General terms and conditions of business
§1 Scope of application
(1) The submission of our offers, the acceptance of all orders and the performance of orders are done exclusively on the basis of these terms and conditions. These apply, even if they are not expressly agreed again, also for all future business relationships, unless expressly revoked. Conflicting or supplementary conditions of our client do not apply even if we do not contradict them. They only bind us if they are recognised by us in writing.
§ 2 Offer - conclusion of contract
(1) The offer and acceptance as well as all other agreements made between the parties for the purpose of executing the contract must be in writing. Changes and additions to the contract must be in writing and must be explicitly marked as such.
(2) Insofar as an order is seen as an offer according to § 145 of the German Civil Code (BGB), we can accept it within two weeks.
§ 3 Transferred documents
(1) We reserve ownership and copyrights to all documents given to the buyer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties, unless we have given the buyer our express written consent to do so. If we do not accept the offer of the buyer within the period of § 2, these documents are to be returned to us immediately.
§ 4 Prices - Terms of payment
(1) Unless agreed otherwise in writing, our prices are ex works excluding packaging and plus statutory VAT in the corresponding valid amount. The costs of any packaging shall be charged separately.
(2) The purchase price must be paid exclusively into the account named overleaf. A cash discount may only be deducted by special written agreement. The date of credit to us shall be decisive for making use of any cash discounts granted.
(3) Unless agreed otherwise, the purchase price must be paid within 10 days of delivery. Default interest shall be charged at 8% above the base rate. The right to assert claims for higher amounts of default compensation is reserved.
(4) Several buyers shall be jointly and severally liable.
(5) Reasonable price changes due to increased labour, material and distribution costs for services that are to be provided later than 4 months after the conclusion of the contract are reserved.
(6) Special conditions granted to the buyer (with the exception of resale and quantity discounts) shall cease with the occurrence of payment default.
(7) If we are entitled to a claim for damages against the buyer for non-performance, we shall be entitled, subject to proof of a higher damage, to claim 15% of the invoice amount of the unfulfilled contract in case of partial non-fulfilment, from the unfulfilled part of the corresponding invoice amount, as a lump sum for compensation of our damages However, the buyer is entitled to prove to us that no or only a significantly lesser damage has been incurred by us.
§ 5 Offsetting - rights of retention
(1) The customer may only offset with an undisputed or legally established claim.
(2) The buyer may only assert a right of retention insofar as it is based on counterclaims based on the same contractual relationship. If the buyer is an entrepreneur within the meaning of § 14 of the German Civil Code, it may only assert a right of retention if we have already received the part of the payment for any defective performance that corresponds to the value of our service, if we ourselves withhold a part of the remuneration from our subcontractor or if the counterclaim on which the right to refuse performance is based is undisputed, legally established or ready for ruling.
§ 6 Delivery
(1) The beginning of the delivery period specified by us, requires the clarification of all technical issues as well as the timely and proper fulfilment of the obligations of the buyer. The objection of the non-performance of the contract remains reserved.
(2) Events of force majeure, which make the service substantially more difficult or at times impossible, entitle us to postpone our delivery by the duration of the hindrance and a reasonable start up period, even in the case of a binding deadline agreement. Force majeure is industrial action, the absence of a sufficient supply of finished products, raw materials and auxiliary materials as well as similar impediments to performance which can not be overcome by reasonable expenditure, insofar as they are unpredictable, serious and not our fault. If the hindrance should last longer than one month, each party to the contract shall be entitled to withdraw from the contract in writing. In case of withdrawal due to the unavailability of the service, we shall be obligated to inform the buyer immediately about the non-availability and to reimburse payments of the buyer immediately.
(3) Delivery periods and deadlines shall be deemed to have been complied with in the case of consignment purchase if we have delivered the consignment to the forwarder, carrier or other person or institution otherwise responsible for delivering the consignment within the time limit. If the pickup of the delivery has been agreed, delivery times and deadlines shall be deemed met if we have notified the buyer of the possibility of picking up within the deadline.
(4) We are entitled to reasonable partial deliveries.
(5) If the buyer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for any damage incurred, including any additional expenses, or, after a reasonable deadline, to withdraw from the contract. The right to enforcement of additional claims is reserved. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the buyer at the time when the latter is in default of acceptance or payment.
(6) Unless otherwise expressly agreed, goods purchased on call shall have a maximum deadline of 5 months for the delivery date. If the buyer does not retrieve the goods or not in time, the purchase price shall be due. Further claims, in particular for damages and withdrawal, remain reserved to us.
§ 7 Transfer of risk
(1) Regardless of the agreed delivery method and regardless of the shipment of the goods from the place of performance or who bears the freight costs, the risk of accidental loss or accidental deterioration of the goods is transferred to the buyer with dispatch to the buyer, at the latest when leaving the factory/warehouse, .
(2) The buyer is advised of the possibility of concluding a transport insurance.
§ 8 Obligations of the buyer
(1) The buyer is, independent of its duty to inspect and notify pursuant to § 377 of the German Commercial Code, obligated to check each flexible bulk material container, sack or bag individually before its use for its suitability for the intended use.
(2) The buyer is obligated to use the purchased goods only as intended and only to fill them with suitable transport goods.
(3) All products supplied by us are intended for single use only.
(4) The buyer is obligated to inform the user appointed by it of the above obligations, in the case of resale, to the purchaser.
§ 9 Retention of title
(1) We reserve the title to the purchased item until the fulfilment of all claims arising from the business relationship with the buyer. This shall also apply to all future deliveries, even if we do not always make explicit reference to this. We shall be entitled to take back the purchased item if the buyer behaves in a way contrary to the contract.
(2) The buyer is obligated, as long as the ownership has not been transferred to it, to handle the purchased goods with care. In particular, it is obligated to insure these adequately at its own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the buyer has to carry it out in due time at its own expense. As long as the ownership has not been transferred, the buyer must immediately inform us in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the legal and extrajudicial costs of a claim in accordance with § 771 Code of Civil Procedure, the buyer shall be liable for the loss incurred by us.
(3) The buyer is entitled to resell the reserved goods in the normal course of business. The buyer hereby assigns the claims from the resale of the reserved goods to us in the amount of the final invoice amount agreed with us (including value added tax). Such transfer shall apply regardless of whether the object of purchase was sold without or after processing. The assignment is not excluded by agreements of the buyer with its customer. The buyer remains authorised to collect the claim even after the assignment in trust. If the amounts collected in trust by the buyer are not paid to us and if the buyer is responsible for them, the buyer shall be liable for the damage incurred by us. Our right to collect the claims ourselves remains unaffected. However, we shall not collect the claim as long as the buyer meets its payment obligations from the proceeds received, is not in default of payment and in particular no application for opening insolvency proceedings has been filed or payment has ceased. If this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtor of the assignment.
(4) The handling and processing or transformation of the purchased item by the buyer shall always be in our name and on behalf of us. In this case, the expectant right of the buyer to the purchased item continues with the remodelled item. If the object of purchase is processed together with other items, which do not belong to us, we shall acquire co-ownership of the new item in relation to the objective value of our object of purchase to the processed items at the time of processing. The same applies to the goods resulting from processing as for the purchased goods delivered under reserve. The same shall also apply to the mixing and connecting of goods. If the mixing/connection takes place in such a way that the object of the buyer is to be regarded as the main part, it is agreed that the buyer transfers pro rata co-ownership to us and thus safeguards the resulting sole ownership or co-ownership for us. In order to secure our claims against the buyer, the buyer shall also transfer to us such claims against a third party as it obtains as a result of combining the reserved goods with a property; we hereby accept this transfer.
(5) Pledges and assignment as security of the reserved goods are inadmissible.
6) We undertake to release the securities due to us at the request of the buyer to the extent that their value exceeds the claims to be secured by more than 20%, the selection of the securities to be released shall be incumbent on us.
§ 10 Warranty for defects
(1) Warranty rights of the buyer presuppose that it has duly fulfilled its duties of inspection and complaint pursuant to § 377 of the German Commercial Code. Should complaints arise despite the greatest attention, so, pursuant to § 377 of the German Commercial Code obvious defects immediately, but at the latest within 2 weeks, based on the sending of the notification, concealed defects immediately after their discovery after delivery are to be asserted in writing, otherwise the goods shall be considered approved.
(2) If, despite all due care, the delivered goods have a defect that was already present at the time of transfer of risk, we shall, subject to timely notification of defects, after prior consultation with the buyer, remedy the defect or deliver faultless goods at our discretion. We must always be given the opportunity of supplementary performance within an appropriate period.
(3) If supplementary performance fails, the customer, irrespective of any compensation claims, may withdraw from the contract or reduce payment. The buyer can not demand compensation for wasted efforts.
(4) Warranty claims of our buyer are not assignable.
(5) Defect claims shall not apply if the object only differs insignificantly from the agreed quantity or properties, if usability is only affected insignificantly, in the case of natural wear and tear, or in the case of damage incurred after the transfer of risk as a result of incorrect or careless handling, excessive use, unsuitable equipment or due to special external influences that are not required by the contract. If the buyer or a third party carries out inappropriate maintenance work or makes changes, defect claims shall not apply to these nor to any consequences resulting from them.
(6) For PE film and bags, the valid statutory health and safety assessment and evaluation clauses are binding.
(7) Film tolerances of about plus/minus 10% in width and about plus/minus 5% in length, but at least 20 mm, and plus/minus 20% in thickness are expressly reserved. For film, bags or sacks made of regenerated material, a strength tolerance of plus/minus 10% can not be avoided.
(8) For Big Bags, manufacturing tolerances of +/- 3 cm in length and width as well as +/- 3 cm in height are expressly reserved.
(9) Claims of the buyer for defects are excluded insofar as it fails to safeguard rights of recourse against third parties (e.g. freight forwarder, Deutsche Bahn, etc.). The buyer is obligated, as far as is reasonable, to take all appropriate steps in consultation with us to mitigate damage.
(10) Insofar as we take measures to mitigate damage, this does not constitute an acknowledgment of legal obligations.
(11) No warranty or other liability is assumed for used goods.
(12) Further or other than the claims regulated here of the buyer against us and our vicarious agents due to a defect are excluded.
(13) In the case of malicious concealment of a defect or in the case of the assumption of a guarantee for the condition of the goods at the time of transfer of risk within the meaning of § 444 of the German Civil Code the rights of the buyer are based exclusively on the statutory provisions.
(14) Product information serves, unless otherwise expressly agreed, merely as the description of the goods and does not include the assumption of a guarantee.
(15) Claims for defects expire one year after delivery of the goods delivered by us to our buyer. Our consent must be obtained before the return of any goods,
§ 11 Limitation of liability
(1) In providing our delivery/service, we are only obligated to apply customary care and expertise. Furthermore, we shall be liable for simple negligence only if a cardinal obligation has been violated or if we have taken special advantage of trust placed in us.
(2) Liability beyond that is excluded, insofar as no injury to life, body or health exists, which is based on our negligent breach of duty or an intentional or negligent breach of duty of our legal representatives or vicarious agents, or other damages are present which are due to our grossly negligent breach of duty or based on an intentional or grossly negligent breach of duty by our legal representatives or vicarious agents.
(3) Unforeseeable damage is excluded from liability. If the client is a company within the meaning of § 14 of the German Civil Code, our liability shall be limited to the damage typically incurred in transactions of the type ordered.
(4) For a single claim, the liability shall be limited to a maximum of [Sum insured under the public liability insurance]. A single claim is the sum of the claims for damages of all beneficiaries, which results from a single, temporally related, definable and to that extent uniform service. In the event of a predictably significantly higher risk of damage, we are obligated to offer the client a higher liability, whereby we can adjust our payment accordingly.
(5) Our liability under the Product Liability Act remains unaffected by the provisions of this paragraph. The same applies to our liability under other claims arising from the liability of the producer, if the buyer is the user and/or consumer of the product.
(6) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our staff, employees, representatives and vicarious agents.
§ 12 Miscellaneous
(1) This contract and the entire legal relationship between the parties are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of fulfilment and jurisdiction for all disputes arising from our legal relationship with the buyer, unless otherwise agreed, is Itzehoe. For claims directed against us this jurisdiction shall be exclusive. We are also entitled to take the buyer before any other court having jurisdiction.
(3) Changes and additions to these terms and conditions of business must be made in writing and must be explicitly marked as such.
(4) Should a provision in these terms and conditions of business or a provision in the context of other agreements be or become ineffective, this shall not affect the validity of all other provisions or agreements.