shall be entitled to take remedial action by remedying the defect or by delivering a new replacement free of defects at our own option. If remedial action is taken, we will bear the necessary costs not exceeding the amount of the purchase price.
(3) In the event that the remedial action fails, the customer shall be entitled at their own option to claim withdrawal from the agreement or a reduction in price.
(4) We will be liable in accordance with the legal provisions, if the customer claims damages which are based on intention or gross negligence, including intention or gross negligence on the part of our representatives or vicarious agents. Provided that we are not accused of wilful breach of contract, our liability for damages shall be restricted to the foreseeable, typically occurring damage.
(5) We will also be liable in accordance with the legal provisions insofar as we culpably breach a vital contractual obligation; in such cases, liability for damages shall be restricted to the foreseeable, typically occurring damage as well.
(6) This shall not affect liability for a culpable injury to life, body or health; this shall also apply to compulsory liability under the German Product Liability Act.
(7) Unless otherwise agreed hereinabove, any and all liability shall be excluded.
(8) The statute of limitation to demands of defects is 12 months, calculated from the date of transfer of perils.
(9) This shall not affect the limitation period for recovering from the supplier as provided for under § 478 and § 479 BGB; this period amounts to five years, commencing from delivery of the defective goods.
§7 Total Liability
(1) Any further liability for damages other than that provided for in § 6 shall be excluded – regardless of the legal nature of the asserted claim. This shall in particular apply to claims for damages resulting from culpa in contrahendo, due to other breaches of obligations or due to tortious claims for compensation for material damage in accordance with § 823 BGB.
(2) The limitation according to paragraph (1) shall apply as well if, in place of a claim for damages, the customer claims compensation for futile expenses instead of performance.
(3) Insofar as liability for damages against us is excluded or restricted, this shall also apply with respect to the personal liability for damages of our employees, members of staff, co-workers, representatives and vicarious agents.
§8 Reservation of title
(1) We reserve the title to the object of sale until all payments stipulated in the delivery contract have been received. Should the customer act in a way contrary to the terms of the contract, in particular, should they fall into arrears, we will be entitled to take back the object of sale. Our taking back the object of sale shall constitute a withdrawal from the contract. After we have taken back the object of sale, we shall be authorised to realise it; any revenues from such realisation must then be offset against the liabilities of the customer - less reasonable realisation costs.
(2) The customer shall be obliged to take good care of the object of sale; in particular, the customer shall be obliged to provide sufficient replacement value insurance against fire damage, water damage and theft. Where maintenance and inspection work is required, the customer must carry them out in good time at their own expense.
(3) In the event of seizure or other third-party interventions, the customer must notify us immediately in writing so that we may file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). Where the third party is unable to reimburse the court and out-of-court expenses of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for any loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; the customer shall, however, assign to us here and now any claims amounting to the total invoice amount (including VAT) of our claim that accrue from the resale against the purchaser or third parties, regardless of whether the object of sale was resold with or without further processing. The customer shall be entitled to collect this claim even following assignment. This shall not affect our right to collect the claim ourselves. We undertake, however, to refrain from collecting the claim as long as the customer meets their payment obligations from the proceeds received, does not fall into arrears and in particular provided that the opening of composition or insolvency proceedings has not been requested or no cessation of payments occurs. However, in such cases, we shall be entitled to demand that the customer notifies us of the assigned claims and the respective parties liable, provides us with all information necessary to collect the claim and submits to us all appropriate documents and notifies the parties liable (third parties) of the assignment.
(5) Any processing or reorganisation of the object of sale by the customer shall always be considered to be carried out for us. If the object of sale is processed with other objects that do not belong to us, we shall acquire co-ownership of the new object according to the proportion of the value of the object of sale (total sum invoiced, including VAT) to the value of the other objects processed at the time of processing. For the rest, the provisions applicable to the object of sale delivered under reserve shall also apply to the object resulting from processing.
(6) If the object of sale is inseparably mixed with other objects that do not belong to us, we shall acquire co-ownership of the new object according to the proportion of the value of the object of sale (total sum invoiced, including VAT) to the value of the other commingled objects at the time of mixing. If mixing is effected in such a way that the object of the customer may be seen as the main object, it is deemed to be agreed that the customer shall assign to us pro rata co-ownership. The customer shall keep the resulting sole or co-ownership on our behalf.
(7) For securing our claims against the customer, the customer shall also assign to us the claims against any third party resulting from combining the object of sale with a piece of land.
(8) We undertake to release the securities which we are entitled to at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; it shall be our responsibility to select the securities to be released.
§9 Place of Jurisdiction - Place of Performance
(1) Insofar as the customer is a merchant, our registered place of business shall be the place of jurisdiction; we shall, however, also be entitled to institute legal proceedings against the customer at their local court.
(2) The law of the Federal Republic of Germany shall apply; the provisions of UN sales law shall be excluded.
(3) Unless stated otherwise in the order acknowledgement, our registered place of business shall be the place of performance.