GENERAL TERMS & CONDITIONS OF SALE OF FRIEDR. SERONG GMBH & CO. KG
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1. Scope of the terms & conditions of sale
1.1 For all contracts concluded by us with businessmen, legal entities of public law, or special funds under public law (hereinafter referred to as “Buyer(s)”), our following terms & conditions of sale, which correspond to the Sample Terms & Conditions of the specialised association of the folding box industry, Fachverband Faltschachtel-Industrie e.V., shall apply exclusively. Buyer’s terms & conditions shall overall not apply unless we expressly agreed – in writing – to their applicability. This shall also apply to provisions in Buyer’s terms & conditions that do not contradict our terms & conditions. Our terms & conditions of sale shall also apply exclusively if we perform delivery to Buyer without reservation despite knowledge of Buyer’s deviating clauses.
1.2 Our terms & conditions of sale shall also apply to all future business with Buyer.
2. Offers, order, and prices
2.1 Our offers shall be non-binding. A contract shall come into effect only upon our written or electronic order confirmation or by delivery of the goods to Buyer.
2.2 Costs we incur due to preparation of the offer such as costs for development, technical services, samples, and corrections shall be borne by Buyer if no order is placed.
2.3 By ordering the goods, Buyer is submitting a binding offer. We shall be entitled to accept this offer within two weeks of receipt by us.
2.4 We shall not accept any risk of procurement with respect to being supplied ourselves by our suppliers unless we are responsible for the non-punctual or incorrect delivery to us.
2.5 Unless a different currency has been expressly agreed upon, the prices are quoted in Euro, excluding the respective applicable statutory value-added tax.
2.6 All prices shall apply ex works. Transport and packaging costs shall be invoiced separately. If the parties have agreed on FOB prices, these shall not include harbour and customs fee.
3. Intellectual property, industrial property rights, ownership of work materials
3.1 The intellectual property in and/or industrial property rights to drafts, templates, sketches, samples, films, lithographs, clichés, stamps, dies, negatives, plates, printing rollers, printing plates, forming devices, digital data, printing cylinders, etc. (hereinafter referred to as “Work Materials”) developed by us shall exclusively belong to us. Buyer may not use these Work Materials without prior express written agreement in which a reasonable usage fee shall be specified.
3.2 Buyer shall be liable for ensuring that the goods manufactured by us that are based on Buyer’s Work Materials or other specifications and/or instructions not violate any rights of third parties, in particular no intellectual or industrial property rights. Buyer shall herewith agree to hold us harmless, upon first request of any claims that third parties assert against us due to an alleged or actual violation of intellectual and/or industrial property rights, as long as we manufactured the goods in accordance with Buyer’s Work Materials or other specifications and/or instructions.
3.3 Work materials that are required for the manufacturing of the goods and that were manufactured by us shall remain our property even if Buyer financially contributed towards the production costs. An obligation to surrender the goods shall not exist.
3.4 We shall store Work Materials and data records made available by Buyer only at Buyer’s risk. We shall be liable for diligence only with respect to our own matters. We shall insure these Work Materials and data records only upon express request of Buyer and only at Buyer’s expense. If Buyer does not request these Work Materials back from us within one year after their last use and/or the data records within three years of their last use, we shall be authorised to destroy them after prior notification of Buyer.
4.1 Delivery schedules shall be binding only if expressly accepted responsibility - in writing - for adhering to them. The obligation shall be only apply subject to unforeseen events for which we are not responsible. The delivery schedule shall be considered to have been adhered to if the goods were handed over to the carrier in such timely fashion that a punctual delivery could be expected under normal circumstances.
4.2 If a call and/or scheduling agreement has been agreed upon between the parties, said agreement shall be binding for both parties. Deviations shall require the express written approval of the other party. Additional costs incurred due to such deviations (e.g. storage charges, financing costs) or material changes shall be borne by the party that requested the deviation from the call and/or scheduling agreement.
4.3 If we do not adhere to the delivery schedule, Buyer shall be authorised and required to set us - in writing - a reasonable grace period for delivery. Generally, the grace period shall amount to no less than 10 working days. Upon fruitless expiry of the grace period, Buyer may withdraw from the contract. In case of permanent or successive delivery contract, the right to withdrawal shall apply only to the specific delivery, unless a continuation of the whole contract can no longer reasonably be expected of Buyer.
4.4 Place of fulfilment for our delivery obligation shall be the production plant at DE-37671 Höxter, Hermannstraße 4, even if we - upon Buyer’s request - handle the shipment of the goods. The risk shall transfer to Buyer upon handover for transportation unless something else was expressly agreed upon in writing. This shall apply also if free or freight-free delivery has been agreed upon and/or if we perform the transport ourselves. Buyer shall bear the shipping cost unless something else was agreed upon in writing.
4.5 Unless written agreements regarding the packaging were made, its selection shall be at our discretion. Palettes, mesh boxes, top boards, wooden crates, corrugated board boxes, and other packaging and transport materials suitable for multiple use made available by us shall remain our property. Buyer shall return them in good order and condition at Buyer’s expense within one week of using the goods delivered therein.
4.6 Unless something else was expressly agreed upon in writing, we shall be authorised to make partial deliveries.
4.7 When manufacturing the goods, over-deliveries or under-deliveries of up to +/-20% may occur due to production conditions. Any over- or under-deliveries within these tolerances shall constitute a proper contractual performance. Buyer shall pay the price for the actually delivered quantity.
5. Terms & conditions of payment, offsetting, assignment
5.1 Unless something else was agreed upon, the invoice amount shall be due, without deduction, upon receipt of the invoice. Discount deductions shall be allowed only if they were expressly agreed upon in advance in writing. If Buyer does not pay the invoice amount within 14 days from receipt of the invoice and/or the agreed upon payment deadline, Buyer shall be in default even without a separate reminder. In case of default of payment by Buyer, we shall be entitled to demand interest on arrears in the statutory amount, in accordance with § 288 BGB (German Civil Code). The right to assert higher damages due to this default of payment shall remain unaffected.
5.2 Money orders, bills of exchange, and cheques shall be accepted not in lieu of performance but rather only on account of performance. In case of payment with money orders, bills of exchange, and cheques, shall occur only upon the value date of the bank credit. Encashment charges and bank fees for direct deposits shall be borne by Buyer. We shall not be liable for timely presentation.
5.3 Buyer shall be entitled to a right of offsetting and retention only if Buyer’s counterclaims have been established as final and absolute, are uncontested, or have been accepted by us.
5.4 If, subsequent to conclusion of the contract, a significant deterioration of Buyer’s financial circumstances or other indications become known that appear to put into question Buyer’s solvency, we shall be entitled to withhold our performance until Buyer has submitted the consideration or provided a surety. If Buyer, in this case, neither submits the full consideration nor a suitable surety within a period of one week from the request, we shall be entitled to withdraw from the contract. § 323 BGB shall be applicable accordingly. Our right to demand compensation for damages subject to the statutory requirements shall remain unaffected.
5.5 Without our express written approval, the assignment of claims of Buyer arising from the business relationship shall be excluded. § 354 a HGB (German Commercial Code) shall remain unaffected.
6. Affixing of marks
We shall be entitled to affix our firm, our firm’s logo, or our identification number to the goods manufactured by us in a suitable form that does not relevantly affect the design of the goods.
7. Characteristics of the goods
7.1 We shall owe specific characteristics of the goods delivered by us only if we expressly agreed to specific quality characteristics in writing. Unless the contract contains deviating agreements, the suitability of the packaging materials for a direct contact with foodstuffs shall not be owed. Without express written agreement, we shall, therefore, not be liable for impediments to the goods or the packaged goods that arise from a direct contact.
7.2 With respect to the printing and processing, the goods shall be considered to be as contractually agreed upon if the print result and the processing quality are within tolerances that correspond to the respective state of technology.
7.3 The samples made available by us are hand or plotter samples that may deviate from machine-based manufacturing with respect to material, appearance (e.g. punching bridges, colour) and processability (e.g. groove resistance). We shall not be liable for such deviations.
7.4 Buyer knows that in case of a processing of the goods after extended storage, sensory impediments and other impediments such as breakage along groove edges and colour changes may occur as well as technical impediments such as a worsening of running characteristics, gluability, colour-fastness, and flatness. Insofar as Buyer causes the originally agreed upon call-off or delivery dates to be exceeded by more than 6 months, Buyer accepts such signs of ageing as contractual condition of the goods.
8. Warranty for defects, compensation for damages, obligation to give notice of defects
8.1 The delivered goods shall be inspected by Buyer immediately for completeness and freedom from defects, generally within 3 working days from their receipt. We shall be notified immediately, in writing, of any and all defects. If Buyer does not comply with these obligations, the goods shall be considered to be in contractual condition unless it is a defect that was not recognisable during the inspection.
8.2 Recognisable shortages or excess quantities and externally recognisable damaged goods must be noted already on the receipt of delivery. If Buyer fails to comply with this obligation, the goods shall, as such, be considered to be in contractual condition.
8.3 Buyer shall be required to inspect the goods prior to use with respect to their suitability for Buyer’s intended use. Any and all issues of complaint determined in these inspections shall be communicated to us immediately, in writing. If Buyer fails to comply with these obligations, the goods shall, as such, be considered to be in contractual condition.
8.4 Buyer shall be required to give notice of an unrecognisable defect immediately after its detection, generally within 3 working days. If Buyer fails to comply with this obligation, the goods shall be considered to be in contractual condition.
8.5 Complaints and notices of defects that are asserted against third parties such as commercial agents or carriers shall not constitute notifications of complaint and/or notices of defects towards us in conformity with form and time requirements.
8.6 Claims for defects shall not arise in case of only a minor deviation from the agreed upon characteristic or in case of an only minor impediment to usability.
8.7 Claims for defects by Buyer presuppose that Buyer proves the presence of the cause of the defect already at the point in time of the transfer of risk.
8.8 We shall not be liable for defects that are caused by improper storage and/or processing of the goods at Buyer’s.
8.9 We shall not be liable for defects that are based on materials specified by Buyer (such as carton, glues, paints, varnishes, or printing forms). The same shall apply to defects that are based on the utilisation of certain services of third parties stipulated to us by Buyer. In these cases, Buyer rather shall ensure itself that Buyer’s specifications not impair the suitability of the goods for the intended use, unless we were aware of the unsuitability of the specified materials or service providers and we did not notify Buyer of this.
8.10 We shall not be liable for Buyer-provided texts, images, graphical presentation, bar codes, etc. that we print on the folding boxcard cartons. Buyer shall, in particular, be liable for ensuring that not rights of third parties, such as industrial or intellectual property rights, or statutory or sub-statutory regulations are being violated thereby.
8.11 Where applicable, declarations of conformity, agreements regarding characteristics, or specifications issued by us shall not constitute warranties and shall not justify liability regardless of fault. They shall, in particular, also not relieve Buyer from its obligation to check the goods prior to processing - also by means of performing corresponding analyses - for the suitability for the respective packaged goods.
8.12 In case of a timely and justified complaint regarding the goods, we shall be entitled, at our discretion, to take back the defective goods and replace them with goods that are as contractually agreed upon, or to rework the delivered goods, to the extent this is possible and reasonable with respect to the Buyer.
8.13 If the reworking or replacement does not take place within a reasonable period of time, Buyer shall be entitled, at Buyer’s discretion, to withdraw from the contract or to demand a reduction of the purchasing price (abatement).
8.14 Our liability for compensation for damages, no matter for which legal reason (including tortious claims), shall be based on the statutory regulations if the damage is based on intent or gross negligence by us, our representatives, or our vicarious agents. Liability for simple negligence shall be excluded unless a culpable violation of an essential contractual obligation exists or if we have assumed a guarantee or a risk of procurement. The limitation of liability shall not apply in cases of injury to life, limb, or health of a person. Liability based on provisions of product liability law shall also remain unaffected.
8.15 Buyer’s claims for damages shall be limited to typical, foreseeable damages. This shall not apply in case of claims that are based on intentional or grossly negligent behaviour by us, our legal representatives, or our vicarious agents. The limitation shall, furthermore, not apply in case of injury to life, limb, or health of a person and in cases of liability in accordance with the provisions of product liability law.
8.16 If the delivered goods are being objected to at the Buyer’s or at one or more third parties, we shall be informed of this immediately. This shall also apply in case of internal stoppages, recalls, or public warning with respect to the goods delivered by us.
9. Statute of limitations
9.1 Any and all of Buyer’s warranty claims in case of defects of the delivered goods (including claims for compensation for damages) shall be subject to a statute of limitations of a period of 1 year in cases of § 438 Par. 1 No. 3 BGB. The period shall start with delivery of the goods.
9.2 Buyer’s claims for compensation of damages due to violations of obligations that are not based on defects of the delivered goods (§ 280 BGB) shall be subject to a statute of limitations of a period of 1 year. The start of the period of the statute of limitations shall be in accordance with the law.
9.3 The statute of limitations provisions under Items
9.2 shall not apply to cases of entrepreneurial redress (§§ 478, 479 BGB) as well as to claims for compensation of damages arising from an injury to life, limb, or health of a person. They shall, furthermore, not apply in cases in which intent or gross negligence by us, our legal representatives, or our vicarious agents exists.
10. Reservation of title
10.1 Until payment in full of the purchase price and until all already existing claims arising from the business relationship and the ancillary claims closely associated with the delivered goods (interest on arrears, damages due to default of payment, etc.) have been paid, the delivered goods shall remain our property as goods subject to reservation of title. The inclusion of individual receivables into a current invoice or the balancing of the account and its acknowledgement shall not abrogate the reservation of title.
10.2 If the goods subject to reservation of title are processed into a new movable item by Buyer or by a third party contracted by Buyer, the processing shall be performed for us, without any obligation arising to us therefrom. The new item shall become our property. In case of processing together with goods not supplied by us, we shall acquire joint ownership of the new items proportionate to the value of the goods, subject to reservation of title relative to the other goods at the time of processing. If the goods subject to reservation of title are attached to, mixed, or blended with goods not supplied by us, we shall become joint owners in accordance with the statutory regulations. If Buyer acquires sole ownership through attaching, mixing, or blending, Buyer shall transfer to us already now joint ownership proportionate to the value of the goods subject to reservation of title relative to the other goods at the time of attaching, mixing, or blending. In this case, the item owned or jointly owned by us shall also be goods subject to reservation of title within the meaning of the following provisions.
10.3 Buyer shall store goods subject to reservation of title free of charge and shall insure them sufficiently at its expense.
10.4 Buyer shall be authorised to the resell or utilise the goods subject to reservation of title in the context of its ordinary, proper course of business. This shall, however, apply on subject to the provision that the claims assigned in advance in accordance with Item 10.5 are actually transferred to us. Buyer shall not be entitled to any other dispositions regarding the goods subject to reservation of title, in particular not to pledging or transfer of ownership by way of security. If Buyer gets into default of payment, Buyer shall be authorised to resell the goods subject to retention of title only if Buyer instructs its buyer to pay the purchase price directly to us. If we have joint ownership in goods subject to reservation of title, Buyer need only instruct its buyer to pay that share of the purchase price directly to us that corresponds to the invoice value of the goods subject to reservation of title supplied by us.
10.5 Herewith, buyer assigns to us any and all claims from the reselling of goods subject to reservation of title. We accept this assignment. If we only have joint ownership in the goods subject to reservation of title, the assignment in advance agreed upon in Sentences 1 and 2 shall apply only in the amount of the invoice value of the goods subject to reservation of title supplied by us.
10.6 Buyer shall remain authorised to collect the assigned claims. Our authorisation to collect the claims ourselves shall remain unaffected by this. However, as long as Buyer fulfils its payment obligations from the collected proceeds, is not in default of payment, and, in particular, no application for the opening of insolvency proceedings has been filed and/or the initiation has been rejected for lack of assets, we will not collect the claims. Upon request, Buyer shall name to use the debtors of the assigned claims, including specification of the address, and shall inform these of the assignment. We shall be authorised to also notify the debtors of the assignment ourselves.
10.7 If we are, due to Buyer’s violations of obligations, in particular due to default on payment, entitled to withdraw from the contract, Buyer shall immediately return to us the items delivered subject to reservations of title once we have declared our withdrawal and demanded surrender. The costs for the return shall be borne by Buyer.
10.8 Buyer shall notify us immediately, in writing, of enforcement proceedings of third parties into the goods subject to reservation of title or into the assigned claims, including provision of any and all necessary documents, in particular including a copy of the legal enforcement record. At the same time, Buyer shall send us a sworn statement in which Buyer declares that the goods subject to enforcement proceedings were delivered by us and are goods subject to our reservation of title. The costs of our intervention against the enforcement proceedings shall be borne by Buyer unless they are being reimbursed by the third party.
10.9 Upon Buyer’s request, we agree to release securities we are entitled to insofar as the value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released shall be at our discretion. Upon payment of any and all of our claims against Buyer, ownership in the goods subject to reservation of title and in the assigned claims shall transfer to Buyer.
11. Force Majeure Force Majeure such as strikes, uprising, riot, war, or any other reasons on which we do not have any influence and which prevent the fulfilment of our contractual obligations shall relieve us of our delivery obligation. If circumstances permit, we shall inform Buyer of this as soon as possible in writing.
12. Applicable law, place of jurisdiction
12.1 For these terms & conditions of sale and for all of the legal relationships between the parties, the law of the Federal Republic of Germany shall apply, under exclusion of private international law and the UN CISG. This shall also apply in case of cross-border deliveries.
12.2 Place of jurisdiction for any and all disputes arising indirectly or directly from the contractual relationship shall be Paderborn (Germany) insofar as Buyer is a businessman, legal entity of public law, or public fund under public law.
Template for the folding box industry by the specialised association of the folding box industry, Fachverband Faltschachtel-Industrie (FFI) e.V., 63073 Offenbach, Germany, version: 12/03/2010