General terms of delivery and payment

1 Scope of these General Terms and Conditions

I. These General Terms and Conditions (hereinafter referred to as GTC) apply to all contracts with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), with legal entities under public law and with special funds under public law.

II. our GTC apply exclusively; we do not recognize any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our GTC shall also apply if we have carried out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. Terms and conditions other than those used by us shall only become part of the contract if we expressly agree to them. The latest version of our GTC shall also apply to future contracts, even without express agreement.

III. all agreements made between us and our customer for the purpose of executing this contract are set out in writing in this contract.

2. designs for molds and packaging, clichés and print documents

I. We reserve our copyrights to the drafts and designs for molds and packaging, drawings, illustrations and models created by us or on our behalf with the assistance of third parties, including all associated rights of use, exploitation and other rights. The customer requires our express written consent before passing them on to third parties.

II When ordering printed packaging, the customer is obliged to provide binding print data. If graphic work for the creation of printing conditions is carried out at our request, we shall be entitled to charge our expenses to the customer. In the event of requested graphic interventions and changes, deadlines may be postponed. As a printing company, we accept no responsibility for the complete accuracy of the modified data.

III Insofar as clichés used for the production of the goods to be supplied by us have been changed, we reserve the right to dispose of the older version of the cliché.

IV. Submitted samples or drawings will only be returned on request. If an order does not materialize, we are permitted to destroy samples and drawings three months after submission of the offer.
V. Insofar as objects are printed, the print approval signed by the customer (“GzD”, “good to print”) shall be decisive for the printing service owed by us. By granting print approval, the customer assumes responsibility for errors in content and thus declares that he has carried out a proper final check of the print data. Any unrecognizable defects in the suitability of the artwork for the desired reproduction are beyond our responsibility. Printing shall be carried out in accordance with the existing technical possibilities and with the assurance of careful monitoring.

3 Terms of payment, prices

I. Unless otherwise agreed, our prices are “ex works”. Insurance and customs duties are not included in our prices. The statutory value added tax is also not included in our prices; it will be invoiced at the statutory rate on the day of invoicing.

II. 50% of the agreed gross price for tools (molds) must be paid upon ordering and 50% upon receipt of the reference samples. Irrespective of the delivery item, a discount may only be deducted if this has been agreed separately in writing.

III. the timeliness of payments shall be determined solely by the date of receipt by the AGB user. Checks and bills of exchange are only accepted on account of performance. Discount and collection charges as well as interest shall be reimbursed to us immediately.

IV. If, after conclusion of the contract, circumstances become apparent from which it can be concluded that our claim to counter-performance is jeopardized by the contractual partner’s inability to pay, we shall be entitled to refuse performance. We are also entitled to set a reasonable deadline within which the customer must make payment or provide security concurrently with the provision of our service. § Section 321 BGB remains unaffected.
V. The customer is only entitled to offset if his counterclaims are undisputed, recognized by us or have been legally established. The customer may only exercise rights of retention if his counterclaim is based on the same contractual relationship.

4 Delivery and delivery time

I. Delivery periods shall generally commence with the conclusion of the contract. However, they shall be suspended as long as information, documents, releases, approvals, etc. required from the customer for the execution of the contract are outstanding or agreed advance payments or securities have not been provided. Delivery dates shall be postponed by a corresponding period of time.

II. We are in any case entitled to make partial deliveries to a reasonable extent.

III. if delivery is delayed by force majeure (e.g. war, acts of God, civil unrest, forces of nature), by industrial action for which we are not responsible, including external industrial action or other extraordinary, unforeseeable events for which we are not responsible and which occurred after conclusion of the contract or which were unknown to us at the time of conclusion of the contract without us being responsible for our ignorance, the delivery period shall be extended by the duration of the hindrance and a reasonable start-up period. Delivery dates shall be postponed by a corresponding period.
If an event of the aforementioned type leads to the delivery being made considerably more difficult or impossible, we shall be entitled to withdraw from the contract. If the delay lasts longer than three months or if the delay already becomes unreasonable for the customer beforehand, the customer is entitled to withdraw from the contract.

IV. From a minimum order quantity of 20,000 pieces per unit and packaging, we reserve the right to over- or under-deliver by 10%. For production reasons, we reserve the right to over-deliver by up to 30% and under-deliver by up to 15% of the ordered quantity for order quantities below this amount.

V. We expressly reserve the right to substitute the specified trademark of a raw material supplier with an equivalent material from another manufacturer with the same food law and pharmacological properties. In this case, the corresponding technical data sheet with the manufacturer’s specifications will be enclosed with the delivery.

5. transfer of risk

I. The risk shall pass to the Buyer, even in the case of carriage paid delivery, as soon as the consignment has been handed over to the person carrying out the transportation or has left the Seller’s warehouse for shipment. If shipment is delayed for reasons for which we are not responsible, the risk shall pass to the Buyer upon notification of readiness for shipment.

II. at the written request of the purchaser, the goods shall be insured against breakage, transport and fire damage at the purchaser’s expense.

6. liability for defects

I. In the case of injection-molded items which are not offered by us as standard but are manufactured according to the customer’s specifications, a quality shall be deemed to have been agreed which corresponds to that of the average reference samples which we have submitted to the customer for inspection and which have been accepted by the customer. Insofar as items are printed, the print release signed by the customer (“good for printing”) shall be decisive for the printing performance owed by us.
If we manufacture goods according to the customer’s instructions, the quality of the goods resulting from compliance with the instructions is agreed as the target quality. The suitability of our products for certain filling goods or purposes intended by the customer shall only be deemed to be the owed quality of our products if this has been expressly agreed.

II. you are obliged to inspect the goods immediately after delivery, insofar as this is feasible in the ordinary course of business, and to notify us immediately of any defect that becomes apparent. If you fail to notify us, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If such a defect is discovered at a later date, you must notify us immediately after the defect is discovered, otherwise the goods shall be deemed to have been approved even with regard to this defect.
If the goods are deemed to have been approved, you can no longer assert any rights due to a possible defect. However, to safeguard your rights, it is sufficient for you to send the notification of defects in good time.
Quality inspection certificates and similar quality assurance documents handed over to the customer are the result of our quality inspection and do not release the customer from carrying out his own incoming goods inspection.
In the event of a notice of defects, the customer must give us the opportunity to inspect the rejected goods. Inspection slips belonging to the rejected goods must be kept and made available to us.
III. if you demand subsequent performance from us due to a defect, we are entitled to determine the type of subsequent performance (rectification or subsequent delivery).

IV. We shall be liable in connection with defects in accordance with the statutory provisions for claims for damages based on intent or gross negligence on our part, on the part of our vicarious agents or legal representatives. In the event of a non-intentional breach of contract, however, liability for damages shall be limited to the foreseeable, typically occurring damage. We shall also be liable in accordance with the statutory provisions if we have culpably breached a material contractual obligation or if you are entitled to compensation in lieu of performance; in these cases too, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
Liability for culpable injury to life, limb or health remains unaffected; the same applies to mandatory liability under the Product Liability Act. Unless otherwise stipulated above, liability for damages due to defects is excluded. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees and vicarious agents.

7 Industrial property rights

I. If we deliver items according to drawings, models, samples, developments or other information provided by the customer, we shall not be liable for the infringement of third-party industrial property rights. In such cases, the customer warrants to us that the manufacture/delivery of the items does not infringe the industrial property rights of third parties. Claims for damages by the customer in the aforementioned cases are excluded, unless liability is mandatory for legal reasons in the case of intent or gross negligence or due to breach of essential contractual obligations due to simple negligence for foreseeable damages typical for the contract.

II. if we deliver items according to drawings, models, samples, developments or other specifications of the customer, the customer shall indemnify us against any claims of third parties for infringement of industrial property rights. If a third party prohibits us from manufacturing and supplying items manufactured according to drawings, samples, models or other specifications of the customer on the basis of an industrial property right to which it is entitled, we shall be entitled to discontinue delivery and manufacture without examining the legal situation, excluding claims for damages by the customer, and to demand reimbursement of the costs incurred, unless the customer provides sufficient security for all claims of the third party, including legal costs. For direct or indirect damages arising from the infringement and assertion of any industrial property rights, the customer shall make a reasonable advance payment at our request.

8 Liability for damages, exclusion of liability

I. In addition to the claims for damages regulated in the above paragraph, all claims for damages against us resulting from merely negligent, i.e. neither grossly negligent nor intentional behavior on our part, on the part of our vicarious agents and our legal representatives are excluded. This applies irrespective of the legal basis of the claims for damages, i.e. both for claims arising from breach of contractual obligations and claims arising from culpa in contrahendo as well as for non-contractual liability, and irrespective of whether duties of protection and care or other duties have been breached.

II Insofar as claims for damages directed against us are not based on intentional behavior, the liability for damages is limited to the foreseeable, typically occurring damage.

III. however, the above exclusion or limitation of liability shall not apply to claims for damages due to injury to life, limb or health;
to any non-waivable liability under the Product Liability Act;
for claims for damages in lieu of performance and for claims for damages arising from the breach of material contractual obligations; in these cases, however, our liability shall be limited to the objectively foreseeable damage typical of the contract.

IV Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees and vicarious agents.

9. reservation of title

I. We reserve title to the delivery item until all payment obligations to us (including current account balance claims) arising from the business relationship have been fulfilled. If the customer acts in breach of contract, in particular in the event of default of payment, we shall be entitled to take back the delivery item. Taking back the goods shall constitute a withdrawal from the contract. After taking back the delivery item, we shall be authorized to sell it; the proceeds from the sale, less the costs of sale, shall be offset against the customer’s liabilities.

II. the customer is obliged to treat the delivery with care and to insure it adequately at his own expense.

III. in the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred by the assertion of our property rights, the customer shall be liable for the loss incurred.

IV. The customer is entitled to process and resell the delivery item in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) which accrue to him from the resale or any damage to the goods against his customers or third parties, irrespective of whether the delivery item is resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claims as long as the customer fulfills his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

V. The processing or transformation of the delivery item shall always be carried out for us. If the delivery item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered under reservation of title.

VI. if the delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.

VII. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claim to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

10 Applicable law, place of jurisdiction, place of performance

I. The law of the Federal Republic of Germany shall apply exclusively; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

II. place of performance is our head office.

III. if the customer is a merchant, a legal entity under public law or a special fund under public law, Kehl shall be the exclusive place of jurisdiction for all disputes.