General terms and conditions of delivery and payment of HANS KOLB Wellpappe GmbH & Co. KG
(as of August 2018)
§ 1 Conclusion of contract, written form
- All deliveries, services and offers by the Contractor are exclusively subject to these terms and conditions unless deviating individual contractual agreements apply. These terms and conditions shall also apply to all future deliveries, services or offers by the Contractor, even if they are not separately agreed again.
- These terms and conditions shall apply to entrepreneurs, legal entities under public law and special funds under public law.
- Any deviating or supplementary terms and conditions of purchase of the Customer shall only be valid if they have been accepted by the Contractor in writing. The Contractor’s terms and conditions shall also apply if the Contractor makes delivery to the Customer without reservation in the knowledge that the Customer’s terms and conditions conflict with or deviate from the Contractor’s terms and conditions.
- All offers made by the Contractor are subject to confirmation unless they are expressly marked as binding or contain a specific acceptance period. The Contractor may accept orders placed by the Customer within 14 days of receipt.
- The written form within the meaning of these terms and conditions shall be deemed to have been complied with in the case of written or electronic transmission, even if the document in question has not been signed.
§ 2 Execution of delivery
- The place of performance for our delivery obligation is the Dettingen/Erms production plant, even if we manage shipment of the goods at the Buyer’s request. Unless expressly agreed otherwise, the risk shall pass to the Buyer when we are commissioned to handle the transportation.
- The Contractor shall be entitled to make additional deliveries insofar as this is reasonable for the Customer, taking into account the latter’s interests. In the case of extraordinary circumstances in individual cases (to be proven by the Customer), an excess or short delivery of up to 20% for orders of 500 pieces, up to 15% for 3,000 pieces, and up to a maximum of 10% for more than 3,000 pieces shall be deemed reasonable. The quantity actually delivered shall be invoiced.
- Partial deliveries shall be permissible to a reasonable extent for the Customer, taking into account the Contractor’s interests, if the partial delivery can be used by the Customer within the scope of the contractual purpose, and if delivery of the remaining ordered goods is ensured, and if the Customer does not incur any substantial additional expenses or costs as a result.
§ 3 Palletising, other packaging material
- The Contractor shall maintain a pallet account for the Customer with regard to the reusable pallets and cover plates owned by the Contractor. This shall provide information about the stock of pallets and changes thereto. Upon request, the Customer shall receive a statement of the pallet account for the purpose of reconciling the balance.
- The records in the account shall be maintained on the basis of shipping documents. The Customer shall acknowledge the pallets received in each case.
- For each delivery of palletised goods, the Customer shall return to the Contractor the same number of equivalent pallets as it has received.
- Pallets not returned or returned damaged will be invoiced at the replacement price.
- With the exception of pallets, transport packaging and all other packaging shall not be taken back in accordance with the Packaging Ordinance (Verpackungsverordnung). The Customer shall ensure that the packaging is disposed of at its own expense.
§ 4 Default of Acceptance, Violation of Duties to Cooperate by the Customer
- If the Customer refuses to accept the goods in whole or in part on the agreed delivery date, or if it culpably violates its other duties to cooperate, the Contractor shall be entitled to demand compensation for the damage incurred by the latter in this respect, including any additional expenses.
- If delivery is delayed for reasons for which the Customer is responsible, the Contractor shall be entitled, irrespective of Clause 1, to invoice the Customer for the incurred storage costs – even if the goods are stored at one of its plants – starting one month after the notification of readiness for delivery, and for at least 0.5% of the invoiced amount of the goods for each month. The Customer shall be entitled to prove that the Contractor has suffered no or substantially lower damages as a result of the delay.
- The risk of accidental loss or accidental deterioration shall pass to the Customer from the time at which the Customer is in default of acceptance or in debtor’s default.
- The Contractor expressly reserves the right to assert further claims and rights (e.g. damages in lieu of performance after setting a reasonable grace period).
§ 5 Delivery deadlines
- Deadlines and dates for deliveries and services stated by the Contractor are only approximate unless a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of transfer to the third party commissioned with the transport.
- The delivery period begins with the date of acceptance of the order. If the confirmed order is changed, the delivery period begins with the confirmation of the change.
- If the Contractor is in default with a delivery or service or if a delivery or service becomes impossible, the Contractor’s liability shall be limited to damages in accordance with § 7 No. 7 of these General Terms and Conditions of Delivery and Payment.
§ 6 Force majeure
- If the execution of the order is delayed due to force majeure or other events that were unforeseeable at the time of conclusion of the contract and for which we are not responsible (e.g. unforeseeable operational disruptions for which we are not responsible, strikes or late delivery by suppliers despite an existing supply contract), the agreed delivery period shall be extended by the duration of the disruption; the Contractor shall not be held liable for such delays. The Contractor shall inform the Customer immediately in such cases. In all other respects the contract shall remain unchanged.
- Where such events make the delivery or service substantially more difficult or impossible for the Contractor and the hindrance is not only temporary, the Contractor shall be entitled to withdraw from the contract. If, as a result of the delay, acceptance of the delivery or service by the Customer cannot reasonably be expected, it may withdraw from the contract via written declaration to the Contractor.
§ 7 Warranty, liability, statute of limitations
- The goods must be inspected immediately, and at the latest before their use. Complaints regarding correctness, quantity and execution of the delivered goods must be made in writing immediately, and no later than eight working days after receipt of the goods. Hidden defects must be reported in writing within eight working days of their discovery at the latest. Defects for which no notification was received in due time shall be deemed to have been accepted.The right of complaint for hidden defects expires two months after arrival of the goods. The notification of the complaint shall be accompanied by samples of the respective goods; in the event of a justified complaint, the Contractor shall bear the shipping costs. Defects affecting only a part of the delivery cannot lead to a complaint about the entire delivery, unless it is unreasonable for the Customer to accept the defect-free part of the delivery.
- Should the delivered goods have defects, the Contractor may, at its discretion, either remedy the defects or supply a defect-free replacement. Only if this should repeatedly fail or be unreasonable and where it is not only a matter of insignificant defects, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price in accordance with the statutory provisions; § 478 BGB shall remain unaffected. The Customer is entitled to claims for damages in accordance with § 7 No. 7 of these terms and conditions.
- The Contractor shall only be liable for the properties of the packaging with regard to its usability for a specific purpose, if this purpose was expressly specified or agreed upon in the contract concluded between the Customer and the Contractor.
- The Contractor assumes no liability for industry-typical deviations in the bonding, smoothness and purity of the papers or their, gluing, adhesion, printing and weight. Deviations in dimensions customary in the industry, which occur due to the nature of corrugated board and its processing, cannot be made the cause of a complaint. The dimensions are given in the order length + width + height, they represent the inside dimension in millimetres. Minor deviations are dimensional tolerances of +/- 1%, and of no more than +/- 3 mm. Weight deviations caused by the tolerance in the square-metre weights of the manufactured paper shall be deemed customary for the industry. The Seller shall only be liable for deviations in the paper colour, sizing, smoothness and purity as well as the printing ink if they are unreasonable for the Buyer, taking the latter’s interests into account. Chromalines are only conditionally colour binding for printing purposes. The processing of corrugated board packaging is carried out in line with the industry standard.
- In the case of colour prints, the Contractor shall not assume any liability for colour deviations that are customary in the industry. Due to the use of printing inks that are customary in the industry, neither the non-fade properties of the inks in compliance with DIN 16525 (Blue Wool Scale) can be guaranteed, nor can the possibility of the prints contaminating other objects be ruled out. The Contractor does not assume any liability here.
- In addition, the assessment of deviations of the kind that are customary in the industry or technically unavoidable shall be based on the standards issued by the VERBAND DER WELLPAPPEN-INDUSTRIE E.V. Hilpertstraße 22, 64295 Darmstadt, Germany, and the inspection catalogues for corrugated cardboard boxes which are available at the Contractor’s premises, as well as the DIN standard for corrugated cardboard packaging, in each case in the respectively applicable version.
- The Contractor shall be liable without limitation in accordance with the provisions of the Product Liability Act, in cases of the express assumption of a guarantee or a procurement risk as well as due to intentional or grossly negligent breaches of duty. The Contractor shall also have unlimited liability in the event of intentional or negligent injury to life, limb or health. The Contractor shall only be liable for material damage and financial loss caused by slight negligence in the event of a breach of material contractual obligations (cardinal obligations), however such liability shall be limited to the damage that was foreseeable at the time of conclusion of the contract and which is typical for the contract. The term « cardinal obligation » is either used to describe a specific breach of duty that jeopardises the achievement of the purpose of the contract, or is explained abstractly as an obligation whose fulfilment is essential for the proper performance of the contract, and on the observance of which the Customer may regularly rely. Furthermore, in the event of a slightly negligent delay in delivery on the part of the Contractor, liability for damages caused by delay shall be limited to the amount of the order value. The above limitations of liability shall also apply to the benefit of the Contractor’s legal representatives, employees and other vicarious agents.
- Claims due to material defects and/or defects of title shall become statute-barred after 12 months, calculated from the transfer of risk. The statutory limitation periods shall apply to intentional breaches of duty, fraudulent concealment of defects, claims arising from tort, lack of guaranteed characteristics, assumption of procurement risks and personal injury. §§ 479 and 634 (a) (1) (2) German Civil Code (BGB) shall remain unaffected.
§ 8 Prices, invoicing, maturity, payment
- Unless otherwise agreed in writing, the Contractor’s prices shall apply for 1,000 units or a separately listed unit ex warehouse or factory, including loading and packaging. Unless otherwise agreed, the prices shall be understood to be for acceptance of goods with a value of at least EUR 1,000 delivered free to the place of destination. If the value of the goods is less than EUR 1,000, delivery shall be made with carriage due. The prices are exclusive of the statutory value added tax. If the goods are to be delivered more than 4 months after conclusion of the contract, the parties shall agree on an appropriate price correction if the Contractor’s calculation basis demonstrably changes in the meantime, in particular if the raw material prices increase.
- The invoice amount is payable within 14 days of the invoice date with 2% discount, unless earlier invoices of the Customer are outstanding, or within 30 days net.
- Payment shall be made by bank transfer.
- The Buyer shall have set-off and retention rights only if its counterclaims are legally established, undisputed or recognised by us. In addition, the Customer is only entitled to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
§ 9 Default in payment
- In the event of default in payment, interest of 9 percentage points per annum above the respective base interest rate (§ 247 BGB) shall become due. We reserve the right to prove further damages caused by default.
- In the event of default in payment by the Customer, the Contractor shall not be obliged to make any further deliveries under any contract until the due invoice amounts, including default interest, have been paid.
- If the Customer is in arrears with the agreed payment terms or if circumstances exist which indicate a significant deterioration in its financial circumstances and/or creditworthiness with regard to customary banking standards, the Contractor shall be entitled, after the unsuccessful expiry of a reasonable grace period, to demand immediate payment for executed deliveries and, at its discretion, to advance payment or payment on delivery for future deliveries. Alternatively, the Contractor may demand the provision of standard banking collateral.
- The Contractor is entitled, at its discretion, to withdraw from the supply contracts concluded with the Customer or to demand compensation instead of performance if the Customer has not made payment within 10 days of receipt of a justified reminder. § 10 clause 5 remains unaffected by this.
- All claims of the Contractor shall become due immediately if the Customer declares itself insolvent by applying for insolvency proceedings or in any other way.
§ 10 Property rights to printing plates and tools; Intellectual property
- Clichés, tools and other working materials produced by or on behalf of the Contractor shall remain the property of the Contractor even if the manufacturing costs have been paid in full or in part by the Customer.The Contractor is not obliged to hand over these items to the Customer. Printing plates, tools and other working materials shall be kept for a full year after delivery; subsequently they may be disposed of without further notice to the Customer. If such printing plates, tools and other working materials have been handed over, the Customer may not use, duplicate or make them accessible to third parties without the Contractor’s prior consent. At the Contractor’s request, the Customer shall return these items and destroy any copies that were made.
- The Customer shall be responsible for observing industrial property rights and copyrights in respect of the ordered equipment, including labelling with symbols (e.g. green dot, eco-label), and shall indemnify the Contractor against all third-party claims in this regard.
§ 11 Retention of title
- The delivered goods shall remain the property of the Contractor until the full purchase price has been paid.
- The retention of title does not exclude the right of the Customer to use the delivered goods within the scope of its proper business operations or to process and sell them. However, as long as the retention of title exists, the Customer may neither assign nor pledge them as security.
- If the delivered goods are used as packaging material or processed into packaging material, the this shall not cause the Contractor’s retention of title to expire. It is hereby agreed that such use or processing shall take place in the name and for the account of the Contractor as the goods’ manufacturer. The Contractor shall become the owner or co-owner of the new item in the ratio of the invoice value of its reserved goods to the invoice value of the packaged goods or the manufactured packaging.
- As the indirect owner of the reserved goods, the Contractor shall have the right to enter the Customer’s place of business or storage premises at any time.
- In the event of breaches of duty on the part of the Customer, in particular default in payment, the Contractor shall be entitled to demand the surrender of the delivery item even without setting a deadline; the Customer shall be obliged to surrender the delivery item. The request for return of the delivery item shall not constitute a declaration of withdrawal from the contract on the part of the Contractor, unless this is expressly declared.
- If the delivered goods – or the packaging materials produced from them – are resold, the Customer hereby assigns to the Contractor its purchase price claim vis-a-vis its customers pending full payment of its claim in the amount of the invoice value of the delivered reserved goods. The Contractor hereby accepts the assignment. The Customer shall remain authorised to collect the purchase price claim even after the assignment. The Contractor’s right to collect the claims directly shall remain unaffected. However, the Contractor undertakes not to collect the claim as long as the Customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been filed for the opening of bankruptcy or composition proceedings or insolvency proceedings and payments have not been suspended. If this is the case, the Contractor may demand that the Customer inform it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- If the value of the above security exceeds the value of the claims to be secured by 10% or more, the Contractor shall release fully paid deliveries at its discretion at the Customer’s request. The Customer shall refuse all access by third parties to the collateral (reserved goods and claims) with reference to the Contractor’s rights and shall inform the Contractor thereof without delay. It shall be further obliged to insure the reserved goods within the usual scope.
§ 12 Place of performance, jurisdiction and choice of law
- The place of performance and jurisdiction for all obligations or legal disputes arising from the delivery contract shall be the jurisdiction of the Contractor’s head office in Memmingen. This shall only apply if the Customer is a merchant, a legal entity under public law or a special fund under public law or has its registered office outside the Federal Republic of Germany.
- German law shall apply without exception to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 13 Invalidity of provisions
- Should individual provisions of these terms and conditions be or become invalid for legal reasons, this shall not affect the validity of the remaining provisions.
- Ineffective provisions shall be replaced by mutual agreement by effective provisions which come as close as possible to the economic purpose of the ineffective provisions.
§ 14 Special terms and conditions for CORRUST products
If corrosion-inhibiting products are the subject of the order, the following shall apply in addition: to the best of our knowledge, the products and information contained in brochures correspond to the current state of knowledge and development of the Contractor, and are based on the careful examination and many years of experience of the VCI manufacturer. Since the material properties of the packaged goods and the transport and storage conditions are different, the information and instructions for use, which is provided via brochures, cannot apply generally. Warranties that go beyond the product’s identity cannot be granted. The Customer must carry out his own plant-specific functional and compatibility tests in accordance with recognised specifications.