General Terms and Conditions including Limitation of Liability of Corpac Deutschland GmbH & Co. KG.
1. Scope of Application
The mentioned terms of delivery and payment shall apply to all our deliveries and services. Conflicting terms and conditions shall only be deemed to have been agreed if their validity has been confirmed by us in writing. At the latest with the unconditional acceptance of our delivery, our terms and conditions shall be deemed accepted.
2. Offer, Conclusion of Contract, Correspondence
Our offers, price lists and the like are always subject to change. All orders as well as written and telephone agreements require our written confirmation within the existing power of representation to be valid.
3. Delivery Times and Quantities
a) Delivery times shall only be deemed agreed upon after express written confirmation. The delivery period shall commence on the date of our order confirmation.
b) We are entitled to make partial deliveries and to invoice them separately, provided that the partial deliveries are reasonable for the contractual partner. However, our contractual partner may not demand partial deliveries unless expressly agreed otherwise.
c) We shall be entitled to reduce an order by up to 30% of the order quantity if there occurs a shortage of raw materials without our fault.
d) Excess or short deliveries of up to 10% can be made for technical production reasons.
e) Deadlines and dates shall be reasonably extended due to unforeseeable events and other circumstances for which we are not responsible. In the event of a breach of duty by us, we shall only be liable for damages in accordance with clause 15 of these terms and conditions.
f) Insofar as orders have been placed on call, they must be accepted within 3 months. We shall be entitled to invoice quantities not accepted after expiry of this period.
4. Force Majeure
In the event of force majeure and equivalent events such as fire, flooding, earthquake, war, civil war or industrial action and other operational disruptions not through any fault of our own due to state intervention, delivery failures, shortage of labour or shortage of energy or raw materials, the delivery period shall be extended without further ado by the duration of the hindrance, but by no more than 12 weeks. The extension shall only occur if our contractual partner is informed immediately of the reason for the hindrance as soon as it can be overlooked that the aforementioned deadline cannot be met. If the hindrance lasts longer than 12 weeks, we are entitled to withdraw from the contract. Further claims of our contractual partner, in particular claims for damages and replacement procurement, are excluded.
a) The recipient is obliged to inspect the goods delivered by us immediately. Complaints can only be asserted against us in writing within 8 days of receipt of the goods by the recipient. The receipt of the letter of defect at our premises is decisive.
b) Defects in a part of the delivery do not entitle the customer to complain about the entire delivery. In this case, the unsuitable items shall be returned to us, provided our consent has been obtained.
c) In the event of defects acknowledged by us, we may, at our discretion, repair or replace the goods complained of or reimburse the equivalent value. Further claims such as damages, contractual penalties and the like are excluded, unless gross negligence on the part of one of our employees is involved.
d) The rights of our contractual partner due to defects in the goods shall be determined in accordance with the statutory provisions with the proviso that our contractual partner shall grant us a reasonable period of grace of at least 4 weeks for subsequent performance, whereby the customer shall reserve the right to grant us a reasonable period of grace of less than 4 weeks in individual cases if a period of grace of at least 4 weeks for subsequent performance is unreasonable for them.
e) Notices of defects do not release the customer from their obligation to pay on time. The customer shall only be entitled to set off rights if their counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer is also not entitled to any right of retention on account of disputed counterclaims. Exclusion of liability also exists for lost profit as well as other financial losses of the customer.
6. Quality of Delivered Goods
a) The quality of our products depends on the available raw materials. We are therefore only responsible for quality changes, colour differences and weight deviations if they could have been avoided under the given circumstances. Minor deviations from brochures, trial deliveries or samples cannot be objected to in principle.
b) A guarantee for the suitability of the goods for a specific purpose is not given. Own function tests are indispensable!
c) In the case of plastic products, we must reserve the right, for technical reasons, to the fluctuations customary in the trade here with regard to material thickness (±15%) and dimensions (±5%) of the products. Possible fluctuations within this framework do not entitle the customer to assert claims for damages, compensation and deduction from the agreed price. The delivery of a small quantity of defective goods (up to 2% of the total quantity) cannot be objected to.
d) Minor colour and register deviations in printed products cannot be objected to. We do not assume any liability for the durability of the printing inks used by us.
e) Subject to specifications or product descriptions agreed with priority, we guarantee that our films retain their properties for 24 months if they are stored in their original packaging, protected from light (in particular from UV radiation), at temperatures between 15 degrees Celsius and 35 degrees Celsius and a relative humidity of 40% to 65% and do not come into contact with unpleasant odours. A further agreement on quality has not been made, so in the event of deviating general conditions and any defects that may arise as a result, a warranty on the part of the supplier is expressly excluded.
f) Subject to the above priority information, the goods to be delivered by us comply with the statutory inspection and evaluation clause (GKV) for polyethylene films and products made from them deposited with the Bundesanstalt für Materialprüfung (Federal Institute for Materials Testing) in Berlin.
7. Muster und Entwürfe
Muster und Proben gelten nur als ungefähr und gewährleisten nur eine annähernde Probemäßigkeit.
a) Soweit Muster und Entwürfe von uns zur Verfügung gestellt werden, behalten wir uns alle Urheberrechte, insbesondere das Vervielfältigungsrecht, vor. Trotz Bezahlung der Entwürfe durch den Besteller bleiben diese Rechte unser Eigentum.
b) Von uns gelieferte Druckwalzen bleiben regelmäßig unser Eigentum.
c) Der Käufer bzw. Besteller hat auf jeden Fall dafür einzustehen, dass durch die nach seinen Angaben hergestellten bzw. von ihm zur Verfügung gestellten Muster keine Urheber-, Warenzeichen- oder sonstige Rechte dritter Personen verletzt werden.
7. Samples and Drafts
Samples and specimens shall only be regarded as approximate and shall only guarantee an approximate trial moderation.
a) If samples and drafts are made available by us, we reserve all copyrights, in particular the right of reproduction. Despite payment of the designs by the customer, these rights remain our property.
b) Printing rollers supplied by us shall regularly remain our property.
c) In any case, the purchaser or customer shall be responsible for ensuring that not any copyrights, trademarks or other rights of third parties are infringed by the samples produced according to their specifications or made available by them.
The prices quoted by us are always ex works or ex warehouse. If the prices for raw materials and supplies or for energy increase after conclusion of the contract or if wages and salaries agreed in the collective bargaining agreement as well as the taxes burdening the business increase, we reserve the right to adjust the delivery prices to the extent caused by this. The statutory value added tax is not included in our prices. It will be shown separately on the invoice at the statutory rate on the day of invoicing.
9. Dispatch, Transfer of Risk
a) Unless otherwise agreed, dispatch and transport shall be at the risk of our contractual partner. The risk of accidental loss and accidental deterioration of the goods shall pass to our contractual partner as soon as the goods have been handed over to the forwarding agent, the carrier or any other person designated to carry out the shipment. It shall be equivalent to handover if our contractual partner is in default of acceptance.
b) Deliveries shall be made at our discretion by rail, post, forwarding agent or our own truck in suitable packaging materials of our choice.
c) Only at the request of our contractual partner and at their expense shall we insure the delivery item against any insurable risk desired by our contractual partner, in particular against theft and transport damage. Transport damage must be reported to us immediately, in addition, the recipient must ensure on delivery that the corresponding claims and reservations are reported to the carrier.
d) If goods are delivered on Euro pallets, an immediate exchange for usable Euro pallets shall be carried out. If an exchange is not made upon delivery, the Euro pallets remain the property of the seller. For Euro pallets that are not exchanged, the cost price of the seller will be charged.
10. Terms of Payment
a) Unless otherwise agreed in writing, payment shall be made within 10 days of the invoice date with a 2% discount or within 30 days without deduction.
b) If the payment date specified under a) is exceeded, the buyer is automatically in default without further reminder. The delay occurs 30 days after the invoice date. The buyer is obliged to pay a default interest of 3% above the respective discount rate per annum of Deutsche Bank from the invoice amount. Any discounts granted shall lapse.
c) If the buyer defaults on a due invoice amount, all other outstanding invoices of the purchaser shall become due for payment immediately, even if the term of payment has not yet expired.
d) If an unfavourable financial situation of the customer becomes known before or after a delivery, we shall be entitled to revoke the granted terms of payment and to demand immediate payment of all outstanding invoices or corresponding securities. This shall apply to the following events:
Our contractual partner applies for the opening of judicial or extrajudicial insolvency or composition proceedings or judicial or extrajudicial insolvency or composition proceedings are opened against the assets of our contractual partner or the opening of such proceedings is rejected for lack of assets.
There is a written credit report of a bank or credit agency from which the credit unworthiness of our contractual partner or a substantial deterioration of their financial circumstances results. If our contractual partner does not comply with our justified request for advance payment within a reasonable grace period set by us, although we have declared to them that we will refuse acceptance of further services by them after expiry of the grace period, we shall be entitled to withdraw from the contract or demand damages instead of performance, but only with regard to the part of the contract not yet fulfilled by us.
e) Discounts granted by us shall only apply in the event that the buyer complies with the payment terms set by us. Otherwise we shall be entitled to take back discounts and to pursue the claim in full.
11. Current Account Clause / Balance Clause (Business Commitment Clause)
The seller retains title to the goods until all claims of the seller against the buyer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled in the existing current account relationship (business relationship). The reservation refers to the acknowledged balance.
12. Extended Retention of Title in Case of Resale with Advance Assignment Clause
a) The buyer is entitled to resell the reserved goods in the ordinary course of their business; however, they hereby assign to the seller all claims in the amount of the final invoice amount (including value added tax) of the seller’s claim accruing to them from the resale against their customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The claim assigned to the seller by the buyer in advance also refers to the acknowledged balance and, in the event of bankruptcy of the buyer, to the then existing (causal) balance.
b) The buyer remains entitled to collect this claim even after the assignment. The authority of the seller to collect the claim themselves remains unaffected. However, the seller does not undertake to collect the claim as long as the buyer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of bankruptcy or composition proceedings and has not suspended payments. If this is the case, however, the seller can demand that the buyer informs them of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the third-party debtors of the assignment.
c) The processing or transformation of the object of sale by the buyer is always carried out for the seller. If the object of sale is processed with other objects not belonging to the seller, the seller shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing.
d) For the rest, the same shall apply to the object created by processing as to the object of sale delivered under reservation. If the object of sale is inseparably mixed with other objects not belonging to the seller, the seller shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the buyer’s item is to be regarded as the main item, it shall be deemed agreed that the buyer shall transfer proportionate co-ownership to the seller. The buyer shall keep the sole ownership or co-ownership thus created in safe custody for the seller.
13. Secrecy, Ownership of Documents
We are entitled to unrestricted property rights and copyrights to cost estimates, calculations, drawings, drafts, moulds, samples, models, copies, tools, simulations, files and other documents or data which our contractual partner has received directly from us or at our instigation from third parties. Our contractual partner shall not undertake to make such objects accessible to third parties in any form whatsoever without our express permission and further promises us a contractual penalty of EUR 10,000 for each individual case of infringement of this obligation. Our right to demand compensation for damages actually incurred in excess of the contractual penalty shall remain unaffected thereby.
14. Property Rights
a) If the goods are to be manufactured according to drawings, samples or other information provided by the contractual partner, the contractual partner shall be responsible for ensuring that not any third-party rights, in particular patents, utility models, other industrial property rights and copyrights, are infringed as a result. The contractual partner shall indemnify us against any claims by third parties arising from any infringement of such rights. In addition, our contractual partner shall bear all costs incurred by us as a result of third parties asserting the infringement of such rights and we defend ourselves against it. The same applies to the use of samples, drafts, print templates, etc. created by us or provided by our contractual partner.
b) Should results, solutions or techniques and technologies arise in the course of our development work that are in any way patentable, we alone are the owner of the resulting property rights, copyrights and rights of use, and we reserve the right to file the corresponding patent applications in our own name and in our own name.
15. Limitation of Liability
a) The liability of Corpac Deutschland GmbH & Co. KG to damages, regardless of the legal grounds, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tortious acts, to the extent that this depends on fault in each case, shall be limited in accordance with the following provisions.
b) Corpac Deutschland GmbH & Co. KG shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this is not a breach of essential contractual obligations. Essential contractual obligations are the obligations for the timely delivery and, if applicable, installation of the delivery item, its freedom from defects of title as well as such material defects which impair its functionality or usability more than only insignificantly, as well as obligations for advice, protection and care which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
c) If Corpac Deutschland GmbH & Co. KG is liable for damages in accordance with paragraph II, this liability shall be limited to damages incurred by Corpac Deutschland GmbH & Co. KG foreseen at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage can typically be expected when the delivery item is used as intended.
d) In the event of liability for simple negligence, Corpac Deutschland GmbH & Co. KG is limited to an amount of EUR 5,000,000.00 per claim for property damage and to an amount of EUR 500,000.00 per claim for further financial loss resulting therefrom (in accordance with the current coverage amounts of its business and product liability insurance), even if it is a breach of material contractual obligations.
e) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of Corpac Deutschland GmbH & Co. KG. As far as Corpac Deutschland GmbH & Co. KG provides technical information and / or acts in an advisory capacity and this information and / or advice is not part of the contractually agreed scope of services owed by it, Corpac Deutschland GmbH & Co. KG shall do so free of charge and to the exclusion of all liability.
f) The aforementioned limitations do not apply to the liability of Corpac Deutschland GmbH & Co. KG for intentional or fraudulent conduct, for guaranteed characteristics, for injury to life, limb or health or in accordance with the product liability act.
16. Applicable Law, Place of Jurisdiction, Miscellaneous
a) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
b) Place of performance and place of jurisdiction for delivery and payment as well as all disputes between the parties shall be the registered office of Corpac Deutschland GmbH & Co. KG. Corpac Deutschland GmbH & Co. KG is, however, also entitled to sue at the court responsible for the buyer.
c) Should individual clauses be invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
Corpac Deutschland GmbH & Co. KG
D-71720 Oberstenfeld / Germany
Telefon +49 (0) 70 62 – 914 36 0
Telefax +49 (0) 70 62 – 914 36 22