General Terms and Conditions
General terms of business, delivery and payment of Karl Verpackungen GmbH, Rüdersdorf No. 177 b, 07586 Kraftsdorf
I. Scope
Our terms and conditions as set out below shall apply exclusively to our supplies, services and offers. Therefore the same shall also apply to all future business relations even if not expressly agreed again. Not later than upon receipt of the goods or service these terms and conditions shall be considered accepted. Any reference to or conflicting confirmation by Customer of its own terms and conditions of business or purchase is hereby expressly objected.
II. Offers and Conclusion of Contract
1. Our offers are subject to confirmation and without obligation. Declarations of acceptance and all purchase orders shall be subject to our confirmation by letter or facsimile to become operative unless delivery has been made or account rendered directly.
2. Any supplement, amendment or side agreement also required written confirmation. Any subsequent change of the contract shall entitle us to make changes to the contractual terms affected by such change.
3. If we become aware with reference to Sect. 321 BGB (German Civil Code) of any deterioration of the financial position that jeopardizes the claim for counter-performance, the incumbent performance may be refused by us until counter-performance has been effected or security provided for it. We reserve the right to withdraw from the contract if Customer refuses to eliminate the endangerment to performance of the contract by concurrent performance or providing security within a reasonable period of time. The costs incurred up to this date will then be charged and become due immediately.
III. Prices
1. The prices given in our offer are based on the costing at the time of submission. Should the costs of materials, personnel or any other major items change by the date of delivery, the contracting parties will undertake to renegotiate prices.
2. Our prices are net prices in Euro excluding value added tax.
3. If the goods are charged by weight, the gross weight shall be invoiced.
4. The costs of drafts, printing blocks, printing plates and plate cylinders and artwork shall be charged separately on a pro rate basis. Costs caused subsequently by Customer due to changes shall also be borne by Customer.
IV. Proprietary Rights / Recycling and Waste Management Act
1. The printing materials, such as drafts, drawings, printing blocks, films, impression cylinders and printing plates shall remain our property even if Customer has paid prorated costs for it.
2. If copyrights and/or industrial property rights arise for us out of the development and execution of a job, the same shall not be transferred by the sale of the delivery item. We shall be entitled to exploit such copyrights and/or industrial property rights for third-party orders. In particular we may claim remuneration from Customer out of such rights.
3. Unless agreed otherwise, we shall be entitled to visibly apply our company logo or an ID number on the delivery items made by us.
4. Masters, drawings and drafts and other services ordered by Customer shall be paid even if the main order these services have been rendered for, is not placed. Ownership will be passed to Customer upon payment of such fee.
5. The review of the material provided by Customer for violation of any third-party rights, in particular copyrights and industrial property rights, shall be Customer’s sole responsibility. Should claims be raised against us by any third party for use, exploitation or reproduction of material and/or templates provided by Customer for infringement of copyrights and/or industrial property rights or violation of the unfair competition act, Customer shall assist us in the defence against such violation of law and compensate us for all damage incurred including legal expenses.
6. If we apply labels to products on Customer’s behalf within the framework of the Recycling and Waste Management Act within the meaning of the Packaging Ordinance (e.g. the Green Dot), Customer shall be deemed the marketer of the label of the Recycling and Waste Management Act and Packaging Ordinance resp., and should claims be raised against us in this respect, Customer shall compensate us for all expenses incurred in this connection.
7. Should Customer not participate in Duales System Deutschland GmbH (Dual System Germany), Customer shall take back the packaging according to the provisions of the Recycling and Waste Management Act within the meaning of the Packaging Ordinance (as amended) and dispose the same as required by the Packaging Ordinance.
Should the Packaging Ordinance require us to take back the packaging, the place of performance for the return of the packaging by Customer shall be our place of business. If Customer culpably fails to meet its duties as set out in the sentences 1 and 2 and as a result of such breach of duty a fine is imposed on us for violation of the ordinance to avoid packaging waste, Customer shall indemnity us from and against the payment obligation. If we have paid such fine, Customer shall refund the relevant amount.
V. Delivery / Default in Delivery / Force Majeure / Reservation of Self-supply
1. Deliveries shall be made on account and at the risk of Customer.
2. A delivery period agreed shall run from the date of receipt of Customer’s final release for print and production. Should an order be changed subsequently, we shall no longer be bound to the delivery period originally confirmed. if necessary, a new or changed delivery period will be confirmed.
3. If we are hindered in performance after contract conclusion due to unexpected and unusual circumstances that cannot be averted despite the care that can be expected in the case concerned, such as disruption to operation, local sanctions and interferences, delays in the supply of key raw materials, energy supply problems etc., the delivery period will be extended adequately. If due to said circumstances delivery becomes impossible, we shall be relieved from the delivery commitment.
4. If we can verify that despite careful selection of suppliers, the conclusion of the necessary contracts at reasonable terms and conditions, we were not supplied in time by our suppliers, the delivery period shall be extended for the delay caused by the late delivery by these suppliers.
5. In the event of impossibility of supply by suppliers we shall be entitled to withdraw from the contract. We undertake to assign to Customer any claim we have against our suppliers for non-delivery or late delivery. If the hindrances take longer than one month, Customer may withdraw from the part of the contract not yet fulfilled. If in the aforementioned cases the delivery period extends or we are relieved from the duty to perform, any right of Customer to claim damages or withdraw from contract that may be derived from it, except the right of revocation upon the lapse of one month, shall cease. We can only invoke the aforementioned circumstances it Customer was informed on it without delay and in full detail.
6. A termination of the contractual relationship due to delay or delivery requires default by us and the setting of a time limit warning that the contract will be terminated upon expiry of the time limit. On call purchase orders shall be accepted within a period of six months. Quantities not taken upon expiry of the aforementioned period will be supplied upon notification and invoiced.
VI. Packaging and Dispatch
We shall be liable for proper packaging customary in trade. This liability shall be limited to deliberate acts and gross negligence with no prejudice, however, to the our right to raise towards Customer the objection of contributory fault.
VII. Tolerances
1. Differences of grammage depend on the weights and the material producers’ delivery conditions.
Unless defined otherwise, the following shall apply:
a) paper +/- 5%
b) plastic material +/- 15%
2. Variations in size: The following variations shall be deemed proper delivery and constitute no reason for complaint:
2.1 Bags:
length +/- 4mm
width +/- 3% for bag widths below 80mm, +/- 2% for bag widths of 80mm and larger.
2.2 Rol¬ls:
width +/- 5mm
For¬ma¬ts:
length +/- 5mm, width +/- 5mm
3. Differences in quantity: For all jobs we reserve the right of excess or short delivery of up to 10% of the quantity ordered charging the actual quantity delivered.
This percentage shall increase to 20%
a) for sale by quantity: for up to 50,000 pcs.
b) for sale by weight: for up to 500 kg.
VIII. Printing
1. For printing we use commercially available printing inks. If inks shall meet special requirements, such as light and alkali fastness, rubbing resistance etc., Customer shall expressly indicate the same in writing upon order placement. Minor deviations of colours have to be reserved and shall not entitle Customer to reject acceptance of the goods or reduce the price. Proofs will only be submitted prior to printing if requested so by Customer or we consider it necessary. When the proof has been declared ready for printing, Customer shall be liable for any remaining typesetting. Final print proofs on machines shall be charged extra.
2. No liability can be accepted by us for the durability of the material colours and printing inks because also the raw material and ink suppliers do not guarantee for the light fastness. The abrasion resistance of printing inks cannot be guaranteed. Abrasion may be more or less heavy depending on the type of ink. A protective varnish can improve the abrasion resistance but not fully ensure the same.
3. As regards plastic products no guarantee can be given for migrations or similar phenomena and the resulting consequences excepting claims for damages due to coarse negligence or deliberate acts.
4. For goods to be packed Customer shall make specific mention of safety requirements under the law relating to food and drugs. Such information shall be given in writing. No liability whatsoever can be accepted if Customer fails to give this information.
5. If a coding and/or numbering is required, the graph with coding needs to be agreed with us for technical feasibility. Customer shall be responsible for the correct layout and placement. No warranty is accepted for the coding templates made available. Because of the tolerances of foil printing inks and laser equipment no warranty can be accepted for identical suitability of different print runs. Test deliveries, split and total print runs shall be checked promptly by Customer by incoming inspection and defects notified, if any.
No warranty is accepted for the legibility of the coding on flexible material.
6. No responsibility shall be accepted by us neither for the consequences of any errors in the film master copies or other similar materials made available by Customer for printing a uniform commodity code or any other similar code, nor the difficulties or its consequences that may occur when using the printed code. Film masters delivered by Customer shall also include galley proofs of prints approved by Customer that contain a uniform commodity code.
7. The EAN bar code is printed according prior art and in due consideration of the applicable implementing rules of the CCG (cf. series Co- Organisation, Der EAN - Strichcode ). Any further commitments, in particular the reading results at the retail cash desks, cannot be made due to potential impacts on the barcode after delivery by the Customer and due to the lack of uniform measuring and reading equipment.
IX. Material and Workmanship
1. In the absence of special instructions by Customer the product will be finished from material customary in trade and according to the established manufacturing technique. If a product requires specific properties, e.g. with regard to use, contents or similar, Customer shall expressly notify us in writing and make relevant arrangements. If the packaging is intended for foodstuffs, the suitability of the material shall be expressly clarified with us. Complaints in respect of the performance of the packaging material to the contents and vice versa cannot be filed if Customer failed to make express reference to the special properties of the contents and/or use for foodstuffs and give us the opportunity to comment in writing. The information and comments shall be given in written form.
2.Unless agreed otherwise by the parties foils and foil products shall be considered free of defects if they comply with the GKV Prüf- und Bewertungsklausel (test and assessment provision issued by the German Association for Plastics Packaging and Films) (No¬vem¬ber 2003).
3. Re¬cyc¬lin¬g raw materials are carefully selected by us. Nonetheless regenerated foils and recycling paper may differ from batch to batch in surface quality, colour, purity, smell and physical properties which do not entitle Customer to file a complaint. We undertake, however, to assign to Customer any warranty claim and/or claim for damages relating to the quality of the regenerated foils and recycling paper against our supplier.
X. Reservation of title
1. The goods delivered shall remain our property until payment in full by Customer of all current and future outstanding accounts.
2. In the event of Customer’s non-compliance with the contract, in particular the failure to pay the purchase price due, we shall be entitled in accordance with the statutory provisions to withdraw from the contract and/or reclaim the reserved goods. The request for return of the property does not include a declaration of withdrawal. Instead we shall only be entitled to request the return of the goods and reserve the right of withdrawal.
3. If Customer fails to pay the purchase price due, we may assert these rights only if a reasonable time limit for payment set beforehand expired fruitlessly or a setting of such time limit was legally superfluous.
4. Customer shall be entitled to resell and/or process goods subject to the reservation of title in the ordinary course of business. In such case the following shall apply:
a) The reservation of title shall cover products created by the processing, compounding or combining our products at the full value of the same with us being deemed the manufacturer. If in case of processing, compounding or combination with goods of third parties the ownership of the latter continues, we shall acquire co-ownership in proportion to the invoice value of the processed, compounded or combined goods. Besides, the new product shall be subject to the same conditions as the goods delivered under reservation of title.
b) The claims against third parties arising out of the resale of goods or products shall be assigned by Customer to us in advance and in full and at the amount of our co-ownership share as aforesaid resp. for security. We accept such assignment. The Customer’s duties set out in number 2 shall also apply to the claims assigned.
c) Besides us Customer shall remain authorized to collect outstanding debts. We undertake not to collect outstanding debts as long as Customer meets its financial obligations towards us, does not default in payment, and does not file an application for institution of insolvency proceedings and no other defect of its capacity exists. If such event occurs, however, Customer may be requested to disclose the assigned claims and the relevant debtors, give all information needed for collection, hand over all related documents and inform the debtor (third party) of the assignment.
d) Should the realizable value of securities exceed the amount of claim to be secured by more than 10% securities shall be released at our discretion if requested so by Customer.
5. Customer shall immediately inform on any third party execution levied on the reserved goods or claims assigned in advance handing over all documents required for intervention.
6. The Customer’s authorization to dispose of the reserved goods and collect assigned claims shall terminate if Customer defaults, in the event of bill and cheque protest and deterioration of assets (in particular due to filing of an insolvency petition).
XI. Notification of Defect/Claims based on Defects
1. The obligation to examine and to give notice of defect shall be governed by Sect. 377 HGB (German Commercial Code).
2. Should larger deliveries of similar goods be concerned, the entire lot delivered can only be rejected as defective if the defects have been ascertained by means of an approved, representative sampling procedure.
3. If the entire quantity of flexible packaging delivered shows defects of max. 3%, neither the total quantity can be rejected as defective nor can defects be claimed based on this maximum 3% of defective flexible packaging. It shall be irrelevant whether the defect related to processing or print.
4. We shall be given the opportunity to inspect the defects notified on the spot.
5. A defect of the goods delivered shall entitle Customer to request removal of the defect within a reasonable period of time. Such removal can take place by rework or free replacement. The defective goods shall be returned.
6. If rework fails after a fruitless, second attempt, Customer may either withdraw from contract or reduce the purchase price in consultation with us.
7. If, however, the defect as to quality is to be attributed to coarse negligence or deliberate acts on the side of us, our subcontractors or vicarious agents, or this defect results in a violation of material contractual duties (cardinal duties) we are responsible for or injury to life, body and health or we have warranted a certain quality or the product liability law applies, Customer may claim in lieu of withdrawal a reduction of the purchase price or damages because of defect as to quality. If the violation of cardinal duties is due ordinary negligence and Customer suffers a pecuniary or material loss from it, such claim for damages shall be limited to the typically foreseeable consequences.
8. Damages for loss of production and/or loss of profit shall be excluded in cases of ordinary negligence. This limitation of liability shall apply accordingly to our subcontractors and vicarious agents.
The limitation of liability and exclusion of liability resp. as set out above shall in particular apply to damage caused by insufficient abrasion resistance, light fastness, alkali fastness, rubbing and water resistance of inks, incorrect coding and numbering order, coding templates made available by Customer that were illegible when transferred onto the items to be delivered, the illegibility of the coding when used on flexible material, impairment of the product to be filled by the delivery item or the non-compliance of the delivery item with the statutory provisions to be observed for the product to be filled.
Said limitation/exclusion of liability shall also apply to damage to be attributed to the artwork (drafts, flexo printing plate).
9. The application of the product liability law shall remain unaffected by this limitation of liability. If Customer opts for rework, we shall bear all costs incurred for such rework. Costs incurred by the delivery item being located at a place other than the Customer’s main office or the contractually agreed place of delivery, shall be borne by Customer.
No warranty claims shall arise as far as we do not have to provide warranty according to VII, VIII and IX.
If Customer has made a claim against us due to alleged material defects and it transpires that either there is no defect or the claimed defect is due to circumstances that do not subject us to warranty, Customer shall reimburse all costs incurred in this connection.
10. The usual limitation period shall be one (1) year from delivery to Customer.
11. If a claim for damages is made against us, any reduction of the limitation period for claims for damages due to material defects as result of coarse negligence or deliberate acts or upon breach of material contractual duties (cardinal duties) and any injury to life, body and health by us and in cases of a quality guarantee granted by us shall be excluded.
XII. Other Claims for Damages
1. Our liability for defects of quality and defects of title or default in delivery or non-delivery is not covered by this paragraph.
2. Claims for damages by Customer for any other neglect of duty by us, in particular the duty to protect and/or due to legal obligations shall be excluded unless the damage was due to coarse negligence or deliberate acts or breach of material contractual duties (cardinal duties) and/or injury of life, body and health on our side or the side of our subcontractors and vicarious agents. If claims for damages can be asserted against us for ordinary negligence, the damages shall be limited to the typically foreseeable damage. Liability for loss of production and/or loss of profit shall be excluded in case of ordinary negligence.
The limitation of liability as set out above shall also apply to liability in tort. The liability pursuant to the product liability law shall remain unaffected by the provisions set out. Claims for damages for breach of other duties as governed by this paragraph, which are not based on a defect of quality, shall be statute-barred within one year from the end of the year in which such claim has occurred and Customer got aware of the circumstances the claim has been based on or should have become aware in absence of coarse negligence. The maximum time limits as provided for in Sect.199, para. 2+3 BGB shall continue to apply.
Said restrictions of limitation periods shall not apply to claims for damages as a result of coarse negligence or deliberate acts, breach of material contractual duties (cardinal duties) and injury to life, body and health and violation of the product liability law by us or our subcontractors or vicarious agents.
XIII. Payment Terms
1. Invoices shall be paid without deduction within thirty (30) days from the date of invoice.
2. A 2% discount shall be granted for payment or crediting of the invoice amount within two (2) weeks.
3. In the event of default we shall be entitled to charge default interest of 8 percentage points above the applicable base rate.
4. Cheques will be accepted on account of performance only. The costs of cheque cashing shall be borne by Customer and to be paid immediately.
5. Any non-payment by Customer due to circumstances resulting from a material deterioration of Customer’s financial position we become aware of after contract conclusion shall cause all outstanding debts to come due with immediate effect. The same shall apply to respites.
XIV. Storage Time
Artwork, printing plates, imposition layouts, proofs will be stored by us for three years starting from the most recent job order. The same shall apply for paid up material. Thereafter we shall be entitled to destroy such material without substitution.
XV. Storage/Handling and Processing Information
For the storage of foils and foil wrappings supplied by us the following is recommended:
1. Temperature between 18 °C and 25 °C, relative air humidity of about 55% ± 5%. Even if packed in the original packing the products supplied shall not be exposed to sunlight or UV radiation and not be stored in the vicinity of a heat source. The storage and handling temperature must never be drop below 5°C.
2. If impossible, the goods shall be kept for 24 hours prior to processing at the production or processing shop and minimum 48 hours in winter. Any excessive storage, especially at higher temperatures may result in surface ageing.
3. The ageing and the impact of sunlight will impair the technical properties. It is therefore up to the Customer to check at the time of processing the technical and sensory suitability based on the relevant regulations. Datasheets giving technical parameters can be made available by us at request.
XVI Miscellaneous:
Customer shall not be entitled to set off accounts receivable unless such claims are uncontested and final and legally binding.
XVII. Place of Performance and Place of Jurisdiction:
Place of performance and jurisdiction shall be Gera. German law shall apply to the legal relationship of the parties with respect to the supplies and services agreed excluding the UN Convention on Contracts for the internal Sale of Goods (CISG).
Collateral agreements, reservations, changes and amendments require the written form. Should any of the provisions of the General Terms and Conditions of Business, Delivery and Payment or any provision of other agreements relating to the deliveries be or become invalid, the validity of the other conditions or agreements shall not be affected by it.
Gera, September 2014