General terms and conditions of sale of müso-pac Hroch GmbH (as of January 2010)
The following General Terms and Conditions shall apply to all offers, deliveries and services - including future ones. Any deviations from these General Terms and Conditions of Sale are valid exclusively after supplier’s confirmation in written form. Any terms and conditions of sale or purchase imposed by the customer shall not apply, even if not explicitly rejected by the supplier after receipt.
All offers are subject to change. Orders shall be deemed as accepted after prior written confirmation on the part of the customer. The same shall apply for any verbal agreements. All prices quoted are strictly net and do not contain VAT. Unless expressly agreed otherwise, prices are stated ex works (“exw“ INCOTERMS 2010), exclusive of packaging, freight, postage, insurance and any other shipping costs. Any subsequent changes or modifications on request of the customers including any resulting machine downtimes will be charged to the customer’s account.
The delivery period shall commence on the day on which the order has been accepted. In case of any amendments and modifications of existing confirmed offers the delivery period shall commence on confirmation of such modifications. Claims from delay in delivery may be asserted by the customer only after the setting of a reasonable period of grace in writing. The customer shall assert claims from liability due to delayed delivery only in the event of intent or gross negligence on the part of the supplier and only up to the value of the order. This shall also apply to the legal representatives and vicarious agents of the supplier. Any compensation for indirect damage, such as lost profit or covering purchase shall be excluded. The supplier reserves the right to perform partial deliveries.
In the event of operational disruptions – in both the supplier’s and his sub-contractors’ plant – such as strike, lockout as well as all other events of force majeure the customer shall be entitled to withdraw from the contract, if further delays are no longer tolerable, otherwise the delivery period agreed shall be extended according to the duration of such disruptions. A termination is only possible at the earliest four weeks after the start of the aforementioned disruption. Any liability on the part of the supplier is excluded in such cases.
If not agreed otherwise in writing, any payments have to be effected within 15 days from the date of invoice less 2 % cash discount or strictly net within 30 days. At non-compliance with the period of payment the buyer will default without the need for a reminder. In this case the customer shall be charged interest on arrears as from the due date in the amount of 8 percentage points above the base rate applied by the European Central Bank. Bills of exchange, as agreed upon, shall be taken in payment only if they are bankable. Bills of exchange will only be accepted on the account of payment. Any related costs and expenses shall be borne by the customer. Payments by bills of exchange are payable without the deduction of a cash discount.
In case it becomes clear that settlement of a pecuniary claim is jeopardized due to financial difficulties encountered by the customer after conclusion of the contract, the supplier is entitled to demand advance payments, retain any goods that have not yet been dispatched and suspend processing. The supplier is also entitled to these rights if the customer defaults in payment of the deliveries that are based on the same legal relations. § 321 II BGB shall remain unaffected.
The customer shall only be entitled to set up a counterclaim or enforce a lien against the supplier if the counterclaim has become res judicata or is uncontested.
Transfer of risk
The risk is transferred to the customer when the object of delivery has left the factory. If the dispatch or service is delayed on the customer’s request or due to default of acceptance on the part of the customer, in both cases the risk shall pass to the customer as of the date of notification of readiness for dispatch for the period of delay. The choice of the method of dispatch and the means of transport is to the discretion of the supplier.
The customer shall immediately review the goods sent for their conformity with the agreement. Obvious faults must be reported to us in writing within a week of receiving the goods, hidden defects within a period of a week after discovery; otherwise assertion of the warranty claim shall be excluded. In the case of justified complaints the supplier undertakes and is entitled – at his discretion – either to rectify the rejected goods and/or to send faultless replacements. In case the customer should not comply with this obligation within an appropriate period of time or if remedy fails in spite of repeated attempts , the customer shall be entitled to demand an appropriate reduction in the purchase price (decrease) or to withdraw from the contract (cancellation of contract). Defects in one part of the delivery cannot lead to a complaint about the complete delivery, unless the part delivery is of no interest for the customer.
We expressly reserve the right to deliver goods which present tolerances on thickness of +/- 8% and on shape of +/- 1,5 mm, which shall be considered proper delivery and cannot be objected.
As far as glued or laminated films are concerned, the commercial paper tolerance of +/- 10% has to be observed.
For reasons of packaging the supplier reserves the right to perform excess or short deliveries within a tolerance of 10%; the amount charged is based on the actual quantity supplied.
1. Customer’s claims for damages and reimbursement for expenses, same for which argument, are excluded.
2. This disclaimer does not apply
- in case of damage caused by intent or gross negligence,
- in case of negligent violation of essential contractual obligations, also through statutory agents or vicarious agents – on the part of the supplier, liability shall be limited to the typical, foreseeable, contractual direct average damage,
- in case of culpable harm to life, body or health of the customer,
- in case of fraudulently concealed defects or on the basis of a guarantee provided for the characteristics of the goods,
- in case of claims based on the product liability act.
Retention of title
The supplier hereby reserves the title to the goods delivered, also in processed condition, until final settlement of all claims he has held against the customer until the date of invoice. The customer may resell the goods subject to retention of title in the course of ordinary business transactions. Thus the customer assigns his claims from the resale of the goods to the supplier. The supplier herewith accepts the assignment of such claims. The customer is obliged to name the debtor of the assigned claim at the latest in the event of default. If the value of the supplier’s securities exceeds his claim by more than 20 %, the supplier is obliged to release securities of his choice to cover that amount at the request of the customer or a third party affected by the supplier’s excess security.
If the goods delivered and owned by the supplier are processed or reprocessed, the supplier shall be considered the manufacturer pursuant to § 950 German Civil Code (BGB) and shall retain title to his products at all times during the processing. If third parties are involved in the treatment and processing the supplier is limited to a co-ownership share amounting to the invoice value of the conditional goods. The property acquired in this way shall be considered privileged property.
Limitation of time
Warranty claims and compensation of damages asserted by the customer shall become statute barred upon the expiration of a period of one year, beginning with the delivery of the goods, except for those claims covered under “Liability” point 2. This shall not apply in the event of fraudulent behaviour on the part of the supplier.
In case there arise any deviations or contradictions between the German version and a version in a foreign language of these General Terms and Conditions the content of the German version shall prevail. The German version also constitutes the sole basis of interpretation for the legal relations between the contractual partners. The same shall apply in the event of inconsistencies between a foreign version and the German version of the contract.
Should individual stipulations or parts of these Terms and Conditions be ineffective or deemed as being the same in the future this has no effect on the remaining provisions.
Place of performance and legal venue
Place of performance and place of jurisdiction for all disputes, including summary procedures on cheques, bills of exchange and document processes, arising from this contract shall be the supplier’s seat, in case the customer is a commercial businessman, legal entity under public law or public special estate or is without jurisdiction domestically. The contractual relations shall be subject to German law. The application of UN purchase right is excluded.