General Terms and Conditions
- The present terms and conditions are legally binding for all business relationships, sales, rentals and other legal transac-tions between Cartonplast Group GmbH ("CPL") and his custom-ers, respectively between the customers of CPL and their recip-ients - as far as included by CPL's customers vis-à-vis their recipients. They only apply to enterprises within the meaning of Section 14 of the German Civil Code (BGB).
- Contradicting terms and conditions of customers or ones deviating from CPL's terms and conditions are not acknowl-edged by CPL, except if CPL has expressly approved their validity in writing. CPL's terms and conditions shall also apply, if CPL conducts the delivery to the customer without reservation, despite knowledge of contradicting or deviating terms and conditions of the customer.
- Quotations from CPL shall always be subject to change with-out notice unless CPL expressly sets an acceptance period for the customer.
- Prices quoted in writing by CPL shall be deemed fixed prices if the quotation is accepted immediately - but no later than 10 days - by a written order without any changes.
- Unless agreed otherwise, the prices stated by CPL shall be net prices exclusive of applicable taxes.
- The customer shall send CPL a written order stating article numbers, dimensions, grammage, thickness, colour, quantity, prices, delivery address and delivery period. If this information is incomplete, CPL shall fill in the missing details according to its written quotation for preparation of the order confirmation. If the customer orders a specific cut to be produced, he must provide CPL with a binding technical drawing, on the basis of which the cut is produced. CPL will not assume any warranty for the correctness of the drawing. In case of a wrong delivery as a result of an error in the customer's drawing, this shall not entitle the customer to a notice of defects.
- Pads cut by the machine shall have a tolerance in regard to its dimension of ± 1%. If the cut to be produced shall have exact dimensions at the customer's request, die-cuts will be neces-sary, which production will be charged on to the customer. These costs shall be once-off. Upon request of the customer, CPL shall hand out the die-cuts produced for the customer to the latter, following the end of the contractual relationship. Further, CPL shall make an offer to the customer for restitution of the die-cuts before their final transfer to third parties or their destruction; if the customer fails to accept said offer within ten (10) working days, his claim to restitution in this regard shall be forfeited.
- For plastic products, CPL cannot assume any warranty for the lastingness of the colours, even if they are described as light- or water-resistant. CPL shall further not be liable for migration of plastifiers, paraffin-soluble dyes/anti-statics/binding agents or similar migration phenomena and their consequences. CPL shall not be liable for changes of the me-chanical and thermal properties of the plastic products which occur during use.
IV. Conclusion of contract
- Contracts shall originate through a written order confirmation by CPL, but shall also be deemed accepted in the event of a tacit performance of customer's order.
- If CPL has set an acceptance period when making a written quotation, the contract shall be deemed concluded if a written declaration of acceptance from the customer has been re-ceived by CPL before the expiry of the acceptance period.
- Oral order confirmations, agreements, assurances, changes and declarations by employees and other members of the CPL personnel shall require written confirmation by the legal repre-sentatives or general agents of CPL for their legal effectiveness.
- Complaints about order confirmations shall be made in writing without delay, but no later than one week from their receipt by the customer. Receipt by facsimile or email shall suffice for compliance with such notice period.
- Confirmed prices shall only apply by acceptance of the con-firmed quantities.
Delivery shall be for the customer's account and at his risk. If free delivery has been agreed, the risk shall pass to the cus-tomer upon arrival of the delivery vehicle at the delivery address on level ground or at the place which can be reasonably reached by the vehicle. Part deliveries shall be admissible to the extent that they are not unreasonable for the customer; they shall be deemed as independent deliveries. All and any warran-ty rights of the customer in regard to the outstanding delivery shall not be affected thereby. CPL reserves the right to select the transport route and the means of transport. Free delivery shall mean delivery without unloading provided that an access road which can be used by heavy loading equipment is accessible. If the delivery vehicle leaves the access road on instruction of the customer, the latter shall be liable for any damages incurred. Unloading shall be done by the customer properly and without delay.
- Delivery dates and delivery periods
The delivery periods stated in the order confirmations from CPL shall apply subject to correct and punctual delivery by CPL's suppliers, unless CPL has expressly agreed on binding delivery periods with the customer, which however shall not be deemed to be a so called "Fixgeschäft" where time is agreed to be of the essence - except where expressly agreed as such. The goods shall also be deemed supplied if they are not immediately demanded by the customer, in any event no later than 14 days after notification of readiness for dispatch, provided that the customer has been placed in arrears beforehand. Unforeseen extraordinary incidents such as industrial disputes, sovereign measures, traffic disruptions or other cases of force majeure shall release CPL from its delivery duty for the duration of their effects or in the event of impossibility from its full performance.
In the event of arrears in performance by CPL or impossibility of performance for which CPL is responsible, all and any claims for damages of the customer shall be limited pursuant to Section.
The goods shall travel in packaging customary in the trade. Packaging shall be charged to the customer at cost price. Return of and reimburse- ment for the packaging material will only take place pursuant to a special agreement.
- Reporting damage
To protect his rights in regard to any transport damages, the customer shall examine all deliveries for any damages and/or losses before unloading. Any damages or short respectively excess deliveries shall be notified to CPL immediately by email, facsimile or telephone with a subsequent written confirmation. Moreover, a declaration by the haulier concerning damages and/or losses must be made on the delivery papers (waybill etc.) and be provided by the customer. The corresponding recording of the state of affairs by the haulier shall be sent to CPL to-gether with the delivery papers. The customer's claims against the transport company due to damages shall be assigned to CPL upon request.
- Delivery period
The delivery period shall commence with presentation of the order confirmation by CPL unless in case of customer's com-plaints pursuant to Section IV. 3, in which case the delivery period shall commence with clarification of the complaint.
If the goods have yet to be developed or if samples thereof are to be produced first, the delivery period shall only commence at the time when the customer has given its written confirmation for the final product or sample. Thus, the development phase shall not be deemed delivery time. Samples shall be charged to the customer according to time and effort expended.
VI. Notices of defects and warranty for defects
- The customer shall be obliged to notify CPL in writing of all detectable missing quantities, wrong deliveries or defects within five (5) working days of delivery, for merchandise in any case before processing or installation. If defects are not de-tectable upon delivery, the customer shall notify CPL of these so called hidden defects within five (5) working days of their discovery. For merchandise, Section 377 of the German Com-mercial Code shall be applicable.
- Goods sold or leased as agreed inferior quality shall not be subject to a notice of defects in regard to the expressly desig-nated inferior quality. The delivery quantity may vary by up to ± 10%.
- If the notice of defects of defective merchandise is punctual and justified within the meaning of Section 433 sub-section 1 sentence 2 in conjunction with Sections 434, 435 BGB, respec-tively of defective leased objects within the meaning of Section 536 BGB, the customer is entitled to the statutory warranty rights in compliance with Section VI. 5.
- If the goods manifest visual contaminations or small cracks not impairing their usability, they shall be deemed non-defective merchandise within the meaning of Section 343 sub-section 1 no. 2 BGB, respectively non-defective leased goods within the meaning of Section 535 sub-section 1 sentence 2 BGB, unless the parties have made an express agreement to the contrary.
- Claims for damages of CPL's customers are excluded, re-gardless of their legal basis, unless they are based on a wilful or gross negligent breach by CPL, its legal representatives or vicarious agents. The above limitation of liability shall not apply to damages incurred by the customer due to a culpable breach of a cardinal contractual duty by CPL, its legal representa- tives or vicarious agents, in which case CPL's liability shall be limited to the typically foreseeable damage. Cardinal contractual duties are all duties, which performance enables the proper fulfilment of the present contract and in which compliance the customer may trust. The above limitation of liability shall also not apply to injury to life, body or health, claims on the basis of the Product Liability Act or in the event of the assumption of a guarantee.
VII. Treatment of leased objects
- When forwarding leased objects to the customer's recipients, the customer must provide them with the "Guidelines for the correct handling of CPL layer-pads" ("CPL Guidelines"), which can be accessed and downloaded under www.cartonplast.de, and obligate its recipients by agreement to also comply with the CPL Guidelines. Moreover, the customer shall make a week-ly report to CPL about the forwarding of the leased objects to his recipients.
- The customer may use the leased objects only once for the storage/transport/ delivery of goods to his recipients ("contrac-tual use") and shall treat the leased objects with the due care of a prudent businessman. After completion of the contractual use by the customer, the leased objects shall be returned to CPL immediately.
- The customer is obliged to conclude a respective property insurance in regard to the receipt of the leased objects from CPL with an insured sum customary in the trade at its own expense and to verify the same upon CPL's request.
- Insofar as the customer provides the leased objects to third parties outside the contractual use, following prior written approval by CPL, he shall contractually oblige such third parties to accept and to comply with the terms and conditions of CPL.
- Insofar as the customer or his recipients transport leased objects from CPL to third parties, a respective insurance against transport damages, transport losses or breakage shall be con-cluded beforehand at the customer's or his recipient's expense with an insured sum customary in the trade which shall be verified upon CPL's request.
- Insofar as the customer provides the leased objects to his recipients within the framework of the contractual use and starting at 2,000 layer-pads per year, the leased objects shall be collected free of charge by CPL at the customer's headquarters or optionally at the headquar-ters of the recipient in question ("collection point") at the agreed collection time, provided that the collection point is in Germany, Belgium, the Netherlands, Luxemburg or France [here only in départements 08, 54, 55, 59, 62, 67 and 68] ("collection area"). The parties may individually agree on further collection areas.
- If the customer provides the leased objects to recipients outside the collection area, he shall be charged at the so called re-procurement or deposit price, which has been individually agreed beforehand between CPL and the customer. The regula-tion in Section IX. 3 shall apply accordingly.
- Delivery quantities up to 100 layer-pads ("trial deliveries") shall be charged by CPL at the so called re-procurement or deposit price, which has been individually agreed beforehand between CPL and the customer. In trial deliveries, the leased objects shall not be collected by CPL.
- Merchandise supplied by CPL shall only be taken back in a flawless condition following approval by CPL with return freight paid. Merchandise which is taken back and has already been paid for by the customer shall be credited less any costs even-tually incurred or, at the customer's request, the purchase price shall be reimbursed. Taking back special designs or goods specifically procured at the customer's request is excluded, except where the taking back is part of CPL's warranty.
- Leased objects shall also be returned in a flawless condition. In this context, the customer shall particularly comply with the CPL Guidelines, which can be accessed and downloaded under www.cartonplast.de.
- Insofar as the leased objects are returned to CPL in a deterio-rated condition, e.g. contaminated or with cracks which cannot be put down to the contractual use or normal wear and tear, the customer shall bear the costs incurred for the special cleaning, respectively the replacement/re-procurement. 3. To the extent that leased objects are trial deliveries pursuant to Section VIII. 3 or leased objects are supplied by the customer outside the collection area and these leased objects are not returned to CPL after a period of one (1) year after their deliv-ery by CPL, the latter shall be entitled to convert the deposit for those leased objects agreed with the customer into a purchase price and to book it in its books as turnover; this means that the existing lease agreement with the customer is converted into a purchase contract upon respective notification from CPL to the customer. If the customer neverthel- ess wishes to return the merchandise in question to CPL, the latter shall not be obliged to accept such repurchase offer.
- Payment terms
If not agreed otherwise, invoices from CPL shall be due for net payment within 14 days of receipt of the invoice by the cus-tomer. Payment by the customer may be in cash, by bank transfer or by granting a direct debit authorisation. Payments by bill, cheque or credit card will not be accepted by CPL. By request of CPL, the customer shall grant CPL a direct debit authorisation, whereby an auditing period for the customer of no less than five (5) working days must be provided between the customer's receipt of the invoice and CPL's collection of the invoice amount.
Agents of CPL shall only be entitled to receive payments with an express written collection authority which shall always be examined by the customer. The collection authority shall be equalled if an agent of CPL presents a receipted invoice issued by CPL for the individual case.
If a number of claims against the customer exist, incoming payments shall be offset against the earliest claim in each case.
A right of retention by the customer is excluded to the extent that it is not based on the same contractual relationship. Offset of counterclaims shall only be admissible to the extent that they are undisputed or have been legally established.
- Arrears in payment and creditworthiness
In cases of arrears, CPL shall be entitled to charge the cus-tomer with interest in the amount of the loan costs to be paid by CPL itself - to be proven by CPL in the event of dispute - but no less than 8% above the discount rate of the German Federal Bank p.a., plus VAT in each case. The right to claim further damages remains reserved. All claims of CPL shall become due for payment immediately if uncontestable due payments, which make up no less than 15% of the total order value, are not settled despite a reminder or if circumstances become known to CPL which in their due commercial discretion are suited to reduce the customer's creditworthiness. In such a case, CPL shall also be entitled - notwithstan- ding further-reaching statutory rights - to carry out outstanding deliveries only against advance pay-ment or to demand securities or to withdraw from the contract following a suitable period of grace or to demand damages on account of non-performance.
XI. Retention of title
Deliveries by CPL are exclusively performed with retention of title.
- Purchase contract
In case of a purchase contract, ownership in the goods shall only pass to the customer when he has redeemed all its liabili-ties towards CPL.
For open accounts, the reserved title is deemed to be security for CPL's current account claims. The processing, machining, assembly or other exploitation of goods supplied by CPL and still in its possession shall be deemed as done by order of CPL without that any liabilities for CPL originate there from. If the goods supplied by CPL are blended or combined with other goods, the customer assigns its right to ownership or co-ownership of the blended stock or the new object to CPL upon effectiveness of the present terms and conditions and shall store them free of charge on CPL's behalf with the care of a prudent businessman.
The customer may only install the supplied goods in the cus-tomary course of business and may not agree on a ban of assignment with its purchasers. He shall further be obliged to impose CPL's retention of title on its purchasers.
Impairments of CPL's rights, in particular seizures, must be disclosed by the customer to CPL, respectively notified immedi-ately in writing. In the event of seizures, he shall provide CPL immediately with a copy of the seizure record and an affidavit, which stipulates that CPL's retention of title to the pledged object still exists. Upon effectiveness of the present terms and conditions, the customer shall assign to CPL all his claims, including all subsidiary rights and securities, against his purchasers from the future sales of goods supplied by CPL in the invoice amount of the goods supplied by CPL and sold by the customer plus 10%, until complete redemption of all claims by CPL. If the value of the assignments and securities granted to CPL exceeds CPL's claims by a total of more than 10%, CPL engages to release corresponding securities at its choice by request of the cus-tomer. By CPL's request, the customer shall be obliged to dis-close the assignment to its purchaser and to provide CPL with the information and the documents necessary to assert its rights against the purchaser. CPL shall also be entitled to notify his customer's purchaser of the assignment. This shall be deemed as a revocation of the following collection authorisa-tion. The customer shall be entitled to collect the assigned claim on CPL's behalf, but only as long as he contractually complies with his payment duties towards CPL. The customer's authorisa-tion to collect the claim can be revoked by CPL at any time. The collected amounts shall be kept separate by the customer and shall be immediately paid to CPL. The customer shall bear the costs of intervention. Sale within the meaning of the present terms and conditions also covers the processing, assembly or other exploitation.
- Lease agreement
To the extent that the goods are merely leased to the customer by CPL, the latter shall retain unlimited ownership of the objects. The forwarding of the leased objects to recipients or third parties by the customer shall not breach CPL's ownership in the leased objects. The customer shall inform its recipients with a corresponding reference on the accompanying papers (waybill etc.) about the fact that the leased objects are in CPL's posses-sion. Moreover, he shall make a weekly report to CPL about the forwarding of the leased objects to its recipients.
XII. Data protection
- CPL will comply with the statutory provisions on data protec-tion. The customer agrees that the data from the contract is being stored and processed by CPL and forwarded within the company to the extent that this is necessary for the perfor-mance of the contractual relationship as well as for operational and statistical purposes.
- The customer also agrees to the fact that CPL eventually obtains a standard creditworthiness check from respective credit reference agencies before order confirmation and in this context transmits enterprise-related data, in particular the customer's address data, to said agencies. The customer's data concerns will be taken into account pursuant to the statutory provisions and shall not be impaired nor infringed hereby.
XIII. Place of performance/Applicable law/Place of jurisdiction
- Place of performance for the delivery shall be the place of dispatch of the sold/leased goods in question. Place of perfor-mance for all of the customer's duties shall be the headquarters of CPL.
- The legal relationships between CPL and the customer shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (CISG).
- The exclusive place of jurisdiction for all disputes between CPL and the customer shall be Offenbach am Main.
Date: Juli 15, 2011