General terms and conditions
Download as PDF
Â§ 1 Scope of application
(1) We supply exclusively on the following terms and conditions. These apply to all our deliveries unless otherwise expressly agreed in writing.
(2) Conditions of the purchaser apply only when their validity has been accepted by us in writing.
(3) Our Terms and Conditions of Sale also apply to later concluded transactions between us and the customer, even if in an individual case no reference has been made to our terms.
(4) Any subsequent agreement requires the written form.
(5)The same conditions apply to goods sold for the purpose of shipping.
Â§ 2 Conclusion of contract
(1) Our offers are in general binding. Insofar as they are, in exceptional cases, designated as subject to confirmation, a contract is concluded only with our confirmation of order or delivery.
(2) All orders are completed to specific quantities, articles, sizes and qualities.
(3) Our written confirmation of the content of the order is essential.
Â§ 3 Price
(1) Prices are based on cost structures on the day of our confirmation of order. In the case of unforeseeable and extraordinary cost increases caused by, for instance, price increases by our suppliers or currency fluctuation, we shall be entitled to pass on this price increase to the customer.
(2) Our prices are understood, unless otherwise agreed, as â€œnet ex-works/warehouseâ€œ. This means excluding packaging, shipping, insurance (in particular transport insurance), customs duties and taxes, transport costs and VAT. VAT is calculated at the amount applicable and shown separately.
Â§ 4 Delivery
(1) Binding delivery dates and times must be in writing. Forward transactions require special agreement.
(2) Delivery is subject to correct and punctual supply to us. Any unforeseeable, unavoidable and serious circumstances, which are beyond the control of the seller and which delay, prevent or make unreasonable the delivery, shall release the seller from his obligation to deliver for the duration of the disruption and extend the delivery time accordingly. In the case of such a justified delay in delivery, the seller is obliged, on becoming aware of the situation, to inform the purchaser without delay. The seller is then entitled to a period of grace of up to 4 weeks for delivery. After unsuccessful expiry of this period, both parties are entitled to withdraw from the contract. Claims in this regard are reciprocally excluded except, for example, repayment of services received.
(3) Transport of the consignment is at the expense and risk of the recipient. The risk shall pass to the purchaser once the consignment is handed over to the person performing the transport or has left the sellerâ€™s warehouse for the purpose of despatch. If the consignment is to be despatched on a specified date at the request of the purchaser, the risk passes to the purchaser with notification of readiness for despatch.
(4) Transport insurance is only taken out by us on the express written instructions of the purchaser, in his name and at his expense.
(5) Block orders (=call-off orders), as well as redisposition/changes in arrangements require express written agreement. Goods purchased on call must be taken up within a period of five months at the latest, unless otherwise agreed. If the purchaser does not take up within this period, we are entitled, after a reasonable period of time set by us, to withdraw from the contract or to claim damages in place of performance.
Further statutory claims, in particular regarding compensation for storage costs, remain unaffected.
Â§ 5 Defects and warranty rights
(1) Deviations of the goods from the agreement, which are in the nature of the goods or their processing are not defects. Samples and other details regarding the nature of goods are merely illustrative of the average properties/character and condition which is customary within an industry. Deviations do not fundamentally constitute a defect of the goods unless strict compliance with the sample or specifications has been agreed or the deviation is unreasonable for the purchaser.
(2) We do not guarantee product descriptions. A guarantee shall only exist if this is specifically stated in writing.
(3) For PE film and bags, the valid GKV (statutory health insurance) test and valuation clauses are binding.
(4) In the case of a defect of the goods, we are entitled, at our discretion, to initially remedy the defect or deliver a defect-free product. Should the type of subsequent performance we have chosen involve significant disadvantages for the customer, the customer is entitled to demand a different type of remedy.
(5) If, within an appropriate period of time set out in writing by the customer, which must be at least two weeks, no attempt at subsequent performance has been made, or if a deadline is by way of exception legally superfluous, the customer is entitled, at his discretion, to reduce the purchase price or to withdraw from the contract. Should an attempt for subsequent performance have been made which, however, has not remedied the defect, these rights are available to the customer only after the expiry of a further reasonable time to remedy, unless a deadline is not reasonable for the purchaser.
(6) Compensation claims for defects can be made only under the conditions set out in Â§ 8.
(7) Warranty rights are excluded if defects that are obvious during examination are not reported in writing immediately, at the latest within five working days after delivery, other defects not later than five days after appearance of the defect. The same applies if the goods are worked, processed, used, mixed or disposed of by the purchaser.
(8) The warranty claim of the purchaser reduces accordingly if he fails to preserve rights of recourse against third parties (e.g. forwarder, railway, etc.). The purchaser is obliged, where reasonable, to take all appropriate steps to minimise damage.
(9) A claim regarding a delivery does not constitute an entitlement to reject other deliveries from the same or any other contract.
(10) Measures taken by the seller to minimise damage do not constitute acknowledgement of a legal obligation.
(11) The limitation period for warranty claims is one year from delivery.
Â§ 6 Default of acceptance
Is the purchaser in default of acceptance, the seller is entitled, after expiry of a reasonable time limit set by him, to withdraw from the contract or to claim compensation in place of performance. Further statutory rights remain unaffected.
Â§ 7 Payment, default of payment
(1) Our receivables are payable without deduction immediately on receipt of goods. The customer is in default if he does not affect payment within 14 days after due date and receipt of an invoice, however not later than 30 days after receipt of the consignment. Any previous default pursuant to statutory regulations remains unaffected.
(2) Should the customer be in arrears, we are entitled to charge default interest at 10% above the base rate. The customer has the right to prove to us that no or only considerably lower damage has been caused by the delay. The right of enforcement of a higher claim for damages caused by default is reserved.
(3) All reductions granted (with the exception of trade and quantity discounts) and concessions from the transaction affected by the delay are invalid in this case.
(4) The seller shall be entitled to make delivery of the purchased goods or outstanding part performance dependent on prior payment of the total purchase price or provision of security in the case that, after conclusion of the contract, it becomes apparent that his claim for counter performance is jeopardized by a lack of ability to perform on the part of the customer. The same applies if the purchaser is in arrears with agreed advanced payments or part payments.
(5) In the case that there are several open claims by the seller against the purchaser, payments by the purchaser will initially be offset against interest and costs, and consequently against the earliest of the sellerâ€™s claims.
Â§ 8 Withdrawal, liability for compensation
(1) For the right to withdraw from a contract, the statutory provisions apply, with the proviso that the right to withdraw due to a violation of obligation not due to a defect shall only be considered when we are answerable for the violation.
(2) Liability of the seller for violation of obligations exists in the case of intent and gross negligence, as well as breach of contractual obligation, insofar as the fulfilment of the contract is at risk (cardinal obligation), also in the case of simple negligence. In any other case claims for damages are excluded. This limitation of liability shall not apply in the case that the seller had assumed a guarantee for damages to replace the Product Liability Act, as well as for damage to life, limb and health.
(3) Should we be liable for simple or gross negligence, our liability is limited to damage, the occurrence of which we should typically have expected, based on the known circumstances at the time of conclusion of the contract.
(4) In the case that we are liable, due to simple negligence or gross negligence of our employees who are not managing directors or senior management, liability is limited to double the amount of the purchase price. Moreover, in these cases we shall not be liable for indirect damage, consequential damage or loss of profits.
(5) The proof of a fault on the part of the seller is to be provided by the customer who is claiming damages.
(6) Insofar as our liability is excluded by this provision, this also applies to the personal liability of our employees and freelance staff.
Â§ 9 Reservation of title
(1) Goods supplied remain our property until full settlement of all our claims against the purchaser. Insofar as it is part of his normal business operations, the purchaser is entitled to resell or process the reserved goods. Resale of the goods is, however, only permitted under preservation and safeguard of our reservation of title by the purchaser. A pledge or transfer of ownership of the reserved goods by the purchaser is not permitted.
(2) The purchaser now assigns to us as security all proceeds arising from the resale of the reserved goods, to the value of our total receivables, and shall inform his customers in each case of the assignment. We accept the assignment. Irrespective of the assignment, the purchaser is entitled to collect the assigned claims from his customers as long as he fulfils his obligations towards us and does not become insolvent. â€“ Amounts recovered shall be remitted to the seller immediately; amounts received in cash are to be kept separately and also forwarded to the seller without delay.
(3) The purchaser is obliged to inform us concerning all circumstances concerning the reserved goods â€“ resale and assignment of claims, combining, mixing, processing, collection of assigned claims, or any attempts by third parties to exercise claims on the reserved goods or claims in lieu thereof, etc.
(4) In the case of foreclosure proceedings by third parties on the reservation of title goods or claims assigned in lieu, the purchaser is committed to provide us, free of charge, with all documents and information necessary for the assertion of his rights. The purchaser is liable for costs incurred in repealing the access, insomuch as this is not recoverable from the creditor.
(5) In the case of endangerment of our rights, in particular in the case of default in payment, we are entitled to demand the return of our goods which are under reservation without a period of grace. This does not represent a withdrawal from the contract, unless this has been expressly stipulated by us.
Â§ 10 Place of Performance, Jurisdiction and Severability
(1) Place of performance for all claims arising from this contract is the place of business of the seller.
(2) If the customer is a merchant or has no general place of jurisdiction in Germany, Syke is agreed as the place of jurisdiction.
(3) For all disputes arising from this contract, including international business transactions, the laws of the Federal Republic of Germany, excluding the CISG, apply.
(4) Should any of these conditions become ineffective, whether wholly or in part, the remaining conditions shall remain valid. The invalid or incomplete condition shall be replaced by a condition which comes closest to the economic sense and purpose of the intended regulation.