General Terms and Conditions of Folienwerk Wolfen GmbH
The following General Terms and Conditions (hereinafter also “GTC”) only apply to companies (Sec. 14 German Civil Code), legal persons under public law or separate estates under public law. They form part of all contracts and agreements concluded with us. Purchaser accepts these Terms and Conditions - also for follow-up business, if any - by receiving them without objection, but not later than with receipt of our goods or other services.
We hereby object to the validity of general terms and conditions of Purchaser which vary from these Terms and Conditions, even if such terms and conditions are transmitted to us in a confirmation letter or in any other way. Our unconditional delivery of goods, performance of services, and acceptance of payments does not constitute our recognition of conditions which diverge from these General Terms and Conditions. Unless otherwise specified in these General Terms and Conditions, the terms and definitions of INCOTERMS 2010 shall apply.
2. Quotations, Contracts
Our offers are subject to confirmation. If a Purchaser makes an order, this shall be deemed to be a binding contract offer. A contract is only formed by our written order acknowledgement, or if orders have been executed by us.
Amendments, supplements and/or cancellations of contract must be made in writing. If the requirement of the written form is contracted out, this must also be done in writing. Any statements and notifications by Purchaser subsequent to contract conclusion are only valid, if they are made in writing.
We reserve the title to and copyright for designs, formulations, drawings and any other documents. They shall not be made available to any third party. Purchaser shall not make any of such designs, formulations, drawings or other documents available to any third party without our express written consent. This also applies to such documents which are deemed as "confidential" regardless of whether these are available in a written or electronic form.
3. Prices, Terms of Payment
We are entitled to transfer the claims from our business relationships.
All payments with debt-discharging effect are to be made exclusively to VR FACTOREM GmbH, Ludwig-Erhard-Straße 30 - 34, 65760 Eschborn, to whom we have transferred out current and future claims arising from our business relationship. We have also transferred our reserved property to VR FACTOREM GmbH.
Unless otherwise agreed in writing, the purchase price must be paid with delivery. Should the purchaser be in arrears with any payment obligations to us, all existing claims shall become immediately due.
Our prices are – unless otherwise agreed – in EURO net "ex works" (EXW) Bitterfeld-Wolfen. Shipping and packaging costs and VAT in their respective statutory amount are not included therein and are also to be borne by the Purchaser.
For export shipments, this shall also apply for customs and other official levies. Deductions of discounts must be agreed specifically in writing. For shipments which are according to a respective agreement delivered 2 months or more after contract conclusion we reserve the right to amend our prices appropriately if costs should rise or fall after conclusion of the contract, particularly as a result of wage contracts or changes to material prices.
We will provide the Purchaser with respective proof on request. A set-off by the Purchaser against counterclaims is excluded, unless the counterclaims are undisputed or have been established as final and absolute. The assertion of a right of retention by the purchaser is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or have been established as final and absolute.
4. Place of Performance, Transfer of Risk, Transport Insurance
The place of performance for our deliveries shall be our place of business.
If delivery is to take place "ex works" (EXW) Bitterfeld-Wolfen, the risk of coincidental loss and coincidental deterioration of goods transfers to the Purchaser at the time we inform it that the goods are ready for collection. The risk shall also transfer to the Purchaser if it falls into default of acceptance or breaches an obligation to cooperate unless it is not responsible for the breach of duty. In these instances, we are entitled to store the goods with us or a third party at the expense of the Purchaser.
If the goods are shipped by us on the request of the Purchaser, the risk shall transfer to the Purchaser at the latest at the time that the goods are supplied at our premises for loading. This also applies if transport takes place in our own vehicles.
If permitted partial deliveries take place, the transfer of risk shall apply to these.
The risk passes to Purchaser when the products are shipped, even if prepayment of freight charges for delivery is agreed upon. If Purchaser so desires, we will effect a transport insurance at the Puchaser’s expense for the goods to be delivered.
We will not take back any transport packaging and other packaging subject to the German Packaging Regulation (Verpackungsverordnung), excluding euro pallets, which have to be returned. Purchaser is obliged to dispose of the packaging at its own cost.
5. Delivery, Duty to Cooperate
Provided that nothing else has been agreed by the order confirmation, deliveries are "ex works" ("EXW") Bitterfeld-Wolfen. This also applies if we ship the goods to another place on the request of the Purchaser.
The scope of our delivery obligation is exclusively defined by the delivery contract concluded in writing including these GTC. Our goods are subject to changes of material, form or color which are due to technical improvements or statutory provisions, provided that these changes are not substantial or otherwise unacceptable for Purchaser. If Purchaser can be reasonably expected to accept partial shipments, these may be made and charged.
Prospective periods and dates for deliveries and services indicated by us shall only be considered approximate unless a fixed period or date has been expressly confirmed or agreed. If there is no prospective delivery period or one has not been agreed, the delivery period shall be approximately 6 weeks after concluding the contract. If shipment has been agreed, delivery periods and delivery dates shall refer to the point in time in which the goods are handed over to the forwarder, freight carrier or other third party entrusted with transport.
Delivery periods are generally quoted subject to cooperation of Purchaser according to contract. The agreed delivery period is suspended for the period required by Purchaser for the inspection of samples, trial proofs etc. until the date of receipt of the comments.
The prerequisite for the fulfillment of our delivery obligation is the timely and due fulfillment of Purchaser's obligations. If we do not receive any goods, although we have placed orders for identical goods with reliable suppliers, we are released from our obligation to perform and may repudiate the contract.
If, subsequent to contract conclusion, we find out that Purchaser is not able to provide an adequate guarantee of its solvency, and that our payment claim is endangered, we have the right to withhold delivery until Purchaser effects payment or furnishes security for it. If Purchaser is requested to pay or furnish a security and fails to do so within 12 working days, we have the right to rescind the contract.
If Purchaser defaults in calling, taking delivery of, or collecting goods, or if Purchaser is responsible for a delay in shipment or delivery, we have the right, without prejudice to any further claims, to charge a flat charge for our costs which corresponds to the storage charges in accordance with local custom, irrespective of the fact whether we store the goods in our company or in a third party stockroom. Purchaser has the right to prove that there was no loss or only a slight loss. Delivery of blanket orders must be taken and these orders must be paid not later than 12 months after contract conclusion, unless expressly agreed otherwise.
6. Delays in Delivery
If we are unable to keep the agreed delivery date due to circumstances which are not within our or our supplier's control the delivery period is reasonably extended. We will immediately inform Purchaser about such a case. Should the impeding circumstances still exist one month after the agreed delivery period has expired, each of the parties has the right to rescind the contract. We do not accept liability for any further claims based on an exceeding of the delivery period for which we are not responsible.
In case of a default in delivery, and if Purchaser furnishes evidence for the fact that it has suffered a loss due to this default in delivery, Purchaser is entitled to claim a flat-rate compensation for loss occasioned by default amounting to 0.5 % of the delivery value, not exceeding 5 % of the delivery value, for every full week. Furthermore, Purchaser may grant us a reasonable extension in writing, which may not be less than 15 working days.
If this extension has lapsed, Purchaser is entitled to rescind the contract or to claim damages instead of performance. Purchaser’s damage claims based on default and damage claims instead of performance which exceed the above mentioned flat rate are excluded in all cases of delays in delivery, including after expiry of a delivery period that was fixed for us, if any.
The 2nd paragraph above does not apply, if the default is caused intentionally, by gross negligence or breach of an essential contractual obligation (an obligation, the fulfilment of which is prerequisite to enable the proper implementation of the contract and upon compliance with which the contract partner regularly relies and should be able to rely). Neither does it apply, if a contract where time is of the essence was agreed upon. A contract where time is of the essence must be expressly confirmed in writing by our management. In any case, however, liability for damages is limited to the foreseeable, typical damage. The above provisions do not entail a change in the burden of proof to the prejudice of Purchaser.
7. Retention of Title
We reserve ownership of the delivered goods until payment of all our receivables arising from our business relationship by Purchaser, including future receivables arising from simultaneous contracts or contracts which were concluded subsequently. This shall also apply if amounts due are billed periodically and the balance is brought forward and accepted.
Purchaser is entitled to sell or process the goods in the ordinary course of its business. It shall process goods for us, if necessary, but for us no obligations shall ensue from this processing. If the goods which are subject to our retention of title are processed, combined or mixed with other goods, we generally have a co-owner's interest in these newly created goods. If our goods are processed this interest is calculated pro rata from the value (= invoiced gross value including incidental charges and taxes) of the goods which are subject to our retention of title in relation to the value of the newly created goods; if our goods are combined or mixed with other goods, from the value of the goods which are subject to our retention of title in relation to the value of the other goods.
Purchaser hereby assigns to us by way of security all claims which arise for Purchaser against any buyer or other third party due to Purchaser's re-sale entirely or amounting to any co-ownership share pursuant to the previous paragraph. If there is a current account relationship between the Purchaser and the third party, the assignment refers to the recognised balance. We accept the aforementioned assignments. Purchaser is entitled to collect the sums due assigned above, even subsequent to assignment of its receivables. Our right to collect such sums ourselves remains unaffected, but we will not make use of this right, if Purchaser duly fulfills its obligation to pay and its further obligations. Upon our request, Purchaser must inform us about assigned receivables and the respective debtors, give us all necessary information for collection, hand the relevant documents over to us, and inform the debtors about the assignment.
If Purchaser acts in breach of contract, in particular in the event of default in payment, we are entitled to rescind the contract and to take back the goods. Request for surrender does not include at the same time a declaration of withdrawal; we are in fact entitled to merely request the surrender of the goods and reserve withdrawal. If the Purchaser does not pay the purchase price due, we may only assert these rights if we have set the Purchaser an appropriate deadline until which to pay and this has not been done or such deadline setting is dispensable according to the statutory provisions. With respect to the taking back of the goods, Purchaser hereby irrevocably permits us to enter its business premises and stockrooms unhindered and to take the goods with us.
Within the scope and period of our retention of title, Purchaser may neither assign goods or goods produced from such goods as securities nor pledge such goods without our consent. The conclusion of financing agreements (e. g. leasing agreements) which include the assignment of our reservation rights, are subject to our prior written consent, unless the agreement involves the financial institution’s duty to pay the part of the purchase price to which we are entitled directly to us.
Purchaser must immediately inform us in writing about attachments or other interventions by third parties. Purchaser is prohibited from making arrangements with its buyers which might interfere with our rights.
We undertake to release collateral pledged to us, if Purchaser so desires and at our own discretion, provided that the realizable value of the collaterals exceeds the receivables to be collateralized by more than 20 % or if it exceeds their nominal value by more than 50 %.
For the assertion of the rights arising from the reserved property, no withdrawal from the contract is necessary, unless the debitor is a consumer.
8. Product Information
Our information about our products and processes is based on extensive research and our considerable experience in the field of applied engineering. We provide this information, which to the best of our knowledge is correct, orally and in writing. In doing so, we do not assume any liability other than the liability agreed upon in the respective individual contract, and we reserve the right to make technical modifications in the course of our product development.
However, this shall not release user from its obligation to verify the suitability of our products and processes for its own use. Purchaser's specifications of intended use shall only be binding, if we, at the time of contract conclusion, have confirmed in writing that the delivered goods are suitable for the use intended by Purchaser. This shall also apply to the protection of third party industrial property rights and to applications and processes.
9. Excess Delivery/ Short Delivery, Dimensions and Tolerances
We have the right to deliver excess or short quantities of up to 10 % for production-related reasons; for order lots of more than 5.000 kg however, to a maximum of +/- 500 kg.
If a quantity of less than 500 units is to be supplied, or if execution is particularly complicated, higher tolerances up to a maximum of 20 % are allowable in the absence of any different agreement. Orders will be carried out according to the general state of technology within the scope of the material-related and packaging-related tolerances required for technical reasons and in merchantable quality, unless specific execution standards have been agreed upon in individual cases.
In the absence of a deviant agreement and/or special specifications in a data specification/product overview regarding the respective product the following format tolerances apply: for perpendicular cuttings +/- 1 mm, for cuttings which are not perpendicular and large formats +/- 5 mm. Width tolerances: for films in rolls +/- 1 mm. Thickness tolerances: for films with a thickness of < 200 my +/- 10 %, 200 to 400 my +/- 7 %, > 400 my +/- 5 %.
Deviations in color, grade, weight, length of material, etc. which are usual in the industry are no reason for complaints.
Statutory provisions shall apply for the rights of the Purchaser on account of material defects and defects of title, unless otherwise specified hereinafter. Statutory special provisions shall remain unaffected in all instances of goods being delivered to a consumer (supplier regress in accordance with Sections 478, 479 BGB).
Purchaser is obliged to immediately examine the goods with respect to defects and to make an immediate complaint with respect to defects of the goods, if any, in accordance with the statutory provisions of Sec. 377 of the German Commercial Code (HGB).
Purchaser cannot derive any further rights from defects which do not prejudice or only immaterially prejudice the value and the suitability of the goods for the use perceivable by us. Deviations in the condition of the raw materials and auxiliary agents cannot be objected to, if they have been defined as allowable in the standard terms of delivery of the plastics industry, and if – with respect to print work – they are due to the deviations between trial proof and print for reasons connected with printing technology. We do not warrant fastness to light, as well as color changes. Tolerances which are usual for the respective design, particularly regarding deviations in colors, form no basis for complaints. We exclude any warranty for layouts and films provided by Purchaser. If a packaging is subject to specific requirements under law, statutory regulation or invitation for bids, Purchaser must expressly draw our attention to this fact.
If the goods have a defect at the time of the passing of the risk we have the right to first effect post-performance. Post-performance is made at our discretion by rectification of the defects or delivery of substitute goods. If post-performance is not successful, Purchaser is entitled to claim rescission or a price reduction, at its discretion.
We have the right to make the due supplementary performance dependent on the Purchaser paying the due purchase price/remuneration. However, the Purchaser shall be entitled to retain a share of the purchase price / remuneration that is reasonable in proportion to the defect. The Purchaser is obliged to provide us with the time and opportunity required for the due supplementary performance, particularly to transfer the queried goods for control purposes. In the event of replacement deliveries, the Purchaser must return the defective goods to us in accordance with the statutory provisions.
Expenditure, particularly transport, infrastructure, labour and material costs, required for the purpose of review and supplementary performance shall be borne by us if a defect is present. If a Purchaser's demand for repair proves to be unjustified, however, we can request that the Purchaser refunds the costs arising for this.
The limitation period for claims resulting from defects with respect to our products is 12 months from the date of delivery. This period does not apply, if the law prescribes more extensive mandatory periods according to Sec. 438 I no. 2 of the German Civil Code, Sec. 479 I of the German Civil Code, and Sec. 634a I of the German Civil Code. Should Purchaser intend to return our goods to us, it may only do so with our prior consent.
Any other liability on our part, especially for damages, shall be governed by Section 11 below.
11. Further Liability for Damages
1. Insofar as nothing different is provided for in this GTC including the following provisions, we shall be liable in the case of a breach of contractual and non-contractual duties in accordance with the relevant statutory provisions.
2. We shall be liable for damage - regardless of its legal basis - in the event of intent and gross negligence. In the event of slight negligence we shall only be liable for
a) Damage from injury to life, body or health,
b) Damage from the culpable breach of an essential contractual obligation (an obligation, the fulfilment of which is prerequisite to enable the proper implementation of the contract and upon compliance with which the contract partner regularly relies and should be able to rely); in this instance, our liability is limited to compensation for the foreseeable damage typically occurring.
3. The limitations of liability arising from Paragraph 2 above shall not apply if we fraudulently hide a defect or have offered a guarantee for the properties of the goods. The same applies for the Purchaser's claims in accordance with statutory product liability law.
Due to a breach of duty which does not consist of a defect, the Purchaser can only withdraw or terminate the contract if we are responsible for the breach of duty. An unrestricted right of termination (in particular according to Sections 651, 649 BGB) of the Purchaser is excluded. Apart from that, the statutory provisions and legal consequences shall apply for withdrawal and termination.
The above provisions do not entail a change in the burden of proof to the prejudice of Purchaser.
12. Copyrights, Other Industrial Property Rights, Tools, Designs
Purchaser is fully responsible for ensuring that the use of the designs, print layouts, etc. provided by it or produced according to its specifications does not infringe any third party’s rights, and releases us from any liability in this respect.
Tools, lithographs, printing forms, forming dies, designs, sketches, etc. produced or ordered by us will remain our property, even if Purchaser is charged for their production costs in whole or in part.
The preservation period for other parties’ print layouts and other customized things is limited to 24 months from the last order produced on the basis of these things.
13. Punching Errors and Typesetting Errors, Additional Orders
For changes deviating from the punch or print layout which may become necessary the hours worked will be charged.
The same applies to corrections resulting from illegibility or other corrections, in particular corrections made by a graphics designer.
14. Proof in Cases of Export Delivery and Intra-Community Supply of Goods
If delivery is made by us as a VAT free export delivery or contract processing of export items or VAT free community supply of goods within the meaning of Sections 4 no. 1 lit. a and b, 6, 6a, 7 German Turnover Tax Act (UStG), the Purchaser is obliged to transfer all written documents on our request in accordance with Sections 8 et seqq., 17a et seqq. Tax Implementation Order (UStDV) that are required to receive VAT exemption, in particular, but not exclusively
a) An export certificate from the border customs office of a Member State of the European Union monitoring the delivery from the community area for export deliveries or contract processing of export items;
b) A delivery note, a written acknowledgement of receipt from the Purchaser or the recipient to whom the Purchaser delivers for community supply of goods, and in cases in which the Purchaser is transporting or shipping goods, the written affirmation from the Purchaser or his agent that it is transporting the goods to the territory of other EU Member States.
If the Purchaser does not send us the requested documents until the deadline, after we have requested the transfer thereof from the Purchaser setting a deadline of two weeks, the Purchaser is obliged to pay a contractual penalty to us. The amount of the contractual penalty is the amount in euros that is equal to the VAT being cancelled on the delivery, if this would arise. We reserve to claim further damages. The contractual penalty is credited against a damage as a result of any additionally demanded VAT by official authorities.
15. Force Majeure
We are not liable for impossibility of performance regarding delivery or for delays in delivery as far as caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties with procurement of materials or power, transport delays, strikes, lawful lockouts, shortage of workforce, power or raw materials, difficulties with obtaining official permits, governmental measures or failure of, incorrect or delayed delivery by our suppliers) that we are not responsible for.
As far as such events significantly hinder delivery or performance for us or make delivery or performance impossible for us and the hindrance is not merely of a temporary nature we may withdraw from the contract. In case of temporary hindrance the periods for delivery or performance are extended or the delivery dates are postponed by the duration of the hindrance plus a reasonable start-up period. If as a result of the delay the Purchaser cannot reasonably be expected to accept the delivery or performance, it may withdraw from the contract by immediate written declaration to us.
16. Place of Jurisdiction
If Purchaser is a businessman, a legal person under public law or separate estate under public law the place of jurisdiction shall be the place of business of our company or Frankfurt am Main; if we file a suit, we may also do so at Purchaser’s place of general jurisdiction.
17. Applicable Law
All legal relationships between Purchaser and us shall be governed by the law of the Federal Republic of Germany, in particular the Bürgerliche Gesetzbuch (German Civil Code) and the Handelsgesetzbuch (German Commercial Code), excluding the conflict of law rules of its international private law and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should individual provisions of these Terms and Conditions be invalid, in whole or in part, this shall not affect the validity of the remaining provisions.