General Terms and Conditions
German right is applied. The english-speaking version of the General Terms and Conditions is just for information purposes. The version in German language is binding.
The following conditions form the basis and integral part of all sales and delivery businesses initiated or made by us or with us, now and in the future, including all related legal transactions and other performances such as consulting services.
Any standard purchasing / business terms of the purchaser are hereby expressly excluded.
02. Conclusion of contract, term of commitment, amendments
Our offers are non-binding. A purchase order shall not be deemed to have been accepted unless it has been confirmed in writing or delivered by us. Any purchase orders given by the purchaser without specifying an express date shall be binding upon him for three weeks.
The purchaser shall not invoke any modifications or amendments to legal transactions or statements, including the present clause, unless submitted in writing or confirmed by us in writing and / or expressly agreed upon with our authorized agent, empowered to represent us in legal transactions.
03. Delivery date
The delivery dates and times shall apply generally by approximation unless they have been declared expressly to be binding. In the event of our default, the purchaser may assert rights only after an adequate additional period of time to be granted to us. In the event of partial default, the goods already declared ready for shipment must be accepted unless the partial delivery is unacceptable to the purchaser. Any dates or time limits specified are subject to the punctual delivery to ourselves of said materials and the proper compliance with all obligations of the purchaser relevant for our delivery obligation.
04. Delivery impediments
All cases of Force Majeure arising in our company or the companies of our suppliers, preventing us in whole or in part from fulfilling our obligation, shall release us from compliance with a delivery term and from fulfillment of the contract until the circumstances constituting Force Majeure have come to an end. Incidents of Force Majeure include strikes, lock-outs, impossibility of sufficient supply of raw materials and supplies and other operation disturbances, insofar as such incidents could not be foreseen, are relevant for the fulfillment of our obligations and for which we cannot be held responsible, including the selection of our suppliers. If the interruption should last longer than 4 weeks, each party shall be entitled to terminate the contract by giving one week’s written notice. Any claim for compensation, with the exception of repayment of the purchase price already furnished, shall be excluded.
If the purchaser suffers any disturbances of the type described above, these provisions shall apply, mutatis mutandis, to his obligation to accept the goods.
05. Shipment and place of performance
Unless expressly agreed otherwise in writing, we will meet our supply obligation by making the goods available at the loading bay of our factory/warehouse, even when we ship the goods at the purchaser’s request, in which case we will select the freight carrier, with when applicable freight charges and/or transport insurance on behalf of the purchaser. Any goods declared ready for shipment in due time must be accepted by the purchaser without delay. If the shipment or acceptance is delayed for reasons beyond our control, the risk shall pass to the purchaser upon receipt of the ready-for-shipment statement, and we shall be entitled to invoice for the goods immediately.
Upon delayed acceptance by the purchaser, we may charge for storage fees in the amount of 0.5% of the amount invoiced for each month of storage or any part thereof, notwithstanding any other rights, as of the 15th calendar day after which such delay occurs. Acceptance of goods returned without a specific reason shall be subject to review of all facts pertaining, and shall not be deemed to be approval of reversal of contract. Regardless of any other rights, we may purchase back any goods returned by the purchaser without reason at the current value determined by ourselves on the day of acceptance.
06. Payment, damages for non-payment
Place of performance of all payments of the purchaser shall be Neuststadt/Weinstraße, Germany. Unless expressly agreed otherwise, invoices shall be paid within 14 days less 2% cash discount or, without discounts, within 30 days of date of invoice. Cash discount applies only when all payment obligations resulting from previous business transactions have been satisfied.
In the event of delay of payment on the part of the purchaser, interest at a rate of 8% above the applicable base interest rate, as amended, shall be charged. The right to claim further damages is reserved.
Despite any provisions of the purchaser to the contrary, payments may be first applied to the debt providing the lowest amount of security, or, if several debts provide the same degree of security, to the oldest debt payable at any time in accordance with § 367 (1) of the BGB (German Civil Code). The purchaser may offset any claims or exercise a right of retention only with respect to those claims which are uncontested or have been validly determined.
If we doubt the purchaser’s credibility (e.g. due to previous defaults of payment), we shall be entitled to demand all payment obligations effective immediately. Furthermore, we may refuse to fulfill any delivery obligations assumed by us until the payable claims have been settled and reasonable security has been provided with respect to the outstanding deliveries. Any special terms granted to the purchaser shall become void upon default of payment.
In the event that we are entitled to damages from the purchaser for non-compliance, we reserve the right, notwithstanding any other remedies we may have, to claim lump-sum damages at a rate of 15% of the amount invoiced from the purchaser with respect to the business transaction not fulfilled unless the purchaser can prove that the damages incurred by ourselves were lower.
07. Reservation of title, direct debiting approval, purchaser’s obligations to protect and inform the seller
All goods delivered shall remain our property until payment in full of all claims to which we are or may become entitled with respect to the business relationship with the purchaser. The purchaser shall observe all due diligence at no cost in terms of responsibility for the reserved goods.
The reserved goods may be processed or handled on our behalf in our capacity as manufacturer in accordance with § 950 of the BGB (German Civil Code) without imposing any binding obligations on us. If the goods are processed together with third-party items, we shall acquire ownership of the new property in proportion to the amount invoiced for our goods with respect to the amount invoiced of the said third parties. The new goods shall be considered to be reserved goods subject to these provisions.
The purchaser shall not be entitled to pledge the reserved goods or offer them as security.
The purchaser may sell the reserved goods in the ordinary course of business as long as all contractual obligations are punctually met, in particular with respect to the following conditions. All rights resulting from the resale or other legal reasons whatsoever (e.g. tort) with respect to the reserved goods, in particular, all claims, shall be fully transferred to us from the purchaser already assigned as security. If claims arising from such resale are included in a current account existing between the purchaser and his customer, all balance claims resulting from said current account are hereby assigned to us to the extent of the amount corresponding to the original value of the reserved goods as integrated in the current account. We hereby authorize the purchaser, subject to revocation, to collect the claims assigned to us in his own name for our account. All amounts collected shall be used directly to settle our outstanding claims. No claims assigned to us shall be sub-assigned without our approval. The same applies to the sale to and collection by a factor. We shall grant permission to factoring if the factor ensures that all payments made in respect of our reserved goods will be forwarded directly to us by the factor in the amount invoiced by us for these goods.
In the event that any claims assigned to us have been assigned to a factor with a higher priority, the purchaser shall not be entitled to resell our reserved goods or to collect any monies unless payment terms have been agreed upon with the factor in accordance with the above subsection.
Any securities granted shall be released on request in our discretion to the extent that their value exceeds the claims to be secured by the aggregate amount of more than 20%.
Default of payment or other circumstances giving reason to doubt solvency of the purchaser (initiation of insolvency proceedings, loss of assets etc.) shall entitle us to revoke immediately any direct debiting agreement and to reclaim the reserved goods. The purchaser shall grant us access to the reserved goods.
In the event of a third-party attachment of the reserved goods, the purchaser shall indicate our property rights relating thereto and notify us in writing without delay, and the purchaser shall bear all costs and damages in connection therewith. The purchaser hereby agrees and confirms that he will inform us without delay in the event that his financial status should jeopardize proper fulfillment of any obligations he may have or develop with us. This duty shall apply until complete payment of all outstanding accounts from the transaction, in particular, if follow-up agreements are made.In the event of a third-party attachment of the reserved goods, the purchaser shall indicate our property rights relating thereto and notify us in writing without delay, and the purchaser shall bear all costs and damages in connection therewith. The purchaser hereby agrees and confirms that he will inform us without delay in the event that his financial status should jeopardize proper fulfillment of any obligations he may have or develop with us. This duty shall apply until complete payment of all outstanding accounts from the transaction, in particular, if follow-up agreements are made.In the event of a third-party attachment of the reserved goods, the purchaser shall indicate our property rights relating thereto and notify us in writing without delay, and the purchaser shall bear all costs and damages in connection therewith. The purchaser hereby agrees and confirms that he will inform us without delay in the event that his financial status should jeopardize proper fulfillment of any obligations he may have or develop with us. This duty shall apply until complete payment of all outstanding accounts from the transaction, in particular, if follow-up agreements are made.
If any direct debiting agreement is cancelled, we reserve the right to require disclosure by the purchaser of all claims assigned and the debtors thereof, and provision of all information required for collection, to release the necessary documents and to inform debtors of the assignment.
08. Defects, delivery of wrong merchandise and incorrect quantities
The warranty period shall be one year. Goods shall be inspected without delay at their place of destination. The purchaser shall inform us in writing immediately or at latest within one week of delivery if the wrong merchandise or incorrect quantities have been supplied and of any obvious defects.
Complaints submitted later shall not be accepted unless referring to defects not detectable within one week even after due inspection, and then only when the complaint is raised immediately after discovery of the defect within the statutory period granted.
In the event of justified punctual complaint we shall be obliged, at our discretion, to amend the defect or to offer an alternative or additional delivery. Where remedy of defects or substitution or additional delivery is unsuccessful after two attempts, the purchaser may, at his own discretion demand a reduction of the remuneration or cancellation of the contract.
Defects shall be deemed insignificant if a maximum of 0.75% of round drums and a maximum of 1% of other drums delivered by us shows these defects.
Where the purchaser refuses immediate verification of defect notified by him, and especially where the allegedly defective goods or, at his choice, samples thereof, are not made immediately available for examination, all claims based on the alleged defects shall become void.
Any further warranty claims shall be excluded, with the exception of warranty claims based on non-existence of warranted properties.
09. Purchaser’s claim for damages
The purchaser’s claim for damages based on positive violation of contractual duty, from default of contract and on tort associated with either of these events shall be excluded unless motivated by a) intentional acts, b) gross negligence of our legal representatives or corporate officers, or c) the culpable violation of essential contractual obligations. Such claims, excepting those based on tort, shall be limited to one year of delivery of the item to the purchaser.
In the event of impossibility, default and tort associated with either, claims shall be limited to reimbursement of damages foreseeable at the time of establishment of contract, unless motivated by intentional acts or gross negligence. We shall not be liable for warranted properties unless warranty was given expressly in writing and intended explicitly to protect the purchaser from any such damage incurred.
10. Technical condition for any application
In any claim, the purchaser shall have sole responsibility for review of all aspects of samples made available to him prior to delivery, and for performance of packaging and suitability tests.
We shall not be liable for the suitability of drums for specific products unless we have expressly guaranteed the suitability in writing.
11. Property rights and tools
If the items purchased are exported, compliance with any foreign property rights and labeling requirements shall be the purchaser's responsibility. He shall be solely responsible for the consequences of any violation of such rights and regulations and shall release us from any liability against all third-party claims.
Any designs, lithographs, clichés, printing plates, embossing dies, tools and moulds shall remain our property and shall be invoiced on a proportional basis only. They shall not be made available to third parties without our prior, written consent. We will carefully retain these items for a term of 2 years after delivery of the goods under last order for possible follow-up orders, and will be responsible for their proper state of repair. We shall not bear costs of replacing any items no longer fit for use unless this condition is proven to be our fault.
Where the purchaser provides any tools or moulds, he shall be responsible for their proper construction. These tools and moulds shall be provided free of charge and will be stored on our premises at the purchaser’s risk.
12. Data storage
The purchaser’s data will be processed by electronic means for the purpose of order handling.
13. Choice of forum, choice of law, written form, severability
The laws of the Federal Republic of Germany shall be applicable hereto to the extent that they are applicable to residents.
In all commercial transactions, the exclusive venue with respect to all financial disputes between the parties resulting from or in connection with the business relationship shall be Neustadt/Weinstrasse, unless another exclusive venue has been stipulated by law with respect to the issue in dispute.
Wherever required herein, the written form shall be deemed to have been complied with, also when the document has been sent in due form via facsimile or e-mail.
In the event that any part of these conditions should be deemed invalid, all parties shall agree on valid substitute provisions meeting the manifest intention of all parties to the best possible extent.
Last amended on: 20.03.2003