General Terms and Conditions
Abel Wellpappe in Form GmbH & Co. KG
1. Scope of Application
Any delivery of goods and services, including consultancy services and legally binding in-formation, by us to non-consumers in the meaning of § 310 BGB shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made in writing.
Our client acknowledges these Terms and Conditions by order acceptance and/or receipt of our deliveries and services.
Specific obligations of client in form of individual agreements and framework agreements shall prevail these Terms and Conditions. In such case these Terms and Conditions shall ap-ply subsidiarily.
These Terms and Conditions shall govern any current and future contract between us and our client, even if not referred to in such contract.
As far as the client's general terms and conditions are inconsistent with ours, their application shall be subject to our explicit written approval.
2. Offer/Conclusion of Contract
Our offers are non-binding and without obligation. This shall also apply for catalogs, product documentations other product descriptions or documents - also for offers in the internet or in electronic form - which we surrender to the Buyer. If an explicitly binding order has been made by us, it is binding for a period of time of eight weeks from the date of the offer.
Orders placed by customers are only legally binding upon our written confirmation or upon delivery by us. In this case the bill of delivery or the invoice shall be deemed the order con-firmation.
Any agreements orally entered into with our employees exceeding our written obligations are only binding if confirmed in writing or carried out by us.
Services exceeding the statutory or contractual obligations of a seller, e.g. consultancy or planning services have to be agreed upon separately and will only be assumed by us if remu-nerated separately. In case no remuneration is agreed upon the usual remuneration is deemed to be agreed upon.
3. Amendments/Preliminary Works
Subsequent amendments and any costs of a production stop caused by this amendment shall be borne by the Customer.
The order of sample cardboard packaging on grounds of insignificant deviations from the sample is deemed as subsequent amendment in the meaning of Para. 3.1
Draft layouts, Samples, galley proofs and similar works usually identified as preliminary works will not be invoiced separately.
Unless otherwise expressly agreed, our prices are quoted ex works including packaging costs. The prices quoted in our order confirmation shall solely apply. .
All prices are quoted as net prices and do not include value added tax, which is to be paid additionally by the customer in the amount specified by applicable law.
Is the delivery period longer than one month from the conclusion of the contract the customer agrees expressly that we are entitled to adapt the prices according to our current price list at the time of the delivery
Payment shall be made in full within 30 days from the date of the invoice. The customer may deduct 3 percent trade discount from the invoice amount upon payment within eight days from the date of the invoice. Immediately upon default of payment we are entitled to demand default interest of 8 percentage points above the base lending rate p.a.. We reserve the right to claim a higher actual damage. A trade discount is not granted in case the customer is in de-fault with payments of other invoices.
The receipt of an invoice is deemed proven upon proof of dispatch with the addition of two days to the date of dispatch.
Bills or cheques shall only be accepted upon special agreement. The acceptance of bills and cheques occurs only upon payment to our bank account.
If the customer is in default with payments we are entitled without further notice to withdraw the delivered goods. If necessary for withdrawing the goods the customer grants admission to his premises. We are entitled to deny the collection of goods stored at our premises by the customer.
5. Right to Withhold/Set-off
The right to withhold payments is excluded in case the defect was known to the customer at the time of the conclusion of the contract.
Customers may only withhold or offset due payments against their own counter-claims if the-se are uncontested or have been found to be legally binding.
Our silence may not be deemed as consent to customer's claims.
6. Down-payments/Advance Payments
We are entitled to demand down-payments and advance payments in the amount of the in-voice amount of the contract. If we do not receive payment upon advance payment or down-payment invoice within 14 days after the date of the invoice we shall have the right to refuse performance and/or delivery of any goods until payments are brought current and we may suspend or delay any delivery or any other performance without any liability towards the cus-tomer. If the customer does not render payment upon further notice we shall have the right to rescind the contract. Any damages or refund of costs of customer are expressly excluded in this case.
Should there be reasons to doubt the solvency or credit standing of the customer, we are enti-tled to declare immediate maturity of all outstanding claims unless the customer provides se-curities in the amount of the outstanding claims or agrees to delivery versus payment. If the customer suspends payments or becomes illiquid We shall have the right to rescind all con-tracts.
Unless otherwise expressly agreed, we shall deliver ex works. Loading and unloading is not object of the contract with customer unless otherwise agreed. The risk of goods becoming damaged or lost shall pass to the purchaser as soon as the goods have been surrendered to the customer or the carrier, at the latest when leaving our premises even if delivery is carried by us. If delivery is carried out from the premises of a third person by our order the risk shall also pass to the customer.
If delivery "free domicile" is agreed upon, customer bears the risk of transportation. We only bear the costs for freigt and insurance. If the delivery is delayed on demand or by default of customer, customer bears the costs and risk of storage of the goods. This also applies if delivery is delayed by force majeure or obsta-cles not caused by us. In this case the delivery is deemed to be carried out if the notification that the goods are ready for delivery has been rendered to customer. The receipt of the notifi-cation is deemed proven upon proof of dispatch with the addition of two days to the date of dispatch.
Delivery periods shall only be binding if expressly agreed upon. Fixed delivery dates have to be agreed upon expressly as fixed delivery dates.
Tolerances in quantities delivered shall be permissible if they are in a reasonable proportion to the total quantity (plus/minus 10%). These tolerances will be included in the invoice.
We may perform partial deliveries and render partial services if such action would not unrea-sonably affect the customer.
Delivery periods and dates shall be deemed to be extended – also in case of default – in case of force majeure and all unforeseeable obstacles after conclusion of the contract which are not in our responsibility (e.g. disruption of our production, disruption of transport routes, strikes). This also applies if such circumstances occur with our suppliers in particular if our suppliers do not conform with their obligations vis-á-vis us. We will inform the customer immediately about begin and end of such delays. The customer may demand from us the declaration whether we want to rescind the contract or whether we want to deliver in reasonable time. If we do not issue such a declaration in due time the customer has the right to rescind the con-tract. Any damages or refund of costs of customer are expressly excluded in this case.
In case of delay of delivery the customer is obliged to declare in due time on our demand whether he insists on delivery or whether he rescinds the contract and claims damages on grounds of default. If the customer does not issue such a declaration in due time his silence is deemed a waiver of his claim on delivery.
We are liable for the delay of delivery only if caused by us. We are not liable for auxiliary persons. We are not liable for our suppliers.
It is known to the customer that the export of certain goods might need clearances according to the applicable law.
Deliveries to customer are subject to foreign trade legislation, embargoes and other limita-tions by law.
8. Agreements on the quality of Goods
It is expressly agreed upon that we are entitled to deliver goods which deviate with regard to colour, material und measures from the contractual goods, a far as these deviations do not frustrate the technical purpose of the goods for the customer. Such deviations are no defects in the meaning of statutory law. Deviations in the measure of cardboard packaging are admis-sible up to plus/minus 3 mm, goods with a measure of more than one meter may deviate up to plus/minus ten per cent of the agreed measure. These deviations of the measure are agreed upon as the quality of the goods and are no defects in the meaning of statutory law.
Our goods are deemed free of defects if they have the contractual quality and/or if they may be used for the contractual purpose.
The customer hast o take care of the correct disposal of the packaging and the contractual goods.
10. Intellectual Property Rights
We reserve all rights with regard to documents, production processes, drawings, samples, drafts, sample cardboard packaging, galley proofs and all preliminary works and works ren-dered pursuant to the contract. They may not be forwarded to third persons unless necessary for the fulfilment of the contract or without our prior consent. They have to be returned im-mediately on demand. All documents, tools and cardboard packaging remain our property as far as they are not object of the contract
All copyrights, patents, licences, trade marks and rights to a name with regard to our products, production processes and drafts remain in our property. Such rights will not be transferred to the customer as agreed upon in the contract before full payment has been received. Further rights of customer to use the rights are excluded.
We may withhold prints and drawings delivered by customer and sample cardboard packag-ing and raw materials until full payment of all due invoices of customer.
11. Retention of Title
Delivered goods shall fully remain our property (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up
In case of processing, combining or mixing of goods subject to retention of title with goods of the customer, we shall be entitled to co-ownership of the new property inasmuch as the in-voiced value of goods sold with retention of title relates to the value of the other involved goods. Where our co-ownership becomes null and void due to processing, combining or mix-ing with other goods, the Customer immediately assigns to us those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of our title. He shall also be responsible for holding such rights in safe custody on our behalf and at his own expense. The customer may resell, process, com-bine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the customer is not defaulting. The customer immediately as-signs to us – and we accept the assignment - any receivables resulting from a resale of goods initially sold with retention of our title. These will be used to substitute the goods under reten-tion of title as collateral of the equivalent amount. Any rights to co-ownership created as a result of such processing, combining or mixing shall also be subject to the provisions of these Terms and Conditions.
Until we give notice of revocation, the customer shall be authorised to collect receivables as-signed to us. We shall be entitled to such revocation if the customer fails to meet his payment obligations under the business relationship with us in due course. If the preconditions for ex-ercising a revocation right are fulfilled, the customer shall promptly notify us of any assigned receivables with respective debtors, furnish all data required for collection of such receiv-ables, hand over all related documentation and advise the debtors of such assignment. We reserve the right to personally advise the debtors of such assignment.
We shall be promptly notified about any hypothecation or other seizure of goods under reten-tion of title through a third party and forwarded all necessary information to object the seiz-ure.
The right to resell, process, combine or mix the goods and the right to collect receivables assigned to us is automatically terminated in case of suspension of payment, initiation of insolvency proceedings and/or the resolution to dissolve the enterprise. This does not apply to any rights of the insolvency administrator based on mandatory statutory law.
If the value of the collateral deposited in our benefit exceeds the amount of secured claims by a total of more than twenty (20) per cent, the customer shall be entitled to demand that we insofar release securities of our own choice.
The customer shall examine the delivered goods immediately upon delivery with regard to quantity and quality. Warranty claims will only be accepted if we are informed immediately upon detection of any defect. Obvious defects have to be notified within a period of 14 days from delivery in writing (Textform). Hidden defects have to be notified within a period of 14 days from their detection.
In case the customer detects a defect he is no longer entitled to dispose of the goods or pro-cess them until a settlement has been reached for the handling of the complaint or independ-ent proceedings for the taking of evidence have been carried out by an authorised expert ap-proved by the chamber of commerce at the seat of the customer.
The customer is obligated to present a sample of the rejected goods for examination. In case he denies the presentation all warranty claims are excluded.
If any valid claim of defective goods is made, we are obliged to either replace the goods free of charge or repair it, the choice being at our sole discretion.
The customer hast o inform us in case of a warranty claim of one of his customers.
The limitation period for claims for defects shall be 12 months from the delivery. Any claims of recourse of customer pursuant to Section 478; 479 of the German Civil Code are not af-fected. Customer's right of recourse pursuant to Section 478, 479 German Civil Code shall be limited to cases where customer has been obligated on grounds of mandatory statutory law to fulfil warranty claims of his customers.
Any warranty claims with regard to the purchase of used goods are excluded.
13. Limited Liability
Any claims for damages, compensation and/or reimbursement of expenses or costs of the cus-tomer, regardless of the legal grounds and especially due to a breach of contract, warranty, delay, tort and/or infringement of duties arising in connection with the Agreement, shall be excluded in case of minor negligence. This shall not apply to customer's claims for damages based on damages of body or health or where the laws on product liability impose overriding liabilities which cannot be excluded and - in case of minor negligence - to the breach of an essential contractual duty. However, in case of minor negligence, our liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract. The customer may claim indirect and consequential damages as far as they are typical with regard to the intended use of the delivered goods. The aforementioned limitations of liability also apply to our officers, employees and other auxiliary persons.
As far as we have rendered technical information or advice without any contractual obligation these services are rendered without remuneration and under exclusion of any liability.
This also applies to claims for the refund of expenses and costs.
A change with regard tot he burden of proof is not effected by the above provisions.
14. Contractual Penalty
We are liable only for contractual penalties or claims based on default agreed upon by the customer with his customers of which we have been informed by the customer before conclu-sion of the contract and in case our valid liability .
Palettes used by us fort he delivery have to be exchanged by the customer and returned to us by the carrier. Otherwise, we are entitled to claim remuneration to a usual market price.
16. Hazardous Substances
The customer has received information about the materials used by us or will on his demand receive this information. The customers agrees to the used materials and waives all claims with regard to hazardous substances as far as the quality as hazardous substances has not been known to us at the time of the conclusion of the contract.
We are entitled to apply labels to our products indicating us as manufacturer. The customer may deny his consent to such indication if he can prove an overriding interest.
18. Place of Jurisdiction/Place of Performance/Supplementary Agreement
Any amendments or additions to these Terms and Conditions must be in writing. This also applies to the amendment of this obligation to execute amendments in writing.
The place of performance and the place of jurisdiction, provided that you are a businessman, a legal person under public law or a special fund under public law, shall be our place of busi-ness. We are entitled to start legal proceedings at the business place of customer.
Governing law shall be the law of the Federal Republic of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any of the clauses of these Terms and Conditions be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected.
The invalid clause shall be replaced by a valid and practicable provision the legal and eco-nomic effect of which comes as close as possible to what the parties intended or would have intended in accordance with the meaning and purpose of this contract, if they had considered this at the time of the conclusion of the contract. Should the invalidity of a provision be based on a scope of performance or time (period of time or date), the provision shall be agreed on with a legally valid scope which comes as close as possible to the original scope.