General Terms and Conditions
General Terms and Conditions of Business, Delivery, and Payment of Karl Verpackungen GmbH, Rüdersdorf No. 177 b, 07586 Kraftsdorf
I. Scope of Application:
Our deliveries, services, and offers are made exclusively on the basis of these terms. These terms therefore also apply to all future business relationships, even if they are not expressly agreed upon again. These terms shall be deemed accepted at the latest upon receipt of the goods or services. Any references or counter-confirmations by the customer referring to their own terms and conditions of business or purchase are hereby expressly rejected.
II. Offers and Conclusion of Contract
1. Our offers are subject to change and non-binding. Declarations of acceptance and all orders require our written or faxed confirmation to be legally effective, unless immediate delivery or invoicing takes place.
2. Additions, amendments, or ancillary agreements must also always be confirmed in writing. Subsequent changes to the order entitle us to adjust the affected contract conditions accordingly.
3. If we become aware of a deterioration in assets, with reference to § 321 German Civil Code (BGB), which jeopardizes the claim for consideration, we may refuse the performance due until the consideration is provided or security for it is furnished. We reserve the right to withdraw from the contract if the customer refuses to eliminate the risk to the contract, caused by the deterioration of their financial situation, by concurrent performance or by providing security within a reasonable period. The costs incurred up to that point will then be charged and are due immediately.
III. Prices
1. Our prices stated in the offer are based on the calculations existing at the time the offer was submitted. In the event of changes in the costs for material, personnel, and other relevant calculation factors up to the time of delivery, the contracting parties undertake to renegotiate the prices.
2. Our prices are net Euro prices without statutory VAT.
3. If goods are invoiced by weight, the gross weight will be calculated.
4. Costs for designs, clichés, printing plates, printing cylinders, and printing documents will be charged proportionally and separately. Costs for changes subsequently initiated by the customer shall also be borne by them.
IV. Industrial Property Rights / Circular Economy Act
1. The printing documents provided by us, such as designs, drawings, clichés, films, printing cylinders, and printing plates, remain our property even if the customer has paid proportional costs for them.
2. If copyrights and/or industrial property rights arise for us through the development and execution of an order, these are not transferred with the sale of the delivery item. We are entitled to exploit these copyrights and/or industrial property rights also for orders from third parties. In particular, we are also entitled to copyright remuneration claims against the customer.
3. Unless otherwise agreed, we are entitled to visibly affix our company logo or an identification number to the delivery items produced by us.
4. For samples, sketches, and designs, and other services ordered or commissioned by the customer, a fee must be paid even if the main order for which these services were created is not placed. Ownership is transferred to the customer only upon payment of this fee.
5. The customer alone is responsible for checking the documents provided by them to ensure they do not infringe on third-party rights, particularly copyrights and industrial property rights. If we are sued by a third party due to the use, exploitation, or reproduction of documents and/or templates provided by the customer for infringement of copyrights and/or industrial property rights or for infringement of the Act against Unfair Competition, the customer must support us in defending against this infringement and compensate us for all damages incurred, including attorney’s fees and court costs.
6. If, at the customer’s request, we apply marks to products within the framework of the Circular Economy Act in the sense of the Packaging Ordinance (e.g., the Green Dot), the customer is considered the “placer on the market” of the mark under the Circular Economy Act or the Packaging Ordinance, and if we are therefore held liable, the customer is obliged to reimburse us for all expenses incurred in this context.
7. The customer undertakes, in the event that they do not participate in the Dual System Germany GmbH, to take back the delivered packaging in accordance with the provisions of the Circular Economy Act in the sense of the Packaging Ordinance (each in its latest version) and to submit it for recycling as prescribed by the Packaging Ordinance.
Should we be obliged to take back the packaging according to the Packaging Ordinance, the place of performance for the return of the packaging by the customer is our business premises. If the customer culpably violates their obligations assumed under sentences 1 and 2, and a fine is imposed on us due to this breach of duty for violating the Ordinance on the Avoidance of Packaging Waste, the customer is obliged to indemnify us from the payment obligation. If we have paid the fine, the customer must reimburse us for the amount.
V. Delivery / Delay in Delivery / Force Majeure / Reservation of Self-Delivery
1. Deliveries are made at the customer’s expense and risk.
2. An agreed delivery period begins on the day of receipt of the final print and production approval issued by the customer. In the event of a subsequent change to the order, we are no longer bound by the originally confirmed delivery period. A new and amended delivery period will be confirmed if necessary.
3. If we are prevented from fulfilling our obligations after the conclusion of the contract due to unforeseen and unusual circumstances that cannot be averted despite reasonable care in the individual case, in particular operational disruptions, local sanctions and interventions, delays in the delivery of essential raw materials, energy supply difficulties, and other factors, the delivery period shall be extended by a reasonable amount. If delivery becomes impossible due to these circumstances, we are released from the delivery obligation.
4. If we can prove that, despite careful selection of our suppliers and the conclusion of the necessary contracts on reasonable terms, we were not supplied by our suppliers in a timely manner, the delivery period shall be extended by the period of delay caused by the untimely delivery of these suppliers.
5. In the event of impossibility of delivery by suppliers, we are entitled to withdraw from the contract. We undertake to assign any claims we may have against our supplier due to non-delivery or untimely delivery to the customer. If the aforementioned impediments last longer than one month, the customer may withdraw from the unfulfilled part of the contract. If the delivery period is extended in the aforementioned cases or if we are released from the delivery obligation, any claims for damages and rights of withdrawal derived therefrom by the customer shall lapse, with the exception of the right of withdrawal after one month. We can only invoke the aforementioned circumstances if we have notified the customer thereof immediately and comprehensively.
6. Termination of the contractual relationship due to delay or delivery requires our default and a reasonable grace period with the threat that the contract will be terminated after the expiry of the period. For orders on call, these must be accepted within 6 months. Quantities not accepted after the deadline will be delivered and invoiced after announcement.
VI. Packaging and Shipping
We are liable for proper and industry-standard packaging. Liability is limited to intent and gross negligence. Our right to raise the objection of contributory negligence against the customer remains unaffected.
VII. Tolerances
1. Weight deviations of the basis weight are governed by the weights and delivery conditions of the producers of the materials used.
Unless otherwise specified, the following apply:
a) for paper +/- 5%
b) for plastic +/- 15%
2. Dimensional deviations: The following dimensional deviations are considered proper delivery and cannot be objected to:
2.1 Bags:
in length +/- 4mm
in width +/- 3% for bag widths under 80mm, +/- 2% for bag widths of 80mm and more
2.2 Rolls:
in width +/- 5mm
Formats:
in length +/- 5mm, in width +/- 5mm
3. Quantity deviations: For all productions, we reserve the right to deliver up to 10% more or less than the ordered quantity, with invoicing based on the actual delivered quantity.
This percentage increases to 20%
a) for sales by quantity: for quantities up to 50,000 pieces
b) for sales by weight: for weights up to 500 kg
VIII. Printing
1. We use commercially available printing inks. If special demands are made on the inks, e.g., lightfastness, alkali resistance, rub resistance, etc., the customer must inform us in writing when placing the order. We reserve the right to minor deviations in colors. These do not entitle the customer to refuse acceptance of the goods or to a price reduction. Proofs are only submitted before printing if the customer requests it or we deem it necessary. If the proof is declared print-ready, the customer is liable for any remaining typesetting errors. Machine proofs are charged separately.
2. We cannot guarantee the durability of the material and printing inks, as raw material and ink suppliers also do not guarantee the lightfastness of the colors. The rub resistance of the printing inks cannot be guaranteed. Abrasion can be more or less severe depending on the ink type. A protective coating can improve rub resistance, but cannot absolutely guarantee it.
3. For plastic products, we cannot guarantee against migration or similar migration phenomena and the resulting consequences. Excluded from this are claims for damages due to gross negligence or intent.
4. The customer must expressly inform us of food safety requirements, particularly for goods to be packaged. The notification must be in writing. We exclude all liability if such notification is omitted.
5. In the case of coding and/or numbering, the graphic with coding must be coordinated with us regarding technically feasible production possibilities. The customer is responsible for the correctness of the arrangement and placement. We do not guarantee the coding templates provided. Due to the tolerances of film printing inks and laser equipment, no guarantee can be given for equal suitability across different print runs. Any sample deliveries, partial, and total print runs must be checked immediately by the customer through an incoming inspection and, if necessary, complained about without delay.
We do not guarantee the readability of the coding on flexible material.
6. We are not responsible for the consequences of errors in the film masters or other similar materials provided to us by the customer for printing the uniform product code or any other similar code, nor for the difficulties or their consequences that may arise from the use of the printed code. Film masters provided by the customer also include the proofs of printed works approved by them that contain a uniform product code.
7. The EAN barcode is printed according to the state of the art and taking into account the relevant implementing regulations of the CCG (see Co-Organization series of publications, The EAN Barcode). Further assurances, in particular regarding reading results at retail checkouts, are not possible due to potential influences on the barcodes after delivery by the customer and due to the lack of uniform measurement and reading technology.
IX. Material and Execution
1. Without special instructions from the customer, the execution will be carried out with industry-standard material and according to the known manufacturing process. If special properties of the product are required, e.g., regarding application, filling material, or similar, the customer must expressly inform us in writing and make a corresponding agreement. When using packaging for food, the suitability of the material must be explicitly clarified with us. Complaints regarding the behavior of the packaging material towards the filling material and vice versa cannot be raised if the customer does not expressly point out the special properties of the filling material and/or the use for food and has not given us the opportunity to comment in writing. The notifications and comments must be made in writing.
2. For film and film products, unless the parties have agreed otherwise, a performance is considered free of defects if it complies with the GKV Test and Evaluation Clause (November 2003 edition).
3. We carefully select recycled raw materials. Nevertheless, regenerated films and recycled papers may show batch-to-batch variations in surface quality, color, purity, odor, and physical values, which do not entitle the customer to complain about defects. However, we undertake to assign any warranty claims and/or claims for damages against the supplier due to the quality of the regenerated films and recycled papers to the customer.
X. Retention of Title
1. The delivered goods remain our property until full payment of all existing and future claims against the customer.
2. In the event of breach of contract by the customer, particularly non-payment of the due purchase price, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or demand the return of the goods based on the retention of title. The demand for return does not simultaneously imply a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right of withdrawal.
3. If the customer does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the customer a reasonable deadline for payment of the purchase price or if such a deadline is dispensable according to statutory provisions.
4. The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions apply:
a) The retention of title extends to the products resulting from the processing, mixing, or combining of our goods to their full value, whereby we are considered the manufacturer. If, in the case of processing, mixing, or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The claim against third parties arising from the resale of the goods or the product is hereby assigned by the customer to us in its entirety or to the extent of our co-ownership share according to the preceding paragraph, as security. We accept the assignment. The obligations of the customer mentioned in number 2 also apply with regard to the assigned claims.
c) The customer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer fulfills their payment obligations to us, does not fall into arrears, no application for the opening of insolvency proceedings has been filed, and there is no other defect in their ability to perform. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the associated documents, and notifies the debtor (third party) of the assignment.
d) If the realizable value of the securities exceeds our claims by more than 10%, securities will be released at our discretion upon the customer’s request.
5. The customer must immediately inform us of enforcement measures by third parties against the reserved goods or against the claims assigned in advance, handing over the documents necessary for intervention.
6. The customer’s authorization to dispose of the reserved goods and to collect the assigned claim expires in the event of the customer’s payment default, in the event of bill of exchange or check protests, and in the event of financial deterioration (in particular, the filing of an insolvency application).
XI. Notification of Defects / Claims for Defects
1. The customer’s obligations to inspect and give notice of defects are governed by § 377 of the German Commercial Code (HGB).
2. If the delivery consists of larger quantities of similar goods, the entire delivered batch can only be rejected as defective if the defects have been determined by means of a recognized, representative sampling procedure.
3. If the total delivered quantity of flexible packaging shows defects of up to 3% of the total quantity, neither the total quantity can be rejected as defective, nor can claims for defects be made for these maximum 3% of defective flexible packaging. It is irrelevant whether the defect lies in the processing or in the printing.
4. We must be given the opportunity to ascertain the complained-about defects of the delivery on site.
5. A defect in the delivered goods entitles the customer to demand the rectification of the defect within a reasonable period. Rectification can be carried out by repair or free replacement delivery. The defective goods must be returned.
6. If the rectification fails after an unsuccessful second attempt, the customer may, at their discretion, withdraw from the contract or reduce the purchase price in consultation with us.
7. However, if the material defect is due to gross negligence or intent on our part, our vicarious agents or agents, or if the defect leads to a breach of essential contractual obligations (cardinal obligations) for which we are responsible, or to a culpable injury to life, body, health, or if we have assumed a guarantee for a specific quality, or if the Product Liability Act applies, the customer may, instead of withdrawal, claim a reduction in the purchase price or damages due to the material defect. If the breach of cardinal obligations is based on simple negligence and results in financial or property damage to the customer, this claim for damages is limited to the typically foreseeable consequences.
8. A claim for damages due to production downtime and/or lost profit is excluded in cases of simple negligence. This limitation of liability applies accordingly to our vicarious agents and agents.
The aforementioned limitation of liability or exclusion of liability applies in particular also to damages resulting from insufficient rub resistance, lightfastness, alkali resistance, rub and water resistance of the colors, incorrect coding and numbering order, illegibility of coding templates provided by the customer when transferred to the delivery items to be produced, impossibility of reading the coding when using flexible material, impairment of the packaged goods by the delivery item, or non-compliance of the delivery item with the legal provisions to be observed for the filling material.
This limitation of liability / exclusion of liability also applies to damages based on printing documents (designs, flexographic printing plates).
9. The application of the Product Liability Act remains unaffected by this limitation of liability. If the customer opts for rectification, we bear the costs necessary for rectification. Costs incurred because the delivery item was provided at a location other than the customer’s registered office or contractually agreed place of provision shall be borne by the customer.
No warranty claims arise insofar as we are not liable for them under Sections VII, VIII, and IX.
If the customer has made claims against us due to alleged material warranty claims and it turns out that there is no defect or the asserted defect is based on a circumstance for which we are not obliged to provide a warranty, we must be reimbursed for all costs incurred thereby.
10. The regular limitation period is 1 year from delivery to the customer.
11. If we are held liable for damages, the shortening of the limitation period for claims for damages in the event of material defects due to gross negligence or intent or due to a culpable breach of essential contractual obligations (cardinal obligations) as well as a culpable injury to life, body, health by us and in cases of a quality guarantee granted by us is excluded.
XII. Other Claims for Damages
1. Our liability for material and legal defects or delays in delivery or non-delivery is not covered by this section.
2. Claims for damages by the customer due to other breaches of duty by us, in particular breaches of protective duties and/or based on legal transactions, are excluded, unless there is gross negligence or intent or a culpable breach of essential contractual obligations (cardinal obligations) and/or injury to life, body, health by us or our vicarious agents or agents. If we can be held liable for damages due to simple negligence, the claim for damages is limited to the typically foreseeable damages. Liability for production downtime and/or lost profit is excluded in cases of simple negligence.
The aforementioned limitation of liability applies accordingly to tortious liability. Liability under the Product Liability Act remains unaffected by this provision. Claims for damages due to other breaches of duty regulated in this section, which are not based on a material defect, become time-barred within one year from the end of the year in which the claim arose and the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence. The maximum periods regulated in § 199, paragraphs 2+3, of the German Civil Code (BGB) continue to apply.
These limitations of the limitation periods do not apply to claims for damages due to gross negligence or intent, in the event of a culpable breach of essential contractual obligations (cardinal obligations) as well as injury to body, life, health, and freedom, and a violation of the Product Liability Act by us or our agents or vicarious agents.
XIII. Terms of Payment
1. The invoice is to be paid within 30 days of the invoice date without deduction.
2. For payment or credit of the invoice amount within 14 days, we grant a 2% discount.
3. In case of default, we are entitled to demand default interest at a rate of 8 percentage points above the respective base interest rate.
4. Checks are only accepted for the purpose of performance. The costs for cashing checks are to be borne by the customer and paid immediately.
5. Non-compliance with payment, based on circumstances indicating a significant deterioration of the customer’s financial situation that only become known to us after the conclusion of the contract, results in the immediate due date of all claims, even in the case of a deferral.
XIV. Retention Period:
Printing documents, printing plates, layout drawings, and proofs are stored by us for three years from the last corresponding order. This also applies to paid documents. After this period, we are entitled to destroy these documents without replacement.
XV. Storage / Transport and Processing Instructions:
For the storage of films and film packaging supplied by us, we recommend the following:
1. Temperature at 18 °C to 25 °C, relative humidity of approx. 55% ± 5%. Our delivery must not be exposed to sun or UV radiation, even in its original packaging, and must not be stored near heat sources. A storage and transport temperature below 5 °C must be strictly avoided.
2. If this is not possible, the goods must be stored in the production or processing room 24 hours before processing. In the cold season, at least 48 hours beforehand. Excessive storage, especially at elevated temperatures, can lead to aging of the surfaces.
3. This, and the effects of solar radiation, degrade the technical properties. It is the customer’s responsibility to check technical and sensory suitability according to the relevant regulations at the time of processing. Technical parameters can be submitted through the requirements of our corresponding data sheets.
XVI. Miscellaneous:
The customer is not entitled to offset claims against us, unless these claims are undisputed and legally established.
XVII. Place of Performance and Jurisdiction:
The place of performance and jurisdiction is Gera. German law applies to the legal relationship between the parties with regard to the agreed deliveries and services, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Ancillary agreements, reservations, changes, and additions must be made in writing. Should a provision within the general terms and conditions of business, delivery, and payment or a provision within other agreements regarding deliveries be or become invalid, the validity of all other provisions or agreements shall not be affected thereby.
Gera, September 2014