General terms and conditions
Klarsicht-Verpackungen Weber GmbH
I. Scope of Applicability
1. The following provisions shall apply to all business interactions with companies as defined in § 14 BGB (German Civil Code).
2. Our General Terms and Conditions shall apply exclusively. Contradicting terms or terms that deviate from our General Terms and Conditions shall not be acknowledged by us unless we have expressly agreed to their applicability in writing. Our General Terms and Conditions shall also apply if we, being aware of contradicting terms or terms that deviate from our General Terms and Conditions perform the production or the delivery to the Customers without raising any objections.
3. All agreements made between our company and the Customer at the time the Agreement is being executed are defined in this Agreement in writing.
4. Our General Terms and Conditions shall also apply to all future business transactions with the Customer.
II. Execution of the Agreement
1. Quotations shall be submitted subject to change and shall be non-binding. The scope of production or delivery shall be governed by our written order confirmation. If changes and / or extensions should apply to the defined order volume while the order is being properly handled, such changes shall be subject to a prior written additional agreement between the contracting parties. If upholding the Agreement with regard to the changes or extensions should not be tolerable for the Customer, the Customer shall have the right to rescind from the Agreement. However, the Customer shall pay the agreed upon remuneration, or, in the absence of an agreement, shall pay reasonable compensation.
2. The delivered quantity shall be billed. Partial deliveries shall be permitted unless this would cause unreasonable disadvantages for the Customer.
3. In the event of full service quotations / contracts the following shall apply: Packaging and supply materials purchased by the Supplier in advance and that are components of the finished goods price (TPS) shall purchased subject to the standard excess and short delivery clause of up to +/- 10% of the order volume (contingent upon the respective components). Excess or short order deliveries are unavoidable depending on the order size and types of material or for production technical reasons. Material for which there is not any use after the completion of the production run shall be billed to the Customer at the assessed cost.
4. Production samples, proofs, test prints, etc. shall be inspected by the Customer and shall be returned to us along with an acceptance declaration. Samples and specimen shall be considered merely approximate review pieces for quality, dimensions and coloring purposes, unless otherwise confirmed in writing. We shall not assume any liability for errors overlooked by the Customer or for errors that arise from the performance data submitted by the Customer or any other incorrect or incomplete information provided by the Customer. If the verification of a specimen by the Customer should not be demanded by the Customer, our liability shall be limited to errors caused by acts of intent and gross neglect.
5. We shall not assume any warranties to the extent that deliveries will occur on a consistent basis or that they will be absolutely identical with the presented samples. Deviations, e.g. in the structural or color design hence have to be accepted unless they are obviously intolerable in exceptional cases. This shall in particular apply to deliveries of larger batches that cannot be processed uniformly.
6. Verbal covenants, ancillary agreements and modifications shall be subject to the written confirm of the Supplier in order for them to be rendered binding.
Our quotations or order confirmations shall be subject to the condition that the items the quotation submitted or the order confirmation are based upon remain unchanged. Price changes shall be permitted if more than four months transpire between the execution of the Agreement and the agreed upon production or delivery date. In such cases we reserve the right to amend prices upwards or downwards based on the incurred changes in costs, in particular labor costs, costs for integral materials, energy costs or transportation costs. The Customer shall have the right to rescind from the Agreement only if the price increase exceeds the rise in the general cost of living more than insignificantly.
IV. Payment Terms
1. Unless otherwise stipulated in our quotation or our order confirmation, prices are quoted “ex factory,” excluding packaging, freight and shipping expenses, customs clearance costs, insurance premiums and other ancillary payments. Prices do not include applicable value added tax in the statutory amount on the date of billing, which shall be stipulated separately in the invoice.
2. Payments shall be made within 10 days after the date of the invoice, net cash, unless other special agreements have been documented in writing. Agreed upon payment terms shall be deemed met only if the amount due for payment to us is available to us on the due date. Drafts and checks shall be accepted only upon prior arrangements in lieu of fulfillment. All costs shall be for the account of the Customer.
3. Customer shall be permitted to offset payments only against undisputed accounts receivable due to Customer that have been found legally effective or accepted or Customer may exercise a right to withhold the former.
4. In the event of default of payment, late payment interest in the amount of 8 % above the respective prime rate published by ECB shall be due for payment. This shall be without prejudice to the claiming of any other damages incurred due to late payment.
5. If a considerable decline in the asset scenario of the Customer should become known or evolve after the Agreement has been executed or if post making of the Agreement legitimate doubts in the creditworthiness of the Customer should arise, which lead to a risk as far as the payment obligation of the Customer is concerned, the Supplier may demand advance payment or may convert any pending invoices into immediately due invoices (including invoices that are not due at the time). The Supplier may also retain any merchandise that has not been delivered yet or (if a remedial period for payment has passed without producing results) to rescind from the Agreement with immediate effect. This shall also apply if the Customer fails to make payment despite reminder notices.
V. Production and Delivery Times
1. Quoted production and delivery dates shall be non-binding. The compliance with due dates for deliveries and services shall be contingent upon the timely receipt of all service or delivery contributions to be made by the Customer, along with any required permits and approvals as well as the compliance with the agreed upon payment terms and any other obligations. If these requirements are not met in due time, the due date shall be reasonably extended.
2. Production and delivery dates shall be extended reasonably (also within any default) in the event of the occurrence of unforeseeable events that we, based on the circumstances of each specific case cannot prevent even if all reasonable due diligence is applied, e.g. operational interruptions, government agency interventions, energy supply bottlenecks, delays in the delivery or critical product components. The same shall apply in the event of strikes or lock-outs.
3. The production or delivery due date shall be deemed met if by the end of the period the production or delivery object has left the factory or we have notified the Customer of the readiness for acceptance or shipment. If a non-binding due date or a non-binding time period should be exceeded by four weeks, the Customer may ask us in writing to deliver within a reasonable period of time. Upon expiration of that time line, we shall be in default. The Customer may not only demand fulfillment of the service, but also demand reimbursement for any damages resulting from the delay. If we are responsible for acts of intent or gross neglect, we shall assume liability in compliance with the statutory provisions. If we are responsible merely for minor neglect or if we have culpably violated an integral contractual duty, our liability for reimbursement shall be limited to the typically incurred and foreseeable damages.
4. If we should be in default of performance, the Customer shall have the right to set a written remedial period along with the explanation that upon expiration of the remedial period acceptance of the services shall be denied. Upon expiration of the remedial period that does not produce the desired results, the Customer shall have the right to rescind from the Agreement by making a written declaration or to demand compensation for damages in lieu of performance of the services. If we should be responsible for acts of intent or gross neglect, we shall assume liability in compliance with the statutory provisions. If we are responsible merely for minor neglect or if we have culpably violated an integral contractual duty, our liability for reimbursement shall be limited to the typically incurred and foreseeable damages. In such cases, if the remedial period passes without producing results, the entitlement to performance of the services subject to the threat of denial of acceptance shall be excluded.
5. The Customer shall undertake to let us know within a reasonable time period upon our request whether Customer intends to rescind from the Agreement because of the delay or whether Customer insists on the performance of the services.
6. If tolerable to the Customer, partial deliveries and the performance of partial services shall be permitted.
7. Unless otherwise agreed upon, call-in orders shall be accepted within 3 months after the issuance of the order confirmation. The Customer shall communicate any call-ins in a timely manner ahead of time.
VI. Risk Transfer
In the case of production orders, the risk shall transfer upon acceptance. In the event of delivery that includes the sending of the delivery object, or in the event of its handover to a freight forwarder or in the event of pick-up, the risk shall transfer to the Customer upon handover. This shall also apply to partial deliveries. If the sending of the delivery object, its handover to the freight forwarder or the party picking it up should be delayed for circumstances the Customer is responsible for, the risk shall transfer to the Customer upon receipt of the notification of shipping readiness. The Supplier shall be under no obligation whatsoever to obtain insurance coverage against any type of risk.
VII. Title Retention
1. The delivered goods shall remain our property until the Customer has paid all of the accounts receivable due to us arising from the business relationship, in particular also any revolving credit line balances. The goods shall be insured by the Customer against the risks of theft, fire and water damages. The respective policies shall be presented to us upon request. We shall also retain title to all tools manufactured by us until they have been paid for in full.
2. The Customer shall not be authorized to have the goods attached or to use them as collateral. Any attachments ordered by other creditors shall be immediately communicated to us. In the event of default, we may demand the return of the goods without rescinding from the Agreement.
3. The Customer shall be authorized to resell the goods (regardless of whether they are unprocessed, processed or combined) only as part of Customer’s regular business operations. Any resulting purchase account receivables shall be deemed to have been assigned to us already when they are incurred in the form of collateral. The Customer shall undertake to communicate to us, upon request, the names of any third party debtors and the amounts of payables they owe.
4. As our authorized party, the Customer shall be authorized to collect the assigned accounts receivable only as long as the Customer properly meets Customer’s obligations vis-à-vis our company. This shall be without prejudice to our authority to collect the assigned accounts receivable; however, we shall undertake to refrain from doing so as long as the Customer meets Customer’s obligations to us. The Customer shall promptly transfer any collected amounts to us. If this should not be the case, they shall be treated as our assets and shall be retained in a separate account.
5. If the delivery object should be processed or adapted by the Customer, the title retention shall also extend to the new object. In the event of the processing or blending with third party materials, we shall acquire co-ownership pursuant to §§ 947, 948 BGB (German Civil Code).
6. We shall undertake to release the collateral we are entitled to upon Customer’s request up to an amount that exceeds the realizable amount of collateral by more than 10%; we shall choose the collateral to be released at our discretion.
VIII. Handling of Samples and All Documentation
It shall be the Customer’s responsibility to ensure that the use of the samples, print layouts, etc. presented by the Customer or made on the basis of information provided by the Customer do not infringe upon the rights of any third parties. If the Customer should be aware of any intellectual property rights held by third parties that would be obviously infringed upon in conjunction with the performance of the order, the Customer shall notify us accordingly. All documents as well as any samples, sketches, drafts and trial print-outs shall remain our property. They shall neither be emulated nor reproduced nor made accessible to third parties or competitors. This shall also apply to generated copies and reproductions.
IX. Liability for Deficiencies
1. The deficiency complaint rights of the Customer shall be contingent upon the former properly meeting Customer’s owed examination and complaint filing obligations pursuant to §§ 633 et seq. BGB, 377 HGB (German Trade Law). If the deficiency claims are obvious, claims shall be filed in writing within one week after the receipt of the delivered object. Concealed deficiencies shall be reported promptly upon their discovery and no later than within three months after the delivery in writing. Otherwise the service shall be deemed rendered properly. The Customer shall be under a mandate to examine the delivery object even if the Customer has been sent a specimen in advance.
2. For delivery deficiencies, we shall, at our discretion, assume liability by taking remedial action or by shipping a substitute (remedial fulfillment). Deficiencies of a portion of the delivery must not result in a claim regarding the entire shipment, unless the entire shipment cannot be used by the Customer. We shall have title to any replaced parts.
3. In the event that we seriously and finitely deny remedial fulfillment due to unreasonable costs, or if the remedial fulfillment should fail or if it is intolerable, the Customer shall have the right to at Customer’s discretion, demand the reduction of the remuneration (reduction) or rescind from the Agreement. In the event of a breach of contract that is only minor, and in particular in the event of minor defects, the Customer shall, however, not be entitled to rescission. Unless otherwise stipulated below (Section 4.), any other entitlements of the Customer, regardless of the legal grounds (in particular regarding entitlements due to the breach of contractual cardinal and ancillary obligations, cost reimbursement with the exception of those arising according to § 439 Section 2 BGB, illegal acts and other tort-based liability) shall be excluded. This shall in particular apply to damages to things other than delivery objects.
4. We shall assume liability in accordance with the statutory provisions if the Customer claims damage compensation that is based on acts of intent or gross neglect. If we are responsible merely for minor neglect or if we have culpably violated an integral contractual duty, our liability for reimbursement shall be limited to the typically incurred and foreseeable damages. Such releases from liability shall not apply in the event of injury to life, body or health as well as in cases in which we must assume liability according to the Product Liability Act, moreover also not in the event of the assumption of a warranty and if a property has been assured if any deficiency covered by this definition should trigger liability. In the event of cost reimbursement, the above shall apply accordingly.
5. Entitlements to retroactive fulfillment, damage compensation and reimbursement of expenses shall be subject to a one year expiration period after the date of risk transfer.
6. Any further claims made by the Customer targeting us and our representatives, employees, staff and agents shall be excluded.
X. Force Majeure
In cases of force majeure, the affected contracting party shall be released from its obligations to perform for the duration and to the extent of the impact.
1. Definition: “Force majeure” means the occurrence of an incident or circumstances (“force majeure incident”) that prevent one party from fulfilling one or several of its contractual obligations arising from the Agreement, if and to the extent that the party affected by the hindrance (“affected party”) documents that: a) This hindrance is outside of its reasonable control and b) at the time the Agreement was executed could not be reasonably foreseen by said party and c) the effects of the hindrance could not have been reasonably averted or overcome by the affected party.2. Non-fulfillment by third parties: If one contracting party fails to meet one or several of its contractual obligations due to the omission of a third party it has commissioned to fulfill the entire Agreement or parts thereof, this contracting party shall have the right to cite force majeure only to the extent that the requirements for the assumption of the materialization of force majeure as defined in Section 1 of this Clause do not only apply to the contracting party, but also to the third party.
3. Presumed incidents of force majeure. Until the opposite has been evidenced, it shall be presumed in the event of any of the following incidents that pertain to one party that it meets the requirements for the assumption of force majeure under Section 1 lit. (a) and lit. (b) are met. In such a case the affected party shall only be required to prove that the prerequisites under Section 1 lit. (c) has actually been meet:
a) War (declared or not declared), hostilities, attacks, acts of foreign enemies, comprehensive military mobilization;
b) Civil war, uprisings, rebellions and revolutions, military or other seizure of power, protests, terroristic acts, sabotage or pirate attacks;
c) Currency exchange or trade restrictions, embargos, sanctions;
d) Legitimate or illegitimate official acts, compliance with the law or government orders, repossession, seizure of plants, requisition, nationalization;
e) Pest, epidemics, natural disasters or extreme natural incidents, pandemics (e.g. corona virus)
f) Explosions, fire, destruction of equipment, extended breakdown of transportation services, telecommunication services, information systems or energy;
g) General labor disputes such as boycott, strikes and lock-outs, slowed down work processes, occupation of factories and buildings.
4. Notification: The affected party shall promptly notify the other party of the incident.
5. Consequences of force majeure. A party that successfully cites this Clause shall be released from the obligation to fulfill its contractual obligations and any and all obligations to pay compensation for damages or any other contractual legal remedy. However, this shall apply only if it promptly notifies the other party. If the notice is not given immediately, the relief shall be granted only as of the point in time the notice reaches the other party. The other party may suspend the performance of its obligations if force majeure must be actually presumed as of the time of giving such notice.
6. Temporary hindrance: If the effects of the claimed hindrance or incident are temporary, the consequences set forth in Section 5 shall only apply as long as the claimed hindrance prevents the fulfillment of the contractual obligations by the affected party. The affected party must notify the respective other party as soon as the hindrance no longer impacts the fulfillment of its contractual obligations.
7. Obligation to mitigate: The affected party shall undertake to take all reasonable precautions to mitigate the effects of the incident reference is made to when fulfilling the Agreement.
8. Termination of the Agreement. If the duration of the claimed hindrance results in the contracting parties losing largely what they justifiably might expect under the Agreement, the respective party shall have the right to terminate the affected Agreement through notification of the respective other party within a limited reasonable period of time. Unless otherwise agreed upon, the Parties herewith expressly agree that the Agreement may be terminated by either Party if the duration of the hindrance exceeds 120 days.
9. Illegitimate enrichment: If Section 8 is applicable and if one contracting party, prior to the dissolution of the Agreement has attained an advantage thanks to the act of another contracting party when it comes to the fulfillment of the Agreement, it must pay an amount of money to the other party that is equivalent to the value.
XI. Final Provisions
1. If one of the provisions within these Terms and Conditions should be or become ineffective, this shall not affect the effectiveness of the remaining provisions. The contracting parties shall undertake to supersede the ineffective provision with a provision that meets the business success of the ineffective provision as closely as possible.
2. The business relationship shall be governed by the laws of the Federal Republic of Germany.
3. The place of fulfillment for deliveries and payment shall be Herxheim, Germany.
4. The exclusive place of jurisdiction for any and all disputes arising from the contractual relationship for both parties shall be Landau, Germany.
Stand: December 6, 2021