General terms and conditions of EK-Pack Folien GmbH
A) Conditions of sale
Section 1 General information, scope of application
(1) Our conditions of sale exclusively apply to companies, legal persons under public law and public separate estates in terms of section 310 clause 1 BGB [Bürgerliches Gesetzbuch, German Civil Code] (hereinafter all jointly referred to as “the Customer”).
(2) Our conditions of sale apply exclusively. We do not recognise conditions of the Customer contradicting or deviating from our conditions of sale, unless we expressly agree to their application in writing. Our conditions of sale shall also apply if we execute a delivery without reservation despite knowledge of terms and conditions of the Customer contradicting or deviating from our conditions of sale.
(3) All agreements concluded between us and the Customer for implementation of this contract are recorded in writing in this contract.
(4) Our conditions for sale also apply to any and all future business with the Customer.
Section 2 Conclusion of contract, offer documents
(1) Our offer is subject to confirmation and non-binding unless so stated in other written provisions.
(2) If the order has to be classified as offer in terms of section 145 BGB, we shall have the right to accept the offer within 14 days of receipt.
(3) A contractual relationship shall only be initiated through our written order confirmation or by us effecting the delivery.
(4) We reserve all ownership rights and copyrights regarding images, drawings, calculations and other documents. This shall also apply to any such written documents that are labelled “confidential”. The Customer shall require our express written permission prior to any disclosure towards third parties. If we do not accept the offer of Purchaser within the time limit set out in (2), the aforementioned documents must be returned to us immediately.
Section 3 Prices, change of prices, payment conditions
(1) Unless stated otherwise in the order confirmation, our prices shall apply “ex works”.
(2) We reserve the right to change our prices accordingly if costs increase after conclusion of the contract, for example due to the conclusion of collective wage agreements or changed material prices. We shall prove these costs to the Customer on request.
(3) Statutory value added tax is not included in our prices; it will be listed separately in the invoice at the statutory rate applicable on the invoice date.
(4) Application of discounts shall require a separate written agreement.
(5) Unless stated otherwise in the order confirmation, the net purchase price (without deductions) is payable within 30 days of the invoice date. The statutory regulations regarding the consequences of default of payment apply.
(6) The Customer shall only be entitled to a set-off if his counterclaims were legally determined, are undisputed or were acknowledged by us. He shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship and if this claim was legally determined or is undisputed.
Section 4 Delivery period, delay, liability in the event of delay
(1) Condition precedent for start of the delivery period indicated by us is the resolution of all technical, organisational and commercial questions.
(2) Furthermore, compliance with our delivery obligation is subject to the condition precedent of timely and proper fulfilment of all obligations of the Customer. The objection of unfulfilled contract shall remain reserved.
(3) If we are required to provide an advance performance and if there are open, outstanding claims towards the Customer at the agreed time of delivery, also under other orders, or if it becomes otherwise clear after conclusion of the contract that the return performance is jeopardised by a lack of ability to pay on the part of the Customer, we shall have the right to refuse delivery until the return performance for the delivery was provided or until a security for the delivery was provided. For as long as we are entitled to refuse delivery, we may set an appropriate period during which the Customer must provide a concurrent return performance or provide a security for the performance. After unsuccessful expiry of the time limit, we may withdraw from the contract. Other statutory or contractually agreed rights of retention or rights to refuse performance shall remain reserved.
(4) If the Customer delays acceptance or if he culpably violates other cooperation obligations, we shall have the right to demand compensation for any damage we incurred. Further rights and claims are reserved.
(5) Provided that the requirements set out in (4) are met, the risk of accidental loss or accidental deterioration of the purchased item shall be transferred to the Customer at the moment the Customer delayed acceptance or payment.
(6) We shall assume liability in accordance with statutory provisions, provided that the underlying purchase contract is a fixed deal in accordance with the BGB or the HGB [Handelsgesetzbuch, German Commercial Code].
We shall also be liable in accordance with statutory provisions if, as a consequence of a delay of delivery we are responsible for, the Customer has the right to assert that he no longer has an interest in continued fulfilment of the contract.
(7) Moreover, we shall assume liability in accordance with statutory provisions if the delay of delivery was caused by an intentional or grossly negligent breach of contract or a breach of contract we are responsible for; any culpability of our representatives or our vicarious agents shall be attributed to us. If the delay of the delivery is caused by a grossly negligent breach of contract on our part, our liability for damages shall be limited to the damage that can be typically expected for this type of contract.
(8) We shall also assume liability in accordance with statutory provisions if the delay of delivery we are responsible for was caused by the culpable violation of a major contractual duty; in this case, however, liability for damages shall be limited to the damage that can be typically expected for this type of contract.
(9) Further statutory claims and rights of the Customer are reserved.
Section 5 Place of performance, transfer of risk
(1) The place of performance is set out in the order confirmation. Unless specified in the order confirmation, the delivery is made “ex works”.
(2) Risk is transferred at the place of performance.
Section 6 Cancellation
If the Customer cancels a confirmed order, we shall be entitled to invoice a fixed cancellation fee of 5 % of the order value. Any goods produced until the time of cancellation must be fully accepted and paid for by the Customer, unless we are responsible for the reason of the cancellation and if cancelation did not result from rights in regard to defects.
Section 7 Claims for defects, other liability
(1) Condition precedent for claims for defects on the part of the Customer is that the Customer complied with his inspection and complaint obligations pursuant to section 377 HGB in due form.
(2) If the purchased item is defective, we shall, at our choice, have the right to a supplementary performance in form of removal of defect or to deliver a new item free from defects.
(3) If supplementary performance is unsuccessful, the Customer shall, at his choice, have the right to demand withdrawal or reduction of the price. In case of minor defects, however, he shall have no right of withdrawal.
(4) We shall be liable for damages – irrespective of the legal grounds - in case of deliberate action or gross negligence within the context of fault - based liability. In case of simple negligence, we shall only be liable for, subject to a lower liability limit,
a) damage caused by injury to life, limb or health.
b) damage caused by a serious breach of a major contractual obligation (obligation the compliance with which makes implementation of the contract possible in the first place and compliance with which the contractual partner regularly relies on and may regularly rely on); in this event, however, our liability shall be limited to compensation for the foreseeable typical damage.
(5) The liability limitations set out in (4) shall also apply in the event of breaches of duty by or for the benefit of persons whose culpability we are required by law to assume responsibility for. They shall not apply if we conceal a defect with fraudulent intent or if we have given a guarantee for the characteristics of the item and in regard to claims of the Customer under product liability law.
(6) The Customer shall only be allowed to withdraw from or cancel the contract based on a breach of duty that does not constitute a defect if we are responsible for the breach of duty. A free right of termination on the part of
the Customer (especially in terms of sections 651, 649 BGB) is excluded. Apart from the above, the statutory conditions and legal consequences shall apply.
(8) The statute of limitations for material defects and defects of title is, in deviation from section 438 clause 1 No. 3 BGB, 12 months, starting at the time of transfer of risk. Apart from that, statutory time limits apply.
Section 8 Recommendations, suitability, specifications
(1) Any and all information and instructions regarding the use/suitability of the delivered item are – unless agreed otherwise in writing – only a non-binding recommendation based on the current level of development of our products. These shall not exempt our Customer from conducting his own inspections and tests regarding the delivered item for suitability for the technical and economic purposes he intends to use said item for. Moreover, our Customer shall be required to observe statutory and official provisions when using the delivered item under his own responsibility.
(2) The product specifications issued by us shall be decisive for any and all characteristics of the delivered item. In case of undefined characteristics, the standard values commonly applied in the industry are to be utilised.
(3) Any product specifications deviating from (2) shall only be accepted if these were submitted in writing and if they are signed by at least one legal representative of the parties to the contract involved.
Section 9 Quantity tolerances
(1) In the event of order-based manufacturing, a shortfall or exceedance of the delivery quantity by +/- 10 % for production- or material-related reasons shall be deemed acceptable.
(2) In deviation from (1), a shortfall or exceedance of the delivery quantity by +/- 20 % for production- or materialrelated reasons shall be permissible for unprinted small orders (extruded products up to 1 t, laminated products up to 10.000 m2) as well as unprinted, complex varieties (laminated products with 3 or more layers.
(3) In deviation from (1) and (2), a shortfall or exceedance of the delivery quantity by +/- 30 % for production- or material-related reasons shall be permissible for printed small orders (extruded products up to 1 t, laminated products up to 10.000 m2) as well as printed, complex varieties (laminated products with 3 or more layers.
Section 10 Reservation of title
(1) We reserve the title to the purchased item until receipt of any and all of our present and future claims under the delivery contract and a current business relationship. In the event of a breach of contract on the part of the Customer, especially in case of delay of payment, we shall be entitled to collect the purchased item. Collection of the purchased item by us shall constitute a withdrawal from the contract. After collection of the purchased item, we shall be entitled to utilise that item; the sales proceeds shall be credited against the liabilities of the Customer – minus appropriate utilisation costs.
(2) The Customer shall be obliged to treat the purchased item with care; especially, he shall be obliged to sufficiently insure the item at its reinstatement value against damage caused by fire, water and theft at his own costs.
(3) In the event of attachments or other interventions by third parties, the Customer shall inform us in writing immediately. To the extent that the third party is not able to reimburse us for court-related and extrajudicial costs of any action brought, the Customer shall be liable for any damage we incur.
(4) The Customer shall have the right to sell the purchased item in the course of normal business. However, he already now assigns to us any and claims to the final invoice amount (including value added tax) of our claims which he obtains from resale to his customers or third parties, irrespective of whether the purchased item was resold unprocessed or processed. The Customer shall remain entitled to collect this claim, also after assignment. Our right to collect the claim ourselves shall remain unaffected. We agree, however, to not collect the claim for as long as the Customer complies with his payment obligations using the proceeds he obtained, for as long as he is not in default of payment and, especially, for as long as no requests for opening of settlement or insolvency proceedings were filed or for as long as the Customer does not stop payments. If, however, any of these is the case, we may request that the Customer informs us of the assigned claims and their debtors, that he provides us with all information required for collection, submits the associated documents and informs the debtors (third parties) of the assignment.
(5) Processing or modification of the purchased item by the Customer is always carried out on our behalf. If the purchased item is processed together with other objects that are not ours, we shall acquire title to the new item in proportion of the value of the purchased item (final invoice amount, including value added tax) to the remaining processed objects at the time of processing. Apart from the above, the same shall apply to the item created by processing as does to the purchased item delivered subject to retention of title.
(6) If the purchased item is inseparably combined with other objects that are not ours, we shall acquire title to the new item in proportion of the value of the purchased item (final invoice amount, including value added tax) to the remaining combined objects at the time of combination. If combination takes place in a manner resulting in the item of the Customer having to be regarding as the main item, it shall be deemed agreed that the Customer transfers a proportional co-ownership to us. The Customer is holding the sole ownership or co-ownership so acquired on our behalf.
(7) We agree to release any securities we are entitled to on request of the Customer if and to the extent that the realisable value of our securities exceeds that of the secured claims by more than 10 %. We shall have the right to choose which securities to release.
Section 11 Place of jurisdiction, applicable law, place of performance
(1) Place of jurisdiction is Kempten (Allgäu). We shall, however, also have the right to bring action against the Customer at his place of business.
(2) Applicable law is the law of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(3) Unless stated otherwise in the order confirmation, our place of business shall be the place of performance.
B) Conditions of purchase
Section 1 General information, scope of application
(1) Our conditions of purchase exclusively apply to companies, legal persons under public law and public separate estates in terms of section 310 clause 1 BGB [Bürgerliches Gesetzbuch, German Civil Code] (hereinafter all jointly referred to as “the Supplier”). Our conditions of purchase apply irrespective of whether the Supplier manufactures the goods himself or purchases these from subcontractors (sections 433, 651 BGB).
(2) Our conditions of purchase apply exclusively. We do not recognise conditions of the Supplier that are contradicting or deviating from our conditions of purchase, unless we expressly agree to their application in writing. Our conditions of purchase shall also apply if we accept a delivery and/or service of the Supplier without reservation despite knowledge of terms and conditions of the Customer contradicting or deviating from our conditions of sale.
(3) All agreements concluded between us and the Supplier for implementation of this contract are recorded in writing in this contract.
(4) Our conditions for purchase also apply to any and all future business with the Supplier, without us having to refer to them expressly again in each individual case.
(5) Individual covenants agreed with the Supplier on a case by case basis (including collateral agreements, supplements and amendments) shall always take precedence over these conditions for purchase. Decisive for the content of such covenants shall be, subject to proof to the contrary, our written confirmation.
(6) Legally binding declarations and notices the Supplier is required to issue towards us after conclusion of the contract (e.g. setting of time limits, reminders, declaration of withdrawal) must be issued in writing to be effective.
Section 2 Conclusion of contract, contractual content
(1) At the earliest, our order shall be deemed binding upon written, postal or electronic submission or confirmation.
(2) Subject to a corresponding note on the order document, orders shall also be deemed binding if they were not signed in person.
(3) Any and all conditions, specifications, standards or other contracts that are listed in the order or were otherwise agreed shall be a part of the order.
(4) The Supplier is instructed to confirm the order in writing or per post within two weeks of the order date. A delayed acceptance shall be considered a new offer and must be confirmed by us.
(5) The Supplier shall include our order number in all papers and documents referring to an order.
Section 3 Delivery period, delayed delivery
(1) Agreed delivery dates and delivery periods are binding. Relevant for timely delivery (or supplementary performance) is the time the goods are received at the place of performance.
(2) Upon exceeding the agreed delivery date, the Supplier shall be in default without issuance of a reminder being necessary.
(3) In the event of foreseeable delays of a delivery or service (or supplementary performance), the Supplier shall inform us thereof immediately.
(4) If the Supplier fails to provide his performance or to provide the performance within the agreed delivery period or if he is in default, our rights – especially in regard to withdrawal and damages – shall be governed by statutory regulations.
(5) An unreserved acceptance of a delayed delivery does not constitute a waiver of the compensation claims we are entitled to based on the delayed delivery or service.
Section 4 Performance, delivery, transfer of risk
(1) Delivery in Germany is free to the place indicated in the order. If the destination is not listed and if nothing else was agreed, the delivery shall be shipped to our place of business. The delivery, including shipping, appropriate packaging and insurance, shall take place at the costs of Supplier, unless agreed otherwise. The respective destination is also the place of performance for the delivery and any supplementary performance (obligation to be performed at the creditor's place of business).
(2) The risk shall be transferred following unconditional acceptance of the goods at the place of performance.
(3) Attached to the delivery has to be a delivery note including the information specified by us. Such information in particular includes the order confirmation number, order number, order item, product name, batch number and
delivery quantity. If the delivery note is missing or incomplete, we shall not be held responsible for any resulting delay in processing the delivery.
(4) Partial deliveries shall require our consent and must be indicated as such in the shipping documents.
Section 5 Transfer of title
(1) Title to the supplied goods shall, unless agreed otherwise, be transferred to us upon unconditional acceptance of the goods at the destination. In the event of retention of title having been agreed, title to the goods shall be transferred to us upon payment. Current account retention and multiple reservations shall not apply.
(2) The seller shall only be entitled to demand return of the goods based on retention of title if he withdrew from the contract.
Section 6 Payment, payment conditions, set-off
(1) The Supplier must submit a comprehensible invoice with every delivery and/or service, which especially has to include information regarding name and address of the Supplier, date of the invoice, invoice number, quantity and name of the delivered item or type and scope of the service, time of delivery/service, remuneration and taxes payable as well as the payment conditions.
(2) Unless agreed otherwise in writing, payments shall become due for payment within 30 days of delivery and performance in full (where applicable, including any agreed formal acceptance) as well as after receipt of a correct invoice. In case of payment within 14 days, we shall be entitled to apply a discount of 3 %. In case of bank transfer, a payment shall be deemed made in time if our transfer order was received by the bank prior to expiry of the payment period; we shall not assume liability for delays by the banks/credit institutes involved in the payment process.
(3) We shall not owe interest on arrears. Statutory regulations apply to default of payment.
(4) We shall be entitled to set-off rights and rights of retention as well as the objection of unfulfilled contract to the extent prescribed by law. In particular, we shall have the right to withhold outstanding payments for as long as we are still entitled to claims towards the Supplier under incomplete or defective services.
(5) The Supplier shall only be entitled to set-off rights and rights of retention in case of legally determined or undisputed counterclaims.
Section 7 Bonus
(1) If a written bonus agreement was concluded for a defined purchase quantity or sales proceeds during a set period, the Supplier shall prepare and submit a bonus notice within a time limit of 14 days after full payment of the last invoice of the period relevant for the bonus.
(2) In case of exceedance of the time limit for preparation of the bonus notice set out in (1), we shall be entitled to withhold payments to the amount of the expected bonus without causing us to be in default of payment.
Section 8 Liability for defects, statute of limitations
(1) The Supplier ensures that the delivered item is free from material defects and defects of title. In particular, he shall guarantee that the deliveries have the agreed characteristics and that they correspond to the generally accepted rules of technology. Deemed agreements regarding the product characteristics are any such product descriptions that are a part of the contract in question or which were included in the same manner as the general terms and conditions for purchase. In this respect, it is of no importance whether the product descriptions were issued by us, the Supplier or the manufacturer.
(2) In deviation from section 442 clause 1 second sentence BGB, we shall also be entitled to unlimited claims for defects if we did not detect the defect at the time the contract was concluded as a result of gross negligence.
(3) We shall be entitled to unlimited statutory claims for defects. The Supplier shall provide a subsequent performance or a replacement delivery, at our choice.
(4) If the Supplier fails to comply with his obligation to provide a supplementary performance within an appropriate time limit set by us, we shall have the right to remove the defect ourselves or to have it removed by third parties, to effect covering purchases and to demand compensation for any costs and expenses we so incurred from the Supplier.
(5) If supplementary performance by the Supplier would be unreasonable for us (e.g. due to special urgency, threat to operational safety or imminent danger of occurrence of disproportionate damage), there is no need to set a time limit. We shall inform the Supplier as soon as possible of such circumstances, where possible in advance.
(6) Apart from the above, we shall be entitled to a reduction of the purchase price or to withdrawal from the purchase contract as well as to demand damages and compensation for expenses in accordance with statutory requirements.
(7) The statute of limitation for material defects and defects of title shall amount to, in deviation from section 438 clause 1 No. 3 BGB, 36 months, starting at the time of transfer of risk. Apart from that, statutory limitation periods apply.
Section 9 Supplier regress
(1) We shall be entitled to our unlimited statutory regress claims within a supply chain (supplier regress pursuant to sections 478, 479 BGB) in addition to the claims for damages. In particular, we shall be entitled to demand exactly that type of supplementary performance (reworking or replacement delivery) from the Supplier which we owe our customers in the respective individual case. This shall not limit our statutory right to choose (section 439 clause 1 BGB).
(2) Before we recognise or fulfil a claim for a defect asserted by our customers (including reimbursement of expenses in accordance with sections 478 clause 2, 439 clause 2 BGB), we will inform the Supplier and, briefly illustrating the situation, will request a short statement. If no statement is issued within an appropriate period and if no amicable solution is reached, the claim for defect actually granted by us shall be deemed owed to our customer; in this case, the Supplier is obliged to provide proof to the contrary.
(3) Our claims under supplier regress shall also apply if the goods were processed by us or by one of our customers prior to their sale to a consumer, e.g. by incorporation into another product.
Section 10 Manufacturer liability
(1) If the Supplier is responsible for a product defect, he shall indemnify and hold us harmless against claims of third parties to the extent that the cause lies within his sphere of influence and organisation and if he is himself liable in external relationships.
(2) As part of his indemnification obligation, the Supplier shall be obliged to reimburse expenses in terms of sections 683, 670 BGB which are incurred by or in connection with being held liable by third parties, including any recalls we have issued. We shall inform the Supplier – where possible and reasonable – of the content and extent of any recall measures and shall give him the opportunity to issue a statement. Further statutory claims shall remain unaffected.
Section 11 Changes of processes, products and specifications
(1) The Supplier shall provide us with unlimited information prior to any change of the production process, the raw materials used, the production location, quality assurance methods, permits or other measures which may affect the quality and safety of our products.
(2) Changes to existing specifications shall require our written confirmation.
(3) If the Supplier violates the regulations set out in (1) or (2), he shall be obliged to fully reimburse us for any damage and expenses we incur as a result of such violation.
Section 12 Confidentiality, data processing
(1) The Supplier is obliged to treat any and all information and documents received as part of the business relationship as strictly confidential and to not disclose these or make them accessible to third parties without our written permission.
(2) The Supplier agrees to us electronically storing the information and documents exchanged for the business relationship and to us processing these for our own purposes.
Section 13 Place of jurisdiction, applicable law
(1) Unless agreed otherwise in writing, the place of jurisdiction is Kempten (Allgäu). We shall, however, also have the right to bring action against the Supplier before the court competent at his place of residence.
(2) Applicable law is the law of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.