GENERAL TERMS AND CONDITIONS OF BUSINESS, DELIVERY AND PAYMENT

I. Scope

Quotes, sales and deliveries by the Contractor shall be made on the basis of these General Terms and Conditions of Business, Delivery and Payment. The Customer’s conditions of purchase or other unilaterally deviating agreements shall only be deemed accepted where they are confirmed by the Contractor as an addition to these General Terms and Conditions of Business, Delivery and Payment.
The Customer is hereby expressly forbidden to refer to or make a counter-confirmation on the basis of his own conditions of purchase.
The Contractor shall only enter into contracting agreements with commercial clients. No contracts shall be concluded with consumers.

II. Quotes and Conclusion of Contract

The Contractor’s quotes are non-binding until accepted by the Customer and can therefore be revoked by the Contractor at any time until receipt of the Customer’s written declaration of acceptance.
The Customer is bound to his order/his quote for 7 days. This period shall commence from such time as the order/quote is received by the Contractor. During this 7-day period, the Contractor shall be entitled to refuse to conclude the contract. Within this period, should no refusal be made, or should the goods be delivered during this period, the contract shall be deemed concluded even without the written order confirmation from the Contractor.
If the Customer subsequently requests changes to the order, these changes shall only be effective if agreement is reached between the contractual parties.

III. Prices

The prices stated in the Contractor’s price list shall be based on the calculations existing at the time of submission of the quote. If there is any substantial change to raw material prices of at least 10% after submission of the quote/conclusion of the contract, the Contractor shall be entitled to increase the agreed prices by the proportionate additional outlay incurred. The Customer shall be informed of this.
Subsequent changes initiated by the Customer, in particular changes to printed items, will be subject to additional charges to the Customer.
Unless otherwise agreed, prices shall be free domicile from an order value of Euro 2,500 plus statutory VAT applicable in the Federal Republic of Germany. If the order value is lower than this, the costs for haulage and packaging will be charged separately.

IV. Industrial Property Rights/Waste Management Act

The print documents provided by the Contractor such as drafts, drawings, cliché plates, films, printing cylinders and plates shall remain the property of the Contractor even if a share of these costs incurred is born by the Customer. In such cases, however, the Customer shall be entitled to pay the Contractor’s share of the costs in order to acquire ownership.
If copyrights and/or industrial property rights arise for the Contractor as a result of the development and execution of an order, these shall not be transferred with the sale of the delivery item. This shall also apply if the Customer bears a share of the development costs. In particular, the Contractor shall also be entitled to exploit these copyrights and/or industrial property rights for third party orders.
Unless otherwise agreed, the Contractor shall be entitled to visibly affix his logo or an identification number to the delivery items manufactured by him.
For samples, sketches and drafts etc., which are expressly ordered or commissioned by the Customer, a fee must also be paid if the main order, for which the samples, sketches and drafts etc. were produced, is not placed. Ownership and a simple right of use shall pass to the Customer after payment of the fee.
Upon completion of the order, the Customer is obliged to take back those documents made available to the Contractor and/or work equipment which have become the property of the Customer. If the Contractor requests that the Customer take back the items and the Customer fails to comply with this request, the Contractor may destroy those documents made available to him and/or documents that have become the property of the Customer, in particular clichés etc., after setting a grace period and threatening to do so. The Contractor shall also be entitled to this right where he attempts to request the Customer pick the items up, but the Customer cannot be contacted at the address provided to the Contractor when placing the order and where the Contractor proves that he has attempted to deliver to this address. The above rule shall apply accordingly to customer-specific printing plates which have been paid for in full or in part by the Customer.
In the event of third-party claims filed against the Contractor due to the use, exploitation or reproduction of the documents and/or templates provided by the Customer due to the infringement of copyrights and/or industrial property rights or due to the violation of the law against unfair competition, the Customer shall assist the Contractor in defending against such infringement and shall compensate or release the Contractor with respect to all damages, including lawyers’ fees and litigation costs, incurred by the Contractor as a result thereof.

V. Delivery/ Delivery Delays/Force Majeure/Reservation of the Right to Self-Delivery

Once the delivery item is handed over to the freight forwarder, carrier or shipping agent, the risk of accidental loss and accidental deterioration of the delivery item shall pass to the Customer. This shall also apply if the shipment is not made from the place of jurisdiction and/or if the Contractor bears the freight costs and/or if the Contractor carries out the forwarding using his own means of transport.
Delivery dates specified unilaterally by the Customer shall only be deemed agreed if they have been expressly confirmed. An agreed delivery period for printed items shall commence on the date of receipt of the final printing and production approval from the Customer. If an exact delivery date has been agreed and the Customer fails to furnish the documents etc. to be procured by him in a timely manner or fails to give the approvals for printing and production in a timely manner, the delivery date shall be extended accordingly by the period of the delay.
If the Contractor is prevented from fulfilling his obligations upon conclusion of the contract due to unforeseen, unusual circumstances which could not be averted despite taking relevant reasonable care in accordance with the circumstances, in particular operational disruptions, official sanctions and interventions, delays in the delivery of essential raw materials, problems with energy supply etc., the delivery period shall be extended by a reasonable amount. If delivery becomes impossible due to these circumstances, the Contractor shall be released from his delivery obligation. This provision shall also apply in the event of lockouts and strikes. Should the Contractor demonstrate that despite careful selection of his suppliers and despite conclusion of the necessary contracts on appropriate terms he has not received a delivery from a supplier in good time, the delivery deadline shall be extended by the delay period caused by the non-punctual delivery by the supplier. Where his supplier is unable to make delivery, the Contractor shall be entitled to withdraw from the contract.In the above cases, where the delivery time is extended or where the Contractor is released from his delivery obligation, any claims for damages and rights of withdrawal on the part of the Customer arising from this shall lapse with the exception of the right of withdrawal after one month has passed. The Contractor can only invoke the circumstances mentioned here if he has informed the Customer of these circumstances without delay.
Unless otherwise agreed, orders on call must be accepted by the Customer within 6 months from the date of the order/order confirmation. After this period or any other agreed period has passed, the quantity not yet accepted shall be delivered and invoiced to the Customer upon prior notice.

VI. Packaging and Dispatch

The Contractor shall be liable for proper packaging customary to the sector in accordance with Section XII.

VII. Printing

The Contractor shall use the usual printing inks of his choice for printing. If special requirements are placed on the inks, such as light fastness, alkali fastness, abrasion resistance, suitability for contact with foodstuffs etc., the Customer must make special reference to this when placing the order. The Contractor shall provide no guarantees that the printing inks offer high degrees of light fastness. The Contractor reserves the right to minor colour deviations insofar as these are customary in the trade; these shall not be deemed defects. These do not entitle the Customer to refuse acceptance of the goods or to demand a price reduction. Printing proofs shall only be submitted prior to printing if the Customer expressly requests this or the Contractor deems this necessary. On-press test prints shall be charged separately at the cost incurred.
With plastic products, the Contractor cannot guarantee the durability of the ink, even if this ink is described as resistant to light or water. The Contractor shall not be liable for damages due to staining, migration of plasticisers, paraffin-soluble dyes or binding agents or similar migration phenomena and for the consequences thereof. Sections XI. and XII. of these General Terms and Conditions shall remain unaffected by this.

VIII. Material and Design

Without special instructions from the Customer, orders shall be executed with materials customary in the industry at the Contractor’s discretion and in accordance with known manufacturing processes. When using the packaging for foodstuffs, the suitability of the material for foodstuffs must be expressly clarified with the Contractor. As a result, no complaints can be made relating to packaging behaviour with regard to contents and vice versa unless the Customer expressly refers to special properties of the contents and/or to use of the goods for foodstuffs and has given the Contractor the opportunity to comment. Such indications and comments must be made in writing.

IX. Retention of Title

The delivered goods remain the property of the Contractor until the purchase price has been paid in full. The Customer is obliged to treat the purchased item with care until ownership has been transferred to him. In particular, he is obliged to adequately insure the goods at his own expense at replacement value against theft and fire and water damage.
The Customer shall be entitled to resell the reserved goods in the normal course of business; however, he may only pledge them or transfer them by way of a security with the Contractor’s consent. The Customer is obliged to secure the rights of the Contractor in the event of resale of reserved goods on credit.
The Customer hereby already transfers his receivables arising from the resale of the reserved goods to the Contractor; the Contractor accepts the transfer. Irrespective of the transfer and the Contractor’s collection rights, the Customer shall be entitled to collection as long as he fulfils his obligations towards the Contractor and does not fall into financial collapse. At the Contractor’s request, the Customer shall provide the information required for collection relating to the transferred receivables, in particular a list of the debtors with their names and addresses, the amount of the receivables and the date on which the invoice was issued, and inform the debtors of the transfer.
The Customer shall notify the Contractor immediately of any enforcement measures taken by third parties against the reserved goods or the transferred receivables in advance, handing over the documents necessary for intervention.
The Customer’s authorisation to dispose himself of the reserved goods and to collect the transferred receivables lapses in the event of the Customer’s default in payment, in bill of exchange or cheque proceedings, and in the event of the Customer’s financial collapse – in particular in the event of a petition for composition and/or bankruptcy being filed. In such cases, the Contractor shall, in particular, be entitled to take possession of the reserved goods and the Customer shall be obliged to surrender the reserved goods to the Contractor. Repossession shall only constitute withdrawal from the contract if this is expressly stated.
It is clarified that in the event of cheque financing by bill of exchange, ownership of the delivery item shall transfer to the Customer only after full settlement of the bills of exchange and the amounts of the bills of exchange have been paid to the Contractor.
The Contractor undertakes to release, at his discretion, those securities to which he is entitled in accordance with the above provisions at the Customer’s request to the extent that their value exceeds the receivables by 10% or more.

X. Complaints / Claims for Defects/Shortcomings

If the Customer acts as a merchant within the meaning of § 1 HGB (German Commercial Code), he shall be subject to the commercial duty of examining and giving notice of defects pursuant to § 377 HGB (German Commercial Code). If the Customer fails to comply with the notification obligations regulated therein, the goods shall be deemed to have been approved. Complaints regarding the quantity of the delivered goods as well as regarding the types and varieties including the expiry date of the delivered goods must be made by the Customer immediately upon receipt by noting the details of the complaint on the carrier’s consignment note and confirming them himself by signature, as well as having them confirmed by the carrier by signature. A copy of the complaint must be submitted to GEBAS immediately.
The following shall apply between Customer and Contractor regarding the warranty liability for defects/shortcomings:
a) Minor defects/shortcomings shall not constitute a warranty claim. A minor defect/shortcoming shall be deemed to exist in particular in the event of the delivery of a too small number/quantity of goods, provided that the shortfall in delivery deviates by a maximum of two (2) per cent from the agreed total quantity; this shall apply irrespective of whether the defect/shortcoming was caused by processing or printing.
b) The Contractor shall be able to choose the form of rectification (e.g. replacement delivery or correction/repair).
c) The limitation period for new goods is one year from transfer of risk.
d) It is not permitted to make claims due to defects/shortcomings regarding used goods.
e) The limitation period shall not begin again if a replacement delivery is made as part of rectification.
The limitations of liability and limitation periods set forth in Section XI.2. shall not apply:
a) to items which have been used for a building in accordance with their usual purpose and which have caused its defectiveness.
b) to damages arising from injury to life, limb or health which are due to an intentional or negligent breach of duty by the vendor or an intentional or negligent breach of duty by a legal representative or vicarious agent of the vendor.
c) to other damages which are based on an intentional or grossly negligent breach of duty of the vendor or on an intentional or grossly negligent breach of duty of a legal representative or vicarious agent of the user, as well as
d) to a case where the vendor has fraudulently concealed the defect/shortcoming.In addition, the statutory limitation periods for the right of recourse according to § 478 BGB (German Civil Code) shall remain unaffected by this.
Warranty claims expire 12 months after successful delivery of the delivered goods to the Customer. The consent of GEBAS must be obtained prior to any return of the goods.

XI. Claims for Damages

The Contractor shall be liable to the Customer for all contractual, quasi-contractual and statutory, including tortious, claims for damages and reimbursement of expenses as follows:

The Contractor shall be liable without limitation on any legal grounds whatsoever in the event of intent or gross negligence, in the event of wilful or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise stipulated, or on the basis of mandatory liability such as under the Product Liability Act.
If the Contractor negligently violates a material contractual obligation, the liability shall be limited to the foreseeable damage typical for the contract, unless unlimited liability is assumed in accordance with the above clause. Material contractual obligations are obligations which the contract imposes on the Contractor in accordance with its content in order to achieve the purpose of the contract – obligations whose fulfilment enables proper execution of the contract and whose compliance is something upon which the Customer may regularly rely.
Any further liability on the part of the Contractor is ruled out.
The above liability provisions shall also apply with regard to the Contractor’s liability for his vicarious agents and legal representatives.

XII. Terms of Payment

As long as the Customer is not in arrears with payment from earlier deliveries by the Contractor and/or as long as the Customer’s financial circumstances do not deteriorate materially, jeopardising the Contractor’s claim to payment, the Contractor’s payment claims shall become due for payment within 30 days of the respective invoice date, unless otherwise agreed. Early-payment discounts are only permissible if a special written agreement has been made.
In the event of outstanding invoices from the Contractor, payments shall be made to cover the oldest claim due, unless the payor has specified a different payment purpose.
Once the payment deadline has passed, the Customer shall be in default upon issue of reminder – unless a clear date has been set for payment. Subject to further claims, in such cases the Customer shall pay the Contractor default interest in line with the interest charged by the commercial banks for open overdrafts, but at least 3% above the respective key interest rate of the ECB. Interest shall be set at a lower rate if the Customer can prove to the Contractor a lower burden of debt. This provision shall not affect the Contractor’s claims for statutory interest on arrears before the occurrence of default.
If the Customer is in default of payment from earlier deliveries by the Contractor and/or if the Customer’s financial circumstances deteriorate significantly after conclusion of the contract as a result of which the Contractor’s claim for consideration is jeopardised, payment shall be made contemporaneously with each delivery of the items. The Customer may avert contemporaneous payment by providing security in the amount of the purchase price for the corresponding delivery.

XIII Place of Jurisdiction/Applicable Law

Unless otherwise agreed, the place of jurisdiction for delivery, performance and payment shall be the Contractor’s domicile.
If the Customer is a merchant, a legal entity under public law or a special fund under public law, the court at our registered office shall have jurisdiction unless an exclusive place of jurisdiction is established for the dispute. This shall also apply if the Customer is not resident in the European Union. However, the Contractor is entitled – but not obliged – to sue the Customer at the Customer’s domicile.
German law shall apply to the legal relations of the parties with regard to the agreed deliveries and services with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Should a provision in these General Terms and Conditions of Business, Delivery and Payment or a provision within the framework of other agreements relating to the delivery contract be or become invalid, this shall not affect the validity of all other provisions or agreements.
Data protection: The Customer consents to contract-related data being stored and used for internal order processing purposes. The data shall not be passed on to third parties. These General Terms and Conditions of Business, Delivery and Payment are partly taken from the Terms and Conditions of Business, Delivery and Payment of the German Association of Paper and Film Packaging (Industrieverband Papier- und Plastikverpackung e.V., Frankfurt – IPV).

XIV Packaging Act (VerpackG) as of 1/1/2019

Specifically, from 1 January 2019, manufacturers (or first distributors, (“Erstinverkehrbringer”) will be obliged to report data to the respective system with a duplicate submitted to the Central Packaging Registry (“Zentrale Stelle”).
The Packaging Act does not contain a de minimis limit with regard to the obligations for system participation/registration and data reporting. As a result of the registration and system participation obligations, a manufacturer or first distributor within the meaning of the Packaging Act is anyone who in Germany for the first time commercially transfers sales and/or outer packaging filled with goods, that typically accumulates as waste with private end consumers (private households or equivalent sources), to a third party for the purpose of distribution, consumption or use.
Sales packaging is licensed as usual by GEBAS. GEBAS GmbH is registered with Lucid under the registration number DE2442059470909-V.
Own Trade Marks: § 3 Section 9 of the VerpackG provides for an exception to the first distributor rule where the packaging is filled on behalf of a third party and where that third party is exclusively mentioned on the packaging (“[…] where the packaging is exclusively marked with the name or trademark of the third party or both”). The specific information on the packaging is therefore decisive. Only where the contract filler is not recognisable on the packaging shall manufacturer status be transferred to the Customer. Markings (e.g. on the basis of food law) without naming (identification markings) shall not be deemed naming within the meaning of § 3 Section 9 VerpackG. If the packaging bears the name of the contract manufacturer with the addition “produced for [name/brand of trading company]”, the contract manufacturer remains the first distributor/manufacturer and thus the obligated party within the meaning of the Packaging Act.
Packaging: Since the operative link with regard to the legal packaging obligations is the filling of packaging with goods, the manufacturers of the packaging themselves, who deliver it in unfilled form to the manufacturer of the products to be packaged, do not fall under this provision. Therefore, if, in each individual case, their distributed packaging is only ever filled with goods by the subsequent final distributors, the latter are to be classified as manufacturers or first distributors with the consequence that only these are subject to the registration and system participation obligations.
Delegating the Notification Obligation for Service Packaging: The law wished to particularly benefit small food businesses, small snack bars and small distributors. These may delegate the obligation and require the wholesaler or producer to participate in the system. However, the latter shall not have the right to make further delegation. The wholesaler or producer assumes the distributor’s obligations, both with regard to system participation and to registration and quantity reporting to the Central Packaging Registry.
Service Packaging: If the name of the final distributor is printed on service packaging, this must be indicated as the brand name. This shall also apply where the system participation obligation has been delegated to an upstream distributor, in which case the corresponding name shall be recorded in the registry by the upstream distributor.
If the service packaging is to be delegated to GEBAS GmbH, this must be done in written form.