General Terms and Conditions Arwed Löseke Papierverarbeitung und Druckerei GmbH
I. General - Scope
1. the following terms and conditions are the subject of the contract concluded between the client and us.
2 Our terms and conditions of business shall apply exclusively. We do not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our terms and conditions.
(3) The Vienna UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall apply in the material scope of application, which shall otherwise be modified by the individual contractual agreements and these Terms and Conditions. In all other respects, the substantive civil law of the Federal Republic of Germany shall apply to all legal relationships.
4. all agreements made between us and the client for the purpose of executing this contract are set down in writing in this contract. Subsequent amendments or additions to the concluded agreements must be made in writing. A verbal waiver of the written form is excluded. Fax shall be sufficient for the written form.
II Offer and acceptance
If the order of the customer is to be qualified as an offer according to § 145 BGB, we can accept this within 2 weeks. We always confirm the acceptance of the contract in writing or by telex, unless immediate delivery or invoicing takes place.
2. if we subsequently become aware of circumstances which make the creditworthiness of the customer appear doubtful, we may make further processing of the order and delivery dependent on advance payment or withdraw from the contract.
We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as "confidential". The customer requires our express written consent before passing them on to third parties.
1. the prices offered are net prices in euros and do not include the statutory value added tax, unless otherwise agreed in the order confirmation. The prices are ex works and do not include packaging and shipping costs, as well as freight, insurance and postage, unless otherwise expressly agreed.
2. value added tax shall be shown separately in the invoice at the statutory rate on the date of invoicing.
3. the deduction of cash discount requires a special written agreement.
4. if the goods are invoiced by weight, the price shall be calculated according to the gross weight if packing and wrapping paper is used.
5 Changes to sketches, drafts, samples, test prints, tools and materials subsequently initiated by the customer shall be charged to him.
6. increases in manufacturing costs based on material price increases may be passed on.
IV. Industrial Property Rights / Recycling Management Act
1. the operating items used by us for the production of the contractual product, in particular films, printing plates, lithographs, printing cylinder and printing plates, standing sets and tools shall remain our property, even if they are invoiced separately, and shall not be delivered.
2. the client is solely responsible for checking the right of reproduction, as well as with regard to copyright and other industrial property rights to the documents contributed by him. Accordingly, he shall indemnify and hold us harmless against all claims of third parties.
3. the agreed remuneration shall be paid for samples, sketches, designs etc. expressly ordered (or commissioned) by the customer, even if the production order for the final product is not placed. We may make documents, sketches, plans, etc. available to third parties to whom we have transferred deliveries or services in a manner that is indispensable for the production process.
4. if copyrights and / or industrial property rights arise for us as a result of the development and execution of an order, the customer shall receive a simple right of use. This shall also apply if the customer bears a share of the costs for the development. In particular, we shall be entitled to exploit the rights of use and / or industrial property rights also for orders of third parties, unless otherwise agreed.
5. if we have processed rotogravure cylinders for the customer, we may freely dispose of these rotogravure cylinders (blank without the customer's print image) after 18 months have elapsed since the last delivery, unless the customer expressly objects within this period.
(6) Insofar as we deliver goods abroad or the customer has designated them for delivery abroad, we shall not assume any warranty for patent rights, industrial property rights, exploitation rights or other proprietary rights existing outside the Federal Republic of Germany which conflict with the use or purpose of the goods designated by the customer.
(7) If we affix signs within the scope of the Closed Substance Cycle Waste Management Act within the meaning of the Packaging Ordinance (e.g. "Der Grüne Punkt") to the products on behalf of the Customer, the Customer shall be deemed to have "put into circulation" the sign of the Closed Substance Cycle Waste Management Act within the meaning of the Packaging Ordinance, unless other agreements have been made in individual contracts, and shall thus pay the fees. If the Customer violates the provisions of the Closed Substance Cycle Waste Management Act or the Packaging Ordinance and if claims are asserted against us as a result, the Customer shall be obliged to reimburse us for all expenses incurred in this connection.
(8) In the event that the Customer does not participate in the Dual System Deutschland GmbH, the Customer undertakes to take back the delivered packaging in accordance with the provisions of the German Closed Substance Cycle Waste Management Act (Kreislaufwirtschaftsgesetz) as defined in the latest version of the Packaging Ordinance (Verpackungsverordnung) and to recycle it as prescribed in the Packaging Ordinance. If we are obliged to take back the packaging on the basis of the Closed Substance Cycle Waste Management Act or the Packaging Ordinance, the place of performance for the return of the packaging by the Customer shall be our registered office.
(9) If the Customer culpably violates the obligations assumed and if this results in a fine being imposed on us for violation of the Ordinance on the Avoidance of Packaging Waste, the Customer shall be obliged to release us from this payment obligation. If we have already paid the fine, the Customer shall reimburse us for this amount.
1. delivery shall be made for the account and at the risk of the customer, even if we bear all or part of the transport costs.
2. an agreed delivery period shall commence on the date of receipt of the final printing and / or production approval granted by the client. Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer's obligation. We reserve the right to plead non-performance of the contract.
The delivery period shall be deemed to have been met if we have dispatched the goods on the last day of the agreed period.
4. in the event of subsequent amendment of the contract, the originally promised and confirmed delivery period shall be extended accordingly. If delivery is delayed for reasons for which the customer is responsible, the deadline shall be deemed to have been met upon notification of readiness for dispatch within the agreed period.
(5) We shall not be liable for the consequences of delayed deliveries if these are due to natural disasters, measures taken by the public authorities, shortage of materials, interruption of operations, traffic difficulties, strike, lockout, other interruptions of operations, armed conflicts, lack of suitable means of transport or supply services as well as other circumstances outside our operational area. In this respect, we are entitled to extend the agreed delivery period appropriately.
In all other respects, a failure to deliver shall entitle the customer to take legal action of any kind only after he has set us a reasonable deadline in writing. Claims can only be derived from the exceeding of delivery deadlines in the case of completed orders if any damage caused by delay has been pointed out at the latest 2 weeks before the expiry of the agreed delivery deadline.
7. orders on call must be accepted within 6 months from the date of the declaration that the goods are ready, unless otherwise agreed. After expiry of this period, we may demand advance payments for quantities not yet collected, including additional storage costs. If the customer does not make the advance payment within 2 weeks despite being requested to do so, we shall be entitled at our discretion either to insist on acceptance of the goods and to invoice these including the additional storage costs or to carry out a sale or to withdraw from the contract and claim damages. If we claim damages, a lump-sum compensation of 15% of the order sum shall be deemed agreed. Our right to claim further damages by providing evidence shall remain unaffected. The customer shall have the right to prove that no damage or not this amount of damage has been incurred.
8. if the customer is in default of acceptance, the risk of accidental loss and accidental deterioration of the goods shall pass to him. Furthermore, the Customer may be charged storage fees in the amount of 0.5% of the invoice amount for each month or part thereof, beginning one month after notification of readiness for shipment; the storage fees shall be limited to 4% of the invoice amount p.a.. The Customer shall have the right to prove that storage costs have not been incurred or have not been incurred in this amount.
9. we are entitled to make partial deliveries. For the delivery clauses "EXW, FAS, FCA, FOB, CFR, CIF, CPT, DAF, DES, DDU, DEQ, DDP" the Inco-Terms 2000 of the International Chamber of Commerce in Paris shall apply exclusively.
VI. packing and shipping
1. we are liable for proper and industry-standard packaging, undertake shipping with due care, but are liable only for intent or gross negligence.
2. shipping dates are only binding with our express written confirmation.
3. the customer undertakes to collect the transport and outer packaging used and either to recycle it properly itself or to return it to us.
1. weight deviation
Deviations in the weight per unit area shall be governed by the tolerances specified in the delivery conditions of the producers of the materials used. Unless otherwise specified therein, the following in particular shall be deemed to be in conformity with the contract:
a) for paper and cardboard +/- 5 %.
b) for plastic +/- 15 %
Bei allen Lieferungen gelten als vertragsgerechte Maßabweichungen vereinbart:
a) Beutellänge +/- 4 mm
b) Beutelbreite +/- 3 % (bei Beutelbreite < 80 mm) +/- 2 % (bei Beutelbreite > 80 mm)
c) Rollenbreite +/- 3 mm
d) Formatlänge +/- 5 mm
e) Formatbreite +/- 5 mm
f) Kunststoffe +/- 5 %
3. quantity deviations
We reserve the right to deliver up to 20 % more or less of the ordered quantity for production reasons, charging the actual delivery quantity, if this is reasonable for the customer. This percentage increases to 30 % for
a) Sale by quantity: for quantities below 50,000 pieces
b) Sale by weight: for weights below 500 kg.
For printing, we use commercially available printing inks within the Federal Republic of Germany. If special requirements are placed on the inks, such as light resistance, alkali fastness, friction resistance, etc., the customer must point this out in writing when placing the order.
We expressly reserve the right to minor deviations of the colors as being in accordance with the contract. They do not entitle the customer to refuse acceptance of the goods or to a price reduction or other legal remedies. Proofs will only be submitted prior to printing if requested by the customer or if we deem it necessary. Proofs from the press will be charged separately according to time and effort.
2. we do not assume any warranty for plasticizer migration, paraffin-soluble dyes or binders or similar migration phenomena and for consequences derived therefrom. In particular, the customer shall expressly refer to food law safety requirements or other public law provisions of the country to which the goods are delivered when packing the goods. This must be done in writing. We shall not assume any liability in the event of failure to do so.
3. in case of coding and / or numbering, the graphic with coding is to be coordinated with us on technically conditional manufacturing possibilities. The customer is solely responsible for the correctness of the code arrangement and placement. We do not assume any liability for coding templates provided. Due to the tolerances of paper and cardboard, printing inks and reading devices, we cannot guarantee the same suitability for different print runs. Sample deliveries, preliminary, partial and total print runs must be checked immediately by the customer by means of an incoming inspection. A guarantee for the readability of the coding on flexible material is expressly excluded. Misprints of up to 5 % cannot lead to a complaint. This also applies analogously to the numbering.
4. the printing of the EAN barcode shall be carried out in accordance with the state of the art and taking into account the relevant implementation regulations of the CCG (compare Co-Organization publication series, Booklet 2, The EAN barcode).
Further commitments, in particular statements about reading results at the cash registers of the retail trade, cannot be made due to possible influences on the barcodes after delivery by the Customer and due to the lack of uniform measuring and reading technology.
IX. Material and execution
In the absence of special instructions from the customer, the orders shall be executed using materials customary in the industry and in accordance with manufacturing processes known within the Federal Republic of Germany. In the event of special properties of the filling material and / or the packaging process at the customer's premises, the customer must inform us expressly and in writing of the corresponding requirements and make appropriate agreements. This applies in particular in the case of legal requirements of the country concerned, such as food law.
X. Retention of title
(1) We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct in breach of contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the purchased item. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to dispose of it; the proceeds of such disposal shall be set off against the customer's liabilities - less reasonable costs of disposal.
2. the customer is obliged to treat the object of purchase with care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. (Insofar as maintenance and inspection work is required, the Customer must carry this out in good time at its own expense).
In the event of seizures or other interventions by third parties, the customer shall notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5. the processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to be agreed that the Customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
7. the customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a plot of land.
8. we undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.
XI. Warranty period
1. the warranty period is 12 months.
2. compensation for damages instead of performance under warranty is excluded. This applies to intent, gross negligence and injury to life, limb and health.
3. in the production of paper and plastic packaging and similar goods, the occurrence of a relatively small number of defective goods is technically unavoidable and a proportion of up to 5% of the total quantity is not objectionable, irrespective of whether the defect is due to processing or printing. For the purposes of the Vienna Sales Convention, this proportion shall be deemed to be goods in conformity with the contract.
4. defects of a part of the delivery cannot lead to a complaint about the whole delivery if a separation of faultless and defective goods is possible with reasonable means.
In the case of fully automatic bag production, counting is carried out automatically. In these cases, we are entitled to base the delivery and quantity calculation on this count.
6. improper storage by the client excludes any compensation.
(7) Insofar as circumstances occur, for which we are not responsible in accordance with Section V, which significantly change the economic significance or the content of the delivery and service or have a significant effect on our business, the contract shall be appropriately adjusted insofar as this is in good faith. As soon as this is not economically justifiable, we shall be entitled to withdraw from the contract. If we make use of this right, we shall inform the customer immediately after realizing the consequences of the event, even if an extension of the delivery period was initially agreed with the customer.
(1) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(2) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
3. liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
(4) Unless otherwise provided above, liability is excluded.
1. payments shall be deemed to have been made on time if the financial institution has credited the amount without objection within 14 or 30 days of the invoice date or if the payment deadline stipulated in the individual contract has been met.
Payments shall be made to our paying agent without any deductions and free of bank charges.
3. a set-off or the exercise of a right of retention against our claims is only permissible with or because of undisputed or legally established claims.
(4) If the parties agree on documentary credits, the Uniform Customs and Practice for Documentary Credits, the "UCP 500" of the International Chamber of Commerce, Paris, as amended from time to time, shall apply to the interpretation of the agreement, to the exclusion of Article 41.
5. bills of exchange and checks shall only be accepted on account of performance. Payment by bill of exchange requires special agreement. Interest and costs for discounting or collection of bills of exchange and checks shall be borne by the customer and paid there in cash.
6. failure to comply with the terms of payment due to circumstances which are based on a significant deterioration in the financial circumstances of the customer and which only become known to us after the conclusion of the contract shall result in the immediate maturity of all claims, even in the case of deferral. If in this case bills of exchange have not yet been honored, we shall nevertheless be entitled to immediate payment in cash. Furthermore, we have a claim against the customer for advance payment and provision of security for further order-related deliveries.
XIV Place of performance and jurisdiction
Place of performance for all mutual contractual obligations is Hildesheim.
2. place of jurisdiction is Hildesheim. However, we are also entitled to sue the client at the court of his residence or company headquarters.
Status: October 2004