of Business for Customers last revised: March, 2010
of Business for suppliers last revised: 01 April 2012
1.1 Our Terms and Conditions of Sale which follow below and which are based on the model terms and conditions of the Fachverband Faltschachtel-Industrie e.V. apply solely and exclusively to any and all contracts which we conclude with companies, legal entities under public law or public-law special funds (hereinafter: "Buyer"). Buyer's terms and conditions of business as a whole do not apply unless we have expressly agreed to their application in writing. This provision also applies to clauses in the Buyer's terms and conditions of business which are not contrary to our terms and conditions. Our Terms and Conditions of Sale apply exclusively even if we have made delivery without reservation to the Buyer in the awareness of Buyer’s terms and conditions which are in deviation from our own.
1.2 Our Terms and Conditions of Sale shall also apply to any and all future business transactions with the Buyer.
2.1 Our offers are subject to change. A contract shall not be deemed concluded until we have confirmed an order in writing or by electronic means or have delivered the merchandise to the Buyer.
2.2 Expenses which we incur during the preparation of the offer, such as costs for development, technical services, samples and corrections, shall be borne by the Buyer in the event that no order is placed.
2.3 The Buyer submits a binding offer by the action of ordering the merchandise. We are entitled to accept this offer within 2 weeks after receipt by our office.
2.4 We do not assume any procurement risk with regard to our being supplied by our own suppliers unless we are accountable for such provisions not being delivered in good time or not being delivered correctly.
2.5 Prices are quoted in euros, excluding statutory value-added tax, unless express agreement stipulating a different currency has been reached.
2.6 All prices are shown ex works. Transport and packaging costs will be charged separately. If and when the Parties have agreed to FOB prices, such prices do not include the port and customs duties.
3.1 We retain sole and exclusive title to intellectual property and industrial property rights related to the drafts, templates, sketches, samples, films, lithographs, stereotype plates, dies, die moulds, negatives, plates, press cylinders, moulding equipment, digital data, pressure rollers, etc. (hereinafter: working materials) which we have developed. The Buyer may not use these working materials without an express, prior, written agreement in which a reasonable utilisation fee is stipulated.
3.2 The Buyer is liable for any infringement on any third-party rights, in particular, but not limited to, intellectual property rights or industrial property rights, which results from the merchandise which we have manufactured in accordance with his working materials or other specifications or instructions. The Buyer covenants to indemnify and hold us harmless, upon first request, from and against any and all claims asserted against us by third parties on the basis of alleged or actual infringement of intellectual property and/or industrial property rights to the extent that we have manufactured the merchandise in accordance with his working materials or other specifications or instructions.
3.3 Working materials which are required for the manufacture of the merchandise and which we have produced remain our property, even if and when the Buyer has contributed financially to the production costs. We are under no obligation to surrender such materials.
3.4 We will store any working materials and data records provided by the Buyer solely at the Buyer's risk. We are liable solely for the same care as in our own affairs. We will insure such working materials and data records solely upon the express request of the Buyer and solely at his expense. If and when the Buyer does not request return of working materials within one year or of data records within three years after our last use, we are entitled to destroy the materials or records after previously notifying the Buyer.
4.1 Delivery dates are binding solely if and when we have expressly assumed in writing a commitment to compliance with them. Any such guarantee shall not be binding in the event of the occurrence of unforeseen events for which we are not accountable. We will be deemed in compliance with the delivery date if and when the merchandise is handed over to the freight company well enough in advance that delivery in compliance with the delivery date can be expected under normal circumstances.
4.2 If the Parties have agreed to a release order or delivery schedule, any such schedule shall be binding on both Parties. Any deviation shall be subject to the express written consent of the other Party. Any additional costs incurred by such deviations (e.g. storage costs, financing costs) or material changes shall be borne by the Party who requested the deviation from the release order or delivery schedule.
4.3 If and when we do not comply with the delivery date, the Buyer is entitled and obligated to set in writing a reasonable subsequent period for the delivery. The subsequent period shall, as a rule, be no less than 10 business days. The Buyer may cancel the contract after the fruitless expiration of the subsequent period. In cases of standing or successive delivery contracts, the right of cancellation shall be limited to the concrete consignment unless the Buyer cannot reasonably be expected to continue execution of the contract as a whole.
4.4 Place of performance for our delivery obligation is the production facility at 59757 Arnsberg, even if we have, at the Buyer's request, assumed responsibility for shipment of the merchandise. Unless otherwise expressly agreed in writing, the risk shall transfer to the Buyer upon the handover of the merchandise for transport. The above provision shall also apply if and when free or freight-free delivery has been agreed and/or we carry out the transport ourselves. Unless otherwise agreed in writing, the Buyer shall bear the shipping costs.
4.5 In the absence of a written agreement regarding the packaging, its selection shall be at our discretion. We retain title of ownership to any and all pallets, drop-side mesh pallets, cover boards, wooden crates, cardboard boxes and other suitable packaging and transport materials we have provided for repeated use. The Buyer shall return the materials, in flawless condition, to us at his own expense within one week after use of the merchandise delivered in them.
4.6 Unless otherwise expressly agreed in writing, we are entitled to make partial deliveries.
4.7 During the manufacture of the merchandise, production conditions can result in overdelivery or underdelivery of as much as +/-20%. Any overdelivery or underdelivery within this tolerance range shall be deemed proper fulfilment of the contract. The Buyer shall pay the price for the quantity actually delivered.
5.1 Unless otherwise agreed, the invoices are due and payable without deductions upon receipt. Cash discount deductions are possible only if they have been expressly agreed in writing in advance. If the Buyer does not pay the invoice amount within 14 days of the receipt of the invoice or by the agreed date of payment, he shall be deemed in default without being specifically dunned. If the Buyer is in default of payment, we are entitled to charge default interest at the statutory rate, but at a minimum rate of 12% pa. The above provision is without prejudice to the assertion of further loss or damage due to default.
5.2 Payment orders, bills of exchange and cheques will be accepted only on account of performance, i. e. not in lieu of performance of contract, and will not be considered payment until redeemed and credited to the bank account. Charges for direct debiting and bank fees for transfers shall be borne by the Buyer. We do not assume any liability for submission in good time.
5.3 The Buyer shall be entitled to offset claims or to retention rights only if and when his counterclaims have been finally determined by a court of law, are undisputed or have been acknowledged by us.
5.4 If and when there is a significant worsening in the Buyer's financial situation following the conclusion of the contract or other circumstances indicate that the Buyer's solvency is in doubt, we are entitled to withhold performance until the Buyer has submitted the consideration or provided collateral. If, in this case, the Buyer does not submit the full consideration or provide suitable collateral within one week after receiving a request to do so, we are entitled to cancel the contract. Section 323 BGB (German Civil Code) applies mutatis mutandis. The above provision is without prejudice to our right to demand damage compensation in accordance with legal statutes.
5.5 The assignment of the Buyer's claims from the business relationship without our express, written consent is prohibited. This provision is without prejudice to Section 354 a HGB (German Commercial Code).
We are entitled to place our company name, our company logo or our identification number on the merchandise which we have produced in a reasonable location and form which do not relevantly affect the design of the products.
7.1 We are required to provide merchandise with specific properties solely if and when we expressly warrant in writing specific features. In the absence of deviating agreements in the contract, the suitability of the packaging material for direct contact with foodstuffs is not warranted. In the absence of an express written agreement, we do not assume any liability for harm to the merchandise or packaged goods resulting from direct contact.
7.2 The merchandise shall be deemed in conformity with the contract with respect to printing and manufacture if the quality of the manufacturing is within the tolerance range accepted by the state of technology.
7.3 The samples we provide are drafts or plotter samples which may deviate from the products produced on machines with respect to material, appearance (e.g. punching bridges, colour) and processibility (e.g. groove resistance). We are not liable for any such deviations.
7.4 The Buyer is aware that processing the merchandise after it has been stored for a longer period of time may lead to sensory problems and exterior problems such as breakage along groove edges and colour changes as well as to technical problems such as worsened run properties, adhesiveness, colourfastness and flatness. If and when the originally agreed release order or delivery dates are exceeded by more than 6 months at the Buyer's behest, he shall accept any and all such ageing phenomena as proper conditions of the merchandise.
8.1 The Buyer shall inspect the delivered merchandise immediately, as a rule within 3 workdays after its receipt, for completeness and freedom from defects. He shall notify us in writing without delay of any and all defects. If the Buyer does not fulfil these obligations, the merchandise shall be deemed in conformity with the contract, unless the defect is of a nature which was not discernible on inspection.
8.2 Discernible shortages or excess quantities and damage to merchandise which is externally visible shall be noted on the receipt of delivery. If the Buyer does not fulfil this obligation, the merchandise shall to this extent be deemed in conformity with the contract.
8.3 The Buyer is obligated to inspect the merchandise before use to determine its suitability for its intended use. He shall notify us in writing without delay of any and all points of complaint determined during these inspections. If the Buyer does not fulfil these obligations, the merchandise shall to this extent be deemed in conformity with the contract.
8.4 The Buyer is obligated to submit complaint of hidden defects immediately upon their discovery, as a rule, within 3 workdays. If the Buyer does not fulfil this obligation, the merchandise shall be deemed in conformity with the contract.
8.5 Complaints and objections which are submitted to third parties such as sales representatives or freight carriers do not represent complaint of defects in conformity with time and formal requirements to us.
8.6 Claims due to defects shall not exist in cases of merely minor deviation from the agreed properties or of only minor impairment of the usability.
8.7 Buyer's claims due to defects will not be accepted unless he proves that the cause of the defect existed at the point in time of the transfer of risk.
8.8 Our liability for any defects resulting from improper storage and/or processing of the merchandise by the Buyer is excluded.
8.9 We are not accountable for any defects resulting from our being required to use materials (e.g. cardboard, adhesives, paints, enamels or press moulds) specified by the Buyer. This provision also applies to defects resulting from our being instructed by the Buyer to utilise certain third-party services. In such cases, the Buyer shall himself ensure that his instructions do not adversely affect the suitability of the merchandise for the intended use, unless we were aware of the unsuitability of the stipulated materials or service providers and did not notify the Buyer.
8.10 We do not assume any responsibility for the texts, pictures, graphic representations, barcodes, etc. which we print on the folding boxes pursuant to the Buyer's instructions. The Buyer is in particular responsible for ensuring that there are no infringements on third-party rights, such as industrial property rights or copyrights, and that there are no violations of statutory or sub-statutory provisions.
8.11 Any declarations of conformity, agreements regarding properties or specifications shall not be interpreted as warranties and shall not establish any no-fault liability. In particular, they shall not release the Buyer from his obligation to determine — as necessary, by conducting the appropriate analyses — the suitability of the merchandise for the specific packaged goods before processing.
8.12 If legitimate complaint has been submitted in due time, we are entitled, at our discretion, to take back the defective merchandise and replace it with merchandise in conformity with the contract or to improve subsequently the delivered merchandise, provided that such improvement is possible and reasonable for the Buyer.
8.13 If neither subsequent improvement or replacement delivery is carried out within a reasonable period, the Buyer is entitled, at his discretion, to cancel the contract or to request reduction of the purchase price.
8.14 Our liability to pay damage compensation, regardless of the legal reasons for the claim (including tortious claims), shall be based on statutory provisions to the extent that the loss or damage is caused by malicious intent or gross negligence by us, our representatives or our vicarious agents. Liability for simple negligence is excluded to the extent that there is no culpable breach of a cardinal contractual obligation or unless we have assumed a warranty or a procurement risk. The limitation of liability shall not apply to cases of injury to life, body and health of human beings. The above provisions are also without prejudice to the statutes of the German Product Liability Act.
8.15 Buyer's damage compensation claims shall be limited to the foreseeable loss or damage typical of the contract. The above provision does not apply to claims based on malicious intent or gross negligence by us, our legal representatives or our vicarious agents. Moreover, the limitation does not apply to liability for loss or damage resulting from injury to life, body or health of a human being and to cases of liability pursuant to the provisions of the German Product Liability Act.
8.16 We must be notified immediately of any complaints about the delivered merchandise from the Buyer or from one or more third parties. The above provision also applies to cases of internal blocking, recall actions or public warnings related to the merchandise we have supplied.
9.1 Any and all of the Buyer's warranty claims related to defects in the supplied merchandise (including damage compensation claims) shall be subject to a limitation period of 1 year in cases governed by Section 438 (1) Item 3 BGB (German Civil Code). The period shall commence upon receipt of the merchandise.
9.2 Buyer's damage compensation claims due to breach of obligations which are not based on defects in the supplied merchandise (Section 280 BGB) shall be subject to a limitation period of 1 year. The limitation period shall commence pursuant to legal statutes.
9.3 The limitation of actions regulations contained in Clauses 9.1 and 9.2 shall not apply to cases of entrepreneurial recourse (Sections 478, 479 BGB) and to damage compensation claims resulting from injury to life, body or health of a human being. Moreover, they shall not apply to cases in which there is malicious intent or gross negligence by us, our legal representatives or our vicarious agents.
10.1 We retain title of ownership to the delivered merchandise until the purchase price has been paid in full and until any and all previously existing claims from the business relationship and subsidiary claims (default interest, default damage, etc.) closely related to the delivered merchandise have been paid (reserved goods). The itemisation of claims in a current invoice or the calculation of a balance and its acknowledgement do not abrogate the retention of title.
10.2 If and when the Buyer or a third party acting on his instructions processes reserved goods into a new chattel, the processing shall be deemed on our behalf without establishing any obligations on us. The new chattel becomes our property. In the event of processing of the reserved goods with merchandise which we have not delivered, we acquire co-ownership to the new object in the ratio of the value of the reserved goods to that of the other objects at the time of processing. If and when reserved goods are combined, mixed or blended with merchandise which we have not delivered in accordance with Sections 947, 948 BGB, we become co-owners pursuant to statutory provisions. If the Buyer acquires sole ownership because of the combination, mixing or blending, he hereby assigns to us here and now co-ownership in the ratio of the value of the reserved goods to that of the other merchandise at the time of the combining, mixing or blending. The object to which we have title of ownership or coownership in this case shall also be deemed reserved goods within the sense of the following provisions.
10.3 The Buyer shall safeguard the reserved goods at no charge and provide adequate insurance cover at his expense.
10.4 The Buyer is entitled to resell or use the reserved goods within the scope of his usual, proper business activities. However, the above provision applies subject to the proviso that the advance assignments pursuant to Clause 10.5 are actually transferred to us. The Buyer is not entitled to any other disposal of the reserved goods, especially, but not limited to, pledging or assignment by way of security. If and when the Buyer is in default of payment, he is entitled to resell the reserved goods solely if and when he instructs his buyer to pay the purchase price directly to us. If we have only a title of co-ownership to the reserved goods, the Buyer shall instruct his buyer to pay to us directly only the share of the purchase price corresponding to the invoice value of the reserved goods we have supplied.
10.5 The Buyer assigns to us here and now any and all claims from the resale of the reserved goods. We accept the assignment. If we have only a title of coownership to the reserved goods, the advance assignment agreed in Sentences 1 and 2 shall extend solely to the amount of the invoice value for the reserved goods we have supplied.
10.6 The Buyer remains entitled to collect the assigned claims. The above provision is without prejudice to our right to collect the claims ourselves. However, we will not collect the claims as long as the Buyer fulfils his payment obligations to us from the received income, is not in default of payment and, in particular, no petition for the initiation of bankruptcy proceedings has been filed or has been dismissed due to lack of assets. Upon request, the Buyer shall notify us of the debtors of the assigned claims, including their addresses, and shall notify the debtors of the assignment. We are entitled to notify the debtors of the assignment ourselves.
10.7 If and when we are entitled to cancel the contract because of the Buyer's breach of obligations, in particular, but not limited to, default of payment, the Buyer shall immediately, upon declaration of the cancellation and our pertinent request, return to us the merchandise delivered subject to retention of title. The Buyer shall bear the costs of the return.
10.8 In the event of debt execution measures by third parties against the reserved goods or the assigned claims, the Buyer shall notify us in writing immediately, handing over all of the necessary documents, in particular a copy of the debt execution record. Simultaneously, the Buyer shall send to us a statutory declaration in which he declares that the merchandise which is the object of the debt execution is merchandise which we have supplied and which is subject to our retention of title. The Buyer shall bear the costs of our defence against the debt execution measures unless they are reimbursed by the third party.
10.9 We covenant to release, upon the Buyer's request, any collateral to which we are entitled to the extent that the value of our collateral exceeds the secured claims by more than 10%. The selection of the collateral for release shall be at our discretion. When all of our claims against the Buyer have been paid, title to the reserved goods and the assigned claims shall be transferred to the customer.
Force majeure such as strikes, revolts, riots, war or other circumstances which are beyond our influence and which prevent the fulfilment of our contractual obligations shall release us from our delivery obligation. If circumstances permit, we are obligated to notify the Buyer of such events in writing as quickly as possible.
12.1 These Terms and Conditions of Sale as well as all of the legal relationships between the Parties shall be governed by the laws of Germany, excluding application of the provisions of international private law and of the UN CISG. The above provision also applies to deliveries across national borders.
12.2 Venue for any and all disputes arising from the contractual relationship, directly or indirectly, is 59818 Arnsberg, provider that the Buyer is a merchant, a legal entity under public law or a public-law special fund.
|Volksbank Sauerland eG||BLZ: 466 600 22|
|KTO: 252 578 060 0|
|BIC: GENO DE M1 NEH|
| IBAN: DE80 4666 0022 2525 7806 00
|Deutsche Bank AG, Arnsberg||BLZ: 466 700 07|
|KTO: 506 777 2|
|BIC: DEUT DE DW 466|
| IBAN: DE75 4667 0007 0506 7772 00
|Postbank Dortmund||BLZ: 440 100 46|
|KTO: 846 346 3|
|BIC: PBNK DE FF|
| IBAN: DE57 4401 0046 0008 4634 63
|Sparkasse Arnsberg-Sundern||BLZ: 466 500 05|
|KTO: 140 061 34|
|BIC: WELA DE D1 ARN|
| IBAN: DE76 4665 0005 0014 0061 34
1.1 Our General Terms and Conditions for suppliers shown below, which are in conformity with the sample terms and conditions of the professional as-sociation Faltschachtel-Industrie e.V., apply to any and all contracts we conclude with companies, legal entities under public law and public-law special funds (hereinafter known collectively as “supplier”) for delivery of goods or provision of services performed by the contract partner. Our General Terms and Conditions for suppliers apply solely and exclusively. Supplier’s terms and conditions of business as a whole do not apply unless we have expressly agreed to their application in writing. The above provision also applies to any and all supplier’s terms and conditions of business which are not contradictory to our General Terms and Conditions for suppliers. Our General Terms and Conditions for suppliers shall apply solely and exclusively even if we have accepted the delivery of products or services without reservation although we are aware of supplier’s deviating clauses.
1.2 Our Terms and Conditions of Purchasing and Order-ing shall also apply to any and all future business transactions with the supplier.
1.3 These General Terms and Conditions for suppliers are without prejudice to any rights to which we are entitled pursuant to statutory provisions and which exceed the scope of these General Terms and Con-ditions for suppliers.
2.1 Any and all offers shall be submitted to us in binding form and free of charge. The supplier shall maintain confidentiality with respect to the offers.
2.2 The offer is binding on the supplier for a period of 12 weeks as of our receipt of the offer.
2.3 A contract with us shall be deemed concluded solely if and when we have placed the order in writing (digital form or fax is sufficient). Our silence with respect to an offer from the supplier shall not be deemed tacit agreement or acceptance of the offer.
2.4 We may request modifications in the products or the services even after the conclusion of the contract, provided that such modifications are reasonable for the supplier. In the event of any such modifications, both parties shall give reasonable consideration to the impact of the modifications, in particular with respect, but not limited, to any additional or reduced costs and the dates of delivery and/or performance.
2.5 The supplier assumes the procurement risks with respect to deliveries by its own suppliers.
3.1 The agreed periods and dates of deliv-ery/performance are binding. The goods must have arrived at the place of performance within the agreed period or as of the agreed date. We are not required to accept delivery before the expiration of the period or the date. In the event of foreseeable delays, the supplier shall notify us immediately in writing, stating the reasons for the delay and setting a new delivery/performance date. We are entitled to cancellation of the contract if and when we are not in agreement with the new date which is offered and the supplier refuses delivery/performance within a reasonable subsequent period we have suggested. If and when we declare our agreement with the new date offered by the supplier, or if and when the supplier accepts a subsequent period we have set, this shall not be construed as an extension of the contractually agreed delivery/performance date or delivery/performance period. Any such acceptance is without prejudice to damage compensation claims due to default of delivery.
3.2 If and when the supplier is in default of delivery of goods/services, in whole or in part, we are entitled to the statutory claims (damage compensa-tion/rescission) in their full scope. We are in particu-lar, but not solely, entitled to request damage compensation in lieu of performance upon expiration of a reasonable subsequent period. Moreover, we are entitled to request payment of a contractual penalty in the amount of 0.25% of the order value per business day, but not more than 5% in the aggregate of the order value, as of the commencement of the supplier’s default.
3.3 If and when the supplier is in default over the course of successive supply agreements and similar agree-ments for partial delivery/performance, we are also entitled to cancel the contract or request damage compensation in lieu of performance with respect to any and all outstanding partial deliver-ies/performances upon the fruitless expiration of a subsequent period we have set for the partial deliv-ery.
3.4 Force majeure such as strikes, uprising, insurgency, etc. release us from our obligation to accept or pur-chase the ordered delivery/performance for the duration of the disruption and in the scope of its impact. In such cases, we will provide the required information to the supplier within the full scope of what is reasonable. Delivery shall be made immediately upon our notification of the supplier that the incident has ceased. If and when the delivery/performance is no longer of any value for us in commercial terms as a consequence of the delay caused by the force of majeure, we are entitled to cancel the contract.
3.5 The delivery/performance of partial quantities, sur-plus or shortfall deliveries is not permissible unless we have expressly agreed in writing to such deliver-ies.
3.6 If and when we request that the supplier postpones a delivery, it must insure the properly packaged and labelled goods at its expense and store them so that they do not suffer any loss of quality; however, this obligation will remain in effect for a maximum of three months.
4.1 Unless otherwise agreed, the products will be shipped at the expense and risk of the supplier to the address designated in our order.
4.2 The supplier warrants compliance with any and all relevant shipping and declaration requirements as well as any export and import formalities. The sup-plier is liable for any and all loss or damage resulting from the failure to comply with said requirements and formalities.
4.3 The supplier will provide at its expense appropriate and clean packaging as commonly used in the trade and warrants that the products are protected by the packaging from typical transport damage, corrosion and ingress of contamination or moisture. The sup-plier is liable for any and all loss or damage resulting from the failure to comply with these requirements.
4.4 An itemised notification of shipping showing our order number, our order date, the production works, the shipping address, the content, the type of packaging, the packaging unit number and the weight shall be sent to us upon dispatch of each and every consignment.
4.5 Each and every consignment shall be accompanied with a delivery note showing our order number, our order date and the content.
4.6 Unless otherwise agreed, the risk of shipment does not transfer to us until the delivery has been made.
4.7 The supplier is obligated at our request to collect packaging material and transport aids at its expense.
5.1 We will bear the expenses for insurance solely if and when a prior written agreement to this effect has been concluded with us.
5.2 The supplier is obligated to maintain at its expense a liability insurance policy, including a cover for loss or damage arising from product liability which includes the risk of a recall action, with adequate cover for personal injury, material damage and pecuniary loss (minimum of €2 million per person or per insured event of material damage or pecuniary loss) throughout the entire term of the supply or order relationship, i.e. until the expiration of the limitation period for any and all claims which might arise from the contractual relationship, and, upon request, to submit verification of the policy. If and when the supplier does not maintain appropriate insurance cover, or if and when it refuses to submit verification to us even after we have set a reasonable subse-quent period for said submission, we will be entitled to cancel the contract and may request compensation from the supplier for the loss or damage we have suffered.
5.3 Our claims are not limited to the sum insured.
6.1 Unless a deviating currency has been agreed in writ-ing, prices are shown in euros.
6.2 The price shown in our order is binding. It includes delivery “free house” and packaging.
6.3 Invoices shall be sent directly to us by post under separate cover upon dispatch of the products; they shall be itemised according to order number and or-der date for each and every order and indicate whether the order has been completed or, if not, what quantities or numbers of units must still be de-livered. Value-added tax shall be shown as a sepa-rate item. The invoice must clearly show in particular the type and scope of the delivery or performance.
6.4 We may pay invoices within 30 days subject to a 3% cash discount or within 60 days net. The period commences upon our receipt of the invoice, but no earlier than the day on which the consignment ar-rives at the address we have designated.
6.5 In the event of defective delivery or performance or the sending of an invoice which is not in compliance with requirements, we are entitled to reserve pay-ment until proper fulfilment/ sending of a correct in-voice without losing our cash discount entitlement.
6.6 Assignments are subject to our written consent. This provision is without prejudice to Section 354a HGB (German Commercial Code). The supplier is entitled to rights of offset and retention solely with respect to claims which are undisputed, which we have ac-knowledged or which have been finally adjudicated.
6.7 The supplier is not authorised to engage third parties to carry out the order or parts of the order without our prior written consent. Even if we give our con-sent, the supplier remains responsible for its contrac-tual obligations and is liable for the third party in the same scope as for its own actions.
6.8 The supplier shall notify us in writing immediately of any and every change in its shareholders and any and every change in its company.
6.9 If and when the supplier intends to discontinue its production as a whole or to modify or discontinue production of the goods which are the subject of the contract, it shall notify us without delay in writing, provided that no more than 6 months have passed since our most recent order of the goods. The supplier shall ensure that the delivery of the goods which are the subject of the contract can continue for no less than 12 months after notification.
6.10 If and when we have engaged the supplier as a contract processor, it shall conduct an incoming goods inspection of any goods delivered to it for contract processing and notify us of any defects in the goods before commencing the contract process-ing and discuss the subsequent procedures with us. If and when it fails to comply with this requirement, it shall be obligated to compensate us for the loss or damage. The above provision is without prejudice to our right to assert more extensive statutory claims.
7.1 The supplier warrants that the goods or services are free of any material and/or legal defects, and that they are in compliance with state-of-the-art technology, pertinent national and European legal statutes (in particular, but not limited to, food and commodity laws), the requirements and directives of government agencies, employers liability insurance associations and professional associations, the specifications we have provided, the agreed charac-teristics, the instructions in the order/contract award and the conformity declaration.
7.2 The supplier must point out to us without delay if and when, in individual cases, deviations from specifica-tions, agreed characteristics or instructions in the order are required or expedient, or if and when there are concerns about the nature of the execution we have requested. We will then notify the supplier as soon as possible whether and, if so, which of the modifications are to be realised. Our agreement does not limit the supplier’s liability. If and when the modification results in a change in the costs incurred by the execution of the contract, we and the supplier are both entitled to request a corresponding adjustment of the compensation to which the supplier is entitled.
7.3 Furthermore, the supplier warrants that the goods or services are suitable for the agreed use or the use foreseeable due to the nature of the goods or ser-vices and that they do not contain any prohibited or unappraised substances. In the case of goods which are used to package food or toys, the supplier warrants that the goods are suitable for contact with food or toys and that contact with the goods does not have any negative effects on the food or toys.
7.4 The supplier warrants that the goods are properly labelled.
7.5 The supplier warrants that the order/contract will be executed in such a manner that compliance with the act regarding technical equipment, the machine pro-tection act, the accident prevention requirements of the relevant employers liability insurance association, the requirements for fire protection, the most re-cently revised DIN and VDE standards and the re-quirements for CE labelling is assured.
7.6 If it is discernible to the supplier that we or our cus-tomers intend to use the provided goods/services in countries outside of the European Union, the supplier hereby assumes the warranties pursuant to clauses 7.1 to 7.5 for those countries which are discernible to it as customers on the basis of the contract.
7.7 We are entitled to the full length of the statutory warranty periods. In particular, we are entitled at our option to request remedy of defects or delivery of a defect-free object/performance of a defect-free service. If and when the supplier does not fulfil its subsequent performance obligation within a reasonable period we have set, we may carry out the required measures ourselves or engage third parties to carry them out at the supplier’s expense and risk. In urgent cases, we are entitled to carry out the measures ourselves even before expiration of the period if and when the supplier does not provide written, binding confirmation within 24 hours of our request that it is prepared and able to conduct the subsequent performance without delay. If and when we carry out the measures ourselves, we may bill our own services at prices usually charged on the market by third parties. The above provisions are without prejudice to our statutory rights in all other respects.
7.8 The supplier shall bear any and all expenditures re-lated to the determination of defects and their rem-edy, regardless of fault, including any and all expenditures we incur, in particular, but not limited to, inspection expenses, installation, removal and re-installation costs for defective parts, labour and ma-terial expenses, transport and any and all other costs resulting from the replacement of defective parts.
7.9 To the extent that we are entitled to cancellation of the contract, said cancellation can, in the event of non-fulfilment or poor performance of a limited part of the performance, be restricted to this part while the remaining parts of the contract remain in force.
7.10 The cancellation of the contract or reduction of the price is without prejudice to our right to assert dam-age compensation claims.
7.11 Warranty claims pursuant to material and legal de-fects are subject to a limitation period of 36 months provided that legal statutes do not provide for a longer limitation period and that the limitation period has not been suspended. The limitation period begins upon the arrival of the goods at our place of business or upon acceptance of the service. If and when ac-ceptance is delayed through no fault of the supplier, the warranty period shall be 36 months as of the readiness of the goods/services for acceptance.
7.12 If the goods are procured for the purpose of resale or for use in the manufacture of products, the period shall begin at that point in time at which the warranty period for the goods equipped with the delivered product commences, but no later than 6 months after delivery of the goods to us.
7.13 If and when the supplier provides replacements within the scope of subsequent performance, the limitation period for the goods delivered as a re-placement commences anew upon their delivery to us. If a part has undergone subsequent improve-ment, the limitation period recommences with the conclusion/acceptance of the subsequent improve-ment as a whole.
Complaints received by the supplier within a period of two weeks (calculated from the receipt of the goods for visible defects, from the time of discovery for hidden defects) shall at all times be deemed immediate within the sense of Section 377 HGB. The period shall also be deemed observed if complaint is submitted orally or by telephone.
The supplier’s retention of title to the goods is excluded. The supplier warrants that the delivered goods are free of any third-party title rights. The supplier will indemnify and hold us harmless from and against any third-party claims upon our first request and will also bear any and all costs we incur in this respect. The above provision applies to legal and court costs as well.
10.1 The supplier warrants that the goods or services are free of third-party intellectual property rights and are not third-party intellectual property; it also warrants in particular that the delivery and use of the delivered goods or services do not infringe on any patents, licences, utility models, registered designs, trademarks, copyrights or other third-party intellec-tual property rights.
10.2 The supplier will indemnify and hold us harmless from and against any and all third-party claims aris-ing from the infringement of the third-party rights mentioned in clause 10.1 upon first request and will also bear any and all costs we incur in this respect. The above provision applies to legal and court costs as well.
10.3 We are entitled, at the supplier’s expense, to obtain any and all permits from entitled third parties which are required for the use of the goods and services.
10.4 The above provision is without prejudice to any fur-ther statutory claims, e.g. pursuant to liability for le-gal defects.
10.5 The supplier is not entitled to utilise our trade name, logos, trademarks or other protected intellectual property for its own benefit or the benefit of third parties.
10.6 Goods or services which are not part of the supplier’s standard product range and which it has produced pursuant to our instructions or our drawings and/or technical specifications may not be offered, sold, de-livered or disclosed to third parties without our prior written consent.
10.7 The supplier may not offer to third parties, sell, de-liver or otherwise introduce to the market goods from its standard product range if and when our trade name, our logo, our trademark or other protected intellectual property of ours is recognisable on the goods.
11.1 We reserve title and intellectual property rights to any and all work materials provided to the supplier or created in accordance with our instructions for the preparation of the offer or execution of the or-der/contract award, including, but not limited to, drafts, templates, sketches, films, lithographs, plates, punch presses, dies, negatives, print rollers, moulding equipment, digital data, printing cylinders, tools, samples, models, printing materials, calculations, etc. The supplier is obligated to return to us upon first request any and all work materials received from us. It may not retain copies or reproductions in any other form.
11.2 The supplier may not utilise work materials within the sense of clause 11.1 for any purposes other than the execution of the order/contract award. They may not be disclosed or made accessible to third parties. In the event of the breach of the above obligation, the supplier is obligated to pay damage compensa-tion to us.
11.3 In the event of the loss of work materials within the sense of clause 11.1, the supplier is obligated to pro-cure replacements at its expense and to pay damage compensation.
12.1 If and when claims are asserted against us based on the violation of official safety requirements or due to the defectiveness of our products on the basis of do-mestic or foreign product liability regulations or laws which is traceable to the goods delivered to us by the supplier, the supplier shall compensate us for any loss or damage caused by the goods delivered by the supplier. If and when the damage or loss is caused by goods delivered by a number of supplier, said suppliers shall be liable to us jointly and severally. If and when loss or damage occurs which is typical for a defect in goods delivered by the supplier, it will be assumed that the loss or damage resulted from this defect. The supplier is entitled to provide proof that the defect was not the cause of the loss or damage.
12.2 Within the scope of its liability for occurrences of damage or loss within the sense of clause 12.1, the supplier is also obligated, pursuant to Sections 683, 670 BGB (German Civil Code) or to Sections 830, 840, 426 BGB, to reimburse us for any and all ex-penses which are incurred by or in relation to any recall action we have carried out. We shall, provided that it is possible and reasonable, notify the supplier in advance of the content and scope of the recall actions which must be carried out and give it the opportunity to submit a statement of opinion. The above provisions are without prejudice to other statutory claims.
The supplier warrants that it maintains, operates and documents a quality assurance system appropriate with respect to type and scope and in accordance with state-of-the-art science and technology. The supplier is obli-gated to prepare records of the tests, measurements and inspections which are carried out, to archive any and all test, measurement and inspection results for a period of 10 years and to assure their traceability. We are entitled to conduct an unannounced, onsite audit during normal business hours for the review of the entire quality as-surance system related to the goods delivered to us. The supplier also grants to us, upon our request, the right to inspect any and all of the documentation of the quality assurance system related to the goods delivered to us and to provide copies of the documentation to us in the required scope.
14.1 The supplier warrants that its delivery is in confor-mity with the provisions of the Regulation (EC) No. 1907/2006 (REACH Regulation) as most recently revised. Furthermore, the supplier will provide to us the safety data sheets required by the provisions of the REACH Regulation, including the appropriate in-tended purpose and/or the information required by the REACH Regulation.
14.2 Conformity with the provisions of the REACH Regu-lation does not release the supplier from its general obligation to provide to us without delay qualified information regarding any and all modifications in the goods and their ingredients and to submit to us a data sheet.
14.3 The supplier will submit to us in conjunction with the offer, but in any case before the dispatch, a safety data sheet in accordance with Section 14 of the German Hazardous Substances Act, filled out completely, and a relevant accident bulletin (trans-port) for materials (substances/preparations) and ob-jects (e.g. goods, parts, technical equipment, uncleaned storage containers) which, due to their na-ture, their properties or their condition, can present hazards to body, life or health of humans, to the en-vironment and/or to property and which must there-fore be accorded special treatment with respect to packaging, transport, storage, handling or waste dis-posal.
If and when the supplier’s associates or authorised repre-sentatives conduct activities on our operating premises, the supplier will ensure that they comply with the perti-nent safety and accident prevention regulations and fire prevention regulations and observe the plant regulations issued by the plant. The supplier will continually refer its associates or authorised representatives to these regula-tions. If the supplier does not take steps to remedy a breach of these regulations immediately, but no later than within three days after issue of a written warning, or if there are repeated serious violations of these regulations, we are entitled to extraordinary termination of the con-tract without notice, effective immediately. The supplier will reimburse us for any loss or damage and expenses we incur owing to the failure to comply with these regula-tions.
16.1 If and when there is a major worsening of the assets of the supplier or of the companies affiliated with it (e.g. difficulties in making payments or suspension of payments, petition for creditor protection, petition for initiation of bankruptcy proceedings) after conclusion of the contract, or other circumstances become known which indicate that our claim to the return service could be endangered by the supplier’s inabil-ity to perform, we are entitled to withhold our per-formance until the supplier has performed the return service or provided security. If and when the supplier does not either perform the return service in full or provide appropriate security within one week after our request to this effect, we are entitled to cancel the contract. Section 323 BGB will apply mutatis mutandis. The above provision is without prejudice to our right to demand damage compensation in accordance with legal statutes.
16.2 We are also entitled to cancel the contract as a whole in the event there are other objectively justified circumstances which cause the continuation of dependable business relationships to appear to be in serious jeopardy.
17.1 The supplier is obligated to maintain strict confiden-tiality with respect to any and all confidential infor-mation from the precontractual correspondence and from the cooperation and to utilise said information solely and exclusively for the fulfilment of the con-tractual relationship, provided that the information is not generally known or has not been legitimately obtained from third parties. Confidential information includes in particular, but is not limited to, queries and offers, technical data, procurement volume, prices, information about products and product de-velopments, about research and development pro-jects, any and all company data and any and all work materials within the sense of clause 11.1.
17.2 Associates to whom the supplier assigns the prepa-ration of the offer and/or the execution of our or-der/contract award must be obligated to the same scope of confidentiality.
17.3 If and when the supplier recognises that a third party has illegally obtained possession of confidential information or that confidential documentation has been lost, it shall notify us immediately.
17.4 If and when the supplier is in breach of its obligations pursuant to clauses 17.1 to 17.3, it is liable for any and all costs and losses or damage which we suffer as a consequence of the breach.
17.5 The supplier may not refer to the business relation-ship with us in its publications without our prior written consent.
17.6 The obligations pursuant to clauses 17.1 to 17.5 shall survive the termination or expiration of the contractual relationship for an indefinite period.
18.1 Place of performance for the delivery or performance is Arnsberg. Place of payment for our payment obligations is our registered office.
18.2 Venue for business transactions with companies, legal entities under public law and public-law special funds is our registered office or, at our option, the supplier’s registered office.
18.3 Sole proper law governing the contracts is the law of Germany, excluding application of international private law and the UN Convention on the Interna-tional Sale of Goods (CISG). The above provision also applies to deliveries/performance across na-tional borders.
18.4 These General Terms and Conditions for suppliers also exist in a German version. The German version shall be solely and exclusively authoritative in the event of doubt and/or contradictions.