§ 1 General and subject matter of the contract
1. Our General Terms and Conditions (GTC) shall apply to entrepreneurs within the meaning of Section 310 (1) in conjunction with Section 14 of the German Civil Code (hereinafter referred to as "BGB"); entrepreneurs in this sense are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who act in the exercise of a commercial or independent professional activity.
2. Our General Terms and Conditions shall apply to all our business activities. They apply to all present and future business relations with the entrepreneur, even if they are not expressly agreed again.
3. Our GTC shall apply exclusively; conflicting GTC and other conditions of the entrepreneur (hereinafter also referred to as the customer) shall not become part of the contract. They shall not be recognized even if we do not object to them after receipt by us and perform the service incumbent upon us with knowledge of them. Deviating general terms and conditions and other conditions of the customer shall only become part of the contract if they are expressly confirmed by us in writing. 4.
4. verbal collateral agreements, which are to supplement the written provisions of this contract, do not exist.
5. our company specializes in the sale of packaging for transport such as - but not limited to - cardboard boxes, films, paper, adhesive tapes as well as innovative packaging systems; we also provide consulting services to the purchaser as well as system deliveries of packaging (hereinafter also referred to collectively as "service" or "delivery").
§ 2 Offer and conclusion of the contract
1. Our offers, whether made orally or in writing, are made without engagement and are not binding; they do not oblige us to deliver. Anything to the contrary shall only apply if we have expressly marked our offer as binding or if it contains a specific acceptance period. Presentations and offers on our Internet pages, on flyers, in catalogs, etc. do not constitute binding contractual offers, but only invitations to the purchaser to submit an offer on his part.
2. by placing an order for the service, the purchaser bindingly declares that he wishes to place the order. We shall be entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance may be declared either in writing or by performance of the service (order confirmation). Our order confirmation shall be exclusively authoritative for the scope of the contractually owed service. If we do not respond to the customer's offer, this shall expressly not be deemed to be tacit acceptance. 3.
3. consultations and verbal promises on our part prior to conclusion of the contract are not legally binding.
4. Our information on the object of performance (e.g. load capacity, weight, utility values, dimensions, tolerances and technical data) as well as representations of the same (e.g. drawings, sketches and illustrations) are only approximately authoritative unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but merely descriptions or identifications of our services. Deviations that are customary in the trade and deviations that occur due to legal regulations are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Protection of our intellectual property
1. We retain ownership and/or copyright for all consulting services, offers, information, recommendations and documents (in particular illustrations, drawings, calculations, brochures, catalogs, etc.) provided by us within the scope of the order. This shall also apply to such written documents which are marked as "confidential". The purchaser acknowledges our exclusive rights, even if these are not protected by copyright, trademark or competition law.
2. the orderer is not authorized to disclose in whole or in part to third parties. The prohibition of disclosure shall not apply
a) to the purchaser's lawyers if they advise the purchaser in connection with our performance,
b) to the extent that the Purchaser is obliged to disclose such information by law (in this case the Purchaser shall - to the extent permissible - notify us without undue delay), and
c) to other persons or companies (including companies affiliated with the Purchaser), if and to the extent that we have given our prior written consent.
§ 4 Prices and other costs
1. Unless expressly stated otherwise in our order confirmation, our prices are ex works, in Euro (€) and exclusive of packaging, shipping and transport costs, statutory value added tax and, in the case of export deliveries, exclusive of customs duties, fees and other public charges.
2. Any packaging materials required as well as shipping and transport costs and any work associated therewith shall be invoiced separately. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back, with the exception of pallets. The customer is obliged to dispose of the transport and other packaging at his own expense.
3. Our price lists, catalogs, flyers, Internet price quotations, etc. are subject to change without notice unless a fixed price agreement has been expressly made in writing.
4. The statutory value added tax shall be shown separately in the invoice at the statutory rate on the day of invoicing.
5. If the prices of our suppliers, our costs (e.g. wage and raw material price increases, etc.) or our levies increase or are newly introduced between the conclusion of the contract and the performance of the service, we shall be entitled to increase the price accordingly, unless the price has been expressly confirmed in writing as a fixed price.
6. If we take into account changes requested by the customer, we shall be entitled to charge the customer for the additional costs incurred.
7. If expressly requested by the Purchaser, we shall cover the shipment or transport by insurance; the costs incurred in this respect shall be borne by the Purchaser.
8. In the event of deviations in weight and quantity for which neither we nor the Purchaser are responsible, the dispatch weight or the filling quantity determined in our works shall be decisive.
§ 5 Terms of Payment, Default in Payment and Credit Unworthiness
1. Unless otherwise stated in the invoice itself or in the order confirmation, our invoices shall be due for payment within 30 days from the date of invoice, free of postage and expenses and without deductions. The date of receipt by us shall be decisive for the date of payment. After expiry of this period, the customer shall be in default of payment.
2. We are not obliged to accept bills of exchange and checks. We accept bills of exchange only subject to the possibility of discounting. Checks and bills of exchange shall only be credited after they have been cashed, and assignments of claims shall only be credited after payment. Our claim and its maturity remain unaffected until then. We do not assume any liability for timely cashing and protesting. Protest and collection charges shall be borne by the customer.
3. We shall be entitled, despite any terms and conditions of the customer to the contrary, to set off payments first against the customer's older debts, starting with the oldest debt and then in ascending order. The due date shall be decisive for the sequence. 4.
4. the customer shall only have the right to set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. 5.
5. In the event that the agreed payment deadlines are exceeded (default) or if we become aware of a protest of a check and/or bill of exchange, we shall be entitled to,
a) to withdraw from all contracts and to claim damages for non-performance;
b) demand securities and realize securities provided;
c) to make all outstanding payments from the business relationship due and payable and to make outstanding deliveries only against advance payment;
d) charge interest on arrears from the due date at a rate of nine percentage points above the prime rate of the European Central Bank plus the value added tax applicable at the time;
e) if necessary, to claim further damages for default from the customer after providing appropriate evidence.
We shall also be entitled to the right under letter c) in the event that we become aware of circumstances that call into question the creditworthiness of the customer. Dunning costs shall be borne by the customer.
6. in the event of legal action or the opening of insolvency proceedings against the assets of the purchaser, all rebates, bonuses and discounts granted on unpaid invoices shall lapse.
§ 6 Delivery, delivery time, force majeure and other events, call-off contracts
1. the date on which we are ready to ship and have notified the purchaser of this fact shall be decisive for the delivery date.
2. delivery shall be ex works unless expressly agreed otherwise in writing.
3. Delivery dates and delivery periods promised by us are always only approximate and are not binding, unless a fixed delivery date or a fixed delivery period has been expressly agreed in writing.
4. If shipment has been agreed, delivery dates and delivery periods shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
5. compliance with our delivery obligation requires the timely and proper fulfillment of the customer's obligations. We reserve the right to plead non-performance of the contract. Without prejudice to our rights arising from default on the part of the Purchaser, we may demand from the Purchaser an extension of the delivery date or delivery period or its postponement by the period during which the Purchaser fails to meet its contractual obligations towards us. 6.
6. We shall be entitled to make partial deliveries to a reasonable extent and to deviate from the agreed quantities within the quantity and quality tolerances customary in the industry. The right to make partial deliveries shall exist in particular if
a) the partial delivery is usable for the Purchaser within the scope of the contractual purpose,
b) the delivery of the remaining ordered goods is ensured and
c) the customer does not incur any significant additional expenses or costs as a result (unless we expressly agree in writing to bear the costs).
7. We shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure. We shall likewise not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by other events unforeseeable at the time of conclusion of the contract (e.g. transport delays, shortage of labor, energy or raw materials, operational disruptions of any kind, difficulties in the procurement of materials or energy, strikes, lawful lockouts, difficulties in obtaining necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract in whole or in part at our discretion without being entitled to claim damages. In the event of hindrances of temporary duration, the delivery periods shall be extended or the delivery dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the purchaser cannot reasonably be expected to accept the delivery as a result of the delay, he may withdraw from parts of the contract not yet fulfilled after setting a reasonable period of grace.
8. If we are in default with a delivery or if a delivery becomes impossible for us, regardless of the reason, our liability for damages shall be limited in accordance with § 10 of these General Terms and Conditions of Business.
9. Contracts with agreed partial deliveries (call-off contracts) oblige the customer to accept the partial deliveries in approximately equal monthly installments, unless otherwise expressly agreed in writing. In the case of call orders without fixed call dates, the latest acceptance of the total call quantity shall be the period of one year. If no call-off orders are placed, we shall be entitled to invoice partial quantities at four-week intervals in such a way that the partial invoice is issued at the end of the one-year period. Each partial invoice shall be announced fourteen days in advance by setting a fourteen-day acceptance period. The due date of partial invoices is subject to our terms of payment. If the customer does not accept the goods even after setting a grace period, we may withdraw from the contract or claim damages and storage costs.
§ 7 Default of Acceptance and Cooperation Obligations of the Customer
If the customer is in default of acceptance or culpably violates other duties to cooperate (e.g. delivery of files, sketches, data or similar), we shall be entitled to withdraw from the contract and to claim damages, including any additional expenses and storage costs customary in the locality. We reserve the right to assert further claims.
§ 8 Place of Performance, Shipping and Packaging, Transfer of Risk
1. Bremen shall be the place of performance for all obligations arising from the contractual relationship between the parties.
2. If shipment has been agreed, we shall be entitled to determine the mode of shipment and the packaging at our discretion, unless otherwise expressly agreed in writing.
3. the risk of accidental loss or accidental deterioration of the goods, and thus also the cost risk, shall pass to the customer at the time when we have made the goods available ex works. If shipment has been expressly agreed in writing, the risk shall pass to the customer at the latest when the goods are handed over to the forwarding agent, carrier or other third party entrusted with the transport. The start of the loading process shall be decisive for the time of handover of the goods. The foregoing shall also apply if partial deliveries have been agreed. If shipment or handover is delayed due to circumstances caused by the customer, the risk shall pass to the customer at the time when we are ready to ship and have notified the customer thereof. The risk of accidental loss or accidental deterioration of the goods shall pass in the case of § 7 of these General Terms and Conditions at the time at which the customer is in default of acceptance or debtor's delay.
4. after the passing of risk, the customer shall bear the storage costs. 5.
5. If expressly requested by the customer, we shall insure the goods at the customer's expense against theft, breakage, transport, fire and water damage or other insurable risks.
§ 9 Warranty
1. warranty claims of the purchaser presuppose that the purchaser has duly fulfilled his obligations to inspect the goods and to give notice of defects in accordance with § 377 HGB (German Commercial Code). The delivered goods shall be inspected carefully immediately after delivery to the Purchaser or to the third party designated by the Purchaser. The goods shall be deemed to have been approved if we have not received a written notice of defect with regard to obvious defects or other defects which were identifiable during an immediate, careful examination within seven working days after delivery of the goods, or otherwise within seven working days after discovery of the defects or the point in time at which the defects were identifiable for the purchaser during normal use of the goods without closer examination. If a defect is notified, the goods complained about shall be returned to us freight prepaid upon our request, unless we arrange for the collection ourselves. In the event of a justified notice of defect, we shall reimburse the costs of the most favorable shipping route, provided that the customer has arranged and paid for the return shipment; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use. If it turns out that the defect complained of is not present or that we are not responsible for this defect, the customer shall be obliged to reimburse us for all costs incurred in connection with the unjustified complaint.
2. defects which were externally recognizable at the time of acceptance of the goods must be reported immediately to the carrier or forwarding agent or any other third party entrusted with the transport and must be noted in writing on the shipping documents etc. and confirmed by the signature of the driver.
3. If there are material defects in the delivered goods, we shall be obliged and entitled, at our discretion within a reasonable period of time, to first arrange for subsequent performance in the form of rectification of defects or replacement delivery of new goods free of defects. In the case of a replacement delivery, we shall take back the defective goods free of charge; in the case of rectification of defects, we shall bear all costs incurred as a result, such as transport, travel, labor and material costs. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the subsequent performance, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. However, in the case of a minor breach of contract, in particular in the case of only insignificant defects, the warranty shall be limited to supplementary performance. 4.
4. If the defect is due to a fault on our part, the Purchaser may claim damages under the conditions set out in § 10 of these GTC.
5. all warranty claims shall lapse if the customer modifies the goods or has them modified by third parties without our consent and subsequent performance is thereby rendered impossible or unreasonably difficult. In any case, the purchaser shall bear the additional costs of subsequent performance resulting from the modification.
6. The limitation period for warranty claims is one year, calculated from the transfer of risk.
7. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
8. unavoidable deviations in quality, material purity, color and other properties shall be deemed to be defects. With regard to material thicknesses and dimensional deviations, the terms and conditions of the paper and cardboard industry of the Federal Republic of Germany, as amended from time to time, shall apply. For imported materials, the corresponding conditions of the respective country of manufacture shall apply. 9.
9. the customer is obliged to check the suitability of the goods for the intended use himself. Samples for tests can be made available, if necessary at the expense of the Purchaser, within the usual scope.
§ 10 Limitation of liability
1. Our liability for damages shall be limited in accordance with the provisions of this § 10, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, insofar as fault is involved in each case. This limitation shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages in lieu of performance. 2.
2. Insofar as we provide technical information or act in an advisory capacity and such information or advice is not part of the contractually agreed scope of performance owed by us, this shall be done free of charge and to the exclusion of any liability.
3. We shall be liable for warranted characteristics only in reasonable proportion to the value of the delivery; however, not more than twice the invoice value of a delivery.
4. We shall not be liable for any consequential damage resulting from the processing of the goods.
5. We shall be liable for damages resulting from injury to life, body or health in accordance with the statutory provisions. The same applies to intent and gross negligence as well as to mandatory liability under the Product Liability Act.
6. We shall only be liable for ordinary negligence if material contractual obligations are breached which arise from the nature of the contract and are of particular importance for achieving the purpose of the contract. In the event of a breach of such essential contractual obligations (including damages due to delay or impossibility), our liability shall be
a) limited to such damages as may typically be expected to arise under the contract, and
b) for indirect damages or consequential damages, including (but not limited to) lost sales, profits, loss of production and / or business interruption at the customer or its customers, excluded.
7. insofar as we are liable for a delay in delivery, our liability shall be limited for each full week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the value of the delivery, but not more than 15% of the value of the delivery.
8. Insofar as liability for damages against us is excluded or limited in accordance with this § 10, this shall also apply with regard to the personal liability for damages of our legal representatives, employees, workers and vicarious agents.
9. Claims of the Purchaser against us for breach of duty, in particular claims for damages, shall become statute-barred after one year from notification by us of completion of the performance, but no later than one year from handover of the goods to the Purchaser or a company commissioned to transport or dispatch the goods. This shall not apply if we can be accused of gross negligence or intent, as well as for damages resulting from injury to life, body or health. 10.
10. any mandatory legal liability remains unaffected.
§ 11 Retention of title
1. The following agreed reservation of title serves as security for all our existing current and future claims against the customer arising from the business relationship existing between the contracting parties; this applies including all balance claims from current account.
2. we retain title to the goods until full payment of all outstanding claims arising from the business relationship.
3. in the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled, but not obliged, to take back the goods. The taking back of the goods by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the goods by us shall always constitute a withdrawal from the contract. After taking back the goods, we shall be entitled to sell them; the proceeds of sale shall be credited to the customer's liabilities, less reasonable sales costs.
- less reasonable costs of realization.
4. The customer is obliged to treat the goods with care; in particular, he is obliged to insure them adequately at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the Purchaser must carry this out in good time at its own expense.
5. In the event of seizure or other interventions by third parties, the purchaser shall notify us in writing without delay 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 court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us. 6.
6. The customer shall be entitled to resell the goods 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 goods have been resold without or after processing. The customer shall remain authorized to collect this claim even after 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 has been made to open composition or insolvency proceedings or payments have 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. 7.
7. the processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title.
8. If the goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other mixed items 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 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. 9.
9. The customer shall also assign to us the claims to secure our claims against him which arise against a third party as a result of the combination of the goods with real property.
10. 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 20%; the selection of the securities to be released shall be incumbent upon us.
§ 12 Data Protection
The purchaser acknowledges and agrees that we store data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and that we reserve the right to transmit the data to third parties (e.g. licensing, insurance, etc.) insofar as this is necessary for the performance of the contract.
§ 13 Final provisions
1. The place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with a contract between us and the customer shall be Bremen. However, we shall also be entitled to sue the customer at the court of his place of business.
2. These General Terms and Conditions and the entire legal relationship between us and our customers shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
3. should individual provisions of the contract with the purchaser, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective provision shall be replaced by a provision whose economic success comes as close as possible to that of the ineffective provision.
J. N. Lüning & Co. GmbH, Straubinger Straße 9,