General Terms and Conditions of Sale Brohl Wellpappe GmbH & Co. KG

 

Section 1 Application, form

 

1. The following General Terms and Conditions of Sale (GTCS) shall apply to all our business relationships with our customers ("Purchasers"). The GTCS shall only be valid if the Purchaser is a company (§ 14 BGB[1]), a corporate body under public law, or a special fund under public law.

2. The GTCS shall especially apply to contracts on the sale and/or the delivery of movables ("Goods"), regardless whether we produce the goods ourselves or buy them from suppliers (§ 433, § 650 BGB). Unless anything is agreed to the contrary, the GTCS shall be valid as a framework agreement also for any future equivalent contracts, in the version valid at the time of the customer's order or anyhow in the last version announced to them in written form; we shall not be obliged to indicate these GTCS again in any individual case.

3. Our GTCS shall be valid exclusively. Any differing, contrary or complementary general terms and conditions of the Purchaser shall only insofar become part of the contract if we have expressly agreed to their application. This consent requirement shall apply in any case, for example also if we execute the delivery to the Purchaser without reservation, having knowledge of their GTC.

4. Any individual agreements with the Purchaser concluded in the individual case (including collateral agreements, amendments and modifications) shall in any case have priority over these GTCS. For the contents of such agreements, a written contract or our written confirmation shall be essential, in consideration of counterevidence.

5. Any declarations and indications of the Purchaser with respect to the contract and relevant in law (e.g., setting of deadlines, notice of defects, withdrawal, or mitigation), shall be provided in writing, i.e. in written or text form (e.g., letter, email, fax message). Any statutory formalities and further evidence, in particular in case of doubt concerning the legitimation of the declaring party, shall remain unaffected.

6. Any hints on the application of legal regulations shall only have importance for the avoidance of doubt. Also without such avoidance of doubt, the legal regulations shall be valid unless they are modified directly within these GTCS or expressly excluded.

 

Section 2 Contract Conclusion

 

1. Our offers shall be subject to confirmation and shall be unbinding. This shall also hold if we have made available to the Purchaser any catalogues, technical documentation (e.g., designs, plans, calculations, references to DIN standards), other product descriptions, or documents - even in electronic form -, for which we reserve our property rights and copyrights.

2. The commission of the Goods by the Purchaser shall be considered as a binding offer to conclude a contract. Insofar as the commission shall not indicate anything to the contrary, we shall be entitled to accept this contract offer within 5 days upon its receipt by us.

3. Acceptance may either be declared in writing (e.g., by order confirmation) or by delivery of the Goods to the Purchaser.

4. We assume that our packaging is not intended for the direct contact with food items. Should this be the case, the customer shall be obliged to notify us to the effect. Our packaging does not have any functional barrier, unless expressly confirmed by us.

5. Our information regarding the object of the delivery or of the service (e.g., weights, measures, utility values, load capacities, tolerances, and technical data), our representation of the latter, as well as any samples and models, shall only be approximately applicable, unless anything different is guaranteed in writing or the applicability for the purpose provided in the contract requires exact accordance. Such information shall not be considered as any guaranteed quality features, but as a description or characterization of the delivery or the service instead. Any deviations according to custom and usage, as well as deviations on the grounds of legal regulations or representing technical improvements, shall be permissible unless impairing the applicability for the purpose provided by the contract.

6. We shall not guarantee that deliveries are uniform or are one hundred per cent identical with the samples provided. Any deviations, in particular with respect to structure and colour, shall therefore be accepted, unless these are obviously unacceptable in the individual case. This shall particularly hold for deliveries of larger batches that cannot be handled uniformly.

7. Any weight differences of the used papers of up to 5 % shall not be considered as defects.

8. Any excess or short deliveries are unavoidable for production-technical, transport, and packaging reasons, depending on the order quantity, and shall be permissible for orders of up to 500 pieces to an amount of 20 %, from 501 to 3,000 pieces to an amount of 15 %, and from 3,001 pieces onwards to an amount of 10 %. The actually delivered amount shall be invoiced.

 

Section 3 Terms of Delivery and Delayed Delivery

 

1. The terms of delivery shall be agreed upon individually or shall be indicated by us upon acceptance of the commission; otherwise, the term of delivery shall be approximately 4 weeks upon contract conclusion.

2. If we are unable to comply with binding terms of delivery for reasons for which we are not responsible (unavailability of performance), we shall immediately inform the Purchaser and shall simultaneously indicate the estimated new term of delivery. If the performance is unavailable also within the new term of delivery, we shall be entitled to withdraw from the contract entirely or in part; we shall reimburse any consideration of the Purchaser which has already been performed. In this sense, it shall be considered as a case of unavailability of performance if self delivery by our supplier does not take place in time, especially if we have concluded a congruent hedging transaction, if there isn't any default on our side nor on that of the supplier, or if we are not obliged to procure material in the individual case.

3. Our delayed delivery shall be determined pursuant to the legal regulations. In any case, a reminder by the Purchaser shall be required. If we are in default of delivery, the Purchaser shall be entitled to claim liquidated damages for the damage caused by delay. For each concluded calendar week of the delay, the liquidated damages shall amount to 0.5 % of the net price (delivery value), in total however to at most 5 % of the delivery value of the Goods delivered in delay. The proof shall remain reserved to us that the Purchaser has not suffered any damage or has suffered essentially less damage than the above liquidated damage.

4. The rights of the Purchaser pursuant to section 8 of these GTCS, as well as our legal rights essentially in the case of exclusion of the duty to perform (e.g., on the grounds of impossibility or unreasonableness of performance and/or alternative performance), shall remain unaffected.

 

Section 4 Delivery, Passing of Risk, Acceptance, Default of Acceptance

 

1. Delivery shall take place ex works, which shall also be the place of performance for the delivery and any possible alternative performance. Upon request and at the expense of the Purchaser, the Goods shall be delivered to another place of delivery (sale by dispatch). Unless stipulated to the contrary, we shall be entitled to determine the type of dispatch ourselves (in particular the transport company, transport route, packaging).

2. The risk of accidental destruction and accidental deterioration of the Goods shall pass to the Purchaser at the latest at the time of delivery. In the case of sale by dispatch, however, the risk of accidental destruction and deterioration of the Goods as well as the risk of delay shall pass already at the time of transfer of the Goods to the transport company, the carrier, or any other person or entity assigned with the performance of the dispatch. Insofar as acceptance has been agreed upon, the acceptance is determinative for the passing of risk. Otherwise, the legal regulations of the law on contracts of service shall respectively apply if acceptance has been agreed upon. It shall be equivalent to the delivery or acceptance if the Purchaser is in default of acceptance.

3. If the Purchaser is in default of acceptance or omits an obligation of cooperation, or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to claim the resulting damages including extra expenses (e.g., storage costs). In such a case, we shall invoice a general compensation to the amount of 7.00 € per calendar day, beginning at the term of delivery or - in the absence of any term of delivery - at the time of notice that the Goods are ready for dispatch.

4. The verification of any higher damage and our legal claims (especially the reimbursement of extra expenses, reasonable compensation, termination) shall remain unaffected; however, the compensation shall be offset against any further financial claims. The proof remains allowed to the Purchaser that we have not suffered any damage or have suffered essentially less damage than the above compensation.

 

Section 5 Prices and Payment Conditions

 

1. Unless anything has been stipulated to the contrary in the individual case, our current prices at the time of conclusion of the contract shall apply ex warehouse, plus the statutory Value Added Tax.

2. In the case of sale by dispatch (section 4 clause 1), the Purchaser shall pay the transport costs ex warehouse and the costs of any transport insurance, if such is desired by the Purchaser. Any respective customs duties, fees, taxes, or other public charges shall be payable by the Purchaser.

3. The purchase price shall be due and payable strictly net within 30 days upon invoicing and delivery or acceptance of the Goods. We shall however be entitled anytime to perform a delivery entirely or in parts exclusively on advance payment, also in the framework of an already existing business relationship. We shall declare any respective reserve at the latest upon order confirmation.

4. Upon expiry of the above term of delivery, the Purchaser shall be in default. During the period of default, the purchase price shall be subject to the respectively applicable statutory interest for default. We shall reserve the right to claim any further damage caused by delay. Towards merchants, our claim on the commercial maturity interest (§ 353 HGB[2]) shall remain unaffected.

5. The Purchaser shall only be entitled to any rights of offset or retention insofar as their claims shall be legally established or uncontested. In the case of defects of the delivery, the counterclaims of the Purchaser, especially pursuant to section 8 clause 6 phrase 2 of these GTCS, shall remain unaffected.

6. Should we realize after the conclusion of the contract that our claim on the purchase price is threatened by lacking ability of performance of the Purchaser (e.g., because of an application for the commencement of insolvency proceedings), pursuant to the legal regulations we shall be entitled to withhold performance and - after the setting of a deadline, if appropriate - to withdraw from the contract (§ 321 BGB). In the case of contracts about the manufacturing of non-fungible goods (single-item production), we shall be entitled to declare withdrawal immediately; the legal regulations about the dispensability of the setting of deadlines shall remain unaffected.

 

Section 6 Pallet Account

 

For each delivery of palletized goods, the customer shall hand back the same number of equivalent pallets, unless the Customer's own pallets have been used. We shall keep a pallet account for the Customer with respect to the pallets owned by the Customer. Upon request, the Customer shall be provided with a statement of this pallet account. This shall not apply to one-way pallets.

 

Section 7 Retention of Title

 

1. Until all our current and future claims on the grounds of the purchase contract and of a current business relationship (secured claims) are paid completely, we shall reserve the ownership of the sold Goods.

2. The Goods subject to retention of title may not be pledged to any third parties before the complete payment of the secured claims, nor may they be pledged as security. The Purchaser shall inform us immediately in writing if an application for the commencement of insolvency proceedings has been filed or if any third parties have gained access to the Goods belonging to us (e.g., attachments).

3. In the case of behavior of the Purchaser in violation of the contract, in particular in the case of non-payment of the due purchase price, we shall be entitled to withdraw from the contract pursuant to the legal regulations, and/or to claim the surrender of the Goods on the grounds of retention of title and withdrawal. The claim of surrender shall not include any simultaneous declaration of withdrawal; moreover, we shall be entitled merely to claim the surrender of the Goods and to reserve the right of withdrawal. If the Purchaser does not pay the due purchase price, we shall only be entitled to claim these rights if we have unsuccessfully set an appropriate deadline for payment for the Purchaser before, or if such a setting of deadlines is dispensable according to the legal regulations.

4. The Purchaser shall be entitled to sell the Goods subject to retention of title in due course of business, and/or to process these, good till cancelled pursuant to (c) below. In this case, the following regulations shall additionally apply.

(a) The retention of title shall be extended to any products at their full value which result from the processing, blending, or incorporation of our Goods; we shall be considered as the manufacturer. If the property right of third parties is reserved in the case of processing, blending, or incorporation together with goods of these third parties, co-ownership shall be established at the ratio of the invoice values of the processed, blended or incorporated goods. Besides, the same shall hold for the resulting product as well as for the Goods delivered subject to retention of title.

(b) As security, the Purchaser shall already now assign to us any claims against third parties resulting from the resale of the Goods or of the products; the claims shall be assigned entirely or to the amount of our possible co-ownership share according to the previous clause. We shall accept the assignment. The obligations of the Purchaser mentioned in clause 2 shall also apply with respect to the assigned claims.

(c) The Purchaser shall remain entitled to collect the receivables aside from us. We shall be obliged not to collect the receivables as long as the Purchaser fulfills their payment obligations towards us, there is no defect concerning their ability to perform, and we do not assert the retention of title by exercising a right pursuant to clause 3. Should this however be the case, we shall have the right to ask the Purchaser to indicate to us the assigned claims and their debtors, to give us any information necessary for the collection, to submit the respective documents, and to inform the debtors (third parties) about the assignment. Besides, we shall have the right in this case to revoke the Purchaser's entitlement to sell and process the Goods subject to retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10 %, we shall release securities upon request of the Purchaser at our option.

 

Section 8 Purchaser’s Claims for Defects

 

1. Concerning the rights of the Purchaser in the case of material or legal defects (including wrong or short delivery, as well as inappropriate assembly or defective assembly instructions), the legal regulations shall apply unless stipulated to the contrary hereinafter. The special legal regulations concerning the final delivery of the unprocessed Goods to a consumer shall remain unaffected in any case, even if the latter has further processed the Goods (supplier regress pursuant to § 478 and foll. of the BGB). Any claims on the grounds of supplier regress shall be excluded if the defective Goods have been further processed by the Purchaser or by another company, e.g., by integration into another product.

2. Our defect liability shall mainly be based on the agreement concluded about the quality of the Goods. As agreement concerning the quality of the Goods shall be considered all the product descriptions and any producer information that are object of the individual agreement or have been made public by us at the time of conclusion of the contract (in particular, in catalogues or on our website).

3. Unless the quality has been agreed upon, it shall be judged according to the legal regulations whether there is a defect or not (§ 434 sec 1 phrases 2 and 3 BGB). We shall however not accept liability for any public statements of the manufacturer or of other third parties (e.g., advertisements) which the Purchaser has not indicated to us as being decisive for the purchase.

4. The claims for defects of the Purchaser shall require that they have fulfilled their legal obligations to examine the goods and to give notice of defects (§ 377 and § 381 HGB). In the case of construction material or of other goods intended for installation or other further processing, such examination shall in any case take place immediately before any further processing. If a defect occurs at the time of delivery, during the examination or at any later time, such defect shall be reported immediately to us in writing. In any case, obvious defects shall be indicated in writing within 5 working days upon delivery; defects that were unrecognizable during examination shall be indicated within the same period upon detection. If the Purchaser neglects the proper examination and/or notice of defects, our liability for the defect that has not been indicated or has not been indicated in due time or in proper form shall be excluded pursuant to the legal regulations.

5. If the delivered item is defective, we can decide first whether alternative performance shall take place by the elimination of the defect (remedy) or the delivery of a defect-free item (substitute delivery). Our right to refuse alternative performance pursuant to the legal requirements shall remain unaffected.

6. We shall be entitled to condition the owed alternative performance on the payment of the due purchase price by the Purchaser. However, the Purchaser shall be entitled to retain a part of the purchase price adequate in relation to the defect.

7. The Purchaser shall give us the necessary time and occasion required for the owed alternative performance; in particular, they shall submit the faulty goods to us for purposes of examination. In the case of substitute delivery, the Purchaser shall return the defective item to us according to the legal regulations. The alternative performance shall neither include the disassembly of the defective item, nor the new assembly, if we have not been bound originally to assemble the item.

8. The expenses required for purposes of examination and alternative performance, especially costs for transport, travelling, labor, and material, as well as disassembly and assembly costs, if applicable, shall be payable or shall be reimbursed by us pursuant to the legal regulations if there is indeed a defect.  Otherwise, we shall be entitled to claim from the Purchaser payment of the costs (in particular, examination and transport costs) resulting from their unjustified demand for the elimination of defects, unless the missing defectiveness was unrecognizable for the Purchaser.

9. In urgent cases, e.g., if operating safety is threatened or if excessive damage must be prevented, the Purchaser shall be entitled to remedy the defect themselves and to claim compensation of the objectively required expenses from us. We shall immediately be informed about such self-help, if possible in advance. The right of self-help shall not apply if we are entitled to refuse a respective alternative performance according to the legal regulations.

10. If the alternative performance has failed or if an appropriate term to be set by the Purchaser for the alternative performance has expired without success or is dispensable according to the legal regulations, the Purchaser shall be entitled to withdraw from the purchase contract or to reduce the purchase price. In the case of a negligible defect, however, there shall be no right of withdrawal.

11. Any claims of the Purchaser on damages or on the compensation of futile expenses, also in the case of defects, shall only apply subject to section 8 and shall otherwise be excluded.

 

Section 9 Liability

 

1. Unless otherwise stipulated within these GTCS including the following provisions, we shall be held liable subject to the applicable legal regulations in the case of a violation of contractual and non-contractual obligations.

2. We shall be held liable for damages in the case of intent and gross negligence - for whatever legal reason -, in the framework of fault-based liability. In the case of ordinary negligence, we shall only be liable pursuant to legal regulations in consideration of a milder standard of liability (e.g., for diligence concerning our own matters)

(a) for damages on the grounds of a violation of life, body, or health,

(b) for damages on the grounds of a not insignificant violation of an essential contractual obligation (obligation without the fulfillment of which the proper execution of the contract shall be impossible, and in the fulfillment of which the other contracting party shall and is supposed to trust regularly); in this case, our liability shall however be limited to the compensation of the predictable and typically occurring damage.

3. The limitations of liability resulting from clause 2 shall also apply in the case of a violation of duty by or in favor of persons for whose faults we shall be liable according to legal regulations. They shall not apply if we have fraudulently concealed a defect or if we have granted a warranty for the quality of the Goods; neither do they apply to any claims of the Purchaser on the grounds of the product liability law.

4. The Purchaser shall only be entitled to withdraw from or to terminate the contract on the grounds of a violation of an obligation not consisting in a defect, if we are responsible for such violation. Any free right of termination of the Purchaser (in particular according to § 650 and § 648 BGB) shall be excluded. Otherwise, the legal requirements and legal consequences shall apply.

5. We shall only be liable for any damage to printing plates, punching tools, clichés or other objects handed over to us by the Purchaser in the case of gross negligence and intent. We shall reserve the right to keep in store all the above indicated objects provided to us by the customer at most two years after the processing of the last order. Upon expiry of these two years, we shall be entitled to destroy the above indicated objects. Independently there from, the customer shall approve the removal of the old printing plates, clichés, and punching tools already at the time of release of a new printing design.

 

Section 10 Statute of Limitations

 

1. § 438 sec. 1 no.3 BGB notwithstanding, the general statute of limitations for any claims on the grounds of material and legal defects shall be one year upon delivery. Insofar as acceptance has been agreed upon, the statute of limitations shall begin upon such acceptance.

2. If, however, the Goods represent a building or an item which has been used for a building according to its usual application, and which has caused the defect (building material), the period of limitation shall be 5 years upon delivery according to the legal regulations (§ 438 sec. 1 no. 2 BGB). Other special legal regulations with respect to the statute of limitations shall also remain unaffected (in particular, § 438 sec. 1 no. 1, sec. 3, § 444, § 445b BGB).

3. The above periods of limitation of the sale of goods law shall also apply to contractual and non-contractual claims on damages of the Purchaser that are based on a defect of the Goods, unless the application of the regular legal statute of limitation (§ 195, § 199 BGB) results in a shorter statute of limitation in the individual case. Any claims on damages of the Purchaser pursuant to section 9 clause 2 phrases 1 and 2(a), as well as pursuant to the product liability law, shall however expire exclusively pursuant to the legal statute of limitations.

 

Section 11 Applicable Law and Jurisdiction

 

1. These GTCS and the contractual relationship between us and the Purchaser shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, especially the UN Convention on Contracts for the International Sale of Goods.

2. If the Purchaser is a merchant in the sense of the German Commercial Code, a corporate body under public law, or a special fund under public law, the exclusive - also international - place of jurisdiction for all the disputes which may result directly or indirectly from the contractual relationship shall be Koblenz. The same shall apply if the Purchaser is entrepreneur in the sense of § 14 BGB. In any case, we shall however also be entitled to take legal action at the place of performance of the delivery obligation pursuant to these GTCS or to any individual agreement of higher priority, or at the general place of jurisdiction of the Purchaser. Any legal regulations of higher priority, in particular with respect to exclusive responsibilities, shall remain unaffecte

 


[1] BGB = German Civil Code

[2] HGB = German Commercial Code

 

Stand: Dezember 2019