Delivery and Payment Terms of NORDPACK GmbH
– Correct as per April 2010 –
§ 1 General Terms – Scope of Application
(1) Our Delivery and Payment Terms shall apply exclusively; any other terms and conditions of the buyer or those that deviate from our terms of sale are not acknowledged by us unless accepted explicitly in writing. Our delivery and payment terms shall still apply following unconditional delivery whilst having knowledge of contrary conditions of the buyer or conditions divergent from our conditions of sale.
(2) Our conditions of sale shall also apply to all future business transactions with the buyer.
(3) All agreements reached between us and the buyer for the execution of this contract are to be recorded in writing.
§ 2 Offers
Should an order be deemed an offer within the meaning of Article 145 German Civil Code (BGB), we reserve the right to accept this within four weeks.
§ 3 Prices
(1) All prices are net prices and shall be subject to the respective statutory VAT at the prevailing rate at time of payment.
(2) The prices do not include the costs of disposal.
(3) Printing blocks, lithographs, printing plates and tools, other tools and services are at the customer’s expense unless otherwise agreed in writing. They will be invoiced separately. The buyer shall acquire neither ownership of these things nor will we be obliged to provide these to them. If no further order has been made within 12 months of completing the last order, the entire right of use including the right to destroy these items passes to us. If orders are made according to drawings or other customer information and specifications and if, through them, any rights of third parties are infringed, the buyer shall exempt the seller from all claims from third parties.
(4) For cutting paper, the costs arising will be charged to the buyer.
§ 4 Payment Terms
(1) The invoice shall be issued as soon as the goods are ready for delivery. The following terms of payment shall apply unless otherwise agreed in writing: If payment is made
- a) within 10 calendar days of invoice date 2% discount
- b) within 30 calendar days of invoice date without deduction.
(2) Offsetting against other undisputed, legally established claims recognised by us is precluded. The buyer shall only be entitled to exercise retainer rights to the extent such rights are based on the same contract.
(3) Should the buyer suspend payments or should insolvency proceedings over his assets be started, any discounts, bonuses or other such benefits shall be deemed not granted.
(4) Should the buyer be in default of payment, we shall be entitled to charge default interest at a rate 5 percentage points higher than base rate according to Article 1 of the German Discount Rate Transition Law (DÜG). Should we be in a position to demonstrate that we have suffered greater losses, we shall be entitled to claim these.
(5) Should the buyer fail to pay despite a previous reminder, then all receivables from the business relationship, that is principal and subsidiary debts including any other debts, shall be immediately due for payment from a current account.
(6) Should adverse financial circumstances become known about the buyer, payments for deliveries provided shall become due with immediate effect. In this case, we can make future deliveries dependent on advance payment of the sales price for these deliveries.
(7) The acceptance of bills of exchange (promissory notes and trade bills of exchange) will only take place after special agreement and shall not be accepted in place of fulfilment and shall not entitle the buyer to deduct any discounts. Bills of exchange shall be processed to the buyer’s best possible advantage. The buyer shall bear any discount charges. Bills of exchange and cheques shall be credited only after receiving the net proceeds and only to the received net yield.
§ 5 Lieferung – Bearing the Risk
(1) Provided nothing is otherwise stated in the order confirmation, delivery “ex works” is agreed. The risk is transferred to the buyer from the day on which the goods are ready for dispatch even if we have also agreed to other services for example shipping costs.
(2) Partial deliveries are permissible.
(3) We reserve the right to excess and short deliveries to the following extent:
up to € 500 net + 25 % of the value of goods
up to € 2500 net + 15 % of the value of goods
up to € 5000 net + 10 % of the value of goods
(4) If it has been contractually agreed that the delivery from us shall take place “carriage paid”, transport damages according to Article 438 German Commercial Code (HGB) must be reported in order to protect claims for damages.
(5) If it has been contractually agreed that the delivery from us shall take place at our risk, transport damages according to Article 438 German Commercial Code (HGB) must be reported to the transport company in writing in order to protect claims for damages. Confirmation of the damage report must be made available to us immediately.
(6) Transport insurance shall be taken out on the explicit instruction of the buyer and on their account.
(7) For goods delivered packaged on euro pallets, the euro pallets remain the property of the seller unless they have been delivered carriage paid by the buyer to the seller or have been exchanged immediately on delivery of the goods. The buyer must return the same number of useable pallets in an impeccable state for every delivery or must return these euro pallets to us within four weeks of delivery carriage paid. If this does not happen, we shall be entitled to charge these euro pallets at time of settlement for the purchase of new pallets at the current price. The buyer’s right to return pallets to the seller shall expire upon issue of invoice. The claim for restitution of pallets only expires four years after delivery of the last order placed by the buyer with the seller.
§ 6 Delivery Period – Delay
(1) Commencement of the delivery time indicated by us is conditional on the clarification of all technical questions.
(2) Should we be in delay for reasons in our responsibility, the buyer shall be entitled to demand a flat-rate compensation sum equivalent to 3 % of the value of the delivery for each full week of delay up to a maximum of 10 % of the value of the delivery. This does not apply if the delay is due to deliberate intent or gross negligence or constitutes gross breach of duties.
(3) If, after we have defaulted on delivery, the buyer sets us a reasonable extension accompanied by a threat of refusal, the buyer is entitled to rescind from this contract after this period of grace has passed; the buyer shall only be entitled to compensation on grounds of non-performance amounting to the foreseeable damages if the delay was due to intent or gross negligence or gross breach of duties; apart from this, liability for damages shall be limited to 50 % of the damages incurred.
(4) The limitations of liability according to paragraphs (2) und (3) shall not apply if a commercial fixed-date transaction was agreed; the same shall apply if the buyer is able to maintain that their interest in fulfilling the contract has ended due to a delay attributable to us.
(5) Adherence to our delivery obligations is dependent on the buyer fulfilling their own obligations promptly and correctly.
(6) Should the buyer be in default of acceptance or should they violate other cooperation obligations, we shall be entitled to withdraw from the contract and/or claim for the loss resulting to us including any extra expenditures. In this case, the risk of accidental loss or sudden deterioration of the goods shall pass to the buyer at the time when the buyer gets into default of acceptance.
(7) If a blanket purchase order was agreed, the buyer shall be obliged to accept the goods produced within 3 months unless a differently worded agreement has been made. Should the buyer not have accepted the goods within 3 months or within the timespan agreed in the relevant contract, the buyer will be invoiced overall, including in respect of the goods not accepted. From the 4th month or respectively from the first month from exceeding the time limit agreed, storage costs of € 6.50 per DB pallet space shall apply and shall be charged to the buyer at the beginning of every month.
§ 7 Warranty
(1) We reserve the right to the usual unavoidable deviations in texture, substance, clarity, colour and other properties; the same applies for the usual unavoidable deviations in quantity, weight or dimensions. The buyer is not entitled to warranty claims regarding these deviations.
(2) The buyer shall take delivery of the supplied goods even if they are slightly defective, irrespective of the warranty rights arising from this article.
(3) The warranty rights of the buyer require that the buyer has duly complied with their obligations to examine and complain under Articles 377 and 378 German Commercial Code (HGB). Notifications of defect must be made in writing. The delivery shall be deemed to have been accepted if we have not received written notification of defect within 7 days of delivery, unless the defect could not be detected on inspection.
(4) Complaints can only be made regarding unprocessed and untouched goods. Cut, printed or otherwise processed goods will not be taken back in any case.
(5) Should a defect in the purchased goods that is attributable to us occur, we shall be entitled to correct the defect or replace the goods at our discretion. In the case of correcting the defect we shall be obliged to bear all costs relating to the correction of the defect, especially transport, travel, labour and material costs, with the exception of additional costs incurred as the result of the goods having been transported to a different place than the place of fulfilment.
(6) If we are not ready or able to remedy the defect or deliver a substitute, if we refuse these or delay them beyond appropriate periods for reasons for which we are accountable, or if the remedying of the defect/substitute delivery fails in other ways, the buyer shall be entitled to request a cancellation of the contract (rescission) or to reduce the purchase price (reduction) at their discretion.
(7) Unless specified otherwise below, any further claims from the buyer – on whatever legal grounds – are excluded. Therefore, we shall not be held liable for damages that are not directly caused to the delivered goods themselves; in particular, we are not liable for the buyer’s lost profits or other financial damages.
(8) The aforementioned exclusion of liability does not apply if the cause of damage is due to deliberate intent or gross negligence. It does also not apply if the buyer asserts a claim of non-fulfilment according to Articles 463, 480 Paragraph 2 German Civil Code (BGB) due to a promised missing feature.
(9) If we violate culpably a fundamental contractual obligation or a “cardinal obligation”, liability shall be limited to the damage typical of the contract; otherwise it is excluded in accordance with Paragraph 6.
(10) The warranty period is 6 months, starting from the day of risk transfer. This period is a period of limitation and is also valid for compensation claims for subsequent damages from defects, if and to the extent no claims are asserted due to unlawful acts.
§ 8 Aggregate Liability
(1) Any further liability for compensation is excluded, irrespective of the legal nature of the claim asserted.
(2) The provision according to paragraph (1) does not apply for claims according to Articles 1, 4 of the German Product Liability Act (Produkthaftungsgesetz). Insofar as the limitation of liability according to article 4 (9) does not apply for claims resulting from product liability according to Article 823 German Civil Code (BGB), our liability shall be limited to the compensation from the insurance. To the extent that this is not or not completely made, we shall be obligated to accept liability up to the amount insured.
(3) The provision according to paragraph (1) will also not apply in case of initial incapability or justifiable impossibility.
(4) Insofar as our liability is excluded or limited, this applies equally to the personal liability of our employees, personnel, staff members, representatives and agents.
§ 9 Reservation of Title
(1) The seller reserves title of ownership of the goods delivered until final payment of all invoices including all ancillary costs. Ancillary costs include those arising from the buyer’s default. In the case of several claims or open invoices, the reservation of title shall serve as security for the balance claim of the seller without regard to whether single goods deliveries have been paid or not.
(2) The buyer is entitled to process the goods delivered within the framework of proper business practices. However, in this case, the seller shall be regarded as the manufacturer within the meaning of Article 950 German Civil Code (BGB), acquiring ownership of the finished and semi-finished products. If the goods are processed with other goods or mixed with other stocks, the buyer now transfers their rights to ownership or co-ownership of the stocks and goods resulting from such processing or mixing as security for the seller’s entire claims under simultaneous agreement that the buyer shall hold them in custody for the seller.
(3) The buyer may resell the goods delivered and the goods and stocks resulting from their processing and mixing within the proper and generally accepted course of business. In this case, the buyer shall be obliged to undertake to reserve the title of ownership towards any third parties.
(4) The claims the buyer is entitled to from the resale shall be immediately assigned to the seller as security until all the seller’s demands have been settled in full, without requiring a separate agreement. If the value of the securities given to the seller exceeds their total claims by more than 20 %, the seller shall release the excess securities of their choosing upon the buyer’s request.
(5) The buyer shall be entitled to collect the relinquished claims as a trustee for the account of the seller as long as he fulfils his payment obligations to the seller properly. Until all claims by the seller have been settled in full, the buyer must pay incoming amounts to the seller. The buyer must inform the seller upon request of the purchasers’ addresses as well as of the details and invoice amounts of the respective deliveries. The seller shall be entitled to notify third parties of the assignment at any time.
(6) The buyer shall not be entitled to pledge the goods that are subject to reservation of title nor offer them as security. The buyer must notify the seller immediately of a seizure or any other threat to the seller’s rights by telegraph or telex in writing. The costs of a court or out-of-court intervention shall be at the buyer’s expense. If the buyer breaches their obligation to inform then all of the seller’s demands from the business relationship shall be due immediately. The seller is entitled and herewith authorised to regain possession of the goods under reservation of ownership without recourse to legal action if the buyer is in default of payment or if there is doubt about their creditworthiness or if they are guilty of a breach of contract. Retraction shall not constitute withdrawal from the contract. The buyer shall be liable for the loss claim remaining after utilisation of the returned goods.
(7) The buyer shall be obliged to insure the goods delivered, the stocks they were mixed with and the products resulting from processing against fire and theft and to provide proof of insurance to the seller on request.
§ 10 Customer Consent to the Transfer of Payment Data
The customer consents to the processing of data obtained during the course of the business relationship with Nordpack, including data on payment behaviour and information on non-contractual behaviour (for example amounts outstanding after termination, uncontested claims not satisfied despite becoming due). The rating agency stores this data and transmits it to its contractual and cooperating partners to provide these with information for judging the creditworthiness of companies. When giving information, the rating agency may in addition give their partners a probability value for judging the credit risk and comparable scoring information calculated from the data available to them. The customer may revoke their consent to the transmission of payment data at any time by notifying Nordpack.
§ 11 Court of Jurisdiction and Place of Fulfilment
(1) If the buyer is a registered trader within the meaning of the German Commercial Code, the legal venue is our place of business; however, we are entitled to sue the buyer at the court of his place of residence.
(2) Provided nothing is otherwise stated in the order confirmation, our place of business is place of fulfilment.
§ 12 Other
Should single provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The contractual parties shall replace the invalid provision with a valid one which corresponds to the purpose and intention of the agreement.